PRIVATE LIBRARY 
 
 OF- 
 
 J. S. Leonhardt, M. D. 
 
 No. 

 
 ON 
 
 CIVIL LIBERTY 
 
 AND 
 
 SELF-GOVERNMENT. 
 
 BY 
 
 FRANCIS LIEBER, LL.D., 
 
 CORRESPONDING MEMBER OF THE INSTITUTE OF FRANCE, ETC.; 
 
 AUTHOR OF " POLITICAL ETHICS," " PRINCIPLES OF LEGAL AND POLITICAL INTERPRETATION, 
 
 ETC., ETC. 
 
 THIRD EDITION, REVISED. 
 
 EDITED BY THEODORE D. WOOLSEY. 
 
 PHILADELPHIA: 
 
 J. B. LIPPINCOTT & CO. 
 
 LONDON : TRUBNER & CO. 
 1877.
 
 Entered, according to Act of Congress, in the year 1874, by 
 
 MATILDA LIEBER, 
 In the Office of the Librarian of Congress at Washington.
 
 TO 
 
 HIS FORMER PUPILS 
 
 THIS VOLUME 
 
 is 
 INSCRIBED 
 
 IN KIND REMEMBRANCE 
 BY THE AUTHOR.
 
 INTRODUCTION 
 
 THE THIRD EDITION. 
 
 THE first edition of " Civil Liberty and Self-Government" 
 was published in 1853, when Dr. Lieber was a professor in 
 the University of South Carolina; the second, enlarged by 
 notes and corrected, appeared in 1859, two years after he had 
 accepted a chair in Columbia College, New York. The second 
 edition was exhausted when he died, October 2, 1872; and if 
 he had lived, he would, I think, have prepared a third edition, 
 for the work had come pretty extensively into the hands both 
 of college students and of mature men of literary culture. But 
 the last years of Dr. Lieber's life, after the war, with the duties 
 and studies which it laid upon him, was over, were occupied 
 with other literary work. And so there has been for some 
 time an important gap in the works which can be recom- 
 mended to the student of political science. The author of 
 this preface was requested by the family of Dr. Lieber to 
 undertake the office of preparing both the " Civil Liberty and 
 Self-Government," and the " Political Ethics," for a new edi- 
 tion. The former, as being most in demand, it was thought 
 best to get in readiness for the press first; the other, it is 
 probable, will be given to the public after no very long 
 interval. 
 
 The writer of these lines had long been familiar with this 
 work. Soon after its appearance, he wrote a somewhat extended 
 review of it, in which he spoke with plainness, perhaps with 
 undue emphasis, of certain minor inaccuracies in the first 
 
 5
 
 6 INTRODUCTION TO THE THIRD EDITION. 
 
 edition, which had escaped its author's notice. But the review 
 was the means of bringing him into acquaintance, and after- 
 wards into friendly relations, with Dr. Lieber : perceiving the 
 merits of the work, and its suitableness for the wants of young 
 men in the United States, he was the first, or among the first, 
 to recommend it to students, so that as early as 1854 or 1855 
 he put it into the hands of his pupils in Yale College. And he 
 has had very good reason to believe that the general effect of 
 the work upon young men has been of the most salutary kind. 
 
 The work now appears in all important particulars as the 
 author left it. A few slight corrections have been silently 
 introduced into the text; the notes have received additions 
 where explanations of the text seemed to be required, and 
 where the progress of events threw light on the author's views. 
 One or two notes are put in the place of notes in the last 
 edition, for special reasons, which are indicated in the notes 
 themselves. These changes and additions, in all but few, are 
 denoted by brackets. On the whole, while the work has been 
 carefully examined, the amount of alterations has been very 
 small, and throughout nothing is obtruded on the author. 
 
 It would be a grateful task to speak at length here of the 
 services which Dr. Lieber rendered to political science in this 
 country. But we must refer our readers to the charming sketch 
 of his life and character, given by his friend Judge M. Russell 
 Thayer in an address before the Historical Society of Pennsyl- 
 vania. He was indeed the founder of this science in this country, 
 in so far as by his method, his fulness of historical illustration, 
 his noble ethical feeling, his sound practical judgment, which 
 was of the English rather than of the German type, he secured 
 readers among the first men of the land, influenced political 
 thought more than any one of his contemporaries in the United 
 States, and made, I think, a lasting impression on many 
 students who were forming themselves for the work of life. 
 Severely scientific he could not be called ; he was sometimes a 
 little verbose, and his abundant stores of knowledge and read- 
 ing were poured profusely out on his readers ; but I am not 
 sure that a writer so full of illustration, so transparent in his
 
 INTRODUCTION TO THE THIRD EDITION. 7 
 
 feelings, and with so little reserve, is not the fittest to leave a 
 genial remembrance and a happy impression in the minds of 
 the largest number of men. 
 
 Dr. Lieber's vicissitudes of life were of a kind to cultivate in 
 him practical judgment concerning political matters. Sharing 
 in his early youth in that inspiration of patriotism which 
 drove so many young Germans into the field, and partaking 
 of the toils of the Waterloo campaign, during which, at the 
 battle of Namur, he was wounded; then returning to his 
 native city, Berlin, to fall under the suspicion of the govern- 
 ment on account of his connection with the ardent patriot 
 Jahn ; next, after his graduation at Jena, making his way into 
 Greece, as a volunteer in the cause of Greek independence; 
 thereupon, disappointed and destitute, taking refuge in Italy, 
 where the historian Niebuhr invited him to act as tutor of his 
 son ; then returning into Prussia with promises of protection, 
 which were fulfilled by his imprisonment, and gladly, on his 
 release, going to London, where he supported himself for a 
 year by writing and teaching, he at length, in 1827, found a 
 permanent domicile in the United States. But here for some 
 time he had no fixed dwelling-place. From Boston, where he 
 stayed five years, he removed to New York in 1832, then to 
 Philadelphia in 1833, and then, in 1835, accepted the chair of 
 History and Political Economy in the University of South 
 Carolina. One more transplantation, from this scene of his 
 professional as well as literary labors, brought him, as we have 
 seen, to New York, in 1858, where he ended his days. Thus, 
 resembling the Greek 
 
 " Qui multorum hominum mores et vidit et urbes," 
 
 he was enabled to add to the treasures of history with which 
 his education had enriched his mind, the experience of a man 
 versed in life, acquainted with mankind under many forms of 
 society, having the best opportunities to observe governments 
 and political institutions, and stimulated by intercourse with a 
 person like Barthold Niebuhr. It is worth noticing here that 
 his life in the United States was almost equally diversified with
 
 8 INTRODUCTION TO THE THIRD EDITION. 
 
 his earlier life passed in Europe. Especially he had an oppor- 
 tunity, such as few have had, of seeing life in a State where 
 slavery existed, in a State at the very head of Southern insti- 
 tutions, where a large number of refined men, given to politics, 
 had reduced Southern principles to a doctrine, which they 
 sought to engraft on the Constitution of the country, under 
 the guidance of so accomplished and deep-thinking a states- 
 man as Calhoun. 
 
 Dr. Lieber's native traits of mind seem to have been such 
 that he was able readily to assimilate the impressions which 
 a great diversity of institutions made upon him. We are wont 
 to contrast the German mind, deep but not clear, prone to 
 speculation, unpractical, with our practical, clear-sighted, but 
 short-sighted English mind. But Dr. Lieber, while he had a 
 scientific " anlage" had an eminently practical spirit, capable 
 of gathering from history and experience their lessons, and of 
 reconciling scientific truth with the demands and possibilities 
 of an existing state of things. The science of politics rests on 
 the idea of justice and of rights; but the questions, What is the 
 best possible state ? How far can the experience of one state 
 be applied with advantage to another? What securities are 
 needed by a nation against a government ? and What power 
 is needed by a government for the highest welfare of the 
 nation ? these and many others are purely practical questions, 
 which must be answered by the experience, the knowledge, 
 the wisdom of thoughtful men, or else abstractionists and 
 political revolutionists will answer them to a nation's ruin. 
 Dr. Lieber felt that English liberty had been under a remark- 
 able guidance of the divine Ruler of men ; that justice, order, 
 stability, freedom, had been reconciled in it in a wonderful 
 way ; that its capacity of progress without revolution set it up 
 as a model and guide to the nations ; while yet, everywhere, 
 the best men ought to judge, with all the light and candor 
 possible, how far these principles of the Anglican race could 
 be adopted and engrafted on other constitutions. He was 
 thus no German, except in justly estimating the excellent 
 traits of his fatherland: in his political judgments he was
 
 INTRODUCTION TO THE THIRD EDITION. 9 
 
 more of an Englishman or of a republican than anything else. 
 We wonder, as we become acquainted with him in the writings 
 of his mature life, how there could have been any froth of 
 liberty in his youth which brought suspicion upon him, and 
 can only account for the treatment he received from the police 
 of his native country by that dread of revolution which French 
 movements during a generation had aroused, and which, with 
 unnatural sharpness of sight, saw in the youthful deliverers of 
 their country the foes of kings. 
 
 The "Civil Liberty and Self-Government" cannot be read 
 profitably without taking into view the events of 1848 and the 
 new empire of Napoleon III. Through the book there is a 
 contrast, which often appears, between Anglican and Gallican 
 liberty, between checks and guarantees, institutions and dif- 
 fused power, on the one hand, and a government, on the other, 
 with no checks and no institutions, with a centralized power 
 swallowing up all minor authority in the great leviathan, and 
 calling that a government of the people, because the people gave 
 their consent to it once and forever. Our author watched this 
 French system, no doubt, with intense interest, and when he 
 saw the government of lies and of moral corruption falling 
 under the blows of a vigorous foe, it was not as a Prussian or 
 a German that he rejoiced in it, but as a man, a true American 
 and a Christian. Here was the judgment of events, the rebuke 
 of God. If, together with this high satisfaction in catching 
 glimpses of a divine government, we might attribute some 
 pleasure to our author when he found that history was con- 
 firming his theory, that he had almost prophesied in this book, 
 and that the hopes of mankind would be the brighter for what 
 happened in 1870, we could not surely find fault with him. 
 
 The value of this work in this country consists chiefly in its 
 corrections of some of our prevalent tendencies. In chapter 
 xxii. the author remarks that, as it appears to him, "while 
 the English incline occasionally too much to the historical 
 element, we, in turn, incline occasionally too much toward 
 abstraction ;" and further, " that it is certain that we conceive 
 of the rights of the citizen more in the abstract, and more as
 
 10 INTRODUCTION TO THE THIRD EDITION. 
 
 attributes of his humanity." Both of these remarks are un- 
 doubtedly true. We are inexperienced and self-confident, 
 with small historical knowledge, and we run into abstractions 
 as the easiest things for the least educated to comprehend, and 
 for demagogues to make the starting-point in their projects 
 and deductions. We make little distinction practically be- 
 tween personal and political rights, so that the right of suffrage 
 seems to belong to the human being as such, although, incon- 
 sistently, we withhold it still from women and minors. A citi- 
 zen without suffrage is hardly conceived of. We are coming, 
 too, to believe in a more liberal construction of the general 
 Constitution, so as to throw larger power into the hands of 
 Congress, and to look to the government for help in difficulty ; 
 and this at the very time when the newest and wisest reforms 
 in state constitutions are restricting legislatures in the sphere 
 of their functions. The tendency plainly is towards a more 
 centralized government by a freer interpretation of the United 
 States Constitution. The dangers which menace us from this 
 tendency, and from what may be called democratic abstraction, 
 are met by such a book as this, which teaches that there is no 
 safe liberty but one under checks and guarantees, one which 
 is articulated, one which by institutions of local self-govern- 
 ment educates the whole people and moderates the force of 
 administrations, one which sets up the check of state power 
 within certain well-defined limits against United States power, 
 one which draws a broad line between the unorganized masses 
 of men calling themselves the people and the people formed 
 into bodies, "joined together and compacted" by constitutions 
 and institutions. 
 
 May this book still lead our young men into the paths of 
 political wisdom, and may the old guarantees and checks, the 
 substance of English liberty, with whatever of good we have 
 received that is peculiar to the American people, have, as years 
 roll on, more and more of our confidence and veneration ! 
 
 THEODORE D. WOOLSEY. 
 
 NEW HAVEN, January 28, 1874.
 
 CONTENTS. 
 
 CHAPTER I. 
 
 PAGB 
 
 INTRODUCTORY 17 
 
 CHAPTER II. 
 DEFINITIONS OF LIBERTY . 23 
 
 CHAPTER III. 
 
 THE MEANING OF CIVIL LIBERTY 37 
 
 CHAPTER IV. 
 
 ANCIENT AND MODERN LIBERTY. ANCIENT, MEDIEVAL, AND MODERN 
 STATES 43 
 
 CHAPTER V. 
 ANGLICAN LIBERTY 51 
 
 CHAPTER VI. 
 NATIONAL INDEPENDENCE. PERSONAL LIBERTY 56 
 
 CHAPTER VII. 
 BAIL. PENAL TRIAL 67 
 
 CHAPTER VIII. 
 HIGH TREASON 79 
 
 CHAPTER IX. 
 
 COMMUNION. LOCOMOTION, EMIGRATION 87 
 
 ii
 
 1 2 CONTENTS. 
 
 CHAPTER X. 
 
 PAGE 
 
 LIBERTY OF CONSCIENCE. PROPERTY. SUPREMACY OF THE LAW . 97 
 
 CHAPTER XI. 
 QUARTERING SOLDIERS.- THE ARMY 113 
 
 CHAPTER XII. 
 PETITION. ASSOCIATION . . .121 
 
 CHAPTER XIII. 
 PUBLICITY 127 
 
 CHAPTER XIV. 
 SUPREMACY OF THE LAW. TAXATION. DIVISION OF POWER . . 143 
 
 CHAPTER XV. 
 
 RESPONSIBLE MINISTERS. COURTS DECLARING LAWS UNCONSTITU- 
 TIONAL. REPRESENTATIVE GOVERNMENT . . . . . .159 
 
 CHAPTER XVI. 
 
 REPRESENTATIVE GOVERNMENT, CONTINUED. BASIS OF PROPERTY. 
 DIRECT AND INDIRECT ELECTIONS .171 
 
 CHAPTER XVII. 
 
 PARLIAMENTARY LAW AND USAGE. THE SPEAKER. Two HOUSES. 
 THE VETO 185 
 
 CHAPTER XVIII. 
 INDEPENDENCE OF THE JUDICIARY. THE LAW, jus, COMMON LAW . 203 
 
 CHAPTER XIX. 
 
 INDEPENDENCE OF jus, SELF-DEVELOPMENT OF LAW, CONTINUED. AC- 
 CUSATORIAL AND INQUISITORIAL TRIALS. INDEPENDENCE OF THE 
 JUDGE 215 
 
 CHAPTER XX. 
 INDEPENDENCE OF jus, CONTINUED. TRIAL BY JURY. THE ADVOCATE 232
 
 CONTENTS. ! 3 
 
 CHAPTER XXI. 
 
 PAGE 
 
 SELF-GOVERNMENT 247 
 
 CHAPTER XXII. 
 AMERICAN LIBERTY . 256 
 
 CHAPTER XXIII. 
 
 IN WHAT CIVIL LIBERTY CONSISTS, PROVED BY CONTRARIES . . . 270 
 
 CHAPTER XXIV. 
 GALLICAN LIBERTY. SPREADING OF LIBERTY 279 
 
 CHAPTER XXV. 
 
 THE INSTITUTION. ITS DEFINITION. ITS POWER FOR GOOD AND EVIL 297 
 
 CHAPTER XXVI. 
 
 THE INSTITUTION CONTINUED. INSTITUTIONAL LIBERTY. INSTITU- 
 TIONAL LOCAL SELF-GOVERNMENT . . . . . . .316 
 
 CHAPTER XXVII. 
 EFFECTS AND USES OF INSTITUTIONAL SELF-GOVERNMENT . . . 324 
 
 CHAPTER XXVIII. 
 DANGERS AND INCONVENIENCES OF INSTITUTIONAL SELF-GOVERNMENT . 336 
 
 CHAPTER XXIX. 
 ADVANTAGES OF INSTITUTIONAL GOVERNMENT, FARTHER CONSIDERED . 346 
 
 CHAPTER XXX. 
 
 INSTITUTIONAL GOVERNMENT THE ONLY GOVERNMENT WHICH PREVENTS 
 THE GROWTH OF TOO MUCH POWER. LIBERTY, WEALTH, AND LON- 
 GEVITY OF STATES 357 
 
 CHAPTER XXXI. 
 
 INSECURITY OF UNINSTITUTIONAL GOVERNMENTS. UNORGANIZED INAR- 
 TICULATED POPULAR POWER 363
 
 I4 CONTENTS. 
 
 CHAPTER XXXII. 
 
 PAGB 
 
 IMPERATORIAL SOVEREIGNTY 374 
 
 CHAPTER XXXIII. 
 
 IMPERATORIAI, SOVEREIGNTY, CONTINUED. ITS ORIGIN AND CHARACTER 
 EXAMINED 381 
 
 CHAPTER XXXIV. 
 CENTRALIZATION. INFLUENCE OF CAPITAL CITIES 389 
 
 CHAPTER XXXV. 
 Vox POPULI Vox DEI 398 
 
 APPENDIX. 
 
 APPENDIX I. 
 
 A PAPER ON ELECTIONS, ELECTION STATISTICS, AND GENERAL VOTES OF 
 
 YES OR NO 413 
 
 APPENDIX II. 
 
 A PAPER ON THE ABUSE OF THE PARDONING POWER . . . -431 
 
 APPENDIX III. 
 
 A PAPER ON SUBJECTS CONNECTED WITH THE INQUISITORIAL TRIAL 
 
 AND THE LAWS OF EVIDENCE 45! 
 
 APPENDIX IV. 
 MAGNA CHARTA OF KING JOHN .458
 
 CONTENTS. 15 
 
 APPENDIX V. 
 
 PAGB 
 THE PETITION OF RIGHT 478 
 
 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" 483 
 
 APPENDIX VII. 
 
 BILL OF RIGHTS, PASSED I WlLLIAM AND MARY, SESS. 2, CH. 2, 
 
 1689 492 
 
 APPENDIX VIII. 
 
 A DECLARATION BY THE REPRESENTATIVES OF THE UNITED STATES OF 
 AMERICA IN CONGRESS ASSEMBLED 498 
 
 APPENDIX IX. 
 
 ARTICLES OF CONFEDERATION AND PERPETUAL UNION BETWEEN THE 
 STATES 503 
 
 APPENDIX X. 
 CONSTITUTION OF THE UNITED STATES OF AMERICA . . . .514 
 
 APPENDIX XI. 
 
 THE FRENCH CONSTITUTION, ADOPTED AND PROCLAIMED ON THE TWENTY- 
 FOURTH OF JUNE, 1793 531 
 
 APPENDIX XII. 
 
 IRENCH CHARTER OF Louis XVIII. AND THAT ADOPTED IN THE YEAR 
 1830 545 
 
 APPENDIX XIII. 
 CONSTITUTION OF THE FRENCH REPUBLIC 555 
 
 APPENDIX XIV. 
 
 THE PRESENT CONSTITUTION OF FRANCE 57O
 
 1 5 CONTENTS. 
 
 APPENDIX XV. 
 
 PAGE 
 
 REPORT OF THE FRENCH SENATORIAL COMMITTEE ON THE PETITIONS TO 
 CHANGE THE REPUBLIC INTO AN EMPIRE, IN NOVEMBER, 1852, AND 
 THE SENATUS-CONSULTUM ADOPTED IN CONFORMITY WITH IT . . 588 
 
 APPENDIX XVI. 
 
 LETTER OF THE FRENCH MINISTER OF THE INTERIOR, MR. DE MORNY, 
 ADDRESSED TO THE PREFECTS OF THE DEPARTMENTS IN THE YEAR 
 
 1852 605
 
 ON 
 
 CIVIL LIBERTY 
 
 AND 
 
 SELF-GOVERNMENT. 
 
 CHAPTER I. 
 
 INTRODUCTORY. 
 
 WE live at a period when it is the duty of reflecting men to 
 ponder conscientiously these important questions : In what 
 does civil liberty consist ? How is it maintained ? What are 
 its means of self-diffusion, and under what forms do its chief 
 dangers present themselves ? 
 
 Our age, marked by restless activity in almost all depart- 
 ments of knowledge, and by struggles and aspirations before 
 unknown, is stamped by no characteristic more deeply than 
 by a desire to establish or extend freedom in the political 
 societies of mankind. At no previous period, ancient or 
 modern, has this impulse been felt at once so strongly and by 
 such extensive numbers. The love of civil liberty is so lead- 
 ing a motive in our times, that no man who does not under- 
 stand what civil liberty is, has acquired that self-knowledge 
 without which we do not know where we stand, and are super- 
 numeraries or instinctive followers, rather than conscious, 
 working members of our race, in our day and generation. 
 
 The first half of our century has produced several hundred 
 political constitutions, some few of substance and sterling 
 worth, many transient like ephemeral beings, but all of them 
 testifying to the endeavors of our age, and plainly pointing 
 out the high problem that must be solved ; many of them 
 
 2 17
 
 1 8 ON CIVIL LIBERTY 
 
 leaving roots in despite of their short existence, which some 
 day will sprout and prosper. It is in history as in nature. 
 Of all the seeds that germinate, but few grow up to be trees, 
 and of all the millions of blossoms, but thousands, or even 
 hundreds, ripen into fruit. 
 
 Changes, frequently far greater than are felt by those who 
 stand in the midst of them, have taken place ; violent convul- 
 sions have shaken large and small countries, and blood has 
 been shed that blood which has always flowed before great 
 ideas could settle into actual institutions, or before the yearn- 
 ings of humanity could become realities. Every marked 
 struggle in the progress of civilization has its period of con- 
 vulsion. Our race is in that period now, and thus our times 
 resemble the epoch of the Reformation. 
 
 Many who unreservedly adhere to the past, or who fear its 
 evils less than those of change, resist the present longings of 
 our kind, and seem to forget that change is always going on, 
 whether we will or not. States consist of living beings, and 
 life is change. Others seem to claim a right of revolution for 
 governments, under the name of coup d'etat, but deny it to 
 the people ; and large portions of the people have overleaped 
 civil liberty itself. They daringly disavow it, and pretend to 
 believe that they find the solution of the great problem of our 
 times either in an annihilation of individuality, or in an apo- 
 theosis of individual man, and preach communism, individual 
 sovereignty, or the utmost concentration of all power and po- 
 litical action in one Caesar. " Parliamentary liberty" is a term 
 sneeringly used in whole countries to designate what they 
 consider an obsolete encumbrance and decaying remnants of 
 a political phase belonging to the past. The representative 
 system is laughed at, and the idol of monarchical or popular 
 absolutism is draped anew, and worshipped by thousands as 
 if it were the latest avatar of their political god. What, but 
 a lustre or two ago, would have been universally considered 
 impossible, has come to pass ; Rousseau's hatred of representa- 
 tive government is loudly and largely professed in France, 
 not only by the army and the faction which holds power,
 
 AND SELF-GOVERNMENT. ig 
 
 but also by the French republican of extreme views, to whom 
 nothing is more odious than decentralized self-government ; 
 and the two seem perfectly to agree with the views lately 
 proclaimed on an important occasion, that the essence of 
 political civilization consists in universal suffrage and the 
 code Napoleon, with which, and a moderately strong army, it 
 would be easy to conquer Great Britain. 1 
 
 There are not a few in our own country who, seeing the 
 perversion of principles and political corruption, follow the 
 besetting fallacy of men, and seek salvation from one evil in 
 its opposite, as if the means of escaping death by fire were 
 freezing to death. 
 
 We must find our way through all these mazes. This is one 
 of our duties, because it has pleased Providence to cast our 
 lot in the middle of the nineteenth century, and because an 
 earnest man ought to understand, above all other social 
 things, his own times. 
 
 Besides these general considerations, weighty as they are, 
 there are others which press more immediately upon ourselves. 
 Most of us descend in blood, and all of us politically, from 
 that nation to which has been assigned, in common with our- 
 selves, the high duty of developing modern civil liberty, and 
 whose manliness and wisdom, combined with a certain his- 
 torical good fortune, which enabled it to turn to advantage 
 elements that proved sources of evil elsewhere, have saved it 
 from the blight of absorbing centralization. England was the 
 earliest country to put an end to feudal isolation, while still 
 retaining independent institutions, and to unite the estates 
 
 1 These views were laid before the civilized world in a pamphlet, published in 
 the summer of 1858, well known to be countenanced by the ruling party in 
 France, and have been frequently stated before. The code Napoleon flatters 
 the vanity of the French people, and not being conscious of the fact that the 
 most important element of political civilization is civil liberty, they take this code 
 as the sum of political civilization, while it is peculiarly obtuse on all matters 
 relating to political rights and man's protection as a freeman. How could it be 
 otherwise with a code which proceeded from the civil law, and received, wherever 
 it treats of personal rights, an impress from a man who, more perhaps than any 
 other person on the stage of history, instinctively abhorred everything inclining 
 toward liberty, even the first germs of freedom ?
 
 20 ON CIVIL LIBERTY 
 
 into a powerful general parliament, able to protect the nation 
 against the crown. 1 There, too, centuries ago, trials for high 
 treason were surrounded with peculiar safeguards, besides 
 those known in common criminal trials, in favor of the ac- 
 cused, an exception the very reverse of which we observe in 
 all other European countries down to the most recent times, 
 and in most countries to this day. In England we first see 
 applied in practice, and on a grand scale, the idea which came 
 originally from the Netherlands, that liberty must not be a 
 boon of the government, but that government must derive its 
 rights from the people. Here, too, the people always clung 
 to the right to tax themselves; and here, from the earliest 
 times, the administration of justice has been separated from 
 the other functions of government, and devolved upon magis- 
 trates set apart for this end, a separation not yet fotrnd in all 
 countries. 2 In England, power of all kind, even of the crown, 
 has ever bowed, at least theoretically, to the supremacy of the 
 law ; 3 and that country may claim the imperishable glory of 
 
 1 The necessity of a union of the different courts and bodies of the state was 
 often perceived by those who felt called upon to resent the crown, and the cor- 
 responding desire to defeat it, by the crown. An instance was furnished in 
 France in 1648, when Mazarin strove to annul the arrdt cfunion. 
 
 2 I do not only allude to such bodies as the French parliaments, but to the fact 
 that down to this century the continental courts of justice conducted, in innumer- 
 able cases, what is now frequently called the administrative business, such as 
 collecting taxes, letting crown domains, superintending roads and bridges. The 
 early separation of the English judge I do not speak of his independence, 
 which is of much later date and the early, comparatively speaking, independent 
 position of the English church, seem to me two of the most significant facts in 
 English history, and answer in a great measure the question so often asked, Why 
 is it that France, constituted so much like England down to the twelfth or thir- 
 teenth century, lost her liberty, and England not ? It partially accounts for the 
 still more surprising fact that the most advanced portions of Spain, at one period, 
 had a clearer perception of liberty than England had, but are now immeasurably 
 behind her. 
 
 3 Even a Henry VIII. took care to have first the law changed when it could 
 not be bent to his tyrannical acts. Despots in other countries did not take this 
 trouble ; and I do not know whether the history of any other period impresses 
 the student with that peculiar meaning which the English word Law has acr 
 quired, more forcibly than this very reign of tyranny and royal bloodshed.
 
 AND. SELF- G O VERNMENT. 2 1 
 
 having formed a national representative system of two houses, 
 governed by a parliamentary law of their own, with that im- 
 portant element, at once conservative and progressive, of a 
 lawful, loyal opposition. It is that country which alone saved 
 judicial and political publicity, when secrecy prevailed every- 
 where else ; x which retained a self-developing common law and 
 established the trial by jury. In England, the principles of 
 self government were not swept away, and all the chief prin- 
 ciples and guarantees of her Great Charter and the Petition 
 of Right have passed over into our constitutions. 
 
 We belong to the Anglican race, which carries Anglican 
 principles and liberty over the globe, because wherever it 
 moves, liberal institutions and a common law full of manly 
 rights and instinct with the principle of an expansive life, ac- 
 company it. We belong to that race whose obvious task it is, 
 among other proud and sacred tasks, to rear and spread civil 
 liberty over vast regions in every part of the earth, on conti- 
 nent and isle. We belong to that tribe which alone has the 
 word Self-Government. We belong to that nation whose 
 great lot it is to be placed, with the full inheritance of freedom, 
 on the freshest soil in the noblest site between Europe and 
 Asia, a nation young, whose kindred countries, powerful in 
 wealth, armies, and intellect, are old. It is a period when a 
 peaceful migration of nations, similar in the weight of numbers 
 to the warlike migration of the early middle ages, pours its 
 crowd into the lap of our more favored land, there to try, and 
 at times to test to the utmost, our institutions institutions 
 which are our foundations and buttresses, as the law which 
 they embody and organize is our sole and sovereign master. 
 
 These are the reasons why it is incumbent upon every 
 American again and again to present to his mind what his own 
 liberty is, how he must guard and maintain it, and why, if he 
 neglect it, he resembles the missionary that should proceed to 
 
 1 Trials, especially criminal trials, remained public in several countries, for 
 instance, in the kingdom of Naples; but judicial and political publicity van- 
 ished everywhere except in England ; nor was the publicity of such trials as 
 those of Naples of much value.
 
 22 ON CIVIL LIBERTY 
 
 convert the world without Bible or prayer-book. These are 
 the reasons why I feel called upon to write this work, in ad- 
 dition to what I have given long ago in another place on the 
 subjects of Justice, Law, the State, Government and Sover- 
 eignty, on Liberty and Right, 1 and to which, therefore, I 
 must refer my reader for many preliminary particulars; and 
 these, too, are the reasons why I ask for an attention corre- 
 sponding to the sense of responsibility with which I approach 
 the great theme of political vitality the leading subject of 
 Western history 2 and the characteristic stamp and feature of 
 our race, our age, our own country and its calling. 
 
 1 In my Political Ethics. 
 
 * I ask permission to draw the attention of the scholar to a subject which 
 appears to me important. I have used the term Western history, yet it is so 
 indistinct that I must explain what is meant by it. It ought not to be so. I mean 
 by Western history the history of all historically active, non-Asiatic nations and 
 tribes the history of the Europeans and their descendants in other parts of the 
 world. In the grouping and division of comprehensive subjects, clearness de- 
 pends in a great measure upon the distinctness of well-chosen terms. Many 
 students of civilization have probably felt with me the desirableness of a concise 
 term, which should comprehend within the bounds of one word, capable of fur- 
 nishing us with an acceptable adjective, the whole of the Western Caucasian 
 portion of mankind the Europeans and all their descendants in whatever part 
 of the world, in America, Australia, Africa, India, the Indian Archipelago and 
 the Pacific Islands. It is an idea which constantly recurs, and makes the neces- 
 sity of a proper and brief term daily felt. Bacon said that " the wise question 
 is half the science;" and may we not add that a wise division and apt termi- 
 nology is its completion ? In my private papers I use the term Occidental in a 
 sufficiently natural contradistinction to Oriental. But Occidental, like Western, 
 indicates geographical position ; nor did I feel otherwise authorized to use it 
 here. Europides would not be readily accepted. Japhethian would compre- 
 hend more tribes than we wish to designate. That some term or other must 
 soon be adopted seems to me clear, and I am ready to accept any expressive 
 name formed in the spirit and according to the taste of our language. The 
 chemist and natural historian are not the only ones that stand in need of distinct 
 names for their subjects, but they are less exacting than scholars. As the whole 
 race is called the Caucasian, shall we designate the group in question by the 
 name of Cis-Caucasian ? It is more important for the scholar of civilization to 
 have a distinct name for the indicated group, than it was for the student of the 
 natural history of our race to adopt the recently formed term of prognathous 
 tribes, in order to group together all the tribes with projecting jaws.
 
 AND SELF-GOVERNMENT. 23 
 
 CHAPTER II. 
 
 DEFINITIONS OF LIBERTY. 
 
 A DISTINGUISHED writer has said that every one desires 
 liberty, but it is impossible to say what it is. If he meant by 
 liberty, civil liberty, and that it is impossible to give a defini- 
 tion of it, using the term definition in its strictest sense, he 
 was right ; but he was mistaken if he intended to say that 
 we cannot state and explain what is meant by civil liberty in 
 certain periods, by certain tribes, and that we cannot collect 
 something general from these different views. Civil liberty 
 does not fare worse in this respect than all other terms which 
 designate the collective amount of different applications of the 
 same principle, such as Fine Arts, Religion, Property, Re- 
 public. The definitions of all these terms imply the use of 
 others variable in their nature. The time, however, is passed 
 when, as in the age of scholastic philosophy, it was believed 
 that everything was strictly definable, and must be compressed 
 within the narrow limits of an absolute definition before it 
 could be entitled to the dignity of a thorough discussion. The 
 hope of being able absolutely to define things that belong 
 either to the commonest life 1 or the highest regions, betrays a 
 misconception of human language, which itself is never abso- 
 lute except in mathematics. It misleads. Bacon, so illus- 
 trious as a thinker, has two dicta which it will be well for us to 
 remember throughout this discussion. He says: "Generalities 
 
 1 Is it necessary to remind the reader of Dr. Johnson's definition of the Knife? 
 or of the fact that the greater portion of all law business arises from the impos-. 
 sibility of giving absolute definitions for things that are not absolute themselves? 
 A knife and a dagger are terms sufficiently clear in common life, but it has been 
 found very difficult to define them, in many penal cases, when the law awards 
 different punishments for wounds inflicted by the one or the other.
 
 24 ON CIVIL LIBERTY 
 
 are barren, and the multiplicity of single facts present nothing 
 but confusion. The middle principles alone are solid, orderly, 
 and fruitful;" and in another part of his immortal works he 
 states that " civil knowledge is of all others the most immersed 
 in matter and the hardliest reduced to axioms." We may 
 safely add, " and expressed in definitions." It would be 
 easy, indeed, and correct, as far as it would go, to say : Civil 
 liberty is the idea of liberty, which is untrammeled action, 
 applied to the sphere of politics ; but although this definition 
 might be called " orderly," it would certainly neither be 
 " solid" nor " fruitful," unless a long discussion should follow 
 on what it means in reality and practice. 
 
 This does by no means, however, affect the importance of 
 investigating the subject of civil liberty and of clearly pre- 
 senting to our minds what we mean by it, and of what ele- 
 ments it consists. Disorders of great public inconvenience, 
 even bloodshed and political crimes, have often arisen from the 
 fact that the two sacred words, Liberty and People, were freely 
 and passionately used without a clear and definite meaning 
 being attached to them. A people that loves liberty can do 
 nothing better to promote the object of its love than deeply to 
 study it ; and in order to be able to do this, it is necessary to 
 analyze it, and to know the threads which compose the valued 
 texture. 
 
 In a general way, it may here be stated as an explanation 
 not offered as a definition that when the term Civil Liberty 
 is used, there is now always meant a high degree of mutually 
 guaranteed protection against interference with the interests 
 and rights held dear and important by large classes of civil- 
 ized men or by all the members of a state, together with an 
 effectual share in the making and administration of the laws 
 as the best apparatus to secure that protection, and consti- 
 tuting the most dignified government of men who are conscious 
 of their rights and of the destiny of humanity. We under- 
 stand by civil liberty not only the absence of individual re- 
 straint, but liberty within the social system and political organ- 
 ism a combination of principles and laws which acknowledge,
 
 AND SELF-GOVERNMENT. 2$ 
 
 protect, and favor the dignity of man. But what are these 
 guarantees, these interests and rights ? Who are civilized 
 men ? In what does that share consist ? Which are the men 
 that are conscious of their rights ? What is the destiny of 
 humanity ? Who are the large classes ? 
 
 I mean by civil liberty that liberty which plainly results 
 from the application of the general idea of freedom to the civil 
 state of man, that is, to his relations as a political being a 
 being obliged by his nature and destined by his Creator to 
 live in society. Civil liberty is the result of man's twofold 
 character, as an individual and social being, so soon as both 
 are equally respected. 
 
 All men desire freedom of action. We have this desire, in 
 some degree, even in common with the animal, where it mani- 
 fests itself at least as a desire for freedom of motion. The 
 fiercest despot desires liberty as much as the most ardent re- 
 . publican ; indeed, the difficulty is that he desires it too much 
 selfishly, exclusively. 1 He wants it for himself alone. He 
 
 1 I believe that this has never been shown with greater and more truculent 
 nalvetk than by the present King of Dahomey in the letter he wrote to the 
 Queen of England in 1852. Every case in which an idea, bad or good, is 
 carried to a point of extreme consistency is worth being noted ; I shall give, 
 therefore, a part of it. 
 
 The British government had sent an agent to that king, with presents, and the 
 direction to prevent him from further trade in slaves ; and the king's answer 
 contains the following passage : 
 
 "The King of Dahomey presents his compliments to the Queen of England. 
 The presents which she has sent him are very acceptable and are good to his 
 face. When Governor Winiett visited the king, the king told him that he must 
 consult his people before he could give a final answer about the slave-trade. He 
 cannot see that he and his people can do without it. It is from the slave-trade 
 that he derives his principal revenue. This he has explained in a long palaver 
 to Mr. Cruikshank. He begs the Queen of England to put a stop to the slave- 
 trade everywhere else, and allow him to continue it." 
 
 In another passage he says : 
 
 " The king begs the queen to make a law that no ships be allowed to trade at 
 any place near his domains lower down the coast than Wydah, as by means of 
 trading vessels the people are getting rich and resisting his authority. He hopes 
 the queen will send him some good tower guns and blunderbusses, and plenty 
 of them, to enable him to make war" (which means razzias, in order to carry off 
 captives for the barracu, or slave market).
 
 26 ON CIVIL LIBERTY 
 
 has not elevated himself to the idea of granting to his fellows 
 the same liberty which he claims for himself, and of desiring 
 to be limited in his own power of trenching on the same liberty 
 of others. This is one of the greatest ideas to which man can 
 rise. In this mutual grant and check lies the essence of civil 
 liberty, as we shall presently see more fully, and in it lies its 
 dignity. It is a grave error to suppose that the best govern- 
 ment is absolutism with a wise and noble despot at the head 
 of the state. As to consequences it is even worse than abso- 
 lutism with a tyrant at its head. The tyrant may lead to re- 
 flection and resistance ; the wisdom and brilliancy, however, 
 of the government of a great despot or dictator deceive and 
 unfit the people for a better civil state. This is at least true 
 with reference to all tribes not utterly lost in despotism, as the 
 Asiatics are. The periods succeeding those of great and bril- 
 liant despots have always been calamitous. 1 The noblest 
 human work, nobler even than literature and science, is broad 
 civil liberty, well secured and wisely handled. The highest 
 ethical and social production of which man, with his insepa- 
 rable moral, jural, aesthetic and religious attributes, is capable, 
 is the comprehensive and minutely organic self-government of 
 a free people ; and a people truly free at home, and dealing 
 in fairness and justice with other nations, is the greatest, un- 
 fortunately also the rarest, subject offered in all the breadth 
 and length of history. 
 
 In the definitions of civil liberty which philosophers or pub- 
 licists have, nevertheless, endeavored to give, they seem to 
 have fallen into one or more of the following errors. Some 
 have confounded liberty, the status of the freeman as opposed 
 to slavery, with civil liberty. But every one is aware that 
 while we speak of freemen in Asia, meaning only non-slaves, 
 
 The claims of "undoubted sovereignty" and the "independent power" of 
 kings, put forth by the Stuarts, by Louis XIV., and by all who looked upon 
 kings, restricted in their power, as unworthy peers of the " real princes," must 
 be classed under the same head with the aspirations of the principate of Daho- 
 mey, however they may differ in form. 
 
 1 I have dwelt on this subject at length in my Political Ethics.
 
 AND SELF-GOVERNMENT. 2/ 
 
 we would be very unwilling to speak of civil liberty in that 
 part of the globe. The ancients knew this distinction per- 
 fectly well. There were the Spartans, constituting the ruling 
 body of citizens, and enjoying what they would have called, 
 in modern language, civil liberty, a full share in the govern- 
 ment of the polity ; there were Helots; and there were Lace- 
 daemonian people, who were subject, indeed, to the sovereign 
 body of the Spartans, but not slaves. They were freemen, 
 compared to the Helots ; but subjects, as distinguished from 
 the Spartans. This distinction is very plain, but the confusion 
 has not only frequently misled in times past, but is actually 
 going on to this day in many countries. 
 
 Others have fallen into the error of substituting a different 
 word for liberty, and believed that they had thus defined it ; 
 while others, again, have confounded the means by which 
 liberty is secured in certain communities, with liberty itself. 
 Some, again, have been led, unawares, to define an idea wholly 
 different from civil liberty, while imagining that they were 
 giving the generics and specifics of the subject. 
 
 The Roman lawyers say that liberty is the power (authority) 
 of doing that which is not forbidden by the law. That the 
 supremacy of the law and exclusion of arbitrary interference 
 is a necessary element of all liberty, every one will readily 
 admit ; but if no additional characteristics be given, we have, 
 indeed, no more than a definition of the status of a non-slave. 
 It does not state whence the laws ought to come, or what 
 spirit ought to pervade them. The same lawyers say : What- 
 ever may please the ruler has the force of law. 1 They might 
 have said with equal correctness : Freeman is he who is di- 
 rectly subject to the emperor-; slave, he who is subject to the 
 emperor through an intermediate and individual master. It 
 settles nothing as to what-we call liberty, as little as the other 
 dictum of the civil law, which divides all men into freemen 
 and slaves. The meaning of freeman, in this case, is nothing 
 more than non-slave ; while our word freeman, when we use 
 
 1 Quod principi placuerit legis habet vigorem. L. i. lib. i. tit. 4 Dig.
 
 28 ON CIVIL LIBERTY 
 
 it in connection with civil liberty, means not merely a nega- 
 tion of slavery, but the enjoyment of positive and high civil 
 privileges and rights. 1 
 
 It is remarkable that an English writer of the last century, 
 Dr. Price, makes the same simple division of slavery and 
 liberty, although it leads him to very different results. 2 Ac- 
 cording to him, liberty is self-determination or self-govern- 
 ment, and every interruption of self-determination is slavery. 
 This is so extravagant, that it is hardly worth our while to 
 show its fallacy. Civil liberty is liberty in a state of society ; 
 that is, in a state of union with equals; consequently, limita- 
 tion of self-determination is one of the necessary character- 
 istics of civil liberty. 
 
 Cicero says : Liberty is the power of living as thou wiliest. 3 
 This does not apply to civil liberty. It would apply to savage 
 insulation. If it was meant for political liberty, it would 
 have been necessary to add, " so far as the same liberty of 
 others does not limit your own living as you choose." But 
 we always live in society, so that this definition can have a 
 value only as a most general one, to serve as a starting-point, 
 in order to explain liberty if applied to different spheres. 
 Whether this was the probable intention of a practical Roman, 
 I need not decide. 
 
 Libertas came to signify, in the course of time, and in 
 republican Rome, simply republican government, abolition 
 of royalty. We have advanced beyond this idea. The most 
 sanguinary pages of history have taught us that a kingless 
 government is not, on that account alone, a republic, if the 
 term republic is intended to comprehend the idea of self- 
 government in any degree. France had as absolute and as 
 stringently concentrated a government under her so-called 
 republics, as under any of her kings. To classify governments, 
 
 1 Summa divisio de jure personarum haec est, quod omnes homines aut liberi, 
 sunt a.it servi. Inst., i. 3. 
 
 * Observations on the Nature of Civil Liberty, etc., by Richard Price, D.D., 
 3d ed., Lond., 1776. 
 
 3 Quid est libertas? Potestas vivendi ut velis. Cic., Parad., 5, I, 34.
 
 AND SELF-GOVERNMENT. 
 
 2 9 
 
 with reference to liberty, into monarchies and republics, is an 
 error in principle. An Englishman who lives under a mon- 
 archy, for such certainly his royal republic is called, enjoys 
 an amount of self-government and individual liberty far greater 
 than the Athenian ever possessed or is established in any 
 republic of South America. 
 
 The Greeks likewise gave the meaning of a distinct form of 
 government to their word for liberty. Eleutheria, they said, 
 is that polity in which all are in turn rulers and ruled. It is 
 plain that there is an inkling of what we now call self-govern- 
 ment in this adaptation of the word, but it does not designate 
 liberty as we understand it. For it may happen, and indeed 
 it has happened repeatedly, that although the rulers and ruled 
 change, those that are rulers are arbitrary and oppressive 
 whenever their turn arrives; and no political state of things 
 is more efficient in preparing the people to pass over into 
 despotism, by a sudden turn, than this alternation of arbitrary 
 rule. If this definition really defined civil liberty, it would 
 have been enjoyed in a high degree by those communities in 
 the middle ages, in which constant changes of factions and 
 persecutions of the weaker parties were taking place. Athens, 
 when she had sunk so low that the lot decided the appoint- 
 ment to all important offices, would at that very period have 
 been freest, while in fact her government had become plain 
 democratic absolutism, one of the very worst of all govern- 
 ments, if, indeed, the term government can be properly used 
 of that state of things which exhibits Athens after the times 
 of Alexander, not like a bleeding and fallen hero, but rather 
 like a dead body, on which birds and vermin make merry. 
 
 Not wholly dissimilar to this definition is the one we find 
 in the French Political Dictionary, a work published in 1848, 
 by leading republicans, as this term was understood in France. 
 It says, under the word liberty: "Liberty is equality, equality 
 is liberty." If both were the same, it would be surprising that 
 there should be two distinct words. Why were both terms 
 used in the famous device, " Liberty, Equality, Fraternity," if 
 the first two are synonymous, yet an epigrammatic brevity
 
 30 ON CIVIL LIBERTY 
 
 was evidently desired ? Napoleon distinguished between the 
 two very pointedly, when he said to Las Cases that he gave 
 to the Frenchmen all the circumstances allowed, namely, 
 equality, and that his son, had he succeeded him, would have 
 added liberty. The dictum of Napoleon is mentioned here 
 merely to show that he saw the difference between the two 
 terms. Equality, of itself, without many other elements, has 
 no intrinsic connection with liberty. All may be equally de- 
 graded, equally slavish, or equally tyrannical. Equality is 
 one of the pervading features of Eastern despotism. A Turk- 
 ish barber may be made vizier far more easily than an Amer- 
 ican hair-dresser can be made a commissioner of roads, but 
 there is not on that account more liberty in Turkey. 1 Diver- 
 sity is the law of life ; absolute equality is that of stagnation 
 and death. 2 
 
 A German author of a work of mark begins it with this 
 sentence: " Liberty or justice, for where there is justice 
 there is liberty, and liberty is nothing else than justice has 
 by no means been enjoyed by the ancients in a higher degree 
 than by the moderns."3 Either the author means by justice 
 something peculiar, which ought to be enjoyed by every one, 
 and which is not generally understood by the term, in which 
 case the whole sentence is nugatory, or it expresses a grave 
 error, since it makes equivalents of two things which have re- 
 ceived two different names, simply because they are distinct 
 
 1 Since the publication of the first edition of this work, an article on " Ma- 
 bometanism in Western Asia," has appeared in the " Edinburgh Review," Octo- 
 ber, 1853, in which the Eastern equality as an ingredient of despotism is illus- 
 trated by many striking instances from differen f spheres of life. The writer, 
 who is plainly master of his subject, from personal knowledge, it would appear, 
 agrees with us that liberty is based on individuality. Indeed, it may be said 
 that in a great degree it consists in essential protection of individuality, of per- 
 sonal rights. The present Emperor of the French felt this when he wrote his 
 chapter, De la Liberte individuelle en Angleterrc. He was then an exile and 
 could perceive liberty. 
 
 a More has been said on this subject in Political Ethics, and we shall return 
 to it at a later period. 
 
 3 Descriptions of the Grecian Polities, by F. W. Tittmann ; Leipsic, 1822.
 
 AND SELF-GOVERNMENT. 3! 
 
 from one another. The two terms would not even be allowed 
 to explain each other in a dictionary. 
 
 Liberty has not unfrequently been defined as consisting in 
 the rule of the majority, or it has been said, Where the people 
 rule there is liberty. The rule of the majority, of itself, indi- 
 cates the power of a certain body ; but power is not liberty. 
 Suppose the majority bid you drink hemlock, is there liberty 
 for you ? Or suppose the majority give away liberty, and 
 establish despotism ? It has been done again and again : 
 Napoleon III. claims his crown by right of election by the 
 overwhelming majority of Frenchmen, and perpetuates his 
 government by universal suffrage, as he says. Granting, for 
 the sake of argument, that there was what we call a bona fide 
 election, and that there is now existing an efficient universal 
 suffrage, there is no man living who would vindicate liberty 
 for present France. Even the imperial government period- 
 ically proclaims that it cannot yet establish liberty, because 
 France is distracted by factions, by " different nations," as an 
 imperial dignitary lately expressed it in an official speech. 
 
 We might say with greater truth, that where the minority j 
 is protected, although the majority rule, there, probably, 
 liberty exists. But in this latter case it is the protection, or, 
 in other words, rights beyond the reach of the majority which 
 constitute liberty, not the power of the majority. There can 
 be no doubt that the majority ruled in the French massacres 
 of the Protestants ; was there liberty in France on that ac- 
 count ? All despotism, without a standing army, must be sup- 
 ported or acquiesced in by the majority. It could not stand 
 otherwise. If the definition be urged, that where the people 
 rule there is liberty, we must ask at once, What people, and 
 how rule ? These intended definitions, therefore, do not 
 define. 
 
 Other writers have said: "Civil liberty consists in the re- 
 sponsibility of the rulers to the ruled." It is obvious that this 
 is an element of all civil liberty ; but the question, What respon- 
 sibility is meant? is an essential one; nor does this respon- 
 sibility alone suffice by any means to establish civil liberty.
 
 32 ON CIVIL LIBERTY 
 
 The Dey of Algiers used to be elected by the soldiery, who 
 deposed him if he did not suit ; but there was no liberty in 
 Algiers, not even for the electing soldiery. The idea of the 
 best government, repeatedly urged by a distinguished French 
 publicist, Mr. Girardin, is, that all power should be centred in 
 an elective chief magistrate, who by frequent election should 
 be made responsible to the people in fact, an elective despot- 
 ism. Is there an American or Englishman living who would 
 call such a political monstrosity freedom, even if the elected 
 despot would allow himself to be voted upon a second time ? 
 This conception of civil liberty was the very one which Louis 
 Napoleon published in his proclamation issued after the coup 
 d'etat, and in which he tells the people that he leaves their 
 fate in their own hands ! Many Frenchmen voted for him 
 and for these fundamental principles of a new government, 
 but those who did so, voted for him for the very reason that 
 they considered liberty dangerous and inadmissible. This 
 definition, then, is peculiarly incorrect. 
 
 Again, it has been said, liberty is the power of doing all 
 that we ought to be allowed to do. But who allows ? What 
 ought to be allowed ? Even if these questions were answered, 
 it would not define liberty. Is the imprisoned homicide free, 
 although we allow him to do all that which he ought to be 
 allowed to do ? No despot, if not positively insane, would ask 
 for more power. It is on the very ground that more freedom 
 ought not to be allowed to the subject, for his own benefit and 
 the welfare of the empire, that the greatest despots and even 
 tyrants have asserted their power; nor does a father desire 
 more power over his child, but he does not pretend to con- 
 found parental power with the establishment of liberty. 
 
 Bodinus, whom every scholar of political science remembers 
 with respect, said that true liberty consists in nothing else 
 than the undisturbed enjoyment of one's goods and the absence 
 of apprehension that wrong be done to the honor and the life 
 of one's self, of one's wife and family. 1 He who knows the 
 
 1 De Republica, lib. xii. c. 6. I have mentioned in my Political Ethics that 
 T studied, in the Congress library, the copy of Bodinus which had belonged to
 
 AND SELF-GOVERNMENT. 33 
 
 times of French history when this jurist wrote his work on 
 the republic, sees with compassion what led his mind to form 
 this definition ; nor is it denied that undisturbed enjoyment 
 of property, as well as personal safety, constitute very im- 
 portant objects sought to be obtained by civil liberty ; but it 
 is the firmly-established guarantees of these enjoyments which 
 constitute portions of civil liberty. Haroun al Rashid may 
 have allowed these enjoyments, but the Arabians had not 
 civil liberty under him. It is very painful to observe that, in 
 the middle of the nineteenth century, a writer could be re- 
 duced to declare before the Institute of France, in an elaborate 
 essay, that this definition of liberty by Bodinus is the best 
 ever given. 1 
 
 Montesquieu says : 2 " Philosophical liberty consists in the 
 exercise of one's will, or at least (if we must speak of all sys- 
 tems) in the opinion according to which one exercises his will. 
 Political liberty consists in the security, or at least in the 
 opinion which one has of one's security." He continues : 
 " This security is never more attacked than in public and pri- 
 vate accusations. It is therefore upon the excellence of the 
 criminal laws that chiefly the liberty of the citizen depends." 3 
 
 That security is an element of liberty -has been acknowl- 
 edged ; that just penal laws, and a carefully protected penal 
 trial, are important ingredients of civil liberty, will be seen in 
 the sequel ; but it cannot be admitted that that great writer 
 gives a definition of liberty in any way adequate to the subject. 
 We ask at once, What security? Nations frequently rush into 
 the arms of despotism for the avowed reason of finding secu- 
 rity against anarchy. What else made the Romans so docile 
 under Augustus ? Those French who insist upon the " neces- 
 
 President Jefferson, and in which many pencil-marks and notes of the latter are 
 found. It will interest many of my readers to hear that this relic has not per- 
 ished in the fire which consumed the greater portion of the library. 
 1 Mr. Parry, Seances et Travaux de 1'Acad. des Sciences Politiques et Morales, 
 
 Jly. I8 55- 
 
 3 Esprit des Lois, xii; 2 : "Of the Liberty of the Citizen." 
 3 He goes on treating liberty in a similar manner; for instance, at the begin- 
 ning of chapter iv. of the same work. 
 
 3
 
 34 
 
 ON CIVIL LIBERTY 
 
 sity" of Louis Napoleon, do it on the avowal that anarchy 
 was impending ; but no one of us will say that Augustus was 
 the harbinger of freedom, or that the French emperor allows 
 the people any enjoyment of liberty. If, however, Montes- 
 quieu meant the security of those liberties which Algernon 
 Sidney meant when he said, "The liberties of nations are 
 from God and nature, not from kings" in that case he has 
 not advanced the discussion, for he does not say in what they 
 consist. 
 
 If, on the other hand, the penal law, in which it must be 
 supposed Montesquieu included the penal trial, be made the 
 chief test of liberty, we cannot help observing that a decent 
 penal trial is a discovery in the science of government of the 
 most recent date. The criminal trials of the Greeks and 
 Romans, and of the middle ages, were deficient both in pro- 
 tecting the accused and society, and, without trespassing, we 
 may say that in most cases they were scandalous, according to 
 our ideas of justice. Must we then say, according to Montes- 
 quieu, that liberty never dwelt in those states? 1 
 
 To pass from a great writer to one much his inferior, I shall 
 give Dr. Paley's definition of civil liberty. He says : " Civil 
 liberty is the not being restrained by any law but what con- 
 duces in a greater degree to the public welfare." 2 I should 
 hardly have mentioned this definition, but that the work from 
 which it is taken is still in the hands of thousands, and that 
 the author has obviously shaped and framed it with attention. 
 Who decides on what public welfare demands ? Is that no 
 
 1 That a writer of Montesquieu's sagacity and regard for liberty should have 
 thus insufficiently defined so great a subject, is nothing more than what frequently 
 happens. No man is always himself, and Bishop Berkeley, on Tar Water, 
 represents a whole class of weak thoughts by strong minds. I do not only agree 
 with what Sir James Mackintosh says in praise of Montesquieu, in his Discourse 
 on the Study of the Law of Nature and Nations, but I would add, that no per- 
 son can obtain a correct view of the history through which political liberty has 
 been led in Europe, or can possess a clear insight into many of its details, with- 
 out making himself acquainted with the Spirit of Laws. ' His work has doubtless 
 been of great influence. 
 
 2 Beginning of the fifth chapter of Paley's Political Philosophy.
 
 AND SELF-GOVERNMENT. 35 
 
 important item of civil liberty ? Who makes the law? Suffice 
 it to say that the definition may pass for one of a good govern- 
 ment in general, that is, one which befits the given circum- 
 stances ; but it does not define civil liberty. A Titus, a benevo- 
 lent Russian Czar, a wise dictator, a conscientious Sultan, a 
 kind master of slaves, ordain no restraint but what they think 
 is required by the general welfare ; yet to say that the Romans 
 under Titus, the Russian, the Asiatic, the slave, is on that 
 account in the enjoyment of civil liberty, is such a perversion 
 of language that we need not dwell upon this definition, 
 surprising even in one who does not generally distinguish 
 himself by unexceptionable definitions. 
 
 The first (monarchical) French constitution of September 
 3, 1 79 1, 1 says : " Liberty consists in the right to do everything 
 that does not injure others. Therefore, the practice of the 
 natural rights of each man has no other limits than those 
 which secure the other members of society in the enjoyment 
 of the same rights. These limits can only be determined by 
 law." The last sentence makes all depend on the law; conse- 
 quently we must ask again, Who makes the law, and are there 
 no limits necessary to the law itself? 
 
 Nothing is more striking in history, it seems to me, than a 
 comparison of this declaration and of the " Rights of Men" 
 with the British Petition of Right, whether we consider them 
 as fruits or as seeds. 
 
 The second (republican) constitution of June 24, I/93, 2 says: 
 " Liberty is that faculty according to which it belongs to man 
 to do that which does not interfere with the rights of others ; 
 it has for its basis, nature; for its rule, justice; for its protec- 
 tion, the law ; its moral limit is the maxim, Do not to another 
 that which thou dost not wish him to do to thyself. 
 
 This definition, sufficiently characterizes itself." 
 
 The Constitution of the United States has no definition of 
 liberty. Its framers thought no more of defining it in that 
 
 1 Paragraph four. 
 
 3 Paragraph six of the Declaration of the Rights of Men.
 
 36 ON CIVIL LIBERTY 
 
 instrument, than people going to be married would stop to 
 define what is love. 
 
 We almost feel tempted to close this list of definitions with 
 the words with which Lord Russell begins his chapter on 
 liberty. He curtly says : " Many definitions have been given 
 of liberty. Most of these deserve no notice." 1 
 
 Whatever the various definitions of civil liberty may be, we 
 take the term in its usual adaptation among modern civilized 
 nations, in which it always means liberty in the political sphere 
 of man. We use it in that sense in which freemen, or those 
 who strive to be free, love it; in which bureaucrats fear it and 
 despots hate it ; in a sense which comprehends what has been 
 called public liberty and personal liberty ; and in conformity 
 with which all those who cherish and those who disrelish it 
 distinctly feel that, whatever its details may be, it always 
 means a high degree of untrammeled political action in the 
 citizen, and an acknowledgment of his dignity and his impor- 
 tant rights by the government which is subject to his positive 
 and organic, not only to his roundabout and vague influence. 
 
 This has always been felt; but more is necessary. We 
 ought to know our subject. We must answer, then, this ques- 
 tion : In what does civil liberty truly consist? 
 
 1 Lord John Russell's History of the English Government and Constitution, 
 second ed., London, 1825. This prominent and long-tried statesman distin- 
 guishes, on page 15, between civil, personal, and political liberty; but even if he 
 had been more successful in this distinction than he seems to me actually to have 
 been, it would not be necessary to adopt it for our present purpose.
 
 AND SELF-GOVERNMENT. 
 
 37 
 
 CHAPTER III. 
 
 THE MEANING OF CIVIL LIBERTY. 
 
 LIBERTY, in its absolute sense, means the faculty of willing 
 and the power of doing what has been willed, without influ- 
 ence from any other source, or from without. It means self- 
 determination; unrestrainedness of action. 
 
 In this absolute meaning, there is but one free being, be- 
 cause there is but one being whose will is absolutely inde- 
 pendent of any influence but that which he wills himself, and 
 whose power is adequate to his absolute will who is almighty. 
 Liberty, self-determination, unrestrainedness of action, ascribed 
 to any other being, or applied to any other sphere of action, 
 has necessarily a relative and limited, therefore an approx- 
 imative sense only. With this modification, however, we 
 may apply the idea of freedom to all spheres of action and 
 reflection. 1 
 
 1 It will be observed that the terms Liberty and Freedom are used here as 
 synonymes. Originally they meant the same. The German Freiheit (literally 
 Freehood) is still the term for our Liberty and Freedom ; but, as it happened in 
 so many cases in our language where a Saxon and Latin term existed for the 
 same idea, each acquired in the course of time a different shade of the o-iginal 
 meaning, either permanently so, or at least under certain circumstances. Liberty 
 and Freedom are still used in many cases as synonymous. We speak of the 
 freedom as well as the liberty of human agency. It cannot be otherwise, since 
 we have but one adjective, namely Free, although we have two nouns. When 
 these are used as distinctive terms, freedom means the general, liberty the specific. 
 We say, the slave was restored to freedom ; and we speak of the liberty of the 
 press, of civil liberty. Still, no orator or poet would hesitate to say freedom of 
 the press, if rhetorically or metrically it should suit better. As in almost all 
 cases in which we have a Saxon and a Latin term for the same main idea, so in 
 this, the first, because the older and original term, has a fuller, more compact, 
 and more positive meaning ; the latter a more pointed, abstract, or scientific 
 sense. This appears still more in the verbs, to free and to liberate. The Ger
 
 38 ON CIVIL LIBERTY 
 
 If we apply the idea of self-determination to the sphere of 
 politics, or to the state, and the relations which subsist 
 between it and the individual, and between different states, 
 we must remember that the following points are necessarily 
 involved in the comprehensive idea of the state : 
 
 The state is a society, or union of men a sovereign society 
 and a society of human beings, with an indelible character of 
 individuality. The state is, moreover, an institution which 
 acts through government, a contrivance which holds the 
 power of the whole, opposite to the individual. Since the 
 state then implies a society which acknowledges no superior, 
 the idea of self-determination applied to it means that, as a 
 unit and opposite to other states, it be independent, not dic- 
 tated to by foreign governments, nor dependent upon them 
 any more than itself has freely assented to be, by treaty and 
 upon the principles of common justice and morality, and that 
 it be allowed to rule itself, or that it have what the Greeks 
 chiefly meant by the word autonomy. 1 The term state, at 
 
 man language has but one word for our Freedom and Liberty, namely Freiheit ; 
 and Freithum (literally freedom) means, in some portions of Germany, an estate 
 of a Freiherr (baron). In Dutch, the word Vryheid (literally freehood) is free- 
 dom, liberty ; while Vrydom (literally freedom) means a privilege, an exemption 
 from burdens. This shows still more that these words meant originally the same. 
 
 [The greater part of this note, relating to the derivation of several words 
 signifying free, and a note a little farther on, relating to the connection between 
 frei and friede (free and peace in German), have been omitted, since much of 
 what is said is not sanctioned by etymologists of the highest repute. Dr. Lieber 
 derives the Greek ttei'Oepof from the root f?o50, come, or go a derivation which 
 J. Grimm and G. Curtius accept, while Benfey, Kirchhoff, and Corssen prefer 
 to connect the Greek word with the Latin liber. Liber, again, seems to have 
 nothing in common with the German leib, body, as Dr. Lieber supposed, but is 
 connected by G. Curtius with "fafy- in fam-opai, a rare Greek word denoting to long 
 for. There must be a common root, as Grimm thinks, in liber, llbet, I bet, and 
 in German lieben, our love. Frei, free, does not seem to belong to the same root 
 \\iti\friede, peace. Comp. Grimm's Deutsch. Worterb. Whatever the deriva- 
 tion of this word may be, we may well suppose, as Grimm suggests, that the 
 notion of peace is derived from the earlier one of fence, defense, protection. 
 Comp. einfrieden, to fence or hedge in.] 
 
 1 Autonomeia isliterally translated Self-government, and undoubtedly suggested 
 the English word to our early divines. Donaldson, in his Greek Dictionary,
 
 AND SELF-GOVERNMENT. 
 
 39 
 
 the same time, means a society of men, that is, of beings 
 with individual destinies and responsibilities from which arise 
 individual rights, 1 that show themselves the clearer and become 
 more important, as man advances in political civilization. 
 Since, then, he is obliged and destined to live in society, it is 
 necessary to prevent these rights from being encroached upon 
 by his associates. Since, however, not only the individual 
 rights of man become more distinctly developed with advancing 
 civilization, but also his social character and all mutual de- 
 pendence, this necessity of protecting each individual in his 
 most important rights, or, which is the same, of checking each 
 from interfering with each, becomes more important with 
 every progress he makes. 
 
 Lastly, the idea of the state involving the idea of govern- 
 ment, that is, of a certain contrivance with coercing power 
 superior to the power of the individual, the idea of self- 
 determination necessarily implies protection of the individual 
 against encroaching power of the government, or checks 
 against government interference. And again, society as a 
 unit having its objects, ends, and duties, liberty includes a 
 proper protection of government, as well as an efficient con- 
 trivance to coerce it to carry out the views of society and to 
 obtain its objects. 
 
 We come thus to the conclusion that liberty, applied to 
 political man, practically means, in the main, protection or 
 
 gives Self-government as the English equivalent for the Greek Autonomy, but, 
 as it has been stated above, it meant in reality independence of other states, a 
 non-colonial, non-provincial state of things. I beg the reader to remember this 
 fact, for it is significant that the term autonomy retained with the Greeks this 
 meaning, facing as it were foreign states, and that Self-government, the same 
 word, has acquired with ourselves, chiefly, or exclusively, a domestic meaning, 
 facing the relations in which the individual and home institutions stand to the 
 state which comprehends them. 
 
 1 The fact that man is in his very essence at once a social being and an indi- 
 vidual, that the two poles of sociality and individualism must forever determine 
 his political being, and that he cannot give up either the one or the other, with 
 the many relations flowing from this fundamental point, form the main subject 
 of the first volume of my Political Ethics, to which I would refer the reader.
 
 40 ON CIVIL LIBERTY 
 
 checks against undue interference, whether this be from in- 
 dividuals, from masses, or from government. The highest 
 amount of liberty comes to signify the safest guarantees of 
 undisturbed legitimate action, and the most efficient checks 
 against undue interference. Men, however, do not occupy 
 themselves with that which is unnecessary. Breathing is 
 unquestionably a right of each individual, proved by his 
 existence ; but, since no power has yet interfered with the 
 undoubted right of respiration, no one has ever thought it 
 necessary to guarantee this elementary right. We advance 
 then a step farther in practically considering civil liberty, and 
 find that it chiefly consists in guarantees (and corresponding 
 checks) of those rights which experience has proved to be 
 most exposed to interference, and which men hold dearest and 
 most important. 
 
 This latter consideration adds a new element. Freemen 
 protect their most important rights, or those rights and those 
 attributes of self-determination, which they hold to be most 
 essential to their idea of humanity ; and as this very idea of 
 humanity comprehends partly some ideas common to men of 
 all ages, when once conscious of their humanity, and partly 
 other ideas, which differ according to the view of humanity 
 itself which may prevail at different periods, we shall find, in 
 examining the great subject of civil freedom, that there are 
 certain permanent principles met with wherever we discover 
 any aspiration to liberty ; and that, on the other hand, it is 
 rational to speak of ancient, medieval, or modern liberty, of 
 Greek or Roman, Anglican and Gallican, Pagan and Christian, 
 American and English liberty. Certain tribes or nations, 
 moreover, may actually aim at the same objects of liberty, but 
 may have been led, in the course of their history, and accord- 
 ing to the variety of circumstances produced in its long course, 
 to different means to obtain similar ends. So that this fact, 
 likewise, would evolve different systems of civil liberty, either 
 necessarily or only incidentally so. Politics are like archi- 
 tecture, which is determined by the objects the builder has in 
 view, the materials at his disposal, and the desire he feels of
 
 AND SELF-GOVERNMENT. 41 
 
 manifesting and revealing ideas and aspirations in the material 
 before him. Civil liberty is the idea of liberty in connection 
 with politics, and must necessarily partake of the character 
 of, or intertwine itself with, the whole system of politics of a 
 given nation. 
 
 This view, however correct, has, nevertheless, misled many 
 nations. It is true, that the system of politics must adapt 
 itself to the materials and destinies of a nation; but this very 
 truth is frequently perverted by rulers who wish to withhold 
 liberty from the people, and do it on the plea that the destiny 
 of the nation is conquest, or concentrated action in different 
 spheres of civilization, with which liberty would interfere. In 
 the same manner are, sometimes, whole portions of a people, 
 or even large majorities, misled. They seem to think that 
 there is a fate written somewhere beyond the nation itself, and 
 independent of its own morality, to which everything, even 
 justice and liberty, must be sacrificed. It is at least a very 
 large portion of the French that thus believes the highest 
 destiny of France to consist in ruling as the first power in 
 Europe, and who openly say that everything must bend to 
 this great destiny. So are many among us, who seem to 
 believe that the highest destiny of the United States consists 
 in the extension of her territory a task in which, at best, we 
 can only be imitators, while, on the contrary, our destiny is 
 one of its own, and of a substantive character. 
 
 At the present stage of our inquiry, however, we have not 
 time to occupy ourselves with these aberrations. 
 
 All that is necessary to vindicate at present is, that it is 
 sound and logical to speak of ete/nal principles of liberty, and 
 at the same time of ancient and modern liberty, and that there 
 may be, and often must be, various systems of civil liberty, 
 though they need not, on that account, differ as to the inten- 
 sity of liberty which they guarantee. 
 
 That Civil Liberty, or simply Liberty, as it is often called, 
 naturally comes to signify certain measures, institutions, guar- 
 antees or forms of government, by which people secure or 
 hope to secure liberty, or an unimpeded action in those civil
 
 42 ON CIVIL LIBERTY 
 
 matters, or those spheres of activity which they hold most 
 important, appears even from ancient writers.' When Aris- 
 totle, in his work on politics, speaks of liberty, he means cer- 
 tain peculiar forms of government, and he uses these as tests, 
 to decide whether liberty does or does not exist in a polity 
 which he contemplates at the time. In the Latin language 
 Libertas came to signify what we call republic, or a non-regal 
 government. Respublica did not necessarily mean the same 
 as our word Republic, as our term Commonwealth may mean 
 a republic a commonwealth man meant a republican in the 
 English revolution 1 but it does not necessarily do so. When 
 we find in Quintilian the expression, Asserere libertatem reipub- 
 licce, we clearly see that respublica does not necessarily mean 
 republic, but only when the commonwealth, the system of 
 public affairs, was what we now call a republic. Since this, 
 however, actually was the case during the best times of Roman 
 history, it was natural that respublica received the meaning 
 of our word republic in most cases. 
 
 The term liberty had the same meaning in the middle ages, 
 wherever popular governments supplanted monarchical, often 
 where they superseded aristocratic polities. Liberty and 
 republic became in these cases synonymous. 2 
 
 1 The republic if, indeed, we can say that an actual and bona fide republic 
 ever existed in England was called the State, in contradistinction to the regal 
 government. During the Restoration under Charles II., men would say, " In 
 the times of the State," meaning the interval between the death of the first 
 Charles and the resumption of government by the second. The term State 
 acquired first this peculiar meaning under the Presbyterian government. 
 
 3 It is in a similar sense that Freiligrath, a modern German poet, begins one 
 of his most fervent songs with the line, Die Freiheit ist die Republik ; that is, 
 Freedom is the Republic. On the other hand, I find that Prussia, at the time 
 of Frederic the Great, was called, on a few occasions, the Republic, manifestly 
 without any reference to the form of government, and meaning simply the com- 
 mon or public weal or concern.
 
 AND SELF-GOVERNMENT. 
 
 43 
 
 CHAPTER IV. 
 
 ANCIENT AND MODERN LIBERTY. ANCIENT, MEDIEVAL, AND 
 MODERN STATES. 
 
 THAT which the ancients understood by liberty differed 
 essentially from what we moderns call civil liberty. Man 
 appeared to the ancients in his highest and noblest character 
 when they considered him as a member of the state or as a 
 political being. Man could rise no higher in their view. 
 Citizenship was in their eyes the highest phase of humanity. 
 Aristotle says in this sense, the state is before the individual. 
 With us the state, and consequently the citizenship, remain 
 means all-important ones, indeed, but still means to obtain 
 still higher objects, the fullest possible development of hu- 
 manity in this world and for the world to come. There was 
 no sacrifice of individuality to the state too great for the 
 ancients. The greatest political philosophers of antiquity 
 unite in holding up Sparta as the best regulated common- 
 wealth a communism in which the individual was sacrificed 
 in such a degree, that to the most brilliant pages of all history 
 she has contributed little more than deeds of bravery and 
 salient anecdotes of stoic heroism. Greece has rekindled 
 modern civilization, in the restoration of letters. The de- 
 generate keepers of Greek literature and art, who fled from 
 Constantinople when it was conquered by the Turks, and 
 settled in Western Europe, were nevertheless the harbingers 
 of a new era. So great was Grecian knowledge and civiliza- 
 tion even in this weakened and crippled state ! Yet in all that 
 intellectuality of Greece which lighted our torch in the fifteenth' 
 and sixteenth centuries, there is hardly a single Lacedaemonian 
 element. 
 
 Plato, when he endeavors to depict a model republic, ends
 
 44 ON CIVIL LIBERTY 
 
 with giving us a communism, in which even individual mar- 
 riage is destroyed for his higher classes. 1 
 
 We, on the other hand, acknowledge individual and primor- 
 dial rights, and seek one of the highest aims of civil liberty in 
 the most efficient protection of individual action, endeavor, 
 and rights. I have dwelt upon this striking and instructive 
 difference at length in my work on Political Ethics, 2 where 
 I have endeavored to support the opinion here stated by his- 
 torical facts and passages of the ancients. I must refer the 
 reader, therefore, to that part of the work ; but there is a 
 passage which seems to me so important for the present in- 
 quiry, as well as for another which will soon occupy our 
 attention, that, unable to express myself better than I have 
 done in the mentioned work, I must beg leave to insert it 
 here. It is this : 
 
 " We consider the protection of the individual as one of the 
 chief subjects of the whole science of politics. The K<>hrM t 
 ini<rrijp.r h or political science of the ancients, does not occupy 
 itself with the rights of the individual. The ancient science 
 of politics is what we would term the art of government, that 
 is, ' the art of regulating the state, and the means of pre- 
 serving and directing it.' The ancients set out from the idea 
 of the state, and deduce every relation of the individual to it 
 from this first position. The moderns acknowledge that the 
 state, however important and indispensable to mankind, how- 
 ever natural, and though of absolute necessity, still is but a 
 means to obtain certain objects, both for the individual and for 
 society collectively, in which the individual is bound to live 
 by his nature. The ancients had not that which the moderns 
 understand by jus naturale, or the law which flows from the 
 individual rights of man as man, and serves to ascertain 
 
 1 It is a striking fact that nearly all political writers who have indulged in 
 creating Utopias I believe all without exception have followed so closely the 
 ancient writers, that they rose no higher than to communism. It may be owing 
 in part to the fact that these writers composed their works soon after the restora- 
 tion of letters, when the ancients naturally ruled the minds of men. 
 
 Chapter xiii. of the second book.
 
 AND SELF-GOVERNMENT. 45 
 
 how, by means of the state, those objects are obtained which 
 justice demands for every one. On what supreme power rests, 
 what the extent and limitation of supreme power ought to be, 
 according to the fundamental idea of the state, these ques- 
 tions have never occupied the ancient votaries of political 
 science. 
 
 " Aristotle, Plato, Cicero, do not begin with this question. 
 Their works are mainly occupied with the discussion of the 
 question, Who shall govern? The safety of the state is their 
 principal problem ; the safety of the individual is one of our 
 greatest. No ancient, therefore, doubted the extent of supreme 
 power. If the people possessed it, no one ever hesitated in 
 allowing to them absolute power over every one and every- 
 thing. If it passed from the people to a few, or was usurped 
 by one, they considered, in many cases, the acquisition of 
 power unlawful, but never doubted its unlimited extent. 
 Hence in Greece and Rome the apparently inconsistent, yet 
 in reality natural, sudden transitions from entirely or partially 
 popular governments to absolute monarchies ; while in modern 
 states, even in the absolute monarchies, there exists a certain 
 acknowledgment of a public law of individual rights, of the 
 idea that the state, after all, is for the protection of the 
 individual, however ill conceived the means to obtain this 
 object may be. 
 
 " The idea that the Roman people gave to themselves, or 
 had a right to give to themselves, their emperors, was never 
 entirely abandoned, though the soldiery arrogated to them- 
 selves the power of electing the masters. * * * Yet the 
 moment that the emperor was established on his throne, no 
 one doubted his right to the absolute supreme power, with 
 whatever violence it was used. 1 
 
 1 This was written in the year 1837. Since then, events have occurred in 
 France which may well cause the reader to reflect whether, after all, the author 
 was entirely correct in drawing this peculiar line between antiquity and modern 
 times. All I can say in this place is, that the political movements in France 
 resemble the dire imperial times of Rome just so far as the French, or rather the 
 Napoleonists among them, step out of the broad path of modern political civili-
 
 46 ON CIVIL LIBERTY 
 
 " Liberty, with the ancients, consisted materially in the de- 
 gree of participation in government, ' where all are in turn 
 the ruled and the rulers.' Liberty, with the moderns, consists 
 less in the forms of authority, which are with them but means 
 to obtain the protection of the individual and the undisturbed 
 action of society in its minor and larger circles. 'EleuVspta, 
 indeed, frequently signifies, with the Greek political writers, 
 equality ; that is, absolute equality; and ;V-njc, equality, as well 
 as Meodspia, are terms actually used for democracy, 1 by which 
 was understood what we term democratic absolutism, or un- 
 limited despotic power in the demos, which, practically, can 
 only mean the majority, without any guarantee of any rights. 
 It was, therefore, perfectly consistent that the Greeks aimed 
 at perfect liberty in perfect equality, as Aristotle states, not 
 even allowing a difference on account of talent and virtue; so 
 that they give the xdlos, the lot, as the true characteristic of 
 democracy. They were consistently led to the lot ; in seeking 
 for liberty, that is, the highest enjoyment and manifestation of 
 reason and will, or self-determination, they were led to its 
 very negation and annihilation to the lot, that is, to chance. 
 Not only were magistrates, but even generals and orators 
 determined by lot." 2 
 
 Had the ancients possessed other free states than city-states, 
 they would have been forced out of this position ; but there 
 were no states in antiquity, if we take the term in the adapta- 
 tion in which we use it when we mean sovereign political 
 societies spreading over extensive territories and forming an 
 organic legal whole. Even the vast monarchies of ancient 
 
 zation, actually courting a comparison with imperial Rome, and that this renewed 
 imperial period will be nothing but a phase in the long chain of political revul- 
 sions and ruptures of France. The phase will not be of long duration, and, after 
 it will have passed, it will serve as an additional proof of our position. 
 
 1 Plato, Gorg., 71. 
 
 * For the evidence and proof I must refer to the original. [Dr. Lieber is in 
 an error in classing generals among the officers chosen at Athens by lot. Comp. 
 K. F. Hermann, Gr. Staatsalterth.,i. \ 149; Schomann, Gr. Alterth., i. 422; and 
 Tittmann, Staatsverfass., who gives a list of appointments to office by lot and by 
 cheiretonia, pp. 311-318.]
 
 AND SELF-GOVERNMENT. 47 
 
 Asia were conglomerated conquests with much of what has 
 just been called a city-state. Nineveh, Babylon, were mighty 
 cities that swayed over vast dominions as mistresses, but did 
 not form part of a common state in the modern term. 
 
 In the middle ages liberty appears in a different phase. 
 The Teutonic spirit of individual independence was one of the 
 causes which led to the feudal system, and frequently pros- 
 pered under it in rank disorder. There was no state proper 
 in the middle ages; the feudal system is justly called a mere 
 system. It was no state ; and medieval liberty appears in the 
 shape of liberties, of franchises, singly chartered, separately 
 conquered, individually arrogated each society, party, or 
 person obtaining as much as' possible, unmindful of others, and 
 each denying to others as much as might be conveniently done. 
 The term freedom, therefore, came distinctly to signify, in the 
 middle ages, not exactly the amount of free action allowed to 
 the citizen or guaranteed to the person who enjoyed it, but the 
 exemption from burdens and duties imposed upon others or 
 exacted in former times. Liberty had not yet acquired a sub- 
 stantive meaning, although it need not be mentioned that then, 
 as well as in ancient times, the principle which made noble 
 hearts throb for liberty and independence was the same that 
 has made the modern martyrs of liberty mount the scaffold 
 with confidence and reliance on the truth of their cause. 
 
 I am here again obliged to refer to the Political Ethics, 
 where I have treated of this peculiarity of the middle ages in 
 the chapter on the duties of the modern representative, contra- 
 distinguished from the medieval deputy. 
 
 The nearer we approach to modern times the more clearly 
 we perceive two movements, which, at first glance, would ap- 
 pear to be destructive the one to the other. On the one hand 
 states, in the present sense of the term, are formed. There 
 is a distinct period in the history of our race, which may be 
 aptly called the period of nationalization. Tribes, fragments, 
 separate political societies, are united into nations, and polit- 
 ically they appear more and more as states. It is one of the 
 many fortunate occurrences which have fallen to England in
 
 48 ON CIVIL LIBERTY 
 
 the course of her history, that she became nationalized at a 
 comparatively very early period. The feudal system was 
 introduced at a late period, and as a royal measure. The 
 king made the Norman-English nobility. The nobility did 
 not make the king. The English nobility, therefore, could 
 not resist the national movement and consolidation of the 
 people into a nation, as it did on the continent, and the 
 crown thus not being obliged to gather all possible strength, 
 in order to be able to subdue the baronial power, had not the 
 opportunity to pass over into the concentrated principate. 
 which was one of the political phases in every other part of 
 Europe. 1 
 
 On the other hand we observe that the priceless individual 
 worth and value which Christianity gives to each human being, 
 by making him an individually responsible being, with the 
 highest duties and the highest privileges, together with ad- 
 vancing civilization, in a great measure produced by itself 
 the Teutonic spirit of personal independence, connected not a 
 little with the less impressionable, and therefore more tena- 
 cious, and sometimes dogged character of the Teutonic all 
 these combinedly, developed more and more the idea of indi- 
 vidual rights, and the desire of protecting them. 
 
 1 The history of no nation reminds the student so frequently of the fact that 
 " His ways are not our ways," as that of England. Many events which have 
 brought ruin elsewhere, served there, in the end, to obtain greater liberty and a 
 higher nationality. The fact that the Norman nobility in England was the 
 creature of the king for this, doubtless, it was, although they came as Norman 
 noblemen to the field of Hastings is one of these remarkable circumstances. 
 The English civil wars ; the fact that most of England's monarchs have been 
 indifferent persons, and that after Alfred the Great but one truly great man has 
 been among her kings ; the inhospitable climate, which was treated by the people 
 like a gauntlet thrown down by nature ; that they developed that whole world 
 of domestic comfort and well-being, known nowhere else, and of such impor- 
 tant influence upon all her political life; her limited territory; her repeated 
 change of language ; her early conquests, these are some items of a list which 
 might easily be extended. 
 
 Since this note was originally written, a work in praise of Henry VIII. has 
 attracted sufficient attention to make it necessary for me to state that the author 
 means William III. as the great monarch after Alfred.
 
 AND SELF-GOVERNMENT. 
 
 49 
 
 These two facts have materially influenced the development 
 of modern liberty, that liberty which we call our own. The 
 progress we value so much was greatly retarded on the conti- 
 nent by an historical process which was universal among the 
 nations of Europe, excepting those of Sclavonic origin, be- 
 cause they had not yet entered the lists of civilization. 
 
 The feudal system, of far greater power on the continent 
 than in England, interfered with the process of nationalization 
 and the formation of states proper. The people gradually 
 rose to a higher position, a higher consciousness of rights, 
 and the inhabitants of the cities generally found the baronial 
 element hostile to them. The consequence was, that the 
 crowns and the people united to break the power of the 
 baron. But in the same degree as the struggle was tenacious, 
 and the crown had used stronger power to subdue the feudal 
 lord, it found itself unshackled when the struggle was over, 
 and easily domineered over both the people and the lords. 
 Then came the time of absorbing regal power, of centraliza- 
 tion and monarchical absolutism, of government-states, as 
 Niebuhr calls them. The liberties of the middle ages were 
 gone ; the principles of self-government were allowed to exist 
 nowhere ; and we find, at the present period only, the whole 
 of the European continent, with the exception of Russia, as 
 a matter of course, engaged in an arduous struggle to regain 
 liberty, or rather to establish modern freedom. Everywhere 
 the first ideas of the new liberty were taken from England, 
 and, later, from the United States. The desire of possessing 
 a well-guaranteed political liberty and enjoyment of free 
 action was kindled on the European continent by the example 
 of England. The course which we observe in France, from 
 Montesquieu, who, in his brilliant work on the Spirit of Laws, 
 has chiefly England in view as a model, to the question at the 
 beginning of the first French Revolution, whether the princi- 
 ples of British liberty should be adopted, was virtually repeated 
 everywhere. The representative principle, the trial by jury, 
 the liberty of the press, taxation and appropriations by the 
 people's representatives, the division of power, the habeas 
 
 5
 
 50 ON CIVIL LIBERTY 
 
 corpus principle, publicity, and whatever else was prominent 
 in that liberty peculiar to the Anglican race, whether it had 
 originated with it, or had been retained by it when elsewhere 
 it had been lost in the general shipwreck of freedom, was 
 longed for by the continental people, insisted on, or struggled 
 for. 
 
 It is well, then, to ask ourselves, In what does this Anglican 
 liberty consist ? The answer is important, in a general point 
 of view, as well as because it is the broad foundation and 
 frame-work of our own American liberty.
 
 AND SELF-GOVERNMENT. 51 
 
 CHAPTER V. 
 
 ANGLICAN LIBERTY. 
 
 IN order to ascertain in what this peculiar system of civil 
 liberty consists, we must examine those charters of the whole 
 Anglican race, which belong to "the times when governments 
 chartered liberty," and to those " when the people charter 
 governments." We must observe what principles, measures, 
 and guarantees were most insisted upon in periods most dis- 
 tinguished by an active spirit of liberty, of opposition to 
 encroaching power, or of a desire to prune public power so as 
 to make it in future better harmonize with the claims of indi- 
 vidual liberty. We must see what it is that the people of 
 England and the people of America in great political periods 
 have solemnly declared their rights and obligations. We 
 must study the periods of a vigorous development of liberty, 
 and we must weigh Magna Charta, the Petition of Right, and 
 the Bill of Rights the three statutes which Lord Chatham 
 called the Bible of the English Constitution. We must inquire 
 into the public common law of England, and the common law 
 as it has developed itself on this side of the Atlantic ; and 
 especially into the leading cases of political and constitutional 
 importance that have been decided in England and the United 
 States. 1 We must ponder our great federal pact, with the 
 contemporaneous writers on this constitution, and the debates 
 
 1 A chronological table of the leading cas ;s in England and the United States 
 by which great constitutional principles or essential individual rights have been 
 settled and sown like a spreading, self-increasing plant, would be highly in- 
 structive, and show how much we owe to the growth of liberty, and how much 
 this growth is owing to the husbanding of practical cases in the spirit of 
 freedom. 
 
 51
 
 52 ON CIVIL LIBERTY 
 
 which led to its adoption after the failure of the original articles 
 of confederation, as well as the special charters which were 
 considered peculiarly favorable to liberty, such as many of the 
 colonies possessed, out of which the United States arose. We 
 must attentively study the struggles in which the people waged 
 their all to preserve their liberties or to obtain new ones, and 
 those periods which, with reference to civil liberty, may be 
 called classical. We must analyze the British and our own 
 revolutions, and compare them with the political revolutions 
 of other nations, and we must study not only the outward 
 events, or the ultimate measures, but we must trace their 
 genesis, and ascertain how and why these things came about, 
 and what the principles were for which the chief men engaged 
 in the arduous task contended. We must mark what it is 
 that those nations wish to introduce among themselves, that 
 are longing for freedom similar to that which we enjoy. 
 We must test which of the many institutions peculiar to our 
 tribe have proved, in the course of time, as real props of 
 freedom, or most prolific in shooting forth new branches. 
 We must read the best writers on law, history, and political 
 philosophy with reference to these subjects, and observe the 
 process of spreading liberty. We must note which are the 
 most fruitful principles of Anglican self-government in the 
 widening colonies north and south of the equator; and 
 examine our own lives as citizens of the freest land, as well 
 as the great process of expansion of liberty with ourselves. 
 We ought clearly to bring before our minds those guarantees 
 which invariably are the main points of assault when the 
 attempt is made to batter the ramparts of civil liberty and 
 bring the gallant garrison to surrender. And, lastly, we 
 ought to study the course of despotism ; for the physiologist 
 learns as much from pathology as from a body in vigorous 
 health. 
 
 We call this liberty Anglican freedom, not because we think 
 that it ought to be restricted to the Anglican race, or will or 
 can be so; but simply because it has been evolved first and 
 chiefly by this race, and because we must contradistinguish it
 
 A ND SELF- G O VERNMENT. 
 
 53 
 
 from Gallican liberty, as the sequel will show. 1 Nor is it 
 maintained that all that is included in Anglican liberty is of 
 especial Anglican origin. Liberty is one of the wreaths of 
 humanity, and in all liberty there must be a large fund of uni- 
 versal humanity, as all cultivated languages must agree in em- 
 bodying the most important principles of intellectual analysis 
 and combination ; and as Grecian architecture does not contain 
 exclusively what the Greeks originated, and is not, on account 
 of its very humanity, restricted to Greece, still, we call it 
 Greek architecture, and we do so with propriety ; for it was in 
 Greece that that column and capital were developed which are 
 found everywhere with civilized man, have passed over from a 
 pagan world into Christian civilization, and are seen wherever 
 the Bible is carried. 
 
 Now, what we call Anglican liberty, are the guarantees 
 
 1 In the year 1848 I published, in an American journal, a paper headed 
 Anglican and Gallican Liberty, in which I indicated several views which have 
 been further developed in the present work. A distinguished German criminalist 
 and publicist did me the honor of publishing a German translation of this paper, 
 in which, however, he says that what I have called Anglican liberty is more 
 generally called Germanic liberty. This is an error. I allow that the original 
 Teutonic spirit of individual independence, distinguished as it is from the Celtic 
 disposition of being swayed by masses, and from the consequent proclivity 
 toward centralization in politics, religion, and literature, and a certain inability 
 to remain long in the opposition, or to stand aloof of a party, I allow that this 
 original Teutonic spirit largely enters into what I have termed Anglican liberty, 
 but this is a system of civil liberty which has developed itself independent of all 
 other Teutonic nations, has been increasing while nearly all the other Teutonic 
 nations lost their liberty, and of which, unfortunately, the Germans, who ought 
 to be supposed the most Germanic of the Germanic tribes, have nothing, except 
 what may remain of the late attempts at engrafting anew principles or guarantees 
 of liberty on their polities, which had become more and more a copy of French 
 centralization. This is not the place to discuss the subject of so-called Germanic 
 liberty. All that is necessary here to state is, that what is called Anglican 
 liberty consists, as was said before, in a body of guarantees which, as an entire 
 system, has been elaborated by the Anglican race, and is peculiar to them unless 
 imitated by others. Many a detail of Anglican liberty existed long ago in other 
 parts of Europe, and was enjoyed at times i-n a higher degree than by the Eng- 
 lish at that period. But it withered or ran wild, and never became a part of a 
 constitutional organism. What has become of the Aragonese Jttst'.cia or chief 
 justice? What of the Hungarian excessive self-government of the county?
 
 54 ON CIVIL LIBERTY 
 
 which our race has elaborated, as guarantees of those rights 
 which experience has shown to be most exposed to the danger 
 of attack by the strongest power in the state, namely, the 
 executive, or as most important to a frame of government 
 which will be least liable to generate these dangers, and also 
 most important to the essential yet weaker branches of govern- 
 ment. It consists in the civil guarantees of those principles 
 which are most favorable to a manly individual independence 
 and ungrudged enjoyment of individual humanity ; and those 
 guarantees which insure the people, meaning the totality of the 
 individuals as a unit, or the nation, against being driven from 
 the pursuit of those high aims which have been assigned to it 
 by Providence as a nation, or as a united people. Where the 
 one or the other is omitted, or exclusively pursued, there is no 
 full liberty. If the word people be taken as never meaning 
 anything else than a unit, a widely extended and vigorous 
 action of that unit may exist indeed blinding ambition may 
 be enjoyed, but it is no liberty ; if, on the other hand, the 
 term people is never taken in any other sense than a mere 
 term of brevity, and for the impossible enumeration of all in- 
 dividuals, without inherent connection, the consequence must 
 be a sejunctive egotism which loses the very power of protect- 
 ing the individual rights and liberties. 
 
 What is guarantee for one is check to the other, and if 
 liberty consists in mutual guaranteeing of certain rights of 
 actions and endeavors, it is clear that, correspondingly, it 
 consists in certain mutual checking, which, again, cannot exist 
 without corresponding mutual toleration. We find therefore, 
 in history, that no people who have not fairly learned to bear 
 with one another can enjoy liberty. The absence of tolera- 
 tion is the stigma of absolutisms the establishment of " the 
 opposition" is the glory of freedom. Freedom allows of 
 variety ; the tyrant, whether one or a multitude, calls heretic 
 at every one who thinks or feels differently. 1 
 
 1 Bunsen, in his Signs of the Times, calls mutual toleration the true evidence 
 >f a firm Christian faith and the only valid evidence before God and men. 
 He speaks of religion ; but the remark, with proper modification, is applicable
 
 AND SELF-GOVERNMENT. 
 
 55 
 
 These guarantees, then, as we acknowledge them in the 
 period of civil development in which we live, and as far as they 
 are common to the whole Anglican race, and, if of a more 
 general character, are still inseparably interwoven with what 
 is peculiar to the race, we call Anglican liberty. These 
 guarantees and checks I now proceed to enumerate. 
 
 in all spheres. Strong conviction of right and truth and reality early rises to 
 respectful toleration a generous acknowledgment of the rights as well as the 
 opinions of others. Feebleness of conviction or consciousness of feebleness 
 makes tyrannical and vindictive. And, let us add, this is one of the many points 
 where true liberty and gentlemanliness meet in requirements and effects.
 
 56 ON CIVIL LIBERTY 
 
 CHAPTER VI. 
 
 NATIONAL INDEPENDENCE. PERSONAL LIBERTY. 
 
 I. IT is impossible to imagine liberty in its fulness, if the 
 people as a totality, the country, the nation, whatever name 
 may be preferred, or its government, is not independent of 
 foreign interference. The country must have what the Greeks 
 called autonomy. This implies that the country must have 
 the right, and, of course, the power, of establishing that govern- 
 ment which it considers best, unexposed to interference from 
 without or pressure from above. No foreigner must dictate ; 
 no extra-governmental principle, no divine right or " principle 
 of legitimacy," must act in the choice and foundation of the 
 government ; no claim superior to that of the people's, that is, 
 superior to national sovereignty, must be allowed. 1 This inde- 
 pendence or national self-government further implies that, the 
 civil government of free choice or free acquiescence being 
 established, no influence from without, besides that of freely 
 acknowledged justice, fairness, and morality, must be admitted. 
 There must then be the requisite strength to resist when neces- 
 sary. While the author is setting down these remarks, the news 
 is reaching us of the manly declaration made in the British Com- 
 mons, by the minister of foreign affairs, Lord Palmerston, that 
 the united calls of all the continental powers would be utterly 
 insufficient to give up or to drive from the British territoiy 
 those political exiles who have sought an asylum on English 
 soil, and of the ready support given by the press to the spokes- 
 man of the nation. Even the French, so far as they are 
 allowed at the present untoward conjuncture to express them- 
 selves, applaud this declaration as a proof of British freedom. 
 
 Political Ethics, chapter on Sovereignty.
 
 AND SELF-GOVERNMENT. 57 
 
 The Helvetic Cantons, on the other hand, are forced to yield 
 to the demands even of an Austrian government; and the 
 worried Republic of Switzerland, so far as this goes, cannot be 
 said to be free. The history of the nineteenth century, but 
 especially that of our own age, is full of instances of inter- 
 ference with the autonomy of nations or states. Italy, Ger- 
 many, especially Hessia ; Spain, Hungary, furnish numerous 
 instances. Cases may occur, indeed, in which foreign inter- 
 ference becomes imperative. All we can then say is, that the 
 people's liberty so far is gone, and must be recovered. No 
 one will maintain that interference with Turkish affairs at the 
 present time is wrong in those powers who resist Russian in- 
 fluence in that quarter, but no one will say either that Turkey 
 enjoys full autonomy. The very existence of Turkey depends 
 upon foreign sufferance. 
 
 Since the preceding paragraph was written, historical illus- 
 trations have occurred, too important to be appended in a note. 
 The same statesman who, as minister of foreign affairs, in the 
 year 1853, made the manly declaration concerning political 
 fugitives, allowed himself, as prime minister, in the year 1858, 
 to propose a law in the House of Commons, at the instigation 
 of the emperor of the French, by which the fomenting of con- 
 spiracies in England against foreign princes should be visited 
 with a higher punishment, or be made punishable if it was 
 not already so. The English Commons indignantly rejected 
 such a bill proposed at that very time ; the premier lost his 
 place, and from that historical jury-box of.Middlesex proceeded 
 a verdict of not guilty when a Frenchman residing in England 
 was tried for having been an accessory before the fact, of Orsini, 
 who had attempted to assassinate Napoleon III. The verdict 
 was plainly on the ground that Englishmen would not be 
 dictated to in their legislation by a despotic foreign govern- 
 ment, and as such was hailed with joy by every man on the 
 European continent who wishes well to liberty. 1 It was a' 
 
 1 The case is The Queen vs. Bernard. [It is, however, in itself right to punish 
 conspiracies against foreign powers, when their base of operations is within our
 
 58 ON CIVIL LIBERTY 
 
 similar spirit, no doubt, which lately caused many Americans to 
 take so warm a part against the reported attempts of English 
 vessels to search American traders. 
 
 On the other hand, it must be remembered that this un- 
 stinted autonomy is greatly endangered at home by interfering 
 with the domestic affairs of foreigners. The opinion, there- 
 fore, urged by Washington, that we should keep ourselves 
 aloof from foreign politics, is of far greater weight than those 
 believe who take it merely with reference to foreign alliances 
 and ensuing wars. The interference need not necessarily 
 proceed from government. Petitions affecting foreign public 
 measures or institutions, and coming from large bodies, or 
 even committees sent to express the approval of a foreign 
 government, of which we have had a recent and most remark- 
 able instance, 1 are reprehensible on the same ground. 
 
 territory, because they are crimes committed on our soil, over which no other 
 state has control, and also because they may involve us in unpleasant relations 
 with foreigners. But in the case mentioned in the text the demand for new 
 legislation was made in the spirit of intimidation. The English claim to search 
 our vessels in 1858 was dictated by the desire to ascertain whether a given vessel 
 was really of foreign nationality, or an English vessel under false colors.] 
 
 1 The address and declaration of four thousand British merchants, presented in 
 the month of April, 1853, to the emperor of the French, will forever remain 
 a striking proof of British liberty; for in every other European country the 
 government would have imprisoned every signer, if, indeed, the police had not 
 nipped the petition in the bud ; and it will also forever remain a testimony how 
 far people can forget themselves and their national character when funds are be- 
 lieved to be endangered, or capital is desired to be placed advantageously. But 
 I have alluded to it in the text as an instance only of popular interference with 
 foreign governments, doubtless the most remarkable instance of the kind on 
 record. Whether the whole proceeding was "not far short of high treason," as 
 Lord Campbell stigmatized it in the House of Lords, may be left undecided. It 
 certainly would have been treated as such during some periods of English 
 history, and must be treated by all right-minded men of the present period as a 
 most unworthy procedure. 
 
 To this must now be added the record of the tone which pervaded the address 
 of the lord mayor and aldermen of London to Count Walewski, French Ambas- 
 sador, in the early part of the year 1858, and the manner in which it was re- 
 ceived, when Orsini had attempted to assassinate the count's master and cousin, 
 having obtained his explosive weapons in England. The reply of the ambassa- 
 dor was submitted to, although rising to such a degree of impertinence that
 
 AND SELF-GOVERNMENT. 
 
 59 
 
 It is one of the reasons why a broadcast liberty and national 
 development was so difficult in the middle ages, that the pope, 
 in the times of his highest power, could interfere with the 
 autonomy of states. I do not discuss here whether this was 
 not salutary at times. Gregory VII. was a great, and, possi- 
 bly, a necessary man ; but where civil liberty is the object, as it 
 is now with civilized nations, this medieval interference of the 
 pope would be an abridgment of it, just as much as the Aus- 
 trian or French influence in the States of the Church is an 
 abridgment of their independence at present. 
 
 It is a remarkable feature in the history of England, that 
 even in her most catholic times the people were more jealous 
 of papal interference by legates or other means, than any 
 other nation, unless we except the Germans when their em- 
 perors were in open war with the popes. This was, however, 
 transitory, while in England intercourse with the papal see 
 was legally restricted and actually made penal. 
 
 2. Civil liberty requires firm guarantees of individual 
 liberty, and among these there is none more important than 
 the guarantee of personal liberty, or the great habeas corpus 
 principle, and the prohibition of "general warrants" of arrest 
 of persons. 
 
 To protect the individual against interference with per- 
 sonal liberty by the power-holder is one of the elementary 
 requisites of all freedom, and one of the most difficult problems 
 to be solved in practical politics. If any one could doubt the 
 difficulty, history would soon convince him of the fact. The 
 English and Americans safely guard themselves against illegal 
 arrest ; but a long and ardent struggle in England was neces- 
 sary to obtain this simple element, and the ramparts around 
 personal liberty, now happily existing, would soon be disre- 
 garded, should the people, by a real prava negligentia malo- 
 rum, ever lose sight of this primary requisite. 
 
 The means by which Anglican liberty secures personal 
 liberty are threefold : the principle that every man's house is 
 
 it was necessary, at a later period, diplomatically to explain and partially to 
 unsay it.
 
 60 ON CIVIL LIBERTY 
 
 his castle, the prohibition of general warrants, and the habeas 
 corpus act. 
 
 Every man's house is his castle. It is a principle evolved 
 by the common law of the land itself, and is exhibited in a yet 
 stronger light in the Latin version, which is, Domus sua cuique 
 est tutissimum refugium, and Nemo de domo suaextrahi debet, 
 which led the great Chatham, when speaking on general war- 
 rants, to pronounce that passage with which now every English 
 and American school-boy has become familiar through his 
 Reader. " Every man's house," he said, " is called his castle. 
 Why ? Because it is surrounded by a moat, or defended by a 
 wall ? No. It may be a straw-built hut ; the wind may whistle 
 around it ; the rain may enter it, but the king cannot." ' 
 
 Accordingly, no man's house can be forcibly opened, or he 
 or his goods be carried away after it has thus been forced, ex- 
 cept in cases of felony, and then the sheriff must be furnished 
 with a warrant, and take great care lest he commit a trespass. 
 This principle is jealously insisted upon. It has been but 
 recently decided in England, that although a house may have 
 been unlawfully erected on a common, and every injured com- 
 moner may pull it down, he is nevertheless not justified in 
 doing so if there are actually people in it. 
 
 There have been nations, indeed, enjoying a high degree of 
 liberty, without this law maxim ; but the question in this place 
 is even less about the decided advantages arising to freemen 
 from the existence of this principle, than about the sturdiness 
 of the law and its independent development, that could evolve 
 
 1 In many countries, and even among hardly civilized tribes, it has been a rule 
 that no one should enter a man's house without the consent of the owner. 
 Missionaries tell us that the Yarriba people in Central Africa do not allow their 
 king to enter a house, even to arrest a criminal, without the consent of the head 
 of the family. So we are very often told that the trial by jury was known before 
 England had its present name ; but the question of importance is, how far a 
 principle is developed, how securely it is guaranteed, how essential a part of a 
 general system it is, and how strong it is to resist when public power should 
 choose to interfere with it. The Chinese have no censorship, but this absence of 
 censorship is not liberty of the press. The Romans cared very little about the 
 religion of their subjects, (so that they were not Christians,) but this was not com 
 stitutional toleration or freedom of worship.
 
 AND SELF-GOVERNMENT. 6l 
 
 and establish this bold maxim. It must be a manly race of 
 freedom-loving people, whose own common law could deposit 
 such fruitful soil. For let it be observed that this sterling 
 maxim was not established, and is not maintained, by a dis- 
 junctive or a law-defying race. The Mainots considered their 
 Lacedaemonian mountain fastnesses as their castles too, during 
 the whole Turkish reign in Greece ; the feudal baron braved 
 authority and law in his castle; the Mino-tze 1 have never been 
 subdued by the Tartar dynasty of China, and defy the govern- 
 ment in their mountain fastnesses to this day, much as the 
 Highlanders of Scotland did before the battle of Culloden ; 
 but the English maxim was settled by a highly conjunctive, a 
 nationalized people, and at the same time when law and general 
 government was extending more and more over the land. It is 
 insisted on in the most crowded city the world has ever seen, 
 with the same jealousy as in a lonely mountain dwelling ; it is 
 carried out, not by retainers and in a state of war made per- 
 manent, as Essex tried to do when he was arrested, but by 
 the law, which itself has given birth to it. The law itself 
 says : Be a man, thou shalt be sovereign in thy house. It is 
 this spirit which brought forth the maxim, and the spirit which 
 it necessarily nourishes, that makes it important. 
 
 It is its direct antagonism to a mere police government, its 
 bold acknowledgment of individual security opposite to gov- 
 ernment, it is its close relationship to self-government, which 
 give so much dignity to this guarantee. To see its value, we 
 need only throw a glance at the continental police, how it 
 enters, at night or in the day, any house or room, breaks open 
 any drawer, seizes papers or anything it deems fit, without any 
 other warrant than the police hat, coat, and button. 
 
 Nor must we believe that the maxim is preserved as a piece 
 of constitutional virtu. As late as the month of June, 1853, 
 a bill was before the House of Commons, proposing some 
 guarantee against property of nuns and monks being too 
 easily withdrawn from relations, and that certain officers 
 
 1 In the province of Kouang-Si, containing mountainous regions.
 
 62 ON CIVIL LIBERTY 
 
 should have the right to enter nunneries, from eight A.M. to 
 eight o'clock P.M., provided there was strong suspicion that 
 an inmate was retained against her will. The leading minister 
 of the crown in the Commons, Lord John Russell, opposed 
 the bill, and said : " Pass this bill, and where will be the 
 boasted safety of our houses? It would establish general 
 tyranny." 
 
 The prohibition of " general warrants." The warrant is 
 the paper which justifies the arresting person to commit so 
 grave an act as depriving a citizen, or alien, of personal liberty. 
 It is important, therefore, to know who has the right to issue 
 such warrants, against whom it may be done, and how it must 
 be done, in order to protect the individual against arbitrary 
 police measures. The Anglican race has been so exact and 
 minute regarding this subject, that the whole theory of the 
 warrant may be said to be peculiarly Anglican, and a great 
 self-grown institution. "A warrant," the books say, "to de- 
 prive a citizen of his personal liberty should be in writing, 
 and ought to show the authority of the person who makes it, 
 the act which is authorized to be done, the name or descrip- 
 tion of the party who is authorized to execute it, and of the 
 party against whom it is made; and, in criminal cases, the 
 grounds upon which it is made." The warrant should name 
 the person against whom it is directed ; if it does not, it is 
 called a general warrant, and Anglican liberty does not allow 
 it. 1 Where it is allowed there is police government, but not 
 the government for freemen. It is necessary that the person 
 who executes the warrant be named in it. Otherwise the in- 
 jured citizen, in case of illegal arrest, would not know whom 
 
 1 A warrant to apprehend all persons suspected, or all persons guilty, etc. etc., 
 is illegal. The person against whom the warrant runs ought to be pointed out. 
 The law on this momentous subject was laid down by Lord Mansfield in the 
 case of Money -vs. Leach, 3 Burrow's Rep. 1742, where the "general warrant" 
 which had been in use since the revolution, directing the officers to apprehend 
 the " authors, printers, and publishers" of the famous No. 45 of the North 
 Briton, was held to be illegal and void. [Comp. May, Constit. Hist., ii. chap. 
 II.]
 
 AND SELF-GOVERNMENT. 63 
 
 he should make responsible ; but if the person be named, he 
 is answerable, according to the Anglican principle that every 
 officer remains answerable for the legality of all his acts, no 
 matter who directed them to be done. Indeed, we may say 
 the special warrant is a death-blow to police government. 1 
 
 The Constitution df the United States demands that " no 
 warrants shall issue but upon probable cause, supported by 
 oath or affirmation, and particularly describing the place to be 
 searched, and the persons or things to be seized." 2 
 
 The warrant is held to be so important an element of civil 
 liberty, that a defective warrant is considered by the common 
 law of England and America one of the reasons which reduce 
 the killing of an officer from murder to manslaughter. The 
 reader will see this from the following passage, which I copy 
 from a work of authority both here and in England. I give 
 the passage entire, because it relates wholly to individual lib- 
 erty, and I shall have to recur to it. 3 The learned jurist says : 
 
 " Though the killing of an officer of justice, while in the 
 regular execution of his duty, knowing him to be an officer, 
 and with intent to resist him in such exercise of duty, is mur- 
 der, the law in that case implying malice, yet where the 
 process is defective or illegal, or is executed in an illegal 
 manner, the killing is only manslaughter, unless circumstances 
 appear, to show express malice; and then it is murder. Thus, 
 the killing will be reduced to manslaughter, if it be shown in 
 evidence that it was done in the act of protecting the slayer 
 against an arrest by an officer acting beyond the limits of his 
 precinct ; or, by an assistant, not in the presence of the officer 
 or, by virtue of a warrant essentially defective in describing 
 
 1 [For arrests which officers or even private persons are allowed by English 
 law to make without warrant, see Blackstone's Com., iv. chap. 21, pp. 292, 293, 
 and the notes of the annotators on his text.] 
 
 a The reader will find a copy of the Constitution of the United States in the 
 Appendix. 
 
 3 This is section 123 of vol. iii. of Dr. Greenleaf on Evidence, which I have 
 copied by the permission of my esteemed and distinguished friend. I have left 
 out all the legal references. The professional lawyer is acquainted with the book, 
 and the references would be important to him alone.
 
 64 ON CIVIL LIBERTY 
 
 either the person accused, or the offence ; or, where the party 
 had no notice, either expressly, or from the circumstances of 
 the case, that a lawful arrest was intended, but, on the con- 
 trary, honestly believed that his liberty was assailed without 
 any pretence of legal authority ; or, where the arrest attempted, 
 though for a felony, was not only without warrant, but with- 
 out hue and cry, or fresh pursuit, or, being for a misdemeanor 
 only, was not made flagrante delicto ; or, where the party was, 
 on any other ground, not legally liable to be arrested or im- 
 prisoned. So, if the arrest, though the party were legally 
 liable, was made in violation of law, as, by breaking open the 
 outer door or window of the party's dwelling-house, on civil 
 process; for such process does not justify the breaking of the 
 dwelling-house, to make an original arrest ; or, by breaking 
 the outer door or window, on criminal process, without pre- 
 vious notice given of his business, with demand of admission, 
 or something equivalent thereto, and a refusal." 
 
 The Habeas Corpus Act. This famous act of parliament 
 was passed under Charles II., and is intended to insure to an 
 arrested person, whether by warrant or on the spot, that at his 
 demand he be brought, by the person detaining him, before a 
 judge, who may liberate him, bail him, or remand him, no 
 matter at whose command or for what reasons the prisoner is 
 detained. It allows of no " administrative arrests," as extra- 
 judicial arrests are called in France, or imprisonment for 
 reasons of state. The habeas corpus act further insures a 
 speedy trial, 1 a trial by the law of the land, and by the lawful 
 court three points of the last importance. It moreover 
 guarantees that the prisoner know for what he is arrested, and 
 may properly prepare for trial. The habeas corpus act did by 
 no means first establish all these principles, but numberless 
 
 ' Long imprisonments before trial are customary means resorted to on the 
 continent of Europe in order to harass the subjects. Guerrazzi and other liberals 
 were sentenced, in Tuscany, on the first of July, 1853, after having been im- 
 prisoned for fifty months before ever being brought to trial. It is useless to 
 mention more instances ; for long imprisonment before trial is the rule in abso- 
 lute governments whenever it suits them.
 
 AND SELF-GOVERNMENT. 65 
 
 attempts to secure them had failed, and the act may be con- 
 sidered as the ultimate result of a long struggle between law 
 and the individual on the one hand, and power on the other. 
 The history of this act is interesting and symptomatic. 1 
 
 The Constitution of the United States prohibits the sus- 
 pension of the habeas corpus act, " unless when, in cases of 
 rebellion or invasion, the public safety may require it;" and 
 Alexander Hamilton says, in the "Federalist:" 2 "The estab- 
 lishment of the writ of habeas corpus, the prohibition of ex 
 post facto laws and of titles of nobility, to which we have no 
 corresponding provisions in our constitution," (therefore per- 
 sonal liberty, or protection and safety, supremacy of the law 
 and equality,) " are perhaps greater securities to liberty than 
 any it contains ;" and, with reference to the first two, he justly 
 adds the words of "the judicious Blackstone." 3 
 
 All our State Constitutions have adopted these important 
 principles. The very opposite of this guarantee was the 
 " lettre de cachet," or is the arbitrary imprisonment at pres- 
 ent in France. 
 
 A witness of singular weight, as to the essential importance 
 of Anglican personal liberty, must not be omitted here. The 
 emperor Napoleon III., who, after Orsini's attempt to assassi- 
 nate him, obtained the " law of suspects," according to which 
 the French police, or administration, (not the courts of justice,) 
 may transport a " suspect" for seven years, wrote, in earlier 
 days, with admiration of English individual liberty. 4 
 
 1 The Appendix contains the habeas corpus act. 
 
 " Paper No. Ixxxiv. 
 
 3 Blackstone's Commentaries, vol. i. page 136. Note, in the " Federalist. " 
 
 * In 1854 a complete edition of the emperor's works was published. In that 
 edition was a chapter headed De la Liberte individuelle en Angleterre. In it 
 are the following passages : 
 
 " No inhabitant of Great Britain (excepting convicts) can be expelled from 
 the United Kingdom. Any infraction of this clause (the habeas corpus act) 
 would be visited with the severest penalties." He remarks that we have no 
 public prosecutor, the attorney-general interfering only on extraordinary oc- 
 casions; and if criminals sometimes escape justice, personal liberty is the less 
 endangered. " In England, authority is never influenced by passion ; its pro- 
 ceedings are always moderate, always legal;" there is "no violation of the citi- 
 
 S
 
 66 ON CIVIL LIBERTY 
 
 There was in England, until within a recent date, a remark- 
 able deviation from the principles of personal liberty the 
 impressment. The crown assumed the right to force any 
 able-bodied man on board a man-of-war, to serve there as 
 sailor. There has always been much doubt about this arro- 
 gated privilege of the crown, and, generally, sailors only were 
 taken, chiefly in times of war and when no hands would freely 
 enlist. Every friend of liberty will rejoice that the present 
 administration has taken in hand a new plan of manning the 
 navy, by which this blemish will be removed. 1 
 
 zen's domicile, so common in France;" family correspondence is inviolate, and 
 no passports bar the most perfect freedom of traffic, " passports, the oppressive 
 invention of the Committee of Public Safety, which are an embarrassment and 
 an obstacle to the peaceable citizen, but which are utterly powerless against those 
 who wish to deceive the vigilance of authority." A law deprived of the general 
 support of public opinion would be a mere scrap of paper. 
 
 " It suffices for us to note this fact, that in France, where such jealousy is shown 
 of everything which touches equality and national honor, people do not attach 
 themselves so religiously to personal liberty. The tranquillity of the citizen may 
 be disturbed, his domicile may be violated, he may be made to undergo for whole 
 months a preventive imprisonment, personal guarantees may be despised, and a 
 few generous men shall raise their voices, but public opinion will remain calm 
 and impassible as long as no political passion is awakened. There lies the 
 greatest reason for the violence of authority ; it can be arbitrary because there is 
 no curb to check it. In England, on the contrary, political passions cease the 
 moment a violation of common right is committed ; and this, because England 
 is a country of legality, and France has not yet become so ; because England is 
 a country solidly constituted, while France struggles by turns for forty years be- 
 tween revolutions and counter-revolutions, and the sanctity of principle has yet 
 to be created there." 
 
 1 The plan has not yet been published, but one of the ministers, Sir James 
 Graham, said in the Commons, in April, 1853: 
 
 " The first point on which all the authorities consulted were agreed is, that 
 whatever measures are taken, must rely for success on the voluntary acceptance 
 of them by the seamen, and that any attempt 10 introduce a coercive mode of 
 enlistment would be followed by mischievous consequences and failure." The 
 difficult question does not yet seem to be wholly settled (1859). It seems diffi- 
 cult to obtain a sufficient number of seamen to man the fleet in emergencies. 
 In France seamen are drafted, as soldiers are for the army. [For the history of 
 impressment, for the army as well as for the navy, down to 1860, comp. May, 
 u. s., ii. 259 et seq. Until 1872 no law abolishing this practice was passed; but 
 the practice itself seems to be in abeyance.]
 
 AND SELF-GOVERNMENT. 
 
 CHAPTER VII. 
 
 BAIL. PENAL TRIAL. 
 
 3. CONNECTED with the guarantees of personal liberty, treated 
 of in the foregoing chapter, is the bail. 
 
 The law of all nations not wholly depraved in a political 
 point of view, adopts the principle that a man shall be held 
 innocent until proved by process of law to be otherwise. In 
 fact, the very idea of a trial implies as much. Theoretically, 
 at least, this is acknowledged by all civilized nations, although 
 often the way in which judicial affairs are conducted, and in 
 many countries the very mode of trying itself, are practical 
 denials of the principle. But even in the freest country there 
 is this painful yet unavoidable contradiction, that while we 
 hold every person innocent until by lawful trial proved to be 
 guilty, we must arrest a person in order to bring him to a 
 penal trial ; and, although by the law he is still considered 
 innocent, he must be deprived of personal liberty until his 
 trial can take place, which cannot always follow instantly 
 upon the arrest. To mitigate this harshness as much as pos- 
 sible, free nations guarantee the principle of bailing in all 
 cases in which the loss of the bailed sum may be considered 
 as a more serious evil than the possible punishment. The 
 amount of bail must depend upon the seriousness of the charge, 
 and also upon the means of the charged person. If judges 
 were allowed to demand exorbitant bail, they might defeat the 
 action of this principle in every practical case. It was enacted, 
 therefore, in the first year of William and Mary, 1 and has 
 been adopted in all our constitutions, that no " excessive bail" 
 shall be required. The nature of the case admits of no more 
 
 1 I William and Mary, stat. ii. c. 2.
 
 68 
 
 exact term; but, with an impeachment hanging over the judges 
 should the principle thus solemnly pronounced be disregarded, 
 it has worked well for the arrested person. Indeed, there are 
 frequent cases in the United States in which this principle is 
 abused and society is endangered, because persons are bailed 
 who are under the heaviest charges, and have thus an oppor- 
 tunity of escape if they know themselves guilty. As this can 
 take place only with persons who have large sums at their dis- 
 posal, either in their own possession or in that of their friends, 
 and as liberty demands first of all the foundation of justice, it is 
 evident that this abuse of bail works as much against essential 
 liberty as the proper use of bail guarantees it. We ought, 
 everywhere, to return to the principle of distinguishing trans- 
 gressions of the law into bailable offences and offences for the 
 suspected commission of which the judge can take no bail. 
 These are especially those offences for the punishment of 
 which no equivalent in money can be imagined for instance, 
 death or imprisonment for life, and those offences which put 
 the offender into the possession of the sum required for the 
 bail. 
 
 It has been objected to the bail that it works unjustly. It 
 temporarily deals with so precious a thing as personal liberty 
 according to possession of wealth : but it must be remembered 
 that the whole arrest before trial is an evil of absolute neces- 
 sity, and the more we can limit it the better. 
 
 Liberty requires bail, and that it be extended as far as 
 possible ; and it requires likewise that it be not extended to 
 all offences, and that substantial bail only be accepted. 
 
 4. Another guarantee, of the last importance, is a well- 
 secured penal trial, hedged in with an efficient protection of 
 the indicted person, the certainty of his defence, a distinct 
 indictment charging a distinct act, the duty of proving this 
 act on the part of government, and not the duty of proving 
 innocence on the part of the prisoner, the fairness of the trial 
 by peers of the prisoner, the soundness of the rules of evidence, 
 the publicity of the trial, the accusatorial (and not the inquisi- 
 torial) process, the certainty of the law which is to be applied,
 
 AND SELF-GOVERNMENT. 69 
 
 together with speed and utter impartiality, and an absolute 
 verdict. It is moreover necessary that the preparatory pro- 
 cess be as little vexatious as possible. 
 
 When a person is penally indicted, he individually forms 
 one party, and society, the state, the government, forms the 
 other. It is evident that unless very strong and distinct 
 guarantees of protection are given to the former, that he be 
 subjected to a fair trial, and that nothing be adjudged to him 
 but what the law already existing demands and allows, there 
 can be no security against oppression. For government is a 
 power, and, like every power in existence, it is desirous of 
 carrying its point a desire which increases in intensity the 
 greater the difficulties are which it finds in its way. 
 
 Hence it is that modern free nations ascribe so great an 
 importance to well-regulated and carefully elaborated penal 
 trials. Montesquieu, after having given his definitions of what 
 he calls philosophical liberty, and of political liberty, which, 
 as we have seen, he says, consists in security, continues thus : 
 " This security is never more attacked than in public and 
 private accusations. It is, therefore, upon the excellence of 
 the criminal laws that chiefly the liberty of the citizen de- 
 pends." J Although we consider this opinion far too general, 
 it nevertheless shows how great a value Montesquieu set on a 
 well-guarded penal trial, and he bears us out in considering it 
 an essential element of modern liberty. The concluding words 
 of Mr. Mittermaier's work on the Penal Process of England, 
 Scotland, and the United States, are : " It will be more and 
 more acknowledged how true it is that the penal legislation 
 is the key-stone of a nation's public law." 2 
 
 This passage of the German criminalist expresses the truth 
 more accurately than the quoted dictum of Montesquieu. For, 
 although we consider the penal trial and penal law in general 
 intimately connected with civil liberty, it is nevertheless a fact 
 
 1 Esprit des Lois, xii. 2 ; " Of the Liberty of the Citizen." 
 * This comprehensive and excellent work was published in Germany, Erlangen, 
 1851.
 
 7 ON CIVIL LIBERTY 
 
 that a sound penal trial is invariably one of the last fruits of 
 political civilization, partly because it is one of the most diffi- 
 cult subjects to elaborate, and because it requires long expe- 
 rience to find the proper mean between a due protection of the 
 indicted person and an equally due protection of society; partly 
 because it is one of the most difficult things in all spheres of 
 action to induce irritated power to limit itself, as well as to 
 give to an indicted person the full practical benefit of the 
 theoretic sentence, easily pronounced like all theory, that the 
 law holds every one innocent until proved not to be so. The 
 Roman and Athenian penal trials were sadly deficient. The 
 English have allowed counsel to the penally indicted person 
 only within our memory, while they had been long allowed in 
 the United States. 1 The penal trial in the Netherlands was 
 imperfect, when, nevertheless, the Netherlanders are allowed 
 on all hands to have enjoyed a high degree of civil liberty. It 
 is one of the most common facts in history that a nation is 
 more or less advancing in nearly all the branches of civiliza- 
 tion, while the penal trial and the whole penal law remains 
 
 1 [I.e., in cases of felony no counsel was allowed, unless upon collateral facts, 
 or some point of law ; and so in cases of petty larceny. But when a person was 
 indicted for high treason, he had, as early as 7 Wm. III., the privilege of counsel, 
 which was granted also to persons impeached for the same crime by a statute of 
 20 Geo. III. In 1836, by statute of 6 and 7 Wm. IV., this privilege was granted 
 in trials for felony. See Blackst., iv., chap. 27, p. 355, and May, u. s., ii. 558.] 
 It must not be forgotten, however, that deficient as the penal trial of England 
 without counsel for the defendant was, it contained many guarantees of protection, 
 especially publicity, a fixed law of evidence, with the exclusion of hearsay evi- 
 dence, the jury and the neutral position of the judge in consequence of the trial 
 by jury, and the strictly accusatorial character of the trial, with the most rigid 
 adhesion to the principle of trying a person upon the indictment alone, so that the 
 judge could be, and in later times really had been, the protector of the prisoner. 
 Had the trial been inquisitorial instead of accusatorial, the absence of counsel for 
 defence would have been an enormity. To this enormity Austria has actually 
 returned since the beginning of this century. The code promulgated by Joseph 
 gave counsel, or a " defensor," to the prisoner; but, although the process remained 
 inquisitorial, the defensor was again disallowed. The late revolution re-estab- 
 lished him, but whether he has been discontinued again of late I do not know. 
 Nor can it be of very great importance in a country in which the " state of siege" 
 and martial law seem to be almost permanent.
 
 AND SELF-GOVERNMENT. 71 
 
 almost stationary in its barbarous inconsistency. The penal 
 trial of France, up to the first revolution, remained equally 
 shocking to the feelings of humanity and to the laws of 
 logic. 
 
 The reason of this apparent inconsistency is that, in most 
 cases, penal trials affect individuals who do not belong to the 
 classes which have the greatest influence upon legislation. 
 This point is especially important in countries where the penal 
 trial is not public. People never learn what is going on in the 
 houses of justice. Another and great reason is that generally 
 lawyers by profession are far less interested in the penal branch 
 of the law than in the civil. This, again, arises from the fact 
 that the civil law is far more varied and complicated, conse- 
 quently more attractive to a judicial mind, that the civil cases 
 are far more remunerative, and form the large bulk of the 
 administration of justice. How much the difficulty to be 
 solved constitutes the attraction for the lawyer, we may see 
 from the fact that very few professional lawyers take an 
 interest in the punishment itself. A penal case has attraction 
 for them so long as it is undecided, but what imprisonment 
 follows, if imprisonment has been awarded, interests them 
 little. Very few lawyers have taken a lead in the reform of 
 criminal law and in prison discipline, Sir Samuel Romilly 
 always excepted. 
 
 Among the points which characterize a fair and sound penal 
 trial according to our advancement in political civilization, we 
 would designate the following : the person to be tried must be 
 present (and, of course, living) ; x there must be no intimidation 
 
 1 Penal trials of absent persons are common in countries where the principles 
 of the Roman law prevail. They are common in France; and the church has 
 even tried deceased persons for heresy, found them guilty, and confiscated the 
 property which had belonged to the heretic. The presence of the indicted per- 
 son at his trial is a right plain to every one as soon as once pronounced, but 
 power acknowledges it at a late period only, and always has a tendency to depart 
 from it, whether this power be a monarch or his government, or an impassioned 
 populace. Several of the almost solemn procedures of lynch law which have 
 occurred of late in some of our Western States, and according to which absent 
 persons were warned never to return to their domicile, are instances in point.
 
 72 ON CIVIL LIBERTY 
 
 before the trial, or attempts by artifice to induce the prisoner 
 to confess, a contrivance which protects the citizen even 
 against being placed too easily into a state of accusation; the 
 fullest possible realization of the principle that every man is 
 held innocent until proved to be otherwise, and bail ; a total 
 discarding of the principle that the more heinous the imputed 
 crime is, the less ought to be the protection of the prisoner, 
 and, on the contrary, the adoption of the reverse ; a distinct 
 indictment, and the acquaintance of the prisoner with it, suffi- 
 ciently long before the trial, to give him time for preparing 
 the defence ; that no one be held to incriminate himself; the 
 accusatorial process, with jury and publicity, therefore an oral 
 trial and not a process in writing ; counsel or defensors of the 
 prisoner ; a distinct theory or law of evidence, and no hearsay 
 testimony; a verdict upon evidence alone and pronouncing 
 guilty or not guilty ; a punishment in proportion to the offence 
 and in accordance with common sense and justice ; x especially 
 no punitory imprisonment of a sort that necessarily must 
 make the prisoner worse than he was when he fell into the 
 hands of government, nor cautionary imprisonment before 
 trial, which by contamination must advance the prisoner in his 
 criminality ; and that the punishment adapt itself as much as 
 possible to the crime and criminality of the offender; 2 that 
 nothing but what the law demands or allows to be inflicted, 3 
 
 1 The idea expressed by Dr. Paley regarding this point is revolting. He says, 
 in his Political Philosophy, that we may choose between two systems, the one 
 with fair punishments always applied, the other with very severe punishments 
 occasionally applied. He thus degrades penal law, from a law founded above 
 all upon strict principles of justice, to a mere matter of prudential expediency, 
 putting it on a level with military decimation. 
 
 2 Lieber's Popular Essay on Subjects of Penal Law, and on Uninterrupted 
 Solitary Confinement at Labor, etc.; Philadelphia, 1838. I have there treated 
 of this all-important subject at some length. 
 
 3 Tiberius Gracchus erected a temple in honor of Liberty, with a sum obtained 
 for fines. If tire fines were just, there was no inconsistency in thus making penal 
 justice build a temple of freedom, for liberty demands security and order, and, 
 therefore, penal justice. 
 
 On the other hand, what does a citizen reared in Anglican liberty feel when he 
 reads in a simple newspaper article in a French provincial paper, in 1853, the fol-
 
 AND SELF- G O VERNMENT. 
 
 73 
 
 and that all that the law demands be inflicted no arbitrary 
 injudicious pardoning, which is a direct interference with the 
 true government of law. 
 
 The subject of pardoning is so important, especially in our 
 country, that I have deemed it advisable to add a paper on 
 pardoning, which the reader will find in the Appendix. 
 
 Perhaps there are no points so important in the penal trial 
 in a free country, as the principle that no one shall be held to 
 incriminate himself, that the indictment as well as the verdict 
 
 lowing? " The minister of general police has just decided that Chapitel, sen- 
 tenced by the court to six months' imprisonment for having been connected with 
 a secret society, and Brayet, sentenced for the same offence to two months' im- 
 prisonment, shall be transported to Cayenne for ten years, after the expiration of 
 their sentence !" 
 
 The decree of the eighth of December, 1851, not a law, but a mere dictatorial 
 order, upon which ten years' transportation is added by way of " rider" to a 
 few months' imprisonment adjudged by the courts of law, is this: 
 
 " Article I. Every individual placed under the surveillance of the high police, 
 who shall be found to have broken his assigned limits of residence, may be trans- 
 ported, by way of general safety, to one of the penitentiary colonies, at Cayenne 
 or in Algeria. 
 
 " The duration of transportation shall be five years or less, and ten years or 
 more." (We translate literally and correctly, whatever the reader may think of 
 this sentence, which would be very droll, were it not very sad.) 
 
 " Article 2. The same measure shall be applicable to individuals found to be 
 guilty of having formed part of a secret society." 
 
 The French of the last sentence is, individus reconnus coupable d' } avoir fait 
 partic d'une socitlt sccrlte. This reconmis (found, acknowledged) is of a sinister 
 import. For the question is, Found by whom ? Of course not only by the 
 courts, for finding a man guilty by process of law is in French convaincre. The 
 reconnaitre, therefore, was used in order to include the police or any one else in 
 authority. So that we arrive at this striking fact : The despot may add an enor- 
 mous punishment to a legal sentence, as in the cited case, or he may award it, or 
 rather the minister of police under him may do it, without trial, upon mere police 
 information. Two hundred years ago, the English declared executive transpor- 
 tation beyond the seas, or deportation, to be an unwarranted grievance ; and here 
 we have it again, no doubt in imitation of the Roman imperial times, (the saddest 
 in all history,) in the middle of the nineteenth century. 
 
 So far the note as written in 1853. In 1858 Orsini made his attempt of assas- 
 sinating the emperor of the French, when a far more stringent law was passed, 
 and the principle of "suspicion," so flourishing as an element of criminality in 
 the first French revolution, was revived.
 
 74 ON CIVIL LIBERTY 
 
 must be definite and clear, and that no hearsay evidence be 
 admitted. Certainly none are more essential. 
 
 A great lawyer and excellent man, Sir Samuel Romilly, 
 justly says, that if the ascertaining of truth and meting out of 
 justice is the object of the trial, no possible objection can be 
 taken against it on principle. But there is this difficulty, that 
 if judges themselves question, they become deeply interested 
 in the success of their own cross-examinations, they become 
 biased against the prisoner, should he thwart them, or turn 
 1 questions into ridicule. Romilly makes this remark after 
 having actually seen this result in France, where it is always 
 done, (witness Mad. Lafarge's trial, or any French trial of im- 
 portance,) and certainly often with success. 1 Or let us observe 
 English prosecutions some centuries back. 
 
 In the inquisitorial process, it is not only done, but the pro- 
 cess depends upon the questioning of the prisoner. 
 
 There are other dangers connected with it. An accused 
 man cannot feel that perfect equanimity of mind which alone 
 might secure his answers against suspicion. I know from per- 
 sonal experience how galling it is to see your most candid 
 answers rewarded with suspicions and renewed questions, if 
 the subject is such that you cannot possibly at once clear up 
 all doubts. It ought never to be forgotten that the accused 
 person labors under considerable disadvantages, merely from 
 the fact that he is accused. Bullying and oppressive judges 
 were common in England when the principle was not yet 
 settled that no one shall be held to incriminate himself. The 
 times of the Stuarts furnish us with many instances of alterca- 
 tions in the court, between the judge and the prisoner, and of 
 judicial browbeating, to the detriment of all justice. 
 
 The trial of Elizabeth Gaunt, the aged and deaf Baptist 
 woman, who had given a night's rest under her roof to a 
 soldier of Monmouth's dispersed army, under Chief-Justice 
 Jones, 2 and was convicted of treason on the sole testimony of 
 
 1 Sir Samuel Romilly's Memoirs, vol i. p. 315, 2d ed., London, 1840. 
 * Phillipps's State Trials, vol. ii. 214, et seq., and, indeed, in many parts of 
 the work.
 
 AND SELF-GOVERNMENT. 75 
 
 the wretch whom she sheltered that she had knowledge of his 
 being a rebel, may serve as an instance. 
 
 It is, among other reasons, for this very fact of prisoners on 
 trial being asked by the French judge about the fact at issue, 
 his whereabouts at the time, his previous life, and a number of 
 things which throw suspicion on the prisoner, although uncon- 
 nected with the question at issue, that Mr. Beranger says, ir 
 a work of just repute : " We," that is, the French, " have 
 contented ourselves to place a magnificent frontispiece before 
 the ruins of despotism ; a deceiving monument, whose aspect 
 seduces, but which makes one freeze with horror when entered 
 Under liberal appearances, with pompous words of juries 
 public debates, judicial independence, individual liberty, we 
 are slowly led to the abuse of all these things, and the disre- 
 gard of all rights ; an iron rod is used with us, instead of the 
 staff of justice." 1 
 
 There are peculiar reasons against examining the prisoner 
 in public trials, and many peculiar to the secret trial 
 Although it cannot be denied, that often the questioning of 
 the prisoner may shorten the trial and lead to condign convic- 
 tion, which otherwise may not be the result, it is nevertheless 
 right that most, perhaps all our state constitutions have adopted 
 this principle. It is just ; it is dignified ; it is fair. The 
 government prosecutes ; then let it prove what it charges. So 
 soon as this principle is discarded, we fall into the dire error 
 of throwing the burden of proving innocence wholly or par- 
 tially on the prisoner ; while, on the contrary, all the burden 
 ought to lie on the government, with all its power, to prove 
 the charged facts. Proving an offence and fastening it on the 
 offender, is one important point in the penal trial; but the 
 method how it is done is of equal importance. The Turkish 
 cadi acknowledges the first point only ; yet what I have stated 
 is not only true with reference to the jural society, it is even 
 true in the family and the school. 
 
 It is an interesting fact for the political philosopher that. 
 
 1 Beranger, De la Justice Criminelle de France, Paris, 1818, page 2.
 
 76 ON CIVIL LIBERTY 
 
 while the Anglican race thus insists on the principle of non- 
 self-incrimination, the whole Chinese code for that people 
 under a systematic mandarinism is pervaded even by the prin- 
 ciple of self-accusation for all, but especially for the mandarins. 
 
 The principle that on government lies the burden of proving 
 the guilt, leads consistently to the other principle, that the 
 verdict must be definite and absolute. Hence these two im- 
 portant facts : The verdict must be guilty or not guilty, and 
 no absolutio ab instantia, as it is called in some countries of 
 the European continent ; that is to say, no verdict or decision 
 which says, According to the present trial we cannot find you 
 guilty, but there is strong suspicion, and we may take you up 
 another time ; r nor any " not proven," as the Scottish trial 
 admits of, ought to be permitted. " Not proven," does not 
 indeed allow a second trial, but it expresses : You are free, 
 although we have very strong suspicion. Secondly, the main 
 principle leads to the fact that no man ought to be tried twice 
 for the same offence. This is logical, and is necessary for the 
 security of the individual. A person might otherwise be 
 harassed by the government until ruined. Repeated trials for 
 charges which the government knows very well to be un- 
 founded, are a common means resorted to by despotic execu- 
 tives. Frequently such procedures have led the persecuted 
 individual to compound with government rather than lose all 
 his substance. 
 
 The Anglican race, therefore, justly makes it an elementary 
 principle of its constitutional law, that " no man shall be tried 
 twice for the same offence." 
 
 I have said that a fair trial for freemen requires that the 
 preparatory steps for the trial be as little vexatious as possible. 
 They must also acknowledge the principle of non-incrimination. 
 This is disregarded on the whole of the European continent. 
 The free range of police power, the mean tricks resorted to by 
 the " instructing" judge or officer, before the trial, in order to 
 
 1 The reader will find in Appendix III. a paper on the subject of some conti- 
 nental trials, and the admission of half and quarter proof and proportional 
 punishment.
 
 AND SELF-GOVERNMENT. 
 
 77 
 
 bring the prisoner to confession, are almost inconceivable, 1 
 and they are the worse, because applied before the trial, when 
 the prisoner is not surrounded by those protections which the 
 trial itself grants. With reference to this point, and in order 
 to modify what I have stated regarding Greek penal trials, I 
 wish to mention the interesting fact that " the prosecutor, in 
 Athens, who failed to make good his charge, incurred certain 
 penalties, unless he obtained at least one-fifth of the votes in 
 his favor. In public suits, he forfeited one thousand drachmae 
 to the state, and could never again institute a similar suit. 
 The same punishment was incurred if he declined to proceed 
 with the case. In private suits, he paid the defendant one-sixth 
 of the amount of the disputed property, as a compensation for 
 the inconvenience he had suffered in person or character." 2 
 
 Sir Samuel Romilly had the intention of proposing, in a 
 similar spirit, a bill by which an acquitted prisoner, having 
 been prosecuted for felony, should be compensated by the 
 county, at the discretion of the court, for loss of time and the 
 many evils endured. Indeed, he thought that far more ought 
 to be done. 3 Leave was given to bring in the compensation 
 bill, but it was afterwards withdrawn. It is evident that the 
 great difficulty would lie in the fact that the discretion of the 
 judge would establish at once a distinction between the ver- 
 dicts, similar to that produced by the Scottish "not guilty" and 
 " not proven." To compensate, however, all acquitted persons 
 would be very mischievous, if we consider how many persons 
 are acquitted who nevertheless are guilty. Indeed, it might 
 well be asked whether the fear of burdening the county with 
 
 1 This may be amply seen in the reports on French trials, and, among other 
 works, in Feuerbnch's Collection of German Criminal Trials. 
 
 2 See K. F. Hermann, Gr. Staatsalterth., g 144. 
 
 3 Memoirs of the Life of Sir Samuel Romilly, zd ed., London, 1840, vol. ii. 
 p. 235. Strangely enough, there is an English law, 25 George II., ch. 36, accord- 
 ing to which prosecutors are to have the expenses of their prosecution reim- ' 
 bursed, and a compensation afforded them for their trouble and loss of time. 
 This is evidently to induce people freely to prosecute ; but no guarantee is given 
 on the other hand against undue prosecution, and a compensation for the trouble 
 and loss of time of the acquitted person.
 
 78 ON CIVIL LIBERTY 
 
 the payment of the compensation would not, in some cases, 
 induce the jury to find more easily a verdict of guilty. 
 
 The professional reader may think that I have not suffi- 
 ciently dwelt upon some essential points of a sound penal 
 trial, for instance, on publicity, or the independence of counsel. 
 He will find, however, that these subjects are treated of in 
 other parts of this work, to which it was necessary to refer 
 them.
 
 AND SELF-GOVERNMENT. 
 
 79 
 
 CHAPTER VIII. 
 
 HIGH TREASON. 
 
 5. THAT penal trial which is the most important with refer- 
 ence to civil liberty, and in which the accused individual 
 stands most in need of peculiar protection by the law, is the 
 trial for treason. The English law does not know the term 
 " political offence," of which the trial for treason is, commonly, 
 the highest in importance. Political Offence is a term belong- 
 ing to the modern law of some countries of the European con- 
 tinent, 1 and it was doubtless trials for offences of this character, 
 which those jurists and publicists had partly in view, who, the 
 reader will recollect, point out a well-guarded penal trial, 
 almost as the sole characteristic of civil liberty. 
 
 If a well-guarded penal trial in general forms an important 
 element of our liberty, because the individual is placed opposite 
 to public power, a carefully organized trial for treason is em- 
 phatically so. In the trial for treason the government is no 
 longer theoretically the prosecuting party, as it may be said 
 it is in the case of theft or assault, but government is the 
 really offended, irritated party, endowed at the same time with 
 all the force of the government, to annoy, persecute, and often 
 
 1 The American reader ought to keep in mind that the term Political Offence is 
 now a well-established term on the continent of Europe. It is used in legisla- 
 tion ; thus the late French republic abolished capital punishment for political 
 offenders, and in the treaty of extradition between France and Spain, " political 
 offenders" are excepted, and not subject to extradition. It would, nevertheless, 
 be difficult to give a definition of the term Political Offence sufficiently clear to 
 be acceptable to a law-abiding administration of justice. Indeed, we may say 
 that it was natural this term should have presented itself, in the course of things, 
 on the continent of Europe, and it is equally natural, and is full of meaning, 
 that the English law does not know it.
 
 80 ON CIVIL LIBERTY 
 
 to crush. Governments have, therefore, been most tenacious 
 in retaining whatever power they could in the trial for treason; 
 and, on the other hand, it is most important for the free citizen 
 that in the trial for treason he should not only enjoy the 
 common protection of a sound penal trial, but far greater 
 protection. In despotic countries we always find that the little 
 protection granted in common criminal trials is withheld in 
 trials for treason ; in free countries, at least in England and 
 the United States, greater protection is granted, and more 
 caution demanded, in trials for treason than in the common 
 penal process. The trial for treason is a gauge of liberty. 
 Tell us how they try people for treason, and we will tell you 
 whether they are free. It redounds to the glory of England 
 that attention was directed to this subject from early times, 
 and that guarantees were granted to the prisoner indicted for 
 treason, centuries before they were allowed to the person 
 suspected of a common offence ; and to that of the United 
 States, that they plainly defined the crime of treason, and 
 restricted it to narrow limits, in their very constitution. This 
 great charter says, Article III., Section III.: 
 
 " i. Treason against the United States shall consist only in 
 levying war against them, or in adhering to their enemies, 
 giving them aid and comfort. No person shall be convicted 
 of treason, unless on the testimony of two witnesses to the 
 same overt act, or on confession in open court. 
 
 " 2. Congress shall have power to declare the punishment 
 of treason ; but no attainder of treason shall work corruption 
 of blood, or forfeiture, except during the life of the person 
 attainted." 
 
 Whether political societies, not so fortunately situated as 
 ourselves, yet equally prizing civil liberty, might safely restrict 
 the crime of treason to such narrow limits as the wise and 
 bold framers of our constitution have done, is a subject which 
 belongs to a branch of political science that does not occupy 
 us here ; but it may be asserted that several cases have 
 actually occurred in the United States, in which all nations 
 except the American would have considered the provisions of
 
 A. YD SELF-GOVERNMENT. 8 1 
 
 our constitution insufficient, and in which nevertheless they 
 have been found adequate. 
 
 We may consider the American law of high treason as the 
 purest in existence, and it shows how closely the law of 
 treason is connected with civil liberty. Chief-Justice Mar- 
 shall said : "As there is no crime which can more excite and 
 agitate the passions of men than treason, no charge demands 
 more from the tribunal before which it is made a deliberate 
 and temperate inquiry. Whether the inquiry be directed to 
 the fact or to the law, none can be more solemn, none more 
 important to the citizen or to the government ; none can more 
 affect the safety of both." ' 
 
 All constitutions of the different American states, which men- 
 tion treason, have the same provision. Those that say nothing 
 special about it, have the same by law, and in conformity with 
 the principles which the respective constitutions lay down 
 regarding penal trials. 2 None admit of retrospective laws, of 
 legislative condemnations of individuals, or of attainders. 
 
 The course which the development of the law of treason takes 
 in history is this : At first there exists no law of treason, be- 
 cause the crime is not yet separated from other offences, as 
 indeed the penal and civil laws are not separated in the earliest 
 periods. The Chinese code, so minute in many respects, mixes 
 the two branches, and debtors are treated as criminal offenders, 
 reminding us, in this particular, of the early Roman law. When 
 first treason comes to be separated from the other offences, it 
 is for the twofold purpose of inflicting more excruciating pains, 
 
 1 The Writings of John Marshall, p. 42. Ex parte Bollman and Swartwout. 
 The rebellion of the Mormons in 1858 has occurred since the remarks in the 
 text were written. It would seem sound reasoning and statesmanship, that the 
 narrower the limits are to which the public law restricts treason, the more neces- 
 sary it becomes to execute the law fully within those limits. 
 
 * Judge Story says : " A state cannot take cognizance, or punish the offence, 
 (i.e. treason against the United States,) whatever it may do in relation to the 
 offence of treason, committed exclusively against itself, if indeed any case can, 
 under the constitution, exist, which is not at the same time treason against the 
 United States." Chap. 28, vol. iii. of Commentaries on the Constitution of the 
 United States. 
 
 6
 
 82 ON CIVIL LIBERTY 
 
 and of withholding from the trial the poor protection which is 
 granted to persons indicted for common offences. The dire 
 idea of a crimen exceptum gains ground. The reasoning, or 
 rather unreasoning, is that the crime is so enormous that the 
 criminal ought not to have the same chances of escape, thuj 
 assuming that the accused, yet to be proved to be a criminal, 
 is in fact a criminal, and forgetting, as has been indicated 
 before, that the graver the accusation is, and the severer 
 therefore the punishment, in case of established guilt, may be, 
 the safer and more guarded ought to be the trial. It is a 
 fearful inconsistency, very plain when thus stated, yet we find 
 that men continually fall into the same error, even in our 
 own days. How often is lynch law resorted to in our country, 
 on the very plea that the crime, still a suspected one, is so in- 
 famous that the regular course of law is too slow or too doubt- 
 ful ! The same error prevailed regarding witchcraft. The 
 pope declared it a crimen exceptum too abominable to be 
 tried by common process. Protestant governments followed 
 the example. 1 
 
 At the same time we find that, at the period of which we 
 are now speaking, the law of treason is vastly extending, and 
 all sorts of offences, either because considered peculiarly 
 heinous, or because peculiarly displeasing to the public power, 
 are drawn within the meaning of treason. A list of all the 
 offences which at some time or other have been considered to 
 amount to treason, from the crime of " offended divine 
 majesty," (crimen laesae majestatis divinae,) in which stealing 
 
 1 I seize upon this opportunity of advising every young reader of this work to 
 study with earnest attention the history of the witch-trials, forming, possibly, 
 with the African slave-trade, the greatest aberrations of our Cis-Caucasian race. 
 Such works as Soldan's History of the Witch-Trials [Gesch. der Hcxenprocesse, 
 Stuttgard, 1843] exhibit the psychology of public and private passion, of crime 
 and criminal law, in so impressive and instructive a manner, that the sad course 
 of crime and error having been run through, it ought not to stand on record in 
 vain for us. We learn, in history and in psychology, as in nature, to understand 
 the principles, motives, and laws of minor actions, by the changes and convul- 
 sions on a large scale; and the vast changes and revulsions by the microscopic 
 observation of the minute reality around us.
 
 AND SELF-GOVERNMENT. 83 
 
 fiom a church was included, to the most trivial common 
 offences, and which I have made out for my own use, would 
 astound the reader, if this were the place to exhibit it. 
 
 When political civilization advances, and people come to 
 understand more clearly the object and use of government, as 
 well as the dangers which threaten society and the individual, 
 the very opposite course takes place. More protection is 
 granted to the person indicted for treason, than in common 
 penal trials, and the meaning of treason is more and more 
 narrowed. The definition of treason is made more distinct, 
 and constructive treason is less and less allowed, until we arrive 
 at our own clear and definite law of treason. 
 
 It is thus that the law of treason becomes, as I stated before, 
 a symptomatic fact, and is in politics what roads, the position 
 of woman, public amusements, the tenure of land, architecture, 
 habits of cleanliness, are in other spheres. They are gauges 
 of social advancement. The more I studied this subject, the 
 more I became convinced of the instruction to be derived from 
 the history of the law of treason in ancient times, the middle 
 ages, and modern periods, and it was my intention to append 
 a paper to this work, which should give a survey of the whole. 
 When, however, I came to arrange my long-collected materials, 
 I found, although firmly resolved to disregard an author's par- 
 tiality for materials of interest once collected, and to restrict 
 the paper to the merest outlines, that it would be impossible 
 to do any justice to the subject without allowing to it a dis- 
 proportionally large place. I decided, therefore, to leave the 
 subject for a separate work. 
 
 In conclusion I would repeat, experience proves that not 
 only are all the guarantees of a fair penal trial peculiarly neces- 
 sary for a fair trial for treason, but that it requires additional 
 safeguards ; and, of the one or the other, the following seem 
 to me the most important : 
 
 The indictment must be clear as to facts and time when the 
 indicted act has been committed ; 
 
 The prisoner must have the indictment a sufficient time 
 before the trial, so as to be able to prepare for it;
 
 84 ON CIVIL LIBERTY 
 
 He must have a list of the witnesses against him, an equal 
 time beforehand ; 
 
 A sufficient time for the trial must be allowed ; and the 
 prisoner must not be seized, tried, and executed, as Cornish 
 was, in 1685, in a week, as Burnet says, or, as McAulay has it, 
 in ten days ; 
 
 Counsel must be allowed, as a matter of course ; 
 
 The judges must be impartial and independent, and ample 
 challenges must be allowed ; peers must judge. Consequently, 
 judges must not be asked by the executive, before the trial, 
 what their judgment would be if such or such a case should 
 be brought before them, as was repeatedly done by the 
 Stuarts ; 
 
 Of all trials, hearsay must be excluded from the trial for 
 treason ; 
 
 Facts, not tendencies ; acts, not words or papers written by 
 the indicted person, and which have never been allowed to 
 leave his desk, must be charged ; 
 
 Perfect publicity must take place from beginning to end, 
 and reporters must not be excluded ; for it is no publicity in 
 a populous country that allows only some twenty or forty 
 by-standers ; x 
 
 The trial must be in presence of the prisoner; 
 
 Several witnesses must be required to testify to the same 
 fact, and the witnesses for the prisoner must be as much upon 
 oath as those for the government ; 
 
 Confession, if unconditionally admitted at all, must at least 
 be in open court ; 
 
 There must be no physical nor psychical torture or co- 
 ercion ; 
 
 There must be good witnesses, not known villains or 
 acknowledged liars, as Titus Gates, or Lord Howard against 
 Lord Russell ; 
 
 The judges must not depend upon the executive ; 
 
 When, in 1858, Count Montalembert was tried in Paris for having written a 
 pamphlet in praise of England, a peculiarly small court-room was selected, only 
 a few persons were admitted, by tickets, and no notes were allowed to be taken.
 
 AND SELF-GOVERNMENT. 85 
 
 No evidence must be admitted which is not admitted in 
 other trials ; 
 
 There must be a fixed punishment ; 
 
 There must be no constructive treason ; 
 
 And the judges must not be political bodies. 
 
 These guarantees have been elaborated by statute and com- 
 mon law, through periods of freedom and tyranny, by the 
 Anglican race. The English law grants these safeguards, 
 except indeed the last to lords, because, according to the 
 principle that every one must be tried by his peers, a lord is 
 tried by the house of lords. It showed great wisdom that 
 the framers of our constitution did not assign the trial for 
 treason to the senate, 1 as the former French constitution 
 appointed the house of peers to be the court for high treason. 
 American impeachments are tried indeed by the senate, but it 
 will be observed that the American trial of impeachment is not 
 a penal trial for offences, but a political institution, trying for 
 political capacity. The senate, when sitting as a court to try 
 impeachments, can only remove from office, whatever the crime 
 may have been ; and the impeached person can be penally 
 tried after the senate has removed him from office. 2 In its 
 political character, then, but in no other point, the American 
 impeachment resembles the Athenian ostracism, which was 
 likewise a political, and not a penal institution. The English 
 impeachment is a penal trial. 
 
 The trials for treason going on in many countries of the 
 European continent, especially in Naples and the Austrian 
 dominions, are, by way of opposite, fair illustrations of what 
 has been stated here. 3 
 
 The trial for treason has been treated of in this place 
 because naturally connected with the subject of the penal trial 
 
 1 The American trials for treason are collected in Francis Wharton's State 
 Trials of the United States, Philadelphia, 1846. 
 
 [ 2 And, it may be, acquitted, as the court of ordinary justice would have its own 
 definition of crime, and its own rules of evidence.] 
 
 3 The reader may be acquainted with the Right Hon. Mr. Gladstone's pamphlet 
 on Neapolitan trials for treason, published in 1851. It is but a sample.
 
 86 ON CIVIL LIBERTY 
 
 in general. Otherwise it would have been more properly 
 enumerated among the guarantees connected more especially 
 with the general government of a free country. We return, 
 therefore, once more to the guarantees of individual rights. 1 
 
 * I would mention for the younger student, that when I study pervading insti- 
 tutions, or laws and principles which form running threads through the whole 
 web of history, I find it useful to make chronological tables of their chief ad- 
 vancements and reverses. Such tables are very suggestive, and strikingly show 
 what we owe to the continuity of human society. None of these tables has been 
 more instructive to me than that on the history of the law of treason.
 
 AND SELF-GOVERNMENT. 87 
 
 CHAPTER IX. 
 
 COMMUNION. LOCOMOTION, EMIGRATION. 
 
 6. THE freedom of communion is one of the most precious 
 and necessary rights of the individual, and one of the indis- 
 pensable elements of all advancing humanity so much so, 
 indeed, that it is one of those elements of liberty which would 
 have never been singled out, had not experience shown that 
 it forms invariably one of the first objects of attack when 
 arbitrary power wishes to establish itself, and one of the first 
 objects of conquest when an unfree people declares itself 
 free. 
 
 I have dwelt on the primordial right of communion in the 
 Political Ethics at great length, and endeavored to show that 
 the question is not whether free communion or a fettered press 
 be conducive to more good, but that everything in the in- 
 dividual and in nations depends in a great measure upon 
 communion, and that free communion is a pre-existing condi- 
 tion. The only question is, how to select the best government 
 with it, and how best to shield it, unless, indeed, we were 
 speaking of tribes in a state of tutelage, ruled over by some 
 highly advanced nation. 
 
 In this place we only enumerate freedom of communion as 
 one of the primary elements of civil liberty. It is an element 
 of all civil liberty. No one can imagine himself free if his 
 communion with his fellows is interrupted or submitted to 
 surveillance ; but it is the Anglican race which first established 
 it on a large scale, broadly and nationally acknowledged. 1 
 
 Free nations demand and guarantee free communion of 
 speech, the right of assembling and publicly speaking, for it is 
 
 1 The first fair play was given to a free press in the Netherlands.
 
 88 ON CIVIL LIBERTY 
 
 communion of speech in this form which is peculiarly exposed 
 to abridgment or suppression by the public power; they 
 guarantee the liberty of the press, and, lastly, the sacredness 
 of epistolary communion. 
 
 It is a very striking fact that, although the Constitution of 
 the United States distinctly declares that the government of 
 the United States shall only have the power and authority 
 positively granted in that instrument, so that, in a certain 
 i espect, it was unnecessary to say what the government should 
 not have the right to do, still, in the very first article of the 
 Additions and Amendments of the Constitution, congress is 
 forbidden to make any "law respecting an establishment of 
 religion, or prohibiting the free exercise thereof; or abridging 
 the freedom of speech, or of the press, or the right of the 
 people peaceably to assemble, and to petition the government 
 for a redress of grievances." 
 
 The reader will keep in mind that the framers of our con- 
 stitution went out of their way and preferred to appear incon- 
 sistent, rather than omit the enumeration of those important 
 liberties, that of conscience, as it is generally called, that of 
 communion, and of petitioning ; and the reader will remember, 
 moreover, that these rights were added as amendments. They 
 must then have appeared very important to those who made 
 our constitution, both on account of their intrinsic importance, 
 and because so often attacked by the power-holders. Let the 
 reader also remember that, if it be thus important to abridge 
 the power of government to interfere with free communion, it 
 is at least equally important that no person or number of men 
 interfere, in any manner, with this sacred right. Oppression 
 does not come from government or official bodies alone. The 
 vorst oppression is of a social character, or by a multitude. 
 
 The English have established the right of communion, as so 
 many other precious rights by common law, by decisions, by 
 struggles, by revolution. All the guarantee they have for the 
 unstinted enjoyment of the right lies in the fact that the 
 whole nation says with one accord, as it were : Let them try 
 to take it away.
 
 AA'D SELF-GOVERNMENT. 89 
 
 It is the same with our epistolary communion. The nght 
 of freely corresponding is unquestionably one of the dearest 
 as well as most necessary of civilized man ; yet our fore- 
 fathers were so little acquainted with a police government, 
 that no one thought of enumerating the sacredness of letters 
 along with the freedom of speech and the liberty of the press. 
 The liberty of correspondence stands between the two ; free 
 word, free letter, free print. The framers did not think of it, 
 as the first law-makers of Rome are said to have omitted the 
 punishment of parricide. 
 
 The sacredness of the letter appears the more important 
 when it is considered that in almost all civilized countries the 
 government is the carrier of letters and actually forbids any 
 individual to carry sealed letters. 1 So soon as the letter, there- 
 fore, is dropped into the box, where, as it has just been stated, 
 the government itself obliges the correspondent to deposit it, it 
 is exclusively entrusted to the good faith and honorable dealing 
 of government. If spies, informers, and mouchards are odious 
 to every freeman and gentleman, the prying into letters, car- 
 ried on in France and other countries with bureaucratic sys- 
 tem, is tenfold so, for it strikes humanity in one of its vital 
 points ; and had the mail acquired as great an importance in 
 the seventeenth century as in ours, as an agent of civiliza- 
 tion, and had Charles I. threatened this agent as he invaded 
 the right of personal liberty, the Petition of Right would have 
 mentioned the sacredness of letters 2 as surely as it pointed out 
 the billeting of soldiers as one of the four great grievances of 
 which the English would be freed before they would grant 
 any supplies to the government. 3 
 
 1 The law of the United States prohibits any private person periodically and 
 regularly to carry letters, and also to carry letters in mail ships. 
 
 [ 2 The letters publicly transmitted by mail were so few in number that the 
 right was not felt to be very important. Nor had it been systematically invaded.] 
 
 3 The American states in which slavery exists have not considered the laws 
 or principles relating to letters to apply to public journals, when suspicion exists 
 that they contain articles hostile to slavery. In some cases people have broken 
 into the post-office and seized the obnoxious papers; in other cases the state 
 legislature have decreed punishments for propagating abolition papers. Thus,
 
 9 o 
 
 ON CIVIL LIBERTY 
 
 In all the late struggles for liberty on the continent of 
 Europe, the sacredness of letters was insisted upon, not from 
 abstract notions, but for the very practical reason that govern- 
 ments had been in the habit of disregarding it. Of course, 
 they now do so again. The English parliament took umbrage, 
 a few years ago, at the liberty a minister had taken of order- 
 ing the opening of letters of certain political exiles residing 
 in England, and, although he stated that it had been the habit 
 of all administrations to order it under certain circumstances, 
 he promised to abstain in future. In the United States there 
 is no process or means known to us, not even by writ of a 
 court, we believe, by which a letter could be extracted from 
 the post-office, except by him to whom it is addressed ; and 
 as to the executive unduly opening letters, it would be cause 
 for instant impeachment. 
 
 Quite recently, in the month of April, 1853, it appeared in 
 the prosecution of several persons of distinction at Paris, for 
 giving wrong and injurious news to foreign papers, that their 
 letters had not only been opened at the post-office, but that 
 the originals had been kept back, and copies had been sent to 
 the recipients, with a postscript, written by the government 
 officer, for the purpose of fraudulently explaining the different 
 handwriting. It stated that the correspondent had a sore hand. 
 
 we read in the National Intelligencer, Washington, October 6, 1853, that " Mr. 
 Herndon, postmaster at Glenville, informs the editor of the Religious Telescope, 
 at Circleville, Ohio, that having, according to the laws of Virginia, opened and 
 inspected his papers, and found them to contain abolition sentiments, he has 
 refused to deliver them as addressed, and has publicly burnt them in presence of 
 a magistrate. It appears by his letter that the penalty for circulating such papers 
 is imprisonment in the penitentiary for not less than one nor more than five 
 years." 
 
 Such is the Jaw, and its lawfulness, wisdom, and dignity must be judged of by 
 the laws and principles by which other measures are judged ; but it cannot be 
 denied that a freeman feels himself circumscribed so far as he is denied to read 
 what he chooses. If a government or a set of men were to forbid a man to read 
 an atheistic paper, though he might be a fervent Christian, his liberty would be 
 undoubtedly circumscribed pro tanto. 
 
 That the seizure of English papers on the continent is of frequent occur- 
 rence, is well known by every reader of the daily papers.
 
 AND SELF-GOVERNMENT. 91 
 
 When the counsel for the accused said that the falsifying 
 officer ought to be on the bench of the accused, the court 
 justified the prefect of the police, on the ground of " reasons 
 of state." No commentary is necessary on such self-vilification 
 of governments ; but this may be added, that these outrages 
 were committed even without a formal warrant from any one, 
 but on the sole command of the police. Are we, then, wrong 
 in calling such governments police governments ? It is not 
 from a desire to stigmatize these governments. It is on account 
 of the prevailing principle, and the stigma is a natural conse- 
 quence of this principle. 1 
 
 1 In the decision of the appellate court in the same case we find this to be the 
 chief argument, that government establishes post-offices, and cannot be expected 
 to lend its hand to the promotion of mischief, by carrying letters of evil-doers. 
 This is totally fallacious. Government does not establish post-offices, but society 
 establishes them for itself, though it may be through government. The mail is 
 no boon granted by government. 
 
 If it did, it is not a benefit done by a second party, as when A makes a present 
 to B, but government is simply and purely an agent ; and, what is more, the 
 right of establishing post-offices is not an inherent attribute of government, such 
 as the administration of justice or making war. Government merely becomes 
 the public carrier, for the sake of general convenience. There are many private 
 posts, and governments without government post-offices, for instance, the republic 
 of Hamburg. 
 
 The opening of letters without proper warrant is a frightful perversion of 
 power, and though government should be able to get at secret machinations, the 
 secret of letters is a primordial condition. Government might, undoubtedly, 
 know many useful things if the sacredness of Catholic confession were broken 
 into; but that is considered a primordial and pre-political condition. So, many 
 codes do not force a son to testify against a father; the family affection is con- 
 sidered a primordial condition. The very state of society, for which it is worth 
 living, is invaded, if the correspondence is exposed to this sort of government 
 burglary. 
 
 The argument is simply this. Man is destined to live in society, united by 
 converse and intercommunion ; this is a basis of humanity. If you open letters, 
 you seriously invade this primary condition. Men are individuals, and social 
 beings, destined for civilization and united progress, and the question is not 
 whether they may be dispensed with, but how to govern with them. Govern- 
 ments too frequently act as though the government were the primary condition, 
 and the remaining question only was, how much may be spared by government 
 to be left for society or individuals. The opposite is the truth, 
 
 After this note had been published, the French court of cassation, " all cham-
 
 92 ON CIVIL LIBERTY 
 
 England, as may be supposed, has not always enjoyed liberty 
 of the press. It is a conquest of high civilization. It is, however, 
 a remarkable fact, that England owed its transitory but most 
 stringent law of a censorship to her republican government. 
 
 On September 20, 1647, it was decreed by the republican 
 government in England that no book henceforth be printed 
 without previously being read and permitted by the public 
 censor, all privileges to the contrary notwithstanding. House 
 searches for prohibited books and presses should be made, and 
 the post-office would dispatch innocent books only. All places 
 where printing-presses may exist should be indicated by au- 
 thority. Printers, publishers, and authors were obliged to give 
 caution-money for their names. No one was permitted to 
 harbor a printer without permission, and no one permitted to 
 sell foreign books without permission. Book-itinerants and 
 ballad-singers were imprisoned and whipped. We are all 
 acquainted with Milton's beautiful and searching essay on the 
 liberty of the press against this censorship. 1 
 
 The reader who pays attention to the events of his own 
 days will remember the law against the press, issued imme- 
 diately after the coup d'etat of Louis Napoleon, which puts 
 the sale of printing and lithographic presses, copying ma- 
 chines, as well as types, under police supervision, and which, 
 in one word, intercepts all public communion. 
 
 bers united," decided, in the last resort, that in the case of Coetlogon, Flandin, 
 and others, no illegal act had been committed by the prefect of the police, in 
 opening letters, etc. etc. The decision is given in full in the Courrier des Etats- 
 Unis, New York, December 12, 1853. 
 
 1 [Several corrections are necessary in this and the preceding paragraph. The 
 long parliament not the common-wealth passed an ordinance June n, 1643, 
 for restraining the liberty of the press, and to strengthen some former orders 
 made for that purpose. This led to Milton's Areopagitica, published in Novem- 
 ber, 1644. Afterwards, September 21, 1647, in consequence of a letter from 
 Gen. Fairfax, complaining of scandalous pamphlets, a new ordinance was passed, 
 which contains several of the particulars mentioned in the text. Comp. Cob- 
 bett's Parl. Hist., iii. pp. 131, 132, 780. In 1662 a new licensing law was passed 
 under Charles II. In 1695, under William, the Licensing act ceased to have 
 effect, and was not again passed. Comp. Smyth's Lect. on Hist., ii. lect. 22 ; 
 Macaulay's Hist., iv. 348, et seq., 541.]
 
 AND SELF-GOVERNMENT. 
 
 93 
 
 I suppose it will be hardly necessary to treat, in connection 
 with the liberty of communion, of the " liberty of silence," as 
 a French paper headed an article, when, soon after the coup 
 d'etat, it was intimated to a Paris paper, by the police, that 
 its total silence on political matters would not be looked upon 
 by government with favor, should the paper insist on con- 
 tinuing it. 
 
 It would be, however, a great mistake to suppose that gov- 
 ernments alone interfere with correspondence and free commu- 
 nion. Governments are bodies of men, and all bodies of men 
 act similarly under similar circumstances, if the power is 
 allowed them. All absolutism is the same. I have ever ob- 
 served, in all countries in which I have lived, that, if party 
 struggle rises to factious passion, the different parties en- 
 deavor to get hold of the letters of their adversaries. It is, 
 therefore, of the last importance, both that the secret of letters 
 and the freedom of all communion be legally protected as 
 much as possible, and that ever}'- true friend of liberty present 
 the importance of this right in the clearest possible manner to 
 his own mind. 
 
 7. The right of locomotion, or of free egress and regress, as 
 well as free motion within the country, is another important 
 individual right and element of liberty. 
 
 The strength of governments was generally considered, in 
 the last century, to consist in a large population, large amount 
 of money, that is 'specie, within the country, and a large 
 army founded upon both. It was consistent, therefore, that 
 in countries in which individual rights went for little, and the 
 people were considered the mere substratum upon which the 
 state, that is the government, was erected, emigration was 
 considered with a jealous eye, or wholly prohibited. Nor can 
 it be denied that emigration may present itself in a serious 
 aspect. So many people are leaving Ireland, that it is now 
 common, and not inappropriate, to speak of the Irish exodus; 
 and it has been calculated, upon authentic data, both in Ger- 
 many and the United States, that for the last few years the 
 German emigrants have carried not far from fifteen millions
 
 94 
 
 ON CIVIL LIBERTY 
 
 of Prussian dollars annually into the United States. 1 The 
 amount of emigrating capital may become greater even; but 
 freemen believe that governments are for them, not they for 
 governments, and that it is a precious right of every one to 
 seek that spot on earth where he can best pursue the ends of 
 life, physical and mental, religious, political, and cultural. 2 
 
 If, under peculiar circumstances, a country should find itself 
 forced to prohibit emigration, the measure would, at any rate, 
 so far as this right goes, be an abridgment of liberty. 3 We 
 can imagine many cases in which emigration should be stopped 
 by changing those circumstances which cause it, but none in 
 which it ought to be simply prohibited. The universal princi- 
 ple of adhesiveness, so strong in all spheres of action, thought, 
 and affection, and which forms one of the elementary princi- 
 ples of society and continuity of civilization, is sufficiently 
 strong to keep people where they are, if they can remain; and 
 if they leave an over-peopled country, or one in which they 
 cannot find work or a fair living, they become active producers 
 in the new country, and consequently proportionate consumers 
 in the great market of the world, so that the old country will 
 
 1 On the other hand, an immense amount of capital annually returns, from suc- 
 cessful emigrants in the United States, to Ireland and Germany. Persons who 
 have not paid attention to the subject cannot have any conception how many 
 hard yet gladly earned pounds and thalers are sent from our country to aged 
 parents or toiling sisters and brothers in Europe. A wide-spread and blessed 
 process of affection is thus all the time going on silent, gladdening, and 
 full of beauty, like the secret and beautifying process of spring. It is curious to 
 observe, in connection with this emigration of coin from Europe, (for a large 
 portion of the emigrating capital consists in European specie,) how the coins are 
 first carried to the distant west in the pouches of the emigrants, and then are 
 sent in large boxes from the western hanks, into which they naturally flow, to the 
 New York banks, to be sold to the specie-broker, who sells them for shipment 
 back to France, Germany, or England. The Banks of New York, by T. S. Gib- 
 bons, New York, 1859. 
 
 In the Prussian constitution of 1850, Tit. ii. Art. ii., it is said, " The right to 
 emigrate cannot be restricted by the state, except with respect to the duty of mili- 
 tary service." 
 
 3 [Penalties for escaping a draft in rime of war, or deserting one's country in 
 its perils, may be perfectly just. Comp. the Oration of Lycurgus against Leocra- 
 tes, e.g. n, 16.]
 
 AND SELF-GOVERNMENT. 
 
 95 
 
 reap its proportionate benefit, provided free exchange be 
 allowed by the latter. 
 
 The same applies to the capital removed along with emi- 
 gration. It becomes more productive, and mankind at large 
 are benefited by it. 
 
 Besides, it is but a part of the general question, Shall or shall 
 not governments prohibit the efflux of money ? It was for- 
 merly considered one of the highest problems of statesman- 
 ship, even by a ruler so wise as Frederic II. of Prussia, to 
 prevent money from flowing out of the country ; for wealth 
 was believed to consist in money. Experience has made us 
 wiser. We know that the freest action in this, as in so many 
 other cases, is also the most conducive to general prosperity. 
 It was stated in the journals of the day that Miss Jenny Lind 
 remitted five hundred thousand dollars from the United States 
 to Europe. Suppose this to be true, would we have been 
 benefited had she been forced to leave that sum in this coun- 
 try ?' Or would we, upon the whole, profit by preventing five 
 million dollars, which, according to the statement of our 
 secretary of state, are now annually sent by. our Irish emi- 
 grants to Ireland, from leaving our shores? 2 Unquestionably 
 
 1 The papers of September, 1853, reported that " the Silby estate, belonging 
 to the Hon. Mrs. Petre, has been sold to Lord Londesborough for ^270,000. 
 Mrs. Petre, whose property was left by her husband entirely at her own disposal, 
 has taken the veil in a nunnery in France, which will of course receive the whole 
 of her fortune." 
 
 This emigration of more than a million of dollars, and serving for the purpose 
 of a religious community not favored by the. country whence it emigrates, (not 
 to speak of the actual droit d^aubaine in France before the revolution,) indicates 
 a great advance of civilization, and would not be allowed in several countries. 
 [The laws of civilized states, however, may properly limit or forbid the acquisition 
 of property in mortmain or by religious corporations. And if within a country 
 religious bodies were forbidden to hold such property, why should they, if situ- 
 ated in another, have such capacity of acquisition from the foreign country?] 
 
 3 Hon. Edward Everett's dispatch to Mr. Crampton, on the Island of Cuba, 
 December r, 1852. The London Spectator of December 17, 1853, said: 
 
 "Not less than ,2,972,000 was remitted from Irish emigrants in America to 
 their friends and relatives at home, in 1848, 1849, 1850, and 1851. It is esti- 
 mated that if the remittances have continued at the same rate, upwards of foui 
 millions must have been remitted in the last six years.".
 
 96 ON CIVIL LIBERTY 
 
 not. But this is not the place for further pursuing a question 
 of political economy. 
 
 The English provided for a free egress and regress as early 
 as in Magna Charta. As to the freest possible locomotion 
 within the country, I am aware that many persons accustomed 
 to Anglican liberty may consider my mentioning it as part of 
 civil liberty too minute. If they will direct their attention to 
 countries in which this liberty is not enjoyed in its fullest 
 extent, they will agree that I have good reason for enumer- 
 ating it. Passports are odious things to Americans and 
 Englishmen, and may they always be so. 1 
 
 1 The primordial right of locomotion and emigration has been discussed by me 
 in Political Ethics, at considerable length. The state of Mississippi declares in 
 its bill of rights, that the right of emigration shall never be infringed by law 
 or authority. The English distaste of passports was severely tried when, after 
 Orsini's attempt to assassinate Napoleon III., stringent passport regulations were 
 adopted in France; but the English found them so irksome (and the money 
 they spend is so acceptable to the continent) that those police regulations were 
 soon relaxed in a very great degree. Napoleon III., when an exile, wrote on the 
 individual liberty in England, and called passports "that invention of the Com- 
 mittee of Public Safety." See his works. The modern passport was, doubtless, 
 greatly developed in the first French revolution, but not invented. The history of 
 the passport, from the Roman Empire to the modern railroad, which naturally 
 interferes with its stringency, is an interesting portion of the history of our race, 
 but it belongs to what the Germans have carved out as a separate branch under 
 the name of Police Science, (Polizei-Wissenschaft.)
 
 AND SELF-GOVERNMENT. 
 
 97 
 
 CHAPTER X. 
 
 LIBERTY OF CONSCIENCE. PROPERTY. SUPREMACY OF 
 
 THE LAW. 
 
 8. LIBERTY of conscience, or, as it ought to be called more 
 properly, 1 the liberty of worship, is one of the primordial 
 rights of man, 2 and no system of liberty can be considered 
 comprehensive which does not include guarantees for the free 
 exercise of this right. It belongs to American liberty to 
 separate entirely the institution which has for its object the sup- 
 port and diffusion of religion from the political government. 
 We have seen already what our constitution says on this point. 
 All state constitutions have similar provisions. 3 They prohibit 
 government from founding or endowing churches, and from 
 demanding a religious qualification for any office or the 
 exercise of any right. They are not hostile to religion, for 
 we see that all the state governments direct or allow the Bible 
 to be read in the public schools ; but they adhere strictly to 
 these two points : No worship shall be interfered with, either 
 directly by persecution, or indirectly by disqualifying members 
 of certain sects, or by favoring one sect above the others ; 
 and no church shall be declared the church of the state, or 
 " established church ;" nor shall the people be taxed by 
 government to support the clergy of all the churches, as is 
 the case in France. 
 
 1 Conscience lies beyond the reach of government. " Thoughts are free," is 
 an old German saying. The same must be said of feelings and conscience. 
 That which government, even the most despotic, can alone interfere with, is the 
 profession of religion, worship, and church government. 
 
 a See Primordial Rights in Political Ethics. 
 
 i [A state in the American Union might have a state church, although such 
 an event is at present utterly improbable.] 
 
 7
 
 gS ON CIVIL LIBERTY 
 
 In England there is an established church, and religious 
 qualifications are required for certain offices and places, at 
 least in an indirect way. A member of parliament cannot 
 take his seat without taking a certain oath " upon the faith of 
 a Christian ;" which, of course, excludes Jews. There is no 
 doubt, however, that this disqualification will soon be removed. 1 
 Whether it will be done or not, we are nevertheless authorized 
 
 1 This disqualification has at length been removed, in 1858. The words 
 " upon the faith of a Christian" may be left out of the qualifying oath by a non- 
 Christian. There are now (1859) three Jews in the house of commons. 
 
 Since the text, to which this note is appended, was written, the case of the 
 Madiai family has attracted the attention of all civilized nations in the old and 
 new world. The Madiai family, natives of Tuscany, had become Protestants, 
 and used to read the Bible. No offence has ever been charged to them, except 
 that they read the Bible in the vernacular. Their imprisonment and prosecution 
 caused the formation of a Society for Protecting the Rights of Conscience, in 
 England, in July, 1857. Archbishop Whately presided at the first meeting, and 
 in giving the scope of the society, spoke of the toric in hand with a degree of 
 discrimination which entitles his remarks to be reproduced here. Pie said: 
 
 "We are entirely unconnected with conversion, except so far as converts may 
 be exposed to persecutions for conscience' sake. We enter into no connection 
 with any society for diffusing religious knowledge of any kind. By rights, we 
 understand not necessarily that every one is right in the religion that he adopts, 
 but that his neighbors have no right to interfere with him. We merely maintain 
 that a man has a right, not necessarily a moral right, nor a right in point of 
 judgment, but a civil right, to worship God according to his own conscience, 
 without suffering any hardships at the hands of his neighbors for so doing. We 
 limit ourselves entirely to those descriptions of persecution in which the law 
 can give no relief. As for assaults and violence of any kind, where the law 
 provides and holds out a remedy, we leave all persons to seek that remedy for 
 themselves; and we do not undertake to guard, or to remunerate, or tc compen- 
 sate any persons who are exposed to obloquy, to curses, denunciations of Divine 
 vengeance uttered by men, to ridicule, or to any sort of annoyance of that kind. 
 They should be taught to bear it and to support it with joy and satisfaction 
 through Divine help, and rejoicing that they are counted worthy to suffer in the 
 good cause. But when attempts are made to compel men to conform to what 
 they do not conscientiously believe, by the fear of starvation, by turning them 
 out of employment when they are honest and industrious laborers, by refusing 
 to buy and sell or hold any intercourse with them, then I think it is, and then 
 only, that a society like this ought to come forward, and that all persons, what- 
 ever religion they may be of, or whether they are of any religion at all or not, 
 in a feeling of humanity and justice, ought to look with a favorable eye on such 
 a society as yours, provided it keep itself within its own proper bounds."
 
 AND SELF-GOVERNMENT. 
 
 99 
 
 to say that liberty of conscience forms one of the elements of 
 Anglican liberty. It has not yet arrived at full maturity in 
 some portions of the Anglican race, but we can discern it in the 
 whole race, in whose modern history we find religious toleration 
 at an earlier date than in that of any other large portion of 
 mankind. Venice, and some minor states, found the econom- 
 ical and commercial benefit of toleration at an early period, 
 but England was the earliest country of any magnitude where 
 toleration, which precedes real religious liberty, was established 
 While Louis XIV. of France, called the Great, " dragonnaded" 
 the Protestants on no other ground than that they would not 
 become Catholics, a greater king, William III., declared, in 
 England, that " conscience is God's province." The Catholics 
 were long treated with severity in England, but it was more on 
 a political ground, because the pope supported for a long time 
 the opponents to the ruling dynasty, than on purely religious 
 grounds. 
 
 There is a new religious zeal manifesting itself in all 
 branches of the Christian church. The Catholic church seems 
 to be animated by a renewed spirit of activity, not dis- 
 similar to that which inspired it in the seventeenth century 
 by which it regained much of the ground lost by the Reforma- 
 tion, and which has been so well described by Mr. Ranke. 
 The Protestants are not idle ; they study, preach, and act with 
 great zeal. May Providence grant that the Anglican tribe, 
 and all the members of the civilized race, may more and more 
 distinctly act upon the principle of religious liberty, and not 
 swerve from it, even under the most galling circumstances. 
 Calamitous consequences, of which very few may have any 
 conception at this moment, might easily follow. 
 
 As to that unhappy and most remarkable sect called the 
 Mormons, who have sprung up and consolidated themselves 
 within our country, and who doubtless may become trouble- 
 some when sufficiently numerous to call on us for admission 
 into the Union, I take it that the political trouble they may 
 give cannot arise from religious grounds. Whether they have 
 fallen back into Buddhism, making their god a perfectible
 
 I0 o ON CIVIL LIBERTY 
 
 being, with parts and local dwelling, cannot become a direct 
 political question, however it may indirectly affect society in 
 all its parts. The potent questions which will offer great 
 difficulty will be, whether a Mormon state, with its " theo- 
 democratic" government, as they term it, can be called a 
 republic, in the sense in which our constitution guarantees it 
 to every member of the Union. It will then, probably for the 
 first time in history, become necessary legally to define what 
 a republic is. The other difficulty will arise out of the ques- 
 tion which every honest man will put to himself, Can we admit 
 as a state a society of men who deny the very first principle, 
 not of our common law, not of Christian politics, not of modern 
 progress, but of our whole western civilization, as contra- 
 distinguished from oriental life of that whole civilization in 
 which we have our being, and which is the precious joint pro- 
 duct of Christianity and antiquity who disavow monogamy ? 
 
 No one will now deny that the English parliament followed 
 too tardily the advice of those great statesmen who urged 
 long ago to abolish test oaths and other religious impedi- 
 ments ; but to judge impartially, we must not forget that the 
 removal of disqualifications in countries enjoying a high 
 degree of liberty is more difficult than in despotic countries, 
 where all beneath the despot live in one waste equality. 
 Liberty implies the enjoyment of important rights and high 
 privileges. To share them freely with others who until then 
 have not enjoyed them appears like losing part of them. It 
 is a universal psychologic law. Neither religion nor color 
 constitutes half the difference in many Asiatic states, which 
 they establish in many free countries. It must likewise be 
 remembered that liberty implies power, the authority of act- 
 ing ; consequently, an admission to equality in a free country 
 implies admission to power, and it is this which frequently 
 creates, justly or unjustly, the difficulty of perfect religious 
 equality in certain states of society. 
 
 The end, however, which is to be reached, and toward 
 which all liberty and political civilization tends, is perfect 
 liberty of conscience.
 
 AND SELF-GOVERNMENT. IOI 
 
 9. One of the staunchest principles of civil liberty is the 
 firmest possible protection of individual property * acquired 
 or acquiring, produced and accumulated, or producing and 
 accumulating. We include, therefore, unrestrained action 
 in producing and exchanging, the prohibition of all unfair 
 monopolies, commercial freedom, and the guarantee that no 
 property shall be taken except in the course of law ; and the 
 principle that, in particular, the constant taking away of part 
 of property, called taxation, shall not take place, except by 
 the direct or indirect consent of the owner the tax-payer 
 and, moreover, that the power of government to take part of 
 the property, even with the consent of the payer, be granted 
 for short periods only, so that the taxes must be renewed, and 
 may be revised at brief intervals. The true protection of in- 
 dividual property demands likewise the exclusion of confisca- 
 tion. For, although confiscation as a punishment is to be 
 rejected on account of the undefined character of the punish- 
 ment, depending not upon itself but upon the fact whether 
 the punished person has any property, and how much, it is 
 likewise inadmissible on the ground that individual property 
 implies individual transmission, 2 which confiscation totally de- 
 stroys. 3 It would perhaps not be wholly unjust to deprive an 
 individual of his property as a punishment for certain crimes, 
 if we were to allow it to pass to his heirs. We do it in fact 
 when we imprison a man for life, and submit him to the regular 
 prison discipline, disallowing him any benefit of the property 
 
 1 It has been one of the main objects in my Essays on Labor and Property, to 
 show the necessity and justice of individual property, and its direct connection 
 with man's individuality, of which it is but the reflex in the material world around 
 him. Man suffers in individuality, therefore in liberty, in the degree in which 
 absolutism, which is always of a communistic nature, deprives him of the pos- 
 session, enjoyment, production, and exchange of individual property. The 
 Essays treat of property in a political, psychologic, and economical point of 
 view. 
 
 2 The subject of individual inheritance has also been treated at length in the 
 Essays mentioned in the preceding note. 
 
 3 [Our author of course cannot object to fines, one of the most universal and 
 most efficacious of penalties.]
 
 102 ON CIVIL LIBERTY 
 
 he may possess; but it is unjust to deprive his children or 
 other heirs of the individual property, not to speak of the 
 appetizing effect which confiscation of property has often 
 produced upon governments. 
 
 The English attainder and corruption of blood, so far as it 
 affects property, is hostile to this great principle of the utmost 
 protection of individual property, and has come down to the 
 present times from a period of semi-communism, when the 
 king was considered the primary owner of all land. Corrup- 
 tion of blood is distinctly abolished by our constitution. 
 
 Individual property is coexistent with government. Indeed, 
 if by government be understood not only the existence of any 
 authority, but rather the more regular and clearly established 
 governments of states, property exists long before government, 
 and is not its creature ; as values exist long before money, and 
 money long before coin, and coin before government coin. We 
 find, therefore, that the rightful and peaceful enjoyment of in- 
 dividual property is not mentioned as a particular item of civil 
 liberty, as little as the institution of the family, except when 
 communistic x ideas have endangered it, or, in particular cases, 
 
 1 I shall not have room to give a whole chapter to the subject of communism, 
 or rather a single chapter would be wholly insufficient on this interesting subject, 
 which, moreover, belongs to general political philosophy, rather than to our 
 branch. I shall mention, therefore, this only, that I use in these pages the word 
 communism in its common adaptation, meaning a slate of society in which indi- 
 vidual property is abolished, or in which it is the futile endeavor of the lawgiver 
 to abolish it, such as hundreds of attempts made, in ancient times, in the middle 
 ages, and in modern epochs, in Asia and in Europe, among the Spartans, the 
 anabaptists, and French communists. I do not take here the term communism 
 in that philosophical sense according to which every state, indeed every society 
 whatever, necessarily consists of the two elements of individualism and social- 
 ism. The grave error of the socialist is that he extends the principle of socialism, 
 correct in itself, to the sphere where individualism or separatism, equally correct, 
 ought to determine our actions. The socialist is as mistaken an enthusiast as the 
 individualist would be, who, forgetting the element of socialism, should carry his 
 principle to the extreme of disjunctive egotism, and insrst upon a dissolution of 
 government and a disavowal of the sovereignty of society in political matters. It 
 is instructive to observe how, also, in this case, the extremes meet ; for works 
 have been actually published by socialists which wind up with an entire denial 
 of government, and an avowal of " individual sovereignty."
 
 AND SELF-GOVERNMENT. 
 
 103 
 
 when private property must be given up for the public 
 benefit, 1 and laws or constitutions settle that it shall not be 
 done except for equivalents given by the public through 
 government. 2 
 
 Our constitution goes farther. It distinctly enacts that " no 
 state shall pass any law impairing the obligation of contracts," 
 which includes contracts with governments, and not only 
 common contracts, but rights conferred for equivalents. 3 
 
 The right of self-taxation has been mentioned as a guarantee 
 of private property ; for no matter what form taxation may 
 assume, it must always consist in the appropriation of private 
 property for public ends. Taxation has, however, another, 
 purely political and highly important meaning, and we shall 
 consider it under this aspect in another part of this work. 
 
 Every single subject here mentioned, monopolies, 4 freedom 
 of trading, freedom of home production, freedom of exchange, 
 possession of property, taxation and confiscation each one 
 has a long history, full of struggle against error and govern- 
 
 1 See the constitution of the French Republic of 1848, in the Appendix. It 
 contains a paragraph acknowledging private property, the family, etc. It was 
 right to insert it, under the circumstances. If the Spartans had ever reformed 
 their government, and passed from their socialism to individualism, they would 
 have been justified in proclaiming the sanctity of the family and the acknowl- 
 edgment of private cookery, however ludicrous this might be under other 
 circumstances. 
 
 a Points belonging to this subject and its primordial character were pronounced 
 with clearness in the late pleadings in the French courts, when it was endeavored 
 to show, unfortunately in vain, that Louis Napoleon had no right, even as a dic- 
 tator, to confiscate the private property of the Orleans family, and that the courts 
 were competent to restore it to the lawful owners. 
 
 3 See Judge Story, in his Commentaries on the Constitution of the United 
 States, and his Opinion, as well as Chief- Justice Marshall's' in the celebrated 
 Dartmouth Case, 4 Wheaton R. 518, and also Mr. Webster's Works for his 
 argument in that case. 
 
 The English go much farther than ourselves, not indeed in principle, but be- 
 cause they consider many rights, places, and privileges as vested property which 
 we by no means consider as such. 
 
 * An act of parliament under James I. (21 James I. i. 3) prohibited all mono- 
 polies granted by the crown, after the courts had repeatedly, even under Elizabeth, 
 declared certain monopolies null and void.
 
 104 ON CIVIL LIBERTY 
 
 ment interference, running through many centuries and even 
 a thousand years. On each a separate and instructive history 
 might be written. Each shows the continued course of 
 gradually, though very slowly, expanding freedom. Nor 
 has this history of development reached its close, although 
 it has attained to that period in which we acknowledge the 
 highest protection of individual property as an element of our 
 freedom. 
 
 That the so-called repudiation it is always unfortunate and 
 suspicious when offences that have long received their proper 
 name are stamped with a new and apparently innocent one ; 
 still worse is it when the error is elevated into a commendable 
 act; and Bacon is right when he says, Pessima enim res est 
 errorum apotheosis that repudiation is a violation of the 
 sacred principle we treat of, no one now will have the hardihood 
 to deny. Still it is true that abroad it is almost universally 
 treated erroneously, as well in regard to its causes as to its 
 extent, the inferences drawn from it regarding republican 
 government, and the supposed novelty of the case. We could 
 give a long list of monarchical repudiations. But we do not 
 claim this as an excuse. The worst of all arguments is, 
 although in constant use, from the school-boy to princes, 
 presidents, and writers on national affairs, that things are 
 equally bad or worse with others. Right and truth, wrong 
 and falsehood, remain forever what they are ; and Mr. Webster 
 pointedly said at the time of repudiation, in the senate of the 
 United States : " You may repudiate, but that does not pay 
 your debts." Repudiation was, and remains, a serious wrong, 
 but its immorality does not authorize to draw wrong conclu- 
 sions, and we totally deny the correctness of the assumed facts 
 and inferences drawn from them by Sir A. Alison. 1 
 
 1 Paragraph fifty-nine, chap. i. vol. i. of History of Europe from the Fall of 
 Napoleon to the Accession of Louis Philippe. Possibly an opportunity may 
 offer itself some day to treat of this melancholy subject at length and in all its 
 details. 
 
 I cannot forbear, however, to copy a passage of Sir A. Alison, viz. : "The 
 principal states of the Union have, by common consent, repudiated their state
 
 AND SELF-GOVERNMENT. IC >5 
 
 10. There can be no individual liberty where every citizen 
 is not subject to the law, and where he is subject to aught 
 else than the law that is, public opinion organically passed 
 
 debts as soon as the storms of adversity blew ; and they have in some instances 
 resumed the payment of their interest only when the sale of lands they had 
 wrested from the Indians afforded them the means of doing so, without recurring 
 to the dreaded horrors of direct taxation" and to add that there is not one fact 
 in this whole passage. The principal states did not repudiate; the repudiation 
 was not by common consent ; no land has been wrested from the Indians and 
 sold for the benefit of the states, and direct taxation exists in most states, perhaps 
 in all the states to some extent. Many of those readers who have been my pupils 
 will remember that for a number of years I was in the habit of delivering a course 
 of lectures on Repudiation, in which, I trust, I showed no disposition to mince 
 matters ; but to repudiate the representative principle as Sir Archibald does when 
 treating of Repudiation, and to present the lattei as a natural consequence of 
 republicanism, transcends the bounds of reason. What element in the English 
 polity, we would ask, is it that makes English credit so firm? Is it the monarch- 
 ical? This cannot well be, for many monarchs have more than loosely dealt with 
 credit, public funds, and even private property. I believe, on the contrary, that 
 the credit of England mainly rests on her representative, her republican principle. 
 I do not mean to say that people lend their money just because she has a parlia- 
 ment. What I mean is that the reliance of the world on the good faith of Eng- 
 land in money matters has been built up by her parliamentary government, and 
 would not have been built up without it. 
 
 The Dutch Republic enjoyed great credit, while the Regent of France, and 
 his council of state, seriously debated whether the " new government" was 
 obliged to acknowledge the debts of the defunct Louis XIV. One of the worst 
 cases of repudiation was exhibited in England long before the unhappy laxity 
 b:-came manifest in our land. The Prince of Wales (George IV.) and two of 
 his brothers, the Dukes of York and Clarence, desired to escape paying a loan 
 of 3,600,000 guilders which they had made in Holland, through the banker 
 Thomas Hammcrsly. When the bond-holders came to England to enforce pay- 
 ment, Sir Arthur Pigolt, attorney-general of the Duchy of Cprmvall, acting for 
 the Prince of Wales, stated in the court that he had never heard of the bonds, 
 which was absolutely untrue. All London, and indeed all England, knew of 
 it. The arguments were worthy of any Mississippi repudiator, such as, The 
 present bond-holders are not the original lenders; war has broken out. Ulti- 
 mately the Dutch bond-holders who were in England were arrested under the 
 alien law and put on board a vessel, where, English writers say, 1 cannot say 
 with what degree of truth, they perished, though none of the crew died. 
 
 Sir A. Alison says somewhere in his writings, that the richest men in the city 
 of New York do not dare to have stately fronts for their houses, however costly 
 the interior maybe, from fear of displeasing the democracy. Truth and essential 
 progress are never promoted by wrong or false argument.
 
 106 ON CIVIL LIBERTY 
 
 into public will. 1 This we call the supremacy of the law.* 
 All subjective arbitrariness is contrary to freedom. The law 
 of a freeman is a general rule of action, having grown out of 
 the custom of the people, or having been laid down by the 
 authority empowered by the people to do so. A law must be 
 a rule which does not violate a superior law or civil principle, 
 it must be made before the case to which it is applied has 
 occurred, (without which it cannot be mens sine effectu, as the 
 ancients called the law,)'and it must be truly as well as plainly 
 published. 
 
 The citizen, therefore, ought not to be subject to ex post 
 facto laws, 3 to a " government by commissions," nor to 
 extraordinary courts 4 of justice, to a dispensing power in the 
 
 1 We shall presently say more on the all-important word Law ; but for an 
 extensive discussion of the subject I must refer the reader to the Political 
 Ethics. 
 
 2 It will hardly be necessary to state that the term supremacy of the law has 
 a meaning only when by law we understand general and pre-existing rules of 
 action expressing public will. Whether the name of law be given to personal 
 decrees and arbitrary decisions, is not of the smallest importance. Napoleon, at 
 St. Helena, expressed his surprise at having been called a despot; " I," said he, 
 " who have always acted by law !" This forcibly reminds us of a prominent French 
 paper, the Univers, which lately stated that it was decidedly in favor of repre- 
 sentative government, and that it was only necessary to know what is understood 
 by representative government. The Univers so said the paper itself under- 
 stands by this term a legislative corps, which represents the government. I have 
 known, in an official capacity, a patient in a hospital for the insane, who perse- 
 veringly maintained that the difference between him and me consisted solely in 
 the name. " Suppose," he used to say, " we patients vote that we are sane and 
 the out-door party is crazy ?" " Don't you see ?" he would add, with a knowing 
 look. 
 
 3 Our constitution prohibits them. 
 
 * By extraordinary courts of justice are meant, in this connection, courts of an 
 extraordinary composition, not those that are simply directed to sit at an unusual 
 time. The difference between justice, that is, right distributed among men by 
 lawful and regularly appointed judges on the one hand, and the trials by com- 
 missioners on the other hand, is well pointed out by an anecdote, such as Plutarch 
 would not have disdained to give in his writings. Montaign, grand master of the 
 household of Charles VI., was tried, tortured, and executed by Commissioners. 
 He was buried in the church of the Celestines, and when Francis I. came to see 
 his tomb, the king said, " This Montaign has been condemned by justice." " No,
 
 AND SELF- GO VERNME NT. 
 
 107 
 
 executive, (so much insisted on by the Stuarts, and, indeed, by 
 all rulers who claim to rule by a higher law than the law 
 of the land,) nor to mere " proclamations" of the crown or 
 executive, nor to the dictation of mobs, nor of any people 
 who claim to be the people ; nor, indeed, to any dictates of the 
 people except in its political, that is in its organized and 
 organic, capacity. 
 
 All the modern constitutions by which it is endeavored to 
 transplant Anglican liberty, declare that the citizen shall be 
 subject to his " natural courts" only. The charter of Louis 
 XVIII. prohibited cours preVotales. 1 It had become very 
 necessary to point out in the charter that every one should 
 be judged by his " natural court," because the extraordinary 
 courts had been a great grievance in former times, and because 
 Napoleon had introduced le jugement admin istratif, although 
 lettres de cachet remained abolished in his reign. An admin- 
 istrative or executive judgment simply meant decisions, im- 
 prisonment or other punishments, although the courts had 
 absolved the prisoner, or taking effect without the action of 
 any court. It is nothing less than plain police government. 
 
 The American Declaration of Independence has a passage 
 referring to the subject of " natural courts." It enumerates as 
 one of the grounds of justification for separating from England, 
 that the government has " transported us beyond the seas to 
 be tried for pretended offences." 
 
 All continental governments which were bent on defeating 
 the action of the new constitutions, even while they existed, 
 resorted to declaring large cities and entire districts in " a 
 state of siege," thus subjecting them to martial law. All abso- 
 lute governments, whether monarchical or democratic, have 
 
 sire," answered the simple monk who guided the king, " he was condemned by 
 Commissioners." Histoire du Parlement de Paris, Amsterdam, 1769, ch. 4. 
 Commissioners as judges form a " packed" court, do not feel lasting responsi- 
 bility, and, in cases of importance to the executive, act on the foregone con- 
 clusion almost as distinctly as the "judges" of the Duke d'Enghien did. In 
 this consists the danger of courts-martial, when established for the ordinary 
 courts. 
 
 1 See the French charter in the Appendix.
 
 108 ON CIVIL LIBERTY 
 
 ever found the regular course of justice inconvenient, and made 
 war upon the organic action of the law, which proves its 
 necessity as a guarantee of liberty. 
 
 It is obvious that, whatever wise provisions a constitution 
 may contain, nothing is gained if the power of declaring 
 martial law be left in the hands of the executive; for de- 
 claring martial law, or proclaiming a place or district in a 
 state of siege, simply means the suspension of the due course 
 of law, of the right of habeas corpus, of the common law, and 
 of the action of courts. The military commander places the 
 prisoners whom he chooses to withdraw from the ordinary 
 courts before courts-martial. There were many French de- 
 partments in " a state of siege" before the coup d'etat. After 
 it, all France may be said to have been so. 
 
 In England, when there is a rebellion or wide-spread dis- 
 order, threatening life and property, a regular act of parlia- 
 ment is passed, suspending the habeas corpus. The act states 
 the necessity or reasons, and the time of its duration. This 
 last point is of great importance. 1 
 
 We have seen already under what circumstances our con- 
 stitution permits the suspension of the habeas corpus ; and that 
 this cannot be done by the president alone, but by congress 
 only, need hardly be mentioned. 2 
 
 It has been necessary to mention here the supremacy of 
 the law as a peculiar guarantee of personal liberty. We shall 
 return to the subject, and consider it in its wider relations. 
 
 II. The preceding guarantee of the supremacy of the law 
 leads to a principle which, so far as I know, it has never been 
 attempted to transplant from the soil inhabited by Anglican 
 people, and which nevertheless has been in our system of liberty 
 
 1 The act by which martial law was declared in Ireland, during the rebellion 
 in 1798, can be seen in Tytler's Essay on Military Law, appendix, No. 6. I 
 copy this reference from an article, Martial Law, in Political Dictionary, 
 London, 1846. 
 
 a [For the question raised in our late war as to the president's power to do 
 this, and for the limitation that the suspension of habeas corpus allows no illegal 
 arrests, but only the detention of a prisoner arrested for good cause, comp. Pome- 
 roy's Constit. Law, p. 475.]
 
 AND SELF-GOVERNMENT. 
 
 109 
 
 the natural production of a thorough government of law, as 
 distinguished from a government of functionaries. It is so 
 natural to the Anglican race that few think of it as essentially 
 important to civil liberty, and it is of such vital importance 
 that none who have studied the acts of government elsewhere 
 can help recognizing it as an indispensable element of civil 
 liberty. 
 
 It is this : that, on the one hand, every officer, however high 
 or low, remains personally answerable to the affected person 
 for the legality of the act he executes, no matter whether his 
 lawful superior has ordered it or not, and even whether the 
 executive officer had it in his power to judge of the legality 
 of the act he is ordered to do, or not; and that, on the other 
 hand, every individual is authorized to resist an unlawful act, 
 whether executed by an otherwise lawfully appointed officer 
 or not. The resistance is made at the resister's peril. In all 
 other countries, obedience to the officer is demanded in all 
 cases, and redress can only take place after previous obedience. 1 
 Occasionally, this principle acts harshly upon the officer ; but 
 we prefer this inconvenience to the inroad which its abandon- 
 ment would make in the government of law. We will not 
 submit to individual men, but only to men who are, and when 
 they are, the organs of the law. 2 A coup d'etat, such as we 
 have lately seen in France, would not be feasible in a nation 
 accustomed to this principle. All the answer which the police 
 officers gave to men like General Cavaignac, who asked them 
 whether they were aware that they committed a high crime 
 in arresting a representative of the people, was, that they had 
 orders from their superior, and had nothing to do with the 
 question of legality. It is obvious how much this peculiar 
 Anglican principle heightens the importance of obedience to 
 the officer, representing the law, and the law alone. Lawless- 
 ness in this, as in all other cases, is peculiarly incompatible 
 with the spirit of Anglican freedom. 
 
 1 Extreme cases, as a matter of course, would be allowed to form exceptions. 
 1 I must again refer to the Political Ethics, chapter on Obedience to the Law.
 
 1 10 ON CIVIL LIBERTY 
 
 As an instance of the opposite to the French principle of 
 that huge institution called gendarmerie, the following simple 
 case may be taken : 
 
 A sheriff, provided with the proper warrant, has the right, 
 after request and denial, to open the house door, forcibly to 
 open it, if a third party has taken refuge in it, or sent his 
 goods there. "Every man's house is his castle," will not 
 protect any one but the bona fide dweller in it. Nevertheless, 
 the sheriff provided with his legal warrant does it at his own 
 peril ; for, if he break open the house, however well his suspi- 
 cion may be grounded, and neither the party nor the goods 
 sought for be there, the sheriff is a trespasser, and as such 
 answerable to the inhabitant of the house before the courts of 
 the land. This may be inconvenient in single cases. It may 
 be that the maxim which has been quoted has "been carried 
 as far as the true principles of political practice will warrant 
 perhaps beyond what in the scale of sound reason and good 
 policy they will warrant." ' I doubt it, whatever the inconve- 
 nience in single cases may be. All law is inconvenient in some 
 cases ; but even if this opinion were founded, how august, on 
 the other hand, appears the law I do not mean a single 
 statute, but the whole self-evolving system of a common law 
 of the land that errs on the side of individual liberty against 
 trie public power and the united weight of government ! 
 
 This Anglican principle might be supposed by those who 
 are not familiar with it, that fear of resolute action in the 
 officer would be the consequence. But this is not the case, 
 as experience in England and the United States sufficiently 
 proves. When magistrates and officers who, according to 
 their sphere of action, ought not to be elective, are made 
 elective, timidity or time-serving encroaches indeed upon the 
 resolute performance of the officer's duty ; but this has nothing 
 to do with the principle here treated. Nor is it denied that 
 exceptions may take place. A police officer lately stated in 
 
 1 Sir M. Foster, Discourse of Homicide, p. 319. I quote from Broom's Legal 
 Maxims.
 
 AND SELF-GOVERNMENT. Iir 
 
 open court in London, when asked why he had not performed 
 a certain act clearly lying within the sphere of his duty, that it 
 was so difficult for him to know what was lawful for him to 
 do, according to the opinion of the magistrate, that he had 
 preferred not to act. No machinery works without occasional 
 friction. Compare with this the ruthless European continental 
 police, and choose. The reader will find at the end of the foot- 
 note appended to this page an amusing illustration of the fact 
 that monarchical absolutism does not necessarily give freedom 
 or boldness of action to officers. 1 
 
 The reader has seen from the passage on warrants, which I 
 gave in a preceding part of this work, how far this principle 
 is carried in the case of resisting an officer, even to the killing 
 him, if his warrant be not wholly correct. Another proof of 
 the uniform acknowledgment of this principle and essential 
 pillar of civil liberty is this, that when a British minister 
 
 1 The very opposite to the Anglican principle, that each officer remains re- 
 sponsible for the legality of his own acts, prevails in China and Japan, and prob- 
 ably in all thoroughly systematized Asiatic despotisms. The superior officer is 
 punished for the offence and even for the misfortune of the inferior, or for the 
 accident which may have befallen the latter. The blows with the bamboo, which 
 in China go down from the superior through many grades to the inferior, are 
 well known. Before the late opening of the Japanese ports to the Americans 
 and Europeans, a Christian vessel was driven on the shores of Japan. The 
 governor ripped open his belly, and the viceroy in whose province the wreck 
 had happened was imprisoned for one hundred days, although he was at the 
 time a hundred miles from the place of the disaster. There is also, however, in 
 these cases, to be taken into consideration the confusion of moral laws, and phys- 
 ical laws, and fate, which pervades the whole Chinese code, the ethics of Japan, 
 the moral code of all early nations, and which we find in the early mythology of 
 all nations. The earliest period of Greek history and mythology furnishes us 
 with mnny illustrations. 
 
 Mr. King, in his Notes of the Voyage of the Morrison, New York, 1839, gives 
 the following anecdote : " We had inquired of the Japanese how their officers 
 were to be distinguished; whether they wore any badges besides the ever-famous 
 1 two sabres.' The answer was, If you see a man come on board that trembles 
 very much, he is a mandarin." 
 
 The student must take care not to consider the fining of companies for want of 
 caution, skill, or honesty in the persons or officers employed by them, (now so 
 common in consequence of railway accidents,) as invalidating the principle laid 
 down in the text.
 
 112 ON CIVIL LIBERTY 
 
 obtains an act of indemnity, which is an act of impunity foi 
 certain illegal acts, which, nevertheless, necessity demanded, 
 the act of indemnity is never for him alone, but it expresses 
 that the act shall also cover what the inferior officers have 
 done by the direction of the minister in the premises. 1 
 
 In conclusion, I would remark that it is wholly indifferent 
 who gives the order. If it be illegal, the person who executes 
 it remains responsible for the act, although the president or 
 the king should have ordered it, or the offending person 
 should be a soldier obeying his commander. It is a stern law, 
 but it is a sacred principle, a strict government of law cannot 
 dispense with it, and it has worked well. 
 
 1 For instance, in the scarcity of grain in the year 1766, Chatham prohibited 
 exportation of grain. When parliament met, he read a passage from Locke, to 
 show that what he had done was not legal yet right. Indemnity was passed for 
 him and those who had acted under him. In 1818, ministers asked and obtained 
 indemnity for the suspension of habeas corpus, for themselves and magistrates 
 under them. Many other instances might be given. See Lieber's Legal 
 and Political Hermeneutics, note to page 79. Acts of indemnity cannot be 
 passed with us, because we have a constitution of which the legislature itself is 
 but the creature, and we cannot pass ex post facto laws. All that remains for us 
 to do in cases of absolute necessity or transcendent utility is to pass over the 
 occurrence in silence; or congress may show its concurrence by aiding in the 
 act. This was the case when Mr. Jefferson purchased the territory of Louisiana. 
 Still, congress cannot make the act constitutional; though the silence of con- 
 gress, or the countenance given by it to an act, gives it such apparent legality, that 
 we find in the present time (1859) many men calling themselves adherents to the 
 strictest interpretation of the constitution, and insisting on liberal interpretation, 
 urging the purchase of the island of Cuba, as if the constitution, which itself 
 declares that it permits nothing but what it distinctly and positively grants, had 
 allowed the purchase of foreign territory.
 
 AND SELF-GOVERNMENT, 113 
 
 CHAPTER XI. 
 
 QUARTERING SOLDIERS. THE ARMY. 
 
 1 2. GOVERNMENTS, if not very closely hedged in, have it in 
 their power to worry citizens into submission by many indi- 
 rect methods. One of these, frequently resorted to since the 
 introduction of standing armies, is, that soldiers are billeted 
 with the disaffected citizens. An insolent soldiery, supported 
 by the executive, find a thousand ways of annoying, insulting, 
 and ruining the family with whom they are quartered. It has 
 been deemed necessary, therefore, specially to prohibit the 
 quartering of soldiers with citizens, as an important guarantee 
 of civil liberty. The English Bill of Rights, " declaring the 
 rights and liberties of the subject," of 1688, enumerates in 
 the preamble, as one of the proofs that James II. "did endeavor 
 to subvert and extirpate" . . . "the laws and liberties of this 
 kingdom," his " raising and keeping a standing army within 
 the kingdom in time of peace, without consent of parliament, 
 and quartering soldiers contrary to law." * It is in England, 
 therefore, a high offence to quarter soldiers without consent of 
 parliament ; and the Constitution of the United States ordains 
 that " no soldier shall in time of peace be quartered in any 
 house without the consent of the owner, nor in time of war, 
 but in a manner to be prescribed by law." The framers of the 
 constitution, it will be observed, were very exact in drawing 
 up this paragraph. 
 
 Persons not versed in the history of civil liberty and of 
 progressive absolutism might be surprised at this singling out 
 of quartering soldiers in documents of such elevated character 
 
 1 [See the Petition of Right in Appendix V., and Forster's Life of Sir John 
 Eliot, for earlier complaints n\ out this old outrage.] 
 
 8
 
 114 ON CIVIL LIBERTY 
 
 and condensed national demands as the Bill of Rights and the 
 American Constitution are; but the " dragonnades" of Louis 
 XIV. in France, of James II. in Scotland, and those of more 
 recent and present date in certain countries, furnish sufficient 
 justification for this specific guarantee. 
 
 13. The preceding safeguard, although justly pointed out 
 separately, is still only part of the general one that the forces 
 must be strictly submitted to the law. The navy cannot be, 
 in its nature, so formidable an instrument in the hands of the 
 executive as the army. It cannot be brought to bear upon 
 the people ; it is not centralized in its character, and it cannot 
 surround the ruler. There are many other reasons why the 
 navy, the floating bulwarks of a nation, has always shown an 
 inherent affinity with the popular element, and why free nations 
 only can have efficient navies or merchant fleets. 1 
 
 It is far different with the land forces. Ever since standing 
 armies have been established, it has been necessary, in various 
 ways, to prevent the army from becoming independent of the 
 legislature. There is no liberty, for one who is bred in the 
 Anglican school, where there is not a perfect submission of 
 the army to the legislature of the people. We hold it to be 
 necessary, therefore, to make but brief appropriations for the 
 army. The King of England cannot raise an army, or any 
 part of it, without act of parliament ; 2 the army-estimates are 
 passed for one year only ; so that, were parliament to refuse 
 appropriations, after a twelvemonth the army would be dis- 
 solved. The mutiny-bill, by which power is given to the king 
 to hold courts-martial for certain offences in the army, is like- 
 wise passed for a year only; so that, without repassing it, 
 
 1 [The individual nature of the seaman is developed by many of his duties, 
 while armies act chiefly as bodies and are directly under command.] 
 
 2 The guards of Charles II. were declared anti-constitutional, and the army of 
 James II. was one of the evidences by which he was presumed to have abdicated ; 
 that is, in other words, one of his breaches of the fundamental law of the land. 
 A new sanction was given to this principle in the sixth article of the Bill of 
 Rights, which runs thus : "A standing army, without the consent of parliament, 
 is against law."
 
 AND SELF-GOVERNMENT. U 5 
 
 the crown would have no power even to keep up military 
 discipline. 
 
 The Constitution of the United States makes the president, 
 indeed, commander-in-chief, but he cannot enlist a man, or pay 
 a dollar for his support, without the previous appropriation by 
 congress, to which the constitution gives "power to make 
 rules for the government and regulation of the land and naval 
 forces," and to which it denies the authority of making any 
 appropriation for the support of the national forces for a longer 
 term than two years. 
 
 The importance of this dependence of the army upon the 
 civil power has been felt by all parties. While the people are 
 bent on submitting the army to the legislature, the govern- 
 ments, which in the late European struggles were anxious to 
 grant as little liberty as possible, always endeavored to exclude 
 the army from the obligation of taking the constitutional oath. 
 Constitutional oaths, like other political oaths, are indeed no 
 firm guarantee in times of civil disturbance ; but where cir- 
 cumstances are such that people must start in the career of 
 freedom with an enacted constitution, it is natural and neces- 
 sary that the army should take the oath of fidelity to the 
 fundamental law, like any other persons employed in public 
 service, especially where the oath of allegiance to the monarch 
 continues. The oath, when taken, we have already admitted, 
 does not furnish any great security ; but in this, as in so many 
 other cases, the negative assumes a very great and distinct 
 importance, although the positive may be destitute of any 
 direct weight. The refusal of this oath shows distinctly that 
 the executive does not intend frankly to enter on the path of 
 civil freedom. This was lately the case in Prussia, when it was 
 the endeavor of the people to establish constitutional liberty. 
 
 The Declaration of Independence says : " He has kept 
 among us in times of peace standing armies without the con- 
 sent of our legislatures." It is enumerated as a radical 
 grievance, plain and palpable to every Anglican mind. Im- 
 mediately after, the Declaration significantly adds : " He has 
 affected to render the military independent of, and superior to,
 
 Il6 ON CIVIL LIBERTY 
 
 the civil power." This "affected" is striking. The attempt 
 of doing it, though the term "affected" indicates the want of 
 success, is counted as a grievance sufficient to warrant, among 
 others, an extinction of allegiance. Of the twenty-seven 
 grievances enumerated in the Declaration as justification for a 
 revolution, three relate to the army. 1 
 
 Dr. Samuel Johnson, not biased, as the reader well knows, 
 in favor of popular liberties, nevertheless showed that he was 
 bred in England, when he speaks of " the greatest of political 
 evils the necessity of ruling by immediate force." 2 There 
 is, however, a greater evil still the ruling by immediate force 
 when it is not necessary or against the people. 
 
 Standing armies are not only dangerous to civil liberty be- 
 cause directly depending upon the executive. They have the 
 additional evil effect that they infuse into the whole nation 
 especially when they are national armies, so that the old sol- 
 diers return continually to the people a spirit directly oppo- 
 site to that which ought to be the general spirit of a free peo- 
 ple devoted to self-government. A nation of freemen stands 
 in need of a pervading spirit of obedience to the laws ; an 
 army teaches and must teach a spirit of prompt obedience to 
 orders. Habits of disobedience and of contempt for the citi- 
 zen are produced, and a view of government is induced which 
 is contrary to liberty, self-reliance, self-government. Com- 
 mand ought to rule in an army ; self-development of law and 
 self-sustaining order ought to pervade a free people. A Ger- 
 man king, in one of his throne speeches, when a liberal spirit 
 had already manifested itself in that country, said : " The will 
 of one must ultimately rule in the government, even as it is in 
 the camp." This shows exactly what we mean. The entire 
 state, with its jural and civic character, is compared to a 
 
 1 A remarkable debate took place in the British commons in April, 1856, 
 when Mr. Cowan brought under the notice of the house the billeting system 
 pursued in Scotland, according to which " militia and troops of the line are 
 billeted upon private houses in Scotland." " It is an intolerable grievance." 
 Redress was obtained. 
 
 Considerations on the Corn Laws, by Dr. Samuel Johnson.
 
 AND SELF-GOVERNMENT. 117 
 
 camp, and ruinous inferences are drawn from the com- 
 parison. 
 
 The officers of a large army are in the habit of contemptu- 
 ously speaking of the " babbling lawyers." Les legistes have 
 always been spoken of by the French officers in the same tone 
 as " those lawyers" were talked of by Strafford and Laud. 
 Where the people worship the army, an opinion is engendered 
 as if really courage in battle were the highest phase of 
 humanity ; and the army, in turn, more than aught else, leads 
 to the worship of one man so detrimental to liberty. All 
 debate is in common times odious to the soldiers. They 
 habitually ridicule parliamentary debates of long duration. 
 Act, act, is their cry, which in that case means : Command 
 and obey are the two poles round which public life ought to 
 turn. A man who has been a soldier himself, and has seen 
 the inspiring and rallying effect which a distinctive uniform 
 may have in battle the desire not to disgrace the coat is not 
 likely to fall in with the sweeping denunciations of the uniform, 
 now frequently uttered by the " peace-men ;" but it is true 
 that the uniform, if constantly worn, and if the army is large, 
 as on the continent of Europe, greatly aids in separating the 
 army from the people, and in increasing that alienating esprit 
 de corps which ought not to exist where the people value their 
 liberty. Modern despotism carefully fosters this spirit of 
 separation, because it relies mainly on the standing army. 
 The insolence of the officers of Napoleon I. rose to a frightful 
 degree, even in France itself; and many startling events have 
 lately occurred in that country, showing how far Napoleon III. 
 indulges his officers in insulting and maltreating the citizen. 1 
 No security whatever arises from the fact that the army is 
 " democratic" in its character. On the contrary, the danger is 
 only the greater, because it makes the army apparently a part 
 of the people ; the people themselves look to it for one of the 
 careers in which they may expect promotion, (not quite unlike 
 the church in the middle ages,) while, in spite of all this, the 
 
 1 I write at the beginning of 1859.
 
 Il8 ON CIVIL LIBERTY 
 
 army becomes a secluded caste, essentially opposed to the 
 aspirations of the people. No better illustration is afforded 
 in history, of this important fact, than by the present state of 
 things in France. 
 
 Nor is the case better when the army is the ruling body, 
 and its officers belong exclusively to the country nobility, 
 n a country where every son of a nobleman is likewise noble, 
 i d a large, poor nobility is the consequence. A numerous 
 and poor nobility is one of the most injurious and ruinous 
 things in a state. It leads infallibly to that spirit which tries 
 to make up by arrogance what it does not possess in wealth 
 or substance, which considers the state as an institution made 
 for the provision of the poor noblemen, and disregards the 
 true and the high interests of the nation a state of things 
 which revealed itself, for Prussia, in the terrible disaster at 
 Jena, in 1806, and which has received in that and other Ger- 
 man countries, of late, the distinct appellation of jhmkerthum. 
 
 Standing armies, therefore, wherever necessary and they 
 are necessary at present, as well as far preferable to the 
 medieval militia ought to be as small as possible, and com- 
 pletely dependent on the legislature for their existence. Such 
 standing armies as we see in the different countries of the 
 European continent are wholly incompatible with civil liberty, 
 by their spirit, number, and cost. 
 
 A perfect dependence of the forces, however, requires more 
 than short appropriations, and limited authority of the execu- 
 tive over them. It is further necessary because they are 
 under strict discipline, and therefore under a strong influence 
 of the executive that these forces, and especially the army, 
 be not allowed to become deliberative bodies, and that they 
 be not allowed to vote as military bodies. Wherever these 
 guarantees have been disregarded, liberty has fallen. These 
 are rules of importance at all times, but especially in countries 
 where, unfortunately, very large standing armies exist. In 
 France, the army consists of half a million, yet universal 
 suffrage gave it the right to vote, and the army as well as the 
 navy did vote to justify the second of December, as well as to
 
 AND SELF-GOVERNMENT. 
 
 119 
 
 make Louis Napoleon Bonaparte emperor. This may be in 
 harmony with French "equality;" it may be democratic, if this 
 term be taken in the sense in which it is wholly unconnected 
 with liberty ; all that we people with whom liberty is more 
 than a theory, or something aesthetically longed for, and who 
 learn liberty as the artisan learns his craft, by handling it 
 all that we know is, that it is not liberty ; that it is directly 
 destructive of it. 1 
 
 It was formerly the belief that standing armies were incom- 
 patible with liberty, and a very small one was granted to the 
 King of England with much reluctance; but in France we see 
 a gigantic standing army, itself incompatible with liberty, for 
 which in addition the right of voting is claimed. 
 
 The Bill of Rights, and our own Declaration of Independ- 
 ence, show how large a place the army occupied in the minds 
 of the patriotic citizens and statesmen who drew up those 
 historic documents, the reasons they had to mention it re- 
 peatedly, and to erect fences against it. 
 
 Military bodies ought not to be allowed even the right of 
 petitioning, as bodies. History fully proves the danger, that 
 must be guarded against. 2 English history, as well as that of 
 other nations, furnishes us with instructive instances. 
 
 A wise medium is necessary ; for an army without thorough 
 
 1 The French soldiers vote at present, whenever universal suffrage is appealed 
 to not with the citizens, but for themselves, and the way in which this military 
 voting generally takes place is very remarkable. 
 
 2 I do not feel authorized to say that the Anglicans consider it an elementary 
 guarantee of liberty not to be subjected to the obligation of serving in the army, 
 but certain it is that, as matters now stand and as our feelings now are, we should 
 not consider it compatible with individual liberty indeed, it would be considered 
 as intolerable oppression if we were forced to spend part of our lives in the 
 standing army. It would not be tolerated. The feeling would be as. strong 
 against the French system of conscription, which drafts by lot a certain number 
 of young men for the army, and permits those who have been drafted to furnish 
 substitutes, as against the Prussian system, which obliges every one, from the 
 highest to the lowest, to serve a certain time in the standing army, with the ex- 
 ception only of a few "mediatized princes." The Anglicans, therefore, may be 
 said to be at present unequivocally in favor of enlisted standing armies, where 
 standing armies are necessary.
 
 120 ON CIVIL LIBERTY 
 
 unity is useless ; indeed, worse than useless. It produces a 
 thousand evils without any good ; while it must always be con- 
 sidered as a distinct postulate of Civil Liberty, that a well- 
 organized army is of itself a subject of great danger. To 
 make an efficient army, in modern times, harmonize with all 
 the demands of substantial civil liberty is doubtless one of the 
 problems of our race and age, and one most difficult to solve 
 forming, perhaps, with the problem of carrying out a high 
 degree of individual liberty in large and densely-peopled cities, 
 the two most difficult problems of high, patriotic, and substan- 
 tial statesmanship. 
 
 14. Akin to the last-mentioned guarantee is that which 
 secures to every citizen the right of possessing and bearing 
 arms. Our constitution says : " The right of the people to 
 keep and bear arms shall not be infringed upon ;" and the Bill 
 of Rights secured this right to every Protestant. It extends 
 now to every English subject. It will hardly be necessary to 
 add, that laws prohibiting secret weapons, or those which 
 necessarily endanger the lives of the citizens, are no infringe- 
 ment of liberty ; on the contrary, liberty resting necessarily 
 on law, and a lawful, that is peaceful, state of the citizens, 
 liberty itself requires the suppression of a return to force and 
 violence among the citizens a fact by no means sufficiently 
 weighed in recent times in America. 
 
 Whenever attempts at establishing liberty have lately been 
 made on the continent of Europe, a general military organiza- 
 tion of the people, or " national guards," has been deemed 
 necessary ; but we cannot point them out as characteristics of 
 Anglican liberty.
 
 AND SELF-GOVERNMENT. I2 I 
 
 CHAPTER XII. 
 
 PETITION. ASSOCIATION. 
 
 15. WE pass over to the great right of petitioning, so jeal- 
 ously suppressed wherever absolute power rules or desires to 
 establish itself, so distinctly contended for by the English in 
 their revolution, and so positively acknowledged by our con- 
 stitution. 
 
 An American statesman of great mark has spoken lightly 
 of the right of petition in a country in which the citizens are 
 so fully represented as with us ; * but this is an error. It is a 
 right which can be abused, like any other right, and which in 
 the United States is so far abused as to deprive the petition of 
 weight and importance. It is nevertheless a sacred right, 
 which in difficult times shows itself in its full magnitude, fre- 
 quently serves as a safety-valve, if judiciously treated by the 
 recipients, 2 and may give to the representatives or other bodies 
 the most valuable information. It may right many a wrong, 
 and the privation of it would at once be felt by every freeman 
 as a degradation. The right of petitioning is indeed a neces- 
 sary consequence of the right of free speech and deliberation, 
 a simple, primitive, and natural right. As a privilege it is not 
 even denied the creature in addressing the Deity. It is so 
 
 1 It was stated by him that the right of petition was of essential value only in 
 a monarchy, against the encroachments of the crown. But this whole view was 
 unquestionably a confined one, and caused by irritation against a peculiar class 
 of persevering petitioners. 
 
 * There is no more striking instance on record, so far as our knowledge goes, 
 than the formidable petition of the chartists in 1848, and the calm respect with 
 which this threatening document was received by the commons, after a speech 
 full of dignity and manly acknowledgment of the people by Lord Morpeth, now 
 Earl of Carlisle.
 
 122 ON CIVIL LIBERTY 
 
 natural a right, in all spheres where there are superiors and 
 inferiors, that its special acknowledgment in charters or by- 
 laws would be surprising, had not ample experience shown the 
 necessity of expressing it. 1 
 
 Where the government is founded on the parental principle, 
 or where the despot appears as an earthly Providence, the 
 petition of individuals plays, naturally, an important part, so 
 long as it does not become either dangerous or troublesome, 
 or unwelcome to the officers near the person of the monarch. 
 
 The Emperor Nicholas of Russia was often spoken to in 
 the treets by petitioners ; while, on the other hand, we re- 
 member a royal decree in Prussia, published about thirty 
 
 1 The discussion of petitions in the house of commons seems to have under- 
 gone a marked change, as will appear from the following remarks of Lord 
 Brougham, which he made in the house of lords in June, 1853, when the exten- 
 sion of the time of the income tax was under debate. Lord Brougham said that 
 he did not expect that the income tax would expire in 1860. He recalled the 
 circumstances under which the old income tax was repealed, in defiance of the 
 government of that day ; through the instrumentality of nightly discussions on 
 petitions a popular privilege no longer allowed in the house of commons. 
 
 "In 1806, when the income tax was 10 per cent., it was imposed till the end 
 of the war, and no longer. The war ended in 1814, but it broke out again in 
 1815 ; and after its final termination a great fight against the continuance of the 
 tax took place in the house of commons. It had been said that the present 
 income tax would not be abandoned in 1860; and he believed that the campaign 
 which took place in parliament in 1816 could not be fought again. How was 
 that campaign conducted? By means of petitions. For five or six weeks, from 
 four o'clock in the afternoon till two or three o'clock in the morning, petition 
 after petition was presented, and each petition was debated. If an account was 
 given of the proceedings of the five or six weeks during which that campaign 
 against the income tax was fought, it would describe one of the most extraordinary 
 scenes ever witnessed within the walls of the house of commons, and a resistance 
 which was perfectly successful. He might mention one incident which occurred 
 during those discussions. After the fight had continued some three weeks or 
 more, one night about eleven or twelve o'clock a question was put from the 
 chair about bringing up the petitions; and all the members on one bench who 
 might have been supposed to be exhausted by the long sitting rose in competi- 
 tion with each other to catch, as it was called, the Speaker's eye; and the gallantry 
 of those men in standing by their colors under such circumstances so struck the 
 house that they were hailed with a general cheer of applause. He did not think, 
 however, that in 1860, unless a great change took place elsewhere, the same 
 campaign and stand against the income tax would be possible."
 
 AND SELF-GOVERNMENT. 
 
 123 
 
 years ago which directed that petitions must no longer be 
 thrust upon the monarch personally. Under Frederic the 
 Great, again, it was a common thing for petitioners to attract 
 the king's attention by holding the petition above the heads 
 of the crowd, when he would send an aid to take it. In China 
 the right of petitioning the monarch is symbolically acknowl- 
 edged, by the drum or gong at the palace gate, which the 
 petitioner beats when he drops the petition into the receiving 
 box. But the Chinese doubtless think and feel what the 
 Russians express in the significant saying : " God lives high, 
 and the emperor far." The missionary Hue informs us that 
 popular meetings, where petitions are adopted or dismissed, 
 are not rare in China. 1 
 
 The political philosopher in treating of this subject must 
 distinguish between petitions to the executive, (and as to peti- 
 tions for pardon, which have become a most serious evil in the 
 United States, the reader is referred to the paper on pardons 
 in the Appendix ;) petitions of the army, which, history amply 
 teaches, must be absolutely interdicted ; we need only remind 
 the reader of the English history, and that of France ; and, 
 lastly, petitions to the legislature. As to the latter, it is all- 
 important for the cause of civil liberty, that is, the freedom of 
 the people in earnest and in reality, that the petition, whatever 
 demonstration of moral power or public opinion it may be, be 
 unaccompanied by physical demonstration of crowds, armed 
 or unarmed, in the legislative halls or outside. Indeed, they 
 cease to be petitions and become physical threats or coercion. 
 The history of the French revolution is almost one continued 
 commentary on this position. The whole meaning of a legis- 
 lature, as a necessary element of liberty, is that it be free ; and 
 it ceases to be free, so soon as crowds threaten it. 
 
 We maintain that the right of petitioning is important, and 
 for this very reason it must neither be treated lightly, on the 
 
 1 It would be a grave error, indeed, to conclude from this fact, or from the 
 general democratic character of the Chinese system, that there is liberty in China 
 a conclusion as hasty as it would be to infer that freedom exists in France 
 because the empire declares itself to be founded on universal suffrage.
 
 124 ON CIV1L LIBERTY 
 
 part of the petitioners, nor wrenched from its meaning and be 
 changed into coercing threat. The petition in free states is 
 an institution, and not an incident as in the despotic govern- 
 ment. Resorted to as one of the civil agents by a free people, 
 its distinct uses lie in its direct effect, in inciting and awakening 
 public attention ; in keeping alive an important idea, although it 
 may not lead to immediate action ; in countenancing those who 
 desire to act and to be supported ; in showing public opinion 
 concerning some distinct point ; in serving as a safety-valve in 
 times of public excitement, and in being a substitute for unor- 
 ganized and unreasoning crowds. Its dangers are the dangers 
 of all agents whatever its abuses, and the wide-spread weak- 
 ness of men, which induces them inconsiderately to put down 
 their names, rather than refuse the signature. 
 
 1 6. Closely connected with the right just mentioned is the 
 right of citizens peaceably to meet and to take public matters 
 into consideration, and 
 
 17. To organize themselves into associations, whether for 
 political, religious, social, scientific, industrial, commercial, or 
 cultural purposes. That this right can become dangerous, and 
 that laws are frequently necessary to protect society against 
 abuse, every one knows perfectly well who has the least 
 knowledge of the French clubs in the first revolution. But it 
 is with rights, in our political relations, as with the principles 
 of our physical and mental organization the more elementary 
 and indispensable they are, the more dangerous they become 
 if not guided by reason. Attempts to suppress their action 
 lead to mischief and misery. What has been more abused 
 than private and traditional judgment in all the spheres of 
 thought and taste ? Yet both are necessary. What principle 
 of our nature has led, and is daily leading, to more vice and 
 crime than that on which the propagation of our species and 
 the formation of the family depend, 1 or that which indicates 
 by thirst the necessity of refreshing the exhausted body ? 
 
 1 The so-called Shakers endeavor to extirpate this principle, and furnish us 
 with an illustration of the evils arising from the endeavor.
 
 AND SELF-GOVERNMENT. 125 
 
 Shall the free sale of cutlery be interfered with, because mur- 
 ders are committed with knives and hatchets ? 
 
 The associative principle is an element of progress, protec- 
 tion, and efficient activity. The freer a nation, the more de- 
 veloped we find it in larger or smaller spheres ; and the more 
 despotic a government is, the more actively it suppresses all 
 associations. The Roman emperors did not even look with 
 favor upon the associations of handicrafts. 1 In modern times 
 no instances of the power which associations may wield, and 
 of the full extent which a free country may safely allow to 
 their operations, seem to be more striking than those of the 
 Anti-Corn-Law League in England, which, by gigantic exer- 
 tions, ultimately carried free trade in corn against the strongest 
 and most privileged body of land-owners that has probably ever 
 existed, either in modern or ancient times; 2 and, in our own 
 country, the Colonization Society, a private society, planting 
 a new state which will be of great influence in the spreading 
 cause of civilization a society which, according to the Libe- 
 rian declaration of independence, " has nobly and in perfect 
 faith redeemed its pledges." In every country, except in the 
 United States and in England, the cry would have been, 
 
 1 [This is not borne out by facts, although the same broad statement has been 
 made by others. Sodalitates were frowned upon, but collegia opificum, although 
 the state controlled and could dissolve them, were numerous. See the list in the 
 Index in vol. iii. of the Orelli-Henzen Inscr. Latinse; which shows that there 
 must have been thousands of such unions, under the empire, all over the west. 
 Comp. also Rein in Paully's Lexicon, under Collegium and Sodalila-. It is true, 
 however, that despotism, especially in modern times, since the means of com- 
 munication are better and more used, instinctively dreads combined action for 
 any social, moral, or religious end, as dangerous to political power.] 
 
 3 A careful study of the whole history of this remarkable association, which in 
 no state of the European continent would have been allowed to rise and expand, 
 is recommended to every student of civil liberty. It is instructive as an instance 
 of perseverance; of an activity the most multifarious, and an organization the 
 most extensive ; of combined talent and shrewd adaptation of the means to the 
 end ; and, which is always of equal importance, of a proper conception of the 
 end according to the means at our disposal, without which it is impossible to 
 do that which Cicero so highly praised in Brutus, when he said, Quid vult valde 
 vult.
 
 126 ON CIVIL LIBERTY 
 
 Imperium in imperio, and both would have been speedily put 
 down. 
 
 We may also mention our voluntary churches, or the Law 
 Amendment Association hi England a society which, so far 
 as we can judge at this distance, has already produced most 
 beneficial effects upon English legislation, and which in every 
 other country occupied by our race, except in the United 
 States, would be stigmatized as an imperium in imperio full 
 of assumption. There is nothing that more forcibly strikes a 
 person arriving for the first time from the European continent, 
 either in the United States or in England, than the thou- 
 sandfold evidences of an all-pervading associative spirit in all 
 moral and practical spheres, from the almost universal com- 
 mercial copartnerships and associations, the " exchanges" of 
 artisans, and banks, to those unofficial yet national associa- 
 tions which rise to real grandeur. Strike out from England 
 or America this feature and principle, and they are no longer 
 the same self-relying, energetic, indomitably active people. 
 The spirit of self-government would be gone. In France, 
 an opposite spirit prevails. Not only does the government 
 believe that it must control everything, but the people them- 
 selves seem hardly ever to believe in success until the govern- 
 ment has made the undertaking its own. 1 
 
 1 I cannot forbear mentioning here one of those occurrences which, although 
 apparently trivial, nevertheless show the constant action of a great principle, as 
 the leaf of a tree reveals to the philosopher the operation of the vastest 
 elements in nature. At a meeting of the Royal Academy at London in 1852, 
 at which the ministers were present, the premier, Lord Aberdeen, said that " as 
 a fact full of hope, he remarked that for several years the public, in the apprecia- 
 tion of art, had outstripped the government and the parliament itself." 
 
 The chief executive officer considers it a fact full of hope that the people 
 have outstripped, in interest and action, the government and parliament. How 
 differently would a similar case have presented itself in any of the continental 
 countries !
 
 AND SELF-GOVERNMENT. 127 
 
 CHAPTER XIII. 
 
 PUBLICITY. 
 
 1 8. WE now approach those guarantees of liberty which 
 relate more especially to the government of a free country, 
 and the character of its polity. The first of all we have to 
 mention under this head is publicity of public business. This 
 implies the publicity of legislatures and judicial courts, as well 
 as of all minor transactions that can in their nature be trans- 
 acted publicly, and also the publication of all important docu- 
 ments and reports, treaties, and whatever else can interest the 
 people at large. It further implies the perfect freedom with 
 which reporters may publish the transactions of public bodies. 1 
 Without the latter, the admission of the public would hardly 
 amount in our days to any publicity at all. We do not assem- 
 ble in the markets as the people of antiquity did. The millions 
 depending upon public information, in our national states, 
 could not meet in the assembly, as was possible in the ancient 
 
 1 In the year 1857 the following case was decided in the court of common 
 pleas at Columbia, S. C., in favor of the plaintiff. The city council held, in 
 1855, a public meeting. The editor of one of the city papers, being present, was 
 asked by the mayor whether he had come to take notes. The mayor, being an- 
 swered in the affirmative, ordered the chief police officer to turn the editor out 
 of the room, declaring at the time that he acted on the strength of a resolution of 
 the city council. At a later period this procedure was defended on the ground 
 that the city appoints a paper to give, officially, all the transactions of the board. 
 Robert W. Gibbes -vs. Edward J. Arthur and John Burdell. This .novel case 
 was reported with great care, and published with all the arguments, at Columbia, 
 S. C., in 1857, under the title, Rights of Corporations and Reporters. The public 
 owes thanks to the plaintiff for having perseveringly pursued this surprising case, 
 the first of the kind, it would appear. The pamphlet contains letters of nearly 
 thirty American mayors, testifying that reporters cannot be denied admission to 
 the deliberations of the councils of their cities, although there be an appointed 
 printer to the board.
 
 128 ON CIVIL LIBERTY 
 
 city-states, even if we had not a representative government. 
 The public journals are in some respects to modern freemen 
 what the agora was to the Athenian, the forum to the Roman. 
 A modern free city-state can be imagined without a public 
 press ; a modern free country cannot ; although we must never 
 forget the gigantic, and therefore dangerous, power which, 
 under certain circumstances, a single public journal may 
 obtain, and, consequently, ought to be counteracted by the 
 means which lie in the publicity and freedom of the press itself. 
 
 Publicity, in connection with civil liberty, means publicity in 
 the transaction of the business of the public, in all branches 
 publicity in the great process by which public opinion passes 
 over into public will, which is legislation ; and publicity in the 
 elaboration of the opinion of the public, as well as in the pro- 
 cess of ascertaining or enouncing it by elections. Hence the 
 radical error of secret political societies in free countries. 
 They are intrinsically hostile to liberty. 
 
 Important as the printing of transactions, reports, and docu- 
 ments is, it is nevertheless true that oral discussions are a most 
 important feature of Anglican publicity of legislative, judicial, 
 and of many of the common administrative transactions. 
 Modern centralized absolutism has developed a system of 
 writing and secrecy, and consequent formalism, abhorrent to 
 free citizens who exist and feed upon the living word of liberty. 1 
 
 1 The following passage is given here for a twofold purpose. Everything in it 
 applies to the government of the pen on the continent of Europe, and it shows 
 how similar causes have produced similar results in India and under English- 
 men, who at home are so adverse to government writing and to bureaucracy. In 
 the Notes on the Northwestern Province of India, by Charles Raikes, Magistrate 
 and Collector of Mynpoorie, London, 1853, we find this passage : 
 
 " Action, however, and energy, are what we now lay most stress upon, because 
 in days of peace and outward tranquillity these qualities are not always valued at 
 their true price, and their absence is not so palpably mischievous as in more stir- 
 ring times. There is more danger now of men becoming plodding, methodical, 
 mere office functionaries, than of their stepping with too hasty a zeal beyond the 
 limits of the law. There is truth, too, in Jacquemont's sneer India is governed 
 by stationery, to a more than sufficient extent ; and one of the commonest errors 
 of our magistrates, whic'i they imbibe from constant and early Indian associa- 
 tions, is to mistake writing for action, to fancy that dictation will supply the place
 
 AND SELF-GOVERNMENT. 
 
 129 
 
 Bureaucracy is founded upon writing, liberty on the breathing 
 word. Extensive writing, pervading the minutest branches of 
 the administration, is the most active assistant of modern cen- 
 tralization. It systematizes a police government in a degree 
 which no one can conceive of that does not know it from per- 
 sonal observation and experience, and forms one of the greatest 
 obstacles, perhaps the most serious difficulty, when nations, 
 long accustomed to this all-penetrative agent of centralism, 
 desire to establish liberty. I do not hesitate to point out 
 orality, especially in the administration of justice, in legislation 
 and local self-government, as an important element of our 
 civil liberty. I do not believe that a high degree of liberty 
 can be imagined without widely pervading orality ; but oral 
 transaction alone is no indication of liberty. The patriarchal 
 and tribal governments of Asia, the chieftain government of 
 our Indians, indeed all primitive governments, are carried on 
 by oral transaction without any civil liberty. 
 
 of exertion. In no other country are so many written orders issued with so 
 much confidence, received with such respect, and broken with such complacency. 
 In fact, as for writing, we believe the infection of the ' cacoethes scribendi' must 
 first have grown up in the East. It pervades everything, but is more rampant 
 and more out of place in a police office than anywhere else. It was not the 
 magistrates who originated this passion for scribbling; but they have never suc- 
 ceeded in repressing it, nor, while the law requires that every discontented old 
 woman's story shall be taken down in writing, is it to be expected they ever will. 
 The Khayeths worship their pen and ink on certain festivals, and there is a sort 
 of ' religio' attaching to written forms and statements, which is not confined to 
 official life, but pervades the whole social polity of the writing tribes. An Indian 
 scribe, whose domestic expenditure may average a sixpence a day, will keep an 
 account-book with as many columns, headings, and totals as would serve for the 
 budget of a chancellor of the exchequer. To Tudor Mul and such worthies we 
 owe, no doubt, a great deal for the method and order which they infused into 
 public records ; but we have also to thank these knights of the pen for the 
 plaguiest long-figured statements, and the greatest number of such statements, 
 which the world ever saw." Well may the continental European, reading this, 
 exclaim, C'est tout comme chez nous ! In 1858, one of the most distinguished 
 statesmen of France, universally known as a publicist, a former member, cabinet 
 minister, and orator in the house of representatives, wrote from Germany, " I 
 observe that the writing which I have always considered so injurious to our 
 affairs in France is carried, if possible, to a still greater degree in this country." 
 
 9
 
 130 ON CIVIL LIBERTY 
 
 Publicus, originally Populicus, meant that which relates to 
 the Populus, to the state, and it is significant that the term 
 gradually acquired the meaning of public, as we take it as 
 significant as it is that a great French philosopher, honored 
 throughout our whole country, lately wrote to a friend : 
 " Political matters here are no longer public matters." 1 
 
 In free countries political matters relate to the people, and 
 therefore ought to be public. Publicity informs of public mat- 
 ters ; it teaches, and educates, and it binds together. There is 
 no patriotism without publicity, and though publicity cannot 
 always prevent mischief, it is at all events an alarm-bell, which 
 calls the public attention to the spot of danger. In former 
 times secrecy was considered indispensable in public matters ; 
 it is still so where cabinet policy is pursued, or monarchical 
 absolutism sways; but these governments, also, have been 
 obliged somewhat to yield to a better spirit, and the Russian 
 government now publishes occasionally government reports. 
 
 That there are certain transactions which the public service 
 requires to be withdrawn for a time from publicity is evident. 
 We need point only to diplomatic transactions when not yet 
 brought to a close. But even with reference to these it will 
 be observed that a great change has been wrought in modern 
 times, and comparatively a great degree of publicity now pre- 
 vails in the foreign intercourse of nations a change of which 
 the United States have set the example. A state secret was 
 formerly a potent word ; while one of our first statesmen wrote 
 to the author, many years ago, " I would not give a dime for 
 all the secrets that people may imagine to bt locked up in the 
 United States archives." 
 
 It is a remarkable fact that no law insures the publicity of 
 the courts of justice, either in England or the United States. 
 Our constitution secures neither the publicity of courts nor 
 that of congress, and in England the admission of the public 
 to the commons or the lords is merely by sufferance. The 
 
 1 This observation followed a request to write henceforth with caution, because 
 said he, choses politiques ne sont plus ici choses publiques.
 
 AND SELF-GOVERNMENT. I3 I 
 
 public may at any time be excluded merely by a member ob- 
 serving to the presiding officer that strangers are present, 
 while we all know that the candid publication of the debates 
 was not permitted in the time of Dr. Johnson. Yet so 
 thoroughly is publicity now ingrained in the American and 
 Englishman that a suppression of this precious principle cannot 
 even be conceived of. If any serious attempt should be made 
 to carry out the existing law in England, and the public were 
 really excluded from the house of commons, a revolution would 
 be unquestionably the consequence, and publicity would be 
 added to the declaration of rights. We can r;o more imagine 
 England or the United States without the reporting news- 
 papers, than nature without the principle of vegetation. 
 
 Publicity pervaded the system of American politics so gen- 
 erally, that the framers of our constitution probably never 
 thought of it, or, if they did, they did not think it worth while 
 to provide for it in the constitution, since no one had doubted 
 it. It is part and parcel of our common law of political ex- 
 istence. They did not trouble themselves with unnecessaries, 
 or things which would have had a value only as possibly 
 completing a certain symmetry of theory. 
 
 It is, however, interesting to note that the first distinctly 
 authorized publicity of a legislative body in modern times 
 was that of the Massachusetts house of representatives, which 
 adopted it in 1766.' 
 
 1 I follow the opinion of Mr. Robert C. Winthrop, late Speaker of the house 
 of representatives of the United States, and believe him to be correct, when in 
 an address before the Maine Historical Society (Boston, 1849) he says : " The 
 earliest instance of authorized publicity being given to the deliberations of a 
 legislative body in modern days, was in this same house of representatives of 
 Massachusetts, on the 3d day of June, 1766, when, upon motion of James Otis, 
 and during the debates which arose on the question of the repeal of the stamp 
 net, and of compensation to the sufferers by the riots in Boston to which that act 
 had given occasion, a resolution was carried ' for opening a gallery for such as 
 wished to hear the debates.' The influence of this measure in preparing the 
 public mind for the great revolutionary events which were soon to follow, can 
 hardly be exaggerated." The American reader is referred to the note at the end 
 of this chapter for an account of the introduction of publicity into the senate of 
 the United States.
 
 132 ON CIVIL LIBERTY 
 
 Publicity of speaking has its dangers, and occasionally ex- 
 poses to grave inconveniences, as all guarantees do, and neces- 
 sarily in a greater degree as they are of a more elementary 
 character. It is the price at which we enjoy all excellence in 
 this world. The science of politics and political ethics must 
 point out the dangers as well as the formal and moral checks 
 which may avert or rmgitate the evils arising from publicity 
 in general, and public oral transaction of affairs in particular. 
 It is not our business here. We treat of it in this place as a 
 guarantee of liberty, and have to show its indispensableness. 
 Those who know liberty as a practical and traditional reality 
 and as a true business of life, as we do, know that the question 
 is not whether it be better to have publicity or not, but, being 
 obliged to have it, how we can best manage to avoid its dan- 
 gers while we enjoy its fullest benefit and blessing. It is the 
 same as with the air we breathe. The question is not whether 
 we ought to dispense with a free respiration of all-surround- 
 ing air, but how, with free inhalation, we may best guard 
 ourselves against colds and other distempers caused by the 
 elementary requisite of physical life, that we must live in the 
 atmosphere. 1 
 
 1 Great as the inconvenience is which arises from the abuse of public speaking, 
 and of that sort of prolixity which in our country is familiarly called by a term 
 understood by every one, Speaking for Buncombe, yet it must be remembered 
 that the freest possible, and therefore often abused, latitude of speaking, is fre- 
 quently a safety-valve, in times of public danger, for which nothing else can be 
 substituted. The debates in congress, when lately the Union itself was in danger, 
 lasted for entire months, and words seemed fairly to weary out the nation when 
 every one called for action. There was no citizen capable of following closely 
 all those lengthy and occasionally empty debates, with all their lateral issues. 
 Still, now that the whole is over, it may well be asked whether there is a single 
 attentive and experienced American who doubts that, had it not been for that 
 flood of debate, we must have been exposed to civil disturbances, perhaps to the 
 rending of the Union. 
 
 Nevertheless, it is a fact that the more popular an assembly is, the more liable 
 it is to suffer from verbose discussions, and thus to see its action impeded. This 
 is especially the case in a country in which, as in ours, a personal facility of public 
 speaking is almost universal, and where an elocutional laxity coexists with a 
 patient tenacity of hearing, and a love of listening which can never be surfeited.
 
 AND SELF-GOVERNMENT. 
 
 Liberty, I said, is coupled with the public word, and how- 
 ever frequently the public word may be abused, it is neverthe- 
 less true that out of it arises oratory the aesthetics of liberty. 
 What would Greece and Rome be to us without their Demos- 
 thenes and Cicero ? And what would their other writers have 
 been, had not their languages been coined out by the orator ? 
 What would England be without her host of manly and mas- 
 terly speakers ? Who of us could wish to see the treasures 
 of our own civilization robbed of the words contributed by our 
 
 It has its ruinous effect upon oratory, literature, the standard of thought, upon 
 vigorous action, on public business, and gives a wide field to dull mediocrity. 
 This anti-Pythagorean evil has led to the adoption of the " one-hour rule" in 
 the house of representatives, in congress, and (in 1847) ' in the supreme court of 
 the United States. The one-hour rule was first proposed by Mr. Holmes, of 
 Charleston, in imitation of the Athenian one-hour clepsydra yes, the prince 
 of orators had that dropping monitor by his side ! and is now renewed by every 
 new house. The English have begun to feel the same evil, and the adoption 
 of the same rule was proposed in the commons in February, 1849. But the 
 debate concluded adversely to it, after Sir Robert Peel had adverted to Burke's 
 glorious eloquence. Our one-hour rule, however, is not entirely new in modern 
 times. In the year 1562 (on the 2ist of July) the Council of Trent adopted the 
 rule that the fathers in delivering their opinions should be restricted to half an 
 hour, which having elapsed, the master of ceremonies was to give them a sign 
 to leave off. Yet, on the same day, an exception was made in favor of Salmeron, 
 the pope's first divine, who occupied the whole sitting, (History of the Life of 
 Reginald Pole, by T. Phillips, Oxford, 1764, p. 397,) very much as in February, 
 1849, the whole American house called " go on" when Governor McDowell had 
 spoken an hour. He continued for several hours. 
 
 Having mentioned the inconvenience of prolix speaking, it may not be im- 
 proper to add another passage of the address of Mr. Winthrop, already mentioned. 
 It will be recollected that this gentleman has been Speaker. He knows, there- 
 fore, the inconvenience in its whole magnitude. "Doubtless," he >ays, "when 
 debates were conducted with closed doors, there were no speeches for Buncombe, 
 no clap-trap for the galleries, no flourishes for the ladies, and it required no hour 
 rule, perhaps, to keep men within some bounds of relevancy. But one of the 
 grea* sources of instruction and information, in regard both to the general meas- 
 ures of government and to the particular conduct of their own representatives, 
 was then shut out from the people, and words which might have roused them to 
 the vindication of justice, or to the overthrow of tyranny, were lost in the utter- 
 ance. The perfect publicity of legislative proceedings is hardly second to the 
 freedom of the press, in its influence upon the progress and perpetuity of human 
 liberty, though, like the freedom of the press, it may be attended with incon- 
 'jniences and abuses."
 
 134 
 
 ON CIVIL LIBERTY 
 
 speakers, from Patrick Henry to Webster ? The speeches of 
 great orators are a fund of wealth for a free people, from 
 which the school-boy begins to draw when he declaims from 
 his Reader, and which enriches, elevates, and nourishes the 
 souls of the old. 
 
 Publicity is indispensable to eloquence. No one speaks 
 well in secret before a few. Orators are in this respect like 
 poets their kin, of whom Goethe, " one of the craft," says 
 that they cannot sing unless they are heard. 
 
 The abuse of public speaking has been alluded to. It is a 
 frequent theme of blame and ridicule, frequently dwelt upon 
 by those who disrelish " parliamentarism," but it is necessary 
 to observe that if civil liberty demands representative legis- 
 lative bodies, which it assuredly does, these bodies have no 
 meaning without exchange and mutual modification of ideas, 
 without debate, and actual debate requires the spoken word. 
 I consider it an evil hour not only for eloquence, but for liberty 
 itself, when our senate first permitted one of its members to 
 read his speeches, on account of some infirmity. The true 
 principle has now been abandoned, and written speeches are 
 almost as common in congress as they were in the former 
 house of representatives of France, where, however, I may 
 state on authority, they became rarer as constitutional liberty 
 increased and developed its energy. 
 
 All governments hostile to liberty are hostile to publicity, 
 and parliamentary eloquence is odious to them, because it is a 
 great power which the executive can neither create nor con- 
 trol. There is in imperial France a positive hatred against 
 the " tribune'' Mr. Cousin, desirous of leading his readers 
 to compare the imperial system with that of the past govern- 
 ments since the restoration, says of the Bourbons that, what- 
 ever it may be the fashion to say of them, " they gave us 
 at any rate the tribune," (the public word,) while Mr. de 
 Morny, brother of Napoleon III., issued a circular to the 
 prefects, when minister of the interior, in 1852, in which the 
 publicity of parliamentary government is called theatricals. 
 It is remarkable that this declaration should have come from a
 
 AND SELF-GOVERNMENT. 135 
 
 government which, above all others, seems, in a great measure, 
 to rely on military and other shows. 
 
 Publicity begets confidence, and confidence is indispensable 
 for the government of free countries it is the soul of loyalty 
 in jealous freemen. This necessary influence is twofold con- 
 fidence in the government, and confidence of society in itself. 
 It is with reference to the latter that secret political societies 
 in free countries are essentially injurious to all liberty, in ad- 
 dition to their preventing the growth and development of manly 
 character, and promoting vanity ; that they are, as all secret 
 societies must inherently be, submissive to secret superior will 
 and decision, a great danger in politics, and unjust to the 
 rest of the citizens, by deciding on public measures and men 
 without the trial of public discussion, and by bringing the in- 
 fluence of a secretly united body to bear on the decision or 
 election. Secret societies in free countries are cancers against 
 which history teaches us that men who value their freedom 
 ought to guard themselves most attentively. It would lead 
 us too far from our topic were we to discuss the important fact 
 that mysterious and secret societies belong to paganism rather 
 than to Christianity, and we conclude these remarks by ob- 
 serving that those societies which may be called doubly secret, 
 that is to say, societies which not only foster certain secrets 
 and have secret transactions, but the members of which are 
 bound to deny either the existence of the society or their 
 membership, are schools of untruth ; and that parents as well 
 as teachers, in the United States, would do no more than per- 
 form a solemn duty, if they should use every means in their 
 power to exhibit to those whose welfare is entrusted to them, 
 the despicable character of the thousand juvenile secret soci- 
 eties which flourish in our land, and which are the preparatory 
 schools for secret political societies. 1 
 
 1 The following note consists of an article by Mr. James C. Welling, of the 
 National Intelligencer, Washington City. It appeared on the 3Oth of October, 
 1858, in consequence of some questions I had put regarding a previous article on 
 my remarks on Publicity in the United States. Mr. Welling had doubtless free 
 access to the ample stores of personal recollections possessed by the founders of
 
 136 ON CIVIL LIBERTY 
 
 that public journal. The student of history will find it an instructive document, 
 and I have preferred to give the whole, even with the introduction on the early 
 intercourse between congress and the President of the United States, partly on 
 account of its antiquarian interest, partly because it is not unconnected with the 
 publicity of debate in the senate. 
 
 Mr. Welling says that it has been remarked that the principle of publicity seems 
 to have so thoroughly pervaded all the politics of the United States that the framers 
 of our constitution never thought of it, or, if they did, they thought it hardly worth 
 while to make special provision for it, since none doubted its observance. While 
 this statement has a deep foundation in much of our civil history during the 
 period of the revolution and the formation of our present constitution, it should 
 not be forgotten that the sessions of our continental congress were held in secret, 
 and even after the formation of our present constitution, one branch of the 
 national legislature, for more than five years, sat with, closed doors. We allude 
 to the senate, whose deliberations, unlike those of the house of representatives, 
 were conducted in secret during the whole of the first and second congresses, and 
 also during a part of the third. As the particulars connected with this fact in 
 our parliamentary history are perhaps not familiarly known to every reader, we 
 have thought it might not be without interest to recall some of the reminiscences 
 corroborative of a statement which at the present day, and with our established 
 notions, must seem not a little extraordinary and anomalous. In doing so, we 
 may take occasion to allude incidentally, by way of preface, to a few subsidiary 
 topics relating to the forms of official intercourse existing between the executive 
 and legislative departments of the government during the earlier days of the 
 republic. 
 
 The first session of the first congress of the United States held under the con- 
 stitution framed and submitted by the federal convention in Philadelphia was 
 begun in the city of New York on the 4th of March, 1789. Neither house, 
 however, could at once proceed to the transaction of business, from the want of a 
 quorum, which was secured in the popular branch only on the 1st of April fol- 
 lowing, and in the senate on the 6th of the same month. On that day the latter 
 body, having elected a president pro tern., proceeded, in the presence of the 
 house of representatives, assembled in the senate chamber by invitation, to 
 count the votes of the electors of the several states for President and Vice-Presi- 
 dent of the United States, when it was found that George Washington was unan- 
 imously elected to the former office by the voice of the eleven states then com- 
 posing the Union, (Rhode Island and North Carolina not having yet adopted 
 the constitution,) and that John Adams was chosen Vice-President by a majority 
 of the votes cast for that office. The senate thereupon appointed Mr. Charles 
 Thomson (long the clerk of the continental congress) to notify Gen. Washing- 
 ton, and Mr. Sylvanus Bourne to notify John Adams, of their election to the 
 offices for which they had been respectively designated. 
 
 Mr. Adams took his chair as president of the senate on the 2ist of the same 
 month, and on the 3Oth Gen. Washington received the oath of office, as President 
 of the United States, in the senate chamber, in the presence of both houses of 
 congress, assembled on the occasion to witness the ceremonial. The oath was
 
 AND SELF-GOVERNMENT. 
 
 137 
 
 administered by the chancellor of the State of New York, who proclaimed, as the 
 same was accepted by the president, " Long live George Washington, President 
 of the United States." The president then resumed the seat from which he had 
 risen to take the oath, and, after a short pause, rose and delivered before the 
 senate and house of representatives his inaugural address. On its conclusion, the 
 president, the vice-president, the senate, and the house of representatives pro- 
 ceeded to St. Paul's Chapel, in New York, where divine service was performed 
 by the chaplain of congress, after which the president was reconducted to his 
 house by a committee appointed for that purpose. 
 
 After the celebration of these religious exercises the senate reassembled and 
 appointed a committee to prepare an " answer to the president's speech." In 
 the house of representatives a similar committee was appointed on the following 
 day. The reply of the senate was read and adopted in that body on the yth of 
 May, and agreeably to previous arrangement was delivered to the president at his 
 own house on the i8th following, the senate waiting upon the president for this 
 purpose, with the vice-president, their presiding officer, at their head. The presi- 
 dent, on receiving the address, made a brief and appropriate response. The 
 reply of the house of representatives was read and adopted on the 5th of May, 
 and, by a similar preconcert, was delivered to the president on the 8th of the 
 sr,me month, in a room adjoining the representatives' chamber, where the speaker, 
 attended by the members of the house, placed in the president's hands a copy 
 of the address, for which the president returned his thanks in a few appropriate 
 remarks. 
 
 Such was the nature of the ceremonial observed in the official communications 
 interchanged between the president and the two houses of congress at the open- 
 ing of every session of congress during the administration of Washington and 
 John Adams. On the accession of Mr. Jefferson, the practice of delivering he 
 annual presidential speech in person before both houses of congress at its open- 
 ing was superseded by the present custom of sending a written message. And 
 with this change the habit of preparing a formal reply on the part of both houses 
 to the recommendations of the president fell into similar desuetude. Mr. Jef- 
 ferson, it is well known, was subsequently accustomed to point to this change as 
 one of the "reforms" he had effected in what he called the "Anglican tenden- 
 cies" and " royal usages" of our government under the administration of the 
 federalists.* 
 
 * It may not be uninteresting to add that President Jefferson, at the time when this 
 change was made, attributed it to other causes. His first annual address to both 
 houses of congress was sent in on the 8th of December, 1801, and was accompanied 
 with the subjoined letter, addressed to the presiding officer of each body : 
 
 DECEMBER 8, 1801. 
 
 SIR : The circumstances under which we find ourselves at this place [Washington] 
 rendering inconvenient the mode heretofore practised, of making by personal address 
 the first communications between the legislative and executive branches, I have 
 adopted that by message, as used on all subsequent occasions through the session. 
 In doing this I have had principal regard to the convenience of the legislature, to the 
 economy of their time, to their relief from the embarrassment of immediate answers
 
 1 38 ON CIVIL LIBERTY 
 
 To resume the principal topic of remark in the present article, we repeat that 
 the senate, in the earlier days of the government, sat with closed doors, as well 
 during its legislative as in its executive sessions. Its debates, therefore, unlike 
 those of the house of representatives, were for a time held in secret; but it was 
 provided by a resolution passed on the igth of May, 1789, that one hundred and 
 twenty copies of the journal of the legislative proceedings of the senate should be 
 printed once a month for distribution among the members of the body, and, we 
 suppose, for partial dissemination among the public, since it was provided that 
 each member should be furnished with but a single copy on his own account. 
 
 At this distance of time we may not perhaps be able to understand or state the 
 reasons which determined the senate to sit with closed doors in all their delibera- 
 tions, as still in those which pertain to executive business. It is probable that 
 the habit grew out of the fact that the senate, in the original theory of its consti- 
 tution, was regarded primarily as a confidential and advisory council to the ex- 
 ecutive ; and, as is well known, its earlier sessions were pre-eminently occupied 
 in executive business. In relation to measures of legislation it seems to have been 
 conceived that its function was mainly revisory and deliberative ; and hence the 
 greater prominence of the house in initiating and debating not only " revenue 
 bills," which it was provided by the constitution should be originated only by the 
 representatives, but also other measures of federal legislation. In evidence of 
 this fact we may state that the senate was wholly without standing committees 
 until the year 1816, when during the second session of the fourteenth congress 
 it was determined to provide for their appointment. In the house they had been 
 raised by a standing rule as early as the year 1799, although at first their number 
 was restricted to five a committee respectively on elections, claims, commerce, 
 ways and means, and on revisal and on unfinished business. 
 
 The first executive business of the senate was transacted on the 25th of May, 
 1789, when the president communicated for the advice and consent of the senate 
 certain treaties made with the northern and northwestern Indians. At subse- 
 quent sessions he sent in by letter his nominations for various offices appointed to 
 be filled with the advice and consent of the same body. The senate having 
 refused to ratify the nomination of Mr. Benjamin Fishbourn as naval officer for 
 the port of Savannah, President Washington, on the 7th of August, addressed 
 a message to the body vindicating his reasons for nominating that gentleman, 
 and suggesting to the senate the expediency of communicating to him their views 
 on occasions where the propriety of his nominations appeared questionable to 
 them. 
 
 Moved by this intimation of the president, the senate appointed a committee 
 to wait on him for the purpose of concerting a mode of communication proper to 
 be pursued between both parties in the formation of treaties and making appoint- 
 
 on subjects not yet fully before them, and to the benefits thence resulting to the public 
 affairs. Trusting that a procedure founded in these motives will meet their approba- 
 tion, I beg leave, through you, sir, to communicate the enclosed message, with the 
 documents accompanying it, to the honorable the senate, and pray you to accept, for 
 yourself and them, the homage of my high respect and consideration. 
 The Hon. the President of the senate. TH. JEFFERSON.
 
 AND SELF-GOVERNMENT. 
 
 139 
 
 ments to office. Accordingly it was resolved that, in conformity with the presi- 
 dent's pleasure, he might make his nominations to the senate either in writing or 
 in person ; and it was further provided that for this purpose he might wait on the 
 senate in their own chamber, (in which case he should occupy the chair of the 
 president of the senate,) or might summon the president of the senate and the 
 senators to meet him at such place as he should designate. It was provided, 
 however, that all questions, whether in the presence or absence of the President 
 of the United States, should be put by the president of the senate, and " that the 
 senators should signify their assent or dissent by answering, viva voce, aye or no." 
 On the day following the adoption of this minute, that is on the 22d of August, 1 789, 
 it appears from the journal that the President of the United States came into the 
 senate chamber, attended by General Knox, and laid before the senate a state- 
 ment of facts in reference to the negotiation of certain treaties with various In- 
 dian tribes. Desiring to fix certain principles on which the negotiations should 
 be conducted, he reported to the senate a series of questions, to each of which 
 he requested a categorical answer, to guide him in giving instructions to the com- 
 missioners appointed to treat with the Indians. The questions were seven in 
 number, and were considered throughout two daily sessions, in the presence of 
 the president, and, as appears from the journal, of General Knox. 
 
 How long the relations between the president and the senate remained on this 
 footing we are unable to say with any accuracy, though the practice of his per- 
 sonal attendance during" their sessions in executive business seems to. have been 
 abandoned after a time ; and authentic tradition records that its disuse was has- 
 tened by the blunt speeches of certain senators, who intimated that the presence 
 of the president operated as a restraint on them in canvassing the merits of the 
 candidates submitted for their advice and consent. It soon became habitual for 
 the president to communicate all his nominations to the senate in writing. 
 
 As has been already stated, the proceedings of the senate, as well legislative 
 as executive, were conducted during the first session with closed doors. During 
 the second session of the first congress, which was begun in New York on the 
 4th of January, 1790, the same custom was retained, though, as appears from the 
 journal, not without protest and dissent on the part of some senators. For it 
 appears that on the 2gth of April following it was moved " that the doors of the 
 senate chamber shall be open when the senate is sitting in their legislative 
 capacity, to the end that such of the citizens of the United States as may choose 
 to hear the debates of this house may have an opportunity of so doing." This 
 resolution, being postponed for consideration on the following day, was then 
 taken up, and, after debate, rejected. 
 
 At a third session of the first congress, begun in Philadelphia on the 6th of 
 December, 1790, it was again proposed, on the 23d of February following, " that 
 it be a standing rule that the doors of the senate chamber remain open whilst the 
 senate shall be sitting in a legislative capacity, except on such occasions as, in 
 their judgment, may require secrecy ; and that this rule shall commence and be 
 in force on the first day of the next session of congress." And to this end it 
 was proposed "that the secretary of the senate request the commissioners of the 
 city and county of Philadelphia to cause a proper gallery to be erected for the
 
 1 40 ON CIVIL LIBERTY 
 
 accommodation of the audience." After debate, extending through two days, 
 the proposition was rejected by a vote of 9 yeas to 17 nays. The names of those 
 voting in the affirmative are Messrs. Butler, Foster, Gunn, Hawkins, King, Lee, 
 Maclay, Monroe, and Schuyler. Those voting in the negative were Messrs. 
 Bassett, Carroll, Dalton, Dickinson, Ellsworth, Elmer, Few, Henry, Johnson, 
 Johnston, Izard, Langdon, Morris, Read, Stanton, Strong, and Wingate. 
 
 The first session of the second congress was begun at Philadelphia on the 24th 
 of October, 1791. On the 26th of March following a few weeks before the 
 adjournment of congress at that session a resolution identical in terms with that 
 rejected at the last session of the first congress was moved by Mr. Monroe and 
 seconded by Mr. Lee, both of Virginia. The proposition met with the same fate, 
 receiving fewer votes than at the former session. Some days after the rejection 
 of this resolution it was moved " that when the senate are sitting in their legis- 
 lative capacity the members of the house of representatives may be admitted to 
 attend the debates, and each member of the senate may also admit a number not 
 exceeding two persons ; provided the operation of this resolution be suspended 
 until the senate chamber is sufficiently enlarged." This proposition also failed 
 to be adopted, receiving only six votes. 
 
 We have recited these several and ineffectual attempts to procure the abroga- 
 tion of this established rule of the senate for the purpose of showing that it did 
 not grow up as an unregarded usage, but was founded on considerations satis- 
 factory to a majority of the senate at that day. Nor does it appear to have been 
 a question of party politics, since we find federalists voting with republicans for 
 its abolition, and republicans voting with federalists for its retention. 
 
 The first session of the third congress of the United States, which commenced 
 at Philadelphia on the zd of December, 1793, was destined to witness the over- 
 throw of the rule which had previously obtained on this point. The senate was 
 called at this session to consider and decide a question which elicited a large 
 share of public interest, because of the political susceptibilities which had been 
 awakened by its discussion. We allude to the contest raised respecting the 
 eligibility of Mr. Albert Gallatin as a member of the senate from the state of 
 Pennsylvania. On the first day of the session of that year a petition was pre- 
 sented by Conrad Laub and others, representing that Mr. G. at the date of his 
 election had not been, as the constitution requires, " nine years a citizen of the 
 United States." The committee to which the whole subject was referred re- 
 ported adversely to the claims of Mr. Gallatin on the 315! of December, and the 
 report, after being read and ordered to lie over for future consideration, was 
 taken up on the gth of January following, and discussed through several suc- 
 cessive days, when, on the I3th of the same month, the matter was re-committed 
 to a special committee of elections appointed for the purpose of hearing both 
 parties to the contest. Before this committee reported, and on the i6th of 
 January, 1794, Mr. Martin, of North Carolina, moved the adoption of the follow- 
 ing formal resolutions against the principles and policy of the existing regulations 
 of the senate in regard to the secrecy of its deliberations : 
 
 "Resolved, That in all representative governments, the representatives are 
 responsible for their conduct to their constituents, who are entitled to such in- 
 formation that a discrimination and just estimate be made thereof.
 
 AND SELF-GOVERNMENT. 141 
 
 " Resolved, That the senate of the United States, being the representatives of 
 the sovereignties of the individual states, whose basis is the people, owe equal 
 responsibility to the powers by which they are appointed, as if that body were 
 derived immediately from the people, and that all questions and debates arising 
 thereupon in their legislative and judiciary capacity, ought to be public. 
 
 " Resolved, That the mode adopted by the senate of publishing their journals, 
 and extracts from them, in newspapers, is not adequate to the purpose of circu- 
 lating satisfactory information. While the principles and designs of the individual 
 members are withheld from public view, responsibility is destroyed, which, on 
 the publicity of their deliberations, would be restored; the constitutional powers 
 of the senate become more important, in being more influential over the other 
 branch of the legislature ; abuse of power, mal-administration of office, more 
 easily detected and corrected ; jealousies, rising in the public mind from secret 
 legislation, prevented ; and greater confidence placed by our fellow-citizens in 
 the national government, by which their lives, liberties, and properties are to be 
 secured and protected. 
 
 " Resolved, therefore, That it be a standing rule that the doors of the senate 
 chamber remain open while the senate shall be sitting in a legislative and judi- 
 ciary capacity, except on such occasions as in their judgment may require secrecy ; 
 and that this rule commence on the day of ." 
 
 These resolutions, being called up on the morrow, were postponed successively 
 from day to day, when, on the loth day of February, the committee which had 
 Mr. Gallatin's case in charge made their report to the senate, and a day was 
 fixed for its consideration. Immediately on the presentation of the report, it was 
 moved bya member " that the doors of the senate be opened and continued open 
 during the discussion upon the contested election of Albert Gallatin," which 
 resolution was adopted on the l\th of February, 1794. Meanwhile the series of 
 resolutions abolishing the whole system of secrecy during legislative proceedings 
 was still pending, and came up for consideration on the ipth of February, when 
 each resolution was finally rejected, and a substitute offered in the following 
 terms : 
 
 " Resolved, That after the end of the present session of congress, and so soon 
 as suitable galleries shall be provided for the senate chamber, the said galleries 
 shall be permitted to be opened every morning, so long as the senate shall be 
 engaged in their legislative capacity, unless in such cases as may, in the opinion 
 of the senate, require secrecy, after which the said galleries shall be closed." 
 
 This resolution was passed on the following day by a vote of nineteen yeas to 
 eight nays. Those who voted in the affirmative were Messrs. Bradley, Brown, 
 Butler, Edwards, Ellsworth, Foster, Gallatin, Gunn, Hawkins, Jackson, King, 
 Langdon, Livermore, Martin, Monroe, Potts, Taylor, and Vining. Those who 
 voted in the negative were Messrs. Bradford, Cabot, Frelinghuysen, Izard, 
 Mitchell, Morris, Rutherfurd, and Strong. 
 
 So this regulation of the senate was prospectively repealed and declared in- 
 operative " after the present session," as by a previous resolution it had been 
 expressly suspended during the debate on the case of Mr. Gallatin. Yet this 
 step was not taken without reservation and caution, as is apparent from the fact 
 that on the same day with the passage of the prospective resolution, it was unani- 
 mously resolved " That, on a motion made and seconded to shut the doors of the 
 senate, on the discussion of any business which may, in the opinion of a member,
 
 I 4 2 ON CIVIL LIBERTY 
 
 require secrecy, the president shall direct the gallery to be cleared ; and that 
 during the discussion of such motion the doors shall remain shut." 
 
 It only remains for us to add, in conclusion, that on the day following the 
 passage of these resolutions the case of Mr. Gallatin was debated in open senate. 
 The discussion extended through several days, and was conducted in the form 
 of a trial, Mr. Gallatin affirming his right to the character of a citizen of the 
 United States, and Mr. Lewis, a member of the Pennsylvania bar, attended by 
 Mr. Schmyser, a member of the state senate of Pennsylvania, appearing as man- 
 agers of the prosecution on the part of the petitioners. The pleadings, opened 
 on the 2ist of February, were closed on the a8th of the same month, when the 
 senate decided that the election of Mr. Gallatin was void, in consequence of his 
 not having been a citizen of the United States during the term of years required 
 by the constitution as a qualification for membership in the United States senate. 
 This case being settled, the doors of the senate were closed against the public 
 during the residue of the session; but since that period, so far as we can recall, 
 the legislative deliberations of the body have been uniformly conducted in 
 public, without any interruption other than that which has sometimes arisen from 
 the inadvertence of the senate, in resuming its legislative discussions after a secret 
 session, and without thinking for a time to re-open the doors which had been 
 closed during the transaction of executive business. 
 
 We need hardly say that it has been frequently proposed to abolish the secrecy 
 of the senate even when called to sit in judgment on the treaties formed or the 
 nominations submitted by the executive branch of the government. But the 
 propriety of such a reservation, made in behalf of diplomatic negotiations not yet 
 brought to a close, is too manifest to need remark, while the freedom and inde- 
 pendence which the senator should enjoy in canvassing the propriety and char- 
 acter of the official appointments made with his advice and consent, plead 
 perhaps with equal force in favor of retaining the rule so far as it relates to this 
 other branch of executive business. The injunction of secrecy is from time to 
 time removed by resolution of the senate from all subjects of popular concern 
 whose rublication can no longer frustrate the ends of prudent legislation.
 
 AND SELF-GOVERNMENT. 
 
 143 
 
 CHAPTER XIV. 
 
 SUPREMACY OF THE LAW. TAXATION. DIVISION OF POWER. 
 
 19. THE supremacy of the law, in the sense in which it has 
 already been mentioned, or the protection against the abso- 
 lutism of one, of several, or the people, (which, practically, 
 and for common transactions, means of course the majority,) 
 requires other guarantees or checks of great importance. 
 
 It is necessary that the public funds be under close and 
 efficient popular control, chiefly, therefore, under the super- 
 vision of the popular branch of the legislature, which is like- 
 wise the most important branch in granting the supplies, and 
 the one in which, according to the English and American 
 fundamental laws, all money bills must originate. The Eng- 
 lish are so jealous of this principle, that the commons will not 
 even allow the lords to propose amendments affecting money 
 grants or taxation. 1 2 
 
 1 While these sheets were passing through the press, (March, 1859,) the house 
 of representatives, at Washington, refused to consider certain amendments, 
 passed in the senate, for the purpose of raising the postage on letters, the house 
 declaring by resolution that these amendments interfered with the constitutional 
 and exclusive right of the house to originate bills affecting the revenue. 
 
 2 [Can the house of lords reject a money bill? In 1671 and 1689 it was 
 admitted that they could. The lords, however, abstained from interfering 
 with bills affecting the supplies, and only now and then rejected or postponed 
 such bills as bore incidentally on supplies and taxation, until 1860, when they 
 postponed the second reading of the Paper Duties Repeal Bill for six months. 
 This led to lively discussion of the privileges of the house of commons ; to a 
 search for precedents ; and to resolutions of the commons-, one of which was 
 that, although the lords had sometimes exercised the power of rejecting bills of 
 various descriptions relating to taxation, yet the exercise of that power was 
 "justly regarded by the commons with peculiar jealousy, as affecting the right to 
 gr&nt supplies, and to provide the ways and means for the service of the year." 
 May, u. s. i. chap. 7, p. 449, whose words we have in part used.]
 
 144 ON CIVIL LIBERTY 
 
 If the power over the public treasury, and that of imposing 
 taxes, be left to the executive, there is an end to public liberty. 
 Hampden knew it when he made the trifling sum of a pound 
 of unlawfully imposed ship-money a great national issue; and 
 our Declaration of Independence enumerates, as one of the 
 gravest grievances against the mother country, that England 
 "has imposed taxes without our consent." 
 
 One of the most serious mistakes of those who are not 
 versed in liberty is to imagine that liberty consists in withhold- 
 ing the necessary power from government. Liberty is not of 
 a negative character. It does not consist in merely denying 
 power to government. Government must have power to per- 
 form its functions, and if no provision is made for an orderly 
 and organic grant of power, it will, in cases of necessity, arro- 
 gate it. A liberty thus merely hedging in, would resemble 
 embankments of the Mississippi without an outlet for freshets. 
 No one believes that there would be sufficient time to repair 
 the crevasse. This applies to all the concerns of government, and 
 especially to appropriations of money. Merely denying money 
 to government, or, still worse, not creating a proper organism 
 for granting it, must lead either to inanity or to executive 
 plundering ; but it is equally true that the strictest possible 
 limitation and hedging in, by law, of the money grants, are as 
 requisite for the cause of liberty as the avoidance of the error 
 I have just pointed out. This subject is well treated in " The 
 Federalist," 1 and the insufficiency of our ancient articles of 
 confederation was one of the prominent causes which led our 
 forefathers to the adoption of the federal constitution. Lord 
 Nugent truly calls the power of granting or refusing supplies, 
 vested in parliament, but especially in the house of commons, 
 or, as he says, "the entire and independent control of parlia- 
 ment over the supplies," "the stoutest buttress of the English 
 constitution." 2 
 
 1 " Federalist," No. xxx. and sequel, Concerning taxation, and other parts 
 of that sage hook. 
 * "Memorials of John Hampden," vol. i. p. 212, London, 1832.
 
 AND SELF-GOVERNMENT. ! 45 
 
 It is the Anglican rule to make but short appropriations, 
 and to make appropriations for distinct purposes. We insist 
 still more on this principle than the English, and justly de- 
 mand that appropriations be made as distinct and specific as 
 possible, and that no transfer of appropriations by the execu- 
 tive take place; that is to say, that the executive be not 
 authorized to use a certain appropriation, if not wholly spent, 
 partially for purposes for which another appropriated sum has 
 proved to be insufficient. It is not only necessary for vigorous 
 civil liberty that the legislature, and chiefly the popular branch 
 of it, keep the purse-strings of the public treasury ; but also 
 that the same principle be acted upon in all minor circles of 
 the vast public fabric. The money of the people must be 
 under the control of the trustees of the people, and not at the 
 disposal of officials unconnected with the people, or at the dis- 
 posal of an irresponsible multitude, which, itself without prop- 
 erty, readily countenances those mal-appropriations of money 
 which we meet with in every democratic absolutism, from the 
 later times of Athens to the worst-governed large cities of our 
 own country. 1 
 
 The French imperial constitution decrees, indeed, that the 
 budgets of the different ministers must be voted by the deputies, 
 but they must be voted each as a whole ; no amendments can 
 be made either in the sums thus voted in the lump, or in any- 
 thing else proposed by the government, the government alone 
 having the initiative. All the deputies can do is to send back a 
 bill to the government, with remarks. The French provision, 
 therefore, is founded on a principle the very opposite to that 
 which we consider essential regarding money appropriations. 
 
 The history of the control over the public funds, in grant- 
 ing, specifying, and spending them, may well be said to be a 
 continuous index of the growth of English liberty. It is 
 
 1 [For the practice of short and specific supplies by the English commons, 
 begun under Charles II., and since William III. an essential part of the consti- 
 tution, see Hallam, iii. 159, 160; May, i. 140. The last-cited author points to 
 the want of suspicion of the government on the part of the commons, growing 
 out of the detailed budgets.] 
 
 10
 
 146 ON CIVIL LIBERTY 
 
 this principle which has essentially aided in establishing self- 
 government in England ; and which has made the house of 
 commons the real seat of the national government as we now 
 find it. Every one knows that the "supplies" are the means 
 by which the English effect in a regular and easy way that 
 which the Roman populus occasionally and not regularly 
 effected against the senate, by a refusal to enlist in the army 
 when war was at the gates of the city. 1 
 
 The history of the British civil list, or the personal revenue 
 granted to the monarch at the beginning of his reign, is also 
 instructive in regard to this subject. In the middle ages the 
 monarch was the chief nobleman, and had, like every other 
 nobleman, his domains, from which he drew his revenue. 
 Taxes were considered extraordinary gifts. As the monarch, 
 however, wanted more money, either for just or unjust pur- 
 poses, loans were made, which were never redeemed. Mr. 
 Francis correctly observes, that it is absurd to charge William 
 III. with having created a public debt, as Hume and so many 
 others have done. William III., on the contrary, was the first 
 monarch who treated loans really as loans, and provided either 
 for their repayment or the payment of interest. 2 
 
 As civil liberty advanced, all revenue of the monarch, in- 
 dependent of the people, was more and more withdrawn from 
 him, and crown domains were more and more made public 
 domains, until we see George III. giving up all extra-parlia- 
 mentary revenue. The monarch was made dependent on the 
 civil list exclusively. 3 
 
 1 Chatham, when minister to the crown in 1759, and while Lord Clive was 
 making his great conquests in the East, said that neither the East India Company 
 nor the crown ought to have that immense revenue. If the latter had it, it would 
 endanger all liberty. Chatham's Correspondence, vol. i. In the year 1858, 
 however, the government of the East Indies was taken from the company and 
 given to the crown. It would seem that the commons felt so secure, in the 
 middle of the nineteenth century, that they did not fear to have that vast Eastern 
 empire ruled over, theoretically, by the monarch, in reality, by a minister respon- 
 sible to parliament. 
 
 Francis, Chronicles and Characters of the Stock Exchange. 
 
 s [For the history of the Civil List, see May, i. chap. 4.]
 
 AND SELF-GOVERNMENT. 
 
 20. It is further necessary that the power of making war 
 essentially reside with the people, and not with the executive. 
 In England, it is true, the privilege of making war and con- 
 cluding peace is called a royal prerogative, but, as no war can 
 be carried on without the nervus rerum gerendarum, it is the 
 commons who decide whether the war shall be carried on or 
 not. They can grant or decline the authority of enlisting men, 
 and the money to support them and to provide for the war. 
 The Constitution of the United States decrees that congress 
 shall have power to make war, 1 and an American declaration 
 of war must be passed by congress, like any other law. A 
 declaration of war by the United States is a law. 
 
 Where the executive has not only the nominal but the real 
 power -of declaring war, we cannot speak of civil liberty or of 
 self-government ; for that which most essentially affects the 
 people in all their relations is in that case beyond their 
 control. Even with the best-contrived safeguards, and a 
 deeply rooted tradition, it seems impossible to guard against 
 occasional high-handed assumption of power by the execu- 
 tive in this particular. Whatever our late Mexican war 
 ultimately became in its character, there is probably now no 
 person who will deny that, in its beginning, it was what is 
 called a cabinet war. It was commenced by the cabinet, 
 which, after hostilities had begun, called on congress to ratify 
 its measures. 
 
 It has already been stated (paragraph 13) that a perfect 
 dependence of the forces upon the civil power is an indispen- 
 sable requisite and element of civil liberty. 
 
 21. The supremacy of the law and that unstinted protection 
 
 1 It may as well be observed here that congress means the senate and house 
 of representatives. The president is not included in the term. Parliament, on 
 the other hand, means commons, lords, and king. Practically speaking, the 
 difference is not great ; for the president has the veto power, of which he makes 
 occasional use, while the King of England has not made any use of it for about 
 a century. The English administration would resign before it would become 
 necessary in their eyes to veto a bill. But the King of England has the 
 greatest of all veto powers he can dissolve parliament, which our executive 
 cannot do.
 
 I4 8 ON CIVIL LIBERTY 
 
 of the individual as well as of society, in which civil liberty 
 essentially consists, require on the one hand the fullest pos- 
 sible protection of the minority, and, on the other hand, the 
 security of the majority that no factious minority or cabal shall 
 rule over it. 
 
 The protection of the minority leads to that great institu- 
 tion, as it has been boldly but not inappropriately called the 
 opposition. A well-organized and fully protected opposition, 
 in and out of the legislature a loyal opposition, by which is 
 meant a party which opposes, on principle, the administration, 
 or the set of men who have, for the time being, the govern- 
 ment in their haijds, but does so under and within the common 
 fundamental law is so important an element of civil liberty, 
 whether considered as a protecting fence or as a creative 
 power, that it would be impossible here to give to the subject 
 that space which its full treatment would require. I have 
 attempted to do so, and to sketch its history, in my Political 
 Ethics. [Book v. chap. 3.] 
 
 The elaboration of that which we call an opposition, is an 
 honor which belongs to the English, and seems to me as great 
 and as noble a contribution to the treasures of civil freedom 
 as the development of the power of our supreme courts (of 
 the United States and of the different states) to declare, upon 
 trial of specific cases, a law passed by the legislature uncon- 
 stitutional and void. They are two of the noblest acquisitions 
 in the cause of liberty, order, and civilization. 
 
 22. The majority, and through it the people at large, are 
 protected by the principle that the administration is founded 
 upon party principles, or, as it has been called, upon a govern- 
 ment by party, if by party we mean men who agree on cer- 
 tain " leading general principles in government" * in opposi- 
 tion to others, and act in unison accordingly. If by party be 
 understood a despicable union of men, to turn out a certain 
 set of office-holders merely to obtain the lucrative places, and, 
 when they are obtained, a union to keep them, it becomes an 
 
 1 Burke.
 
 AND SELF-GOVERNMENT. 
 
 149 
 
 odious faction of placemen or office-hunters, the last of those 
 citizens to whom the government ought to be entrusted. The 
 ruinous and rapidly degrading effect of such a state of things 
 is directly contrary to sound liberty, and serves as a fearful 
 encouragement to those who, politically speaking, are the most 
 worthless. But freedom of thought and action produces con- 
 tention in all spheres, and, where great tasks are to be per- 
 formed and where weighty interests are at stake, those who 
 agree on the most important principles will unite and must do 
 so in order to be sufficiently strong to do their work. With- 
 out party administration and party action, it is impossible that 
 the majority should rule, or that a vigorous opposition can rise 
 to a majority and rule in turn. Liberty requires a parliament- 
 ary government, and no truly parliamentary government can 
 be conceived of without the principle of party administration. 
 It became fully developed under George I., or we should 
 rather say under Sir Robert Walpole. Under the previous 
 governments mixed cabinets of whigs and tories were common, 
 when court intrigues and individual royal likings and dislikes 
 had necessarily often a greater effect than national views and 
 interests, to which it is the object of party administration to 
 give the sway. We have to deal with parties, in this place, 
 only as connected with civil liberty. 
 
 For their dangers, their affinity to faction as well as their 
 existence in the arts, sciences, religion, and even in trades in 
 fact, wherever free action is allowed ; for the public inconveni- 
 ence, and indeed danger, in having more than two parties ; the 
 necessity that political parties should be founded upon broad, 
 comprehensive, and political principles ; for the galling inso- 
 lence to which parties in power frequently rise, even in coun- 
 tries like ours ; and for the fact that, in England at least, there 
 is a manifest disposition to treat measures and politics in gen- 
 eral, as far as possible, without reference to mere party politics ; 
 as well as for many other important matters connected with 
 the subject of parties, I must refer to other places. 1 
 
 1 These subjects have been considered at length in the Political Ethics. The
 
 150 ON CIVIL LIBERTY 
 
 23. A principle and guarantee of liberty, so acknowledged 
 and common with the Anglican people that few think of its 
 magnitude, yet of really organic and fundamental importance, 
 is the division of government into three distinct functions, or 
 rather the keeping of these functions clearly apart. 
 
 It is, as has been mentioned, one of the greatest political 
 blessings of England, that from a very early period her courts 
 of justice were not occupied with "administrative business," 
 for instance, the collection of taxes, and that her parliament 
 became the exclusive legislature, while the parliaments of 
 France united a judicial, legislative, and administrative char- 
 acter. The union of these functions is absolutism, or despotism 
 on the one hand, and slavery on the other, no matter in whom 
 they are united, whether in one despot or in many, or in the 
 multitude, as in Athens after the time of Cleon the tanner. 
 The English political philosophers have pointed out long ago 1 
 the necessity of keeping the three powers separate in a " con- 
 stitutional" government. Those, however, who have no other 
 definition of liberty than that it is equality, discard this 
 division, except, indeed, so far as the mere convenience of 
 transacting business would require. 
 
 We have seen already that a distinguished French publicist, 
 Mr. Girardin, declares himself for an undivided public power. 2 
 
 reader will peruse with advantage the chapter on Party in Lord John Russell's 
 Essay on the History of the English Government and Constitution, ad edit., 
 London, 1823. 
 
 1 For instance, Locke. Montesquieu, at a later period, is generally considered 
 the political philosopher who first distinctly conceived the necessity of the divi- 
 sion of power. The English practised it earliest and established it most clearly ; 
 and the French have again given it up, for a time at least, ever since the revolu- 
 tion of 1848, nor has it ever been properly carried out by them, their principle 
 of centralization preventing it. See Pol. Ethics, book ii. c. xxiii. 
 
 2 He has repeatedly given his views, but especially in an elaborate and bril- 
 liantly written, but, according to our opinion, superficial paper on the question, 
 why the republic (of 1848) came to a fall. Mr. Girardin and all the French who 
 believe that liberty exists in the right of choosing the ruler, although once elected 
 he be absolute, seem entirely to forget that all the generals of the monastic orders 
 are elective ; that in many orders, even in those of nuns, for instance in the 
 Ursuline order, the superiors are elected by universal suffrage, but that no person
 
 AND SELF-GOVERNMENT. ! 5 ! 
 
 Unite d 1 * pouvoir is the watchword of the French republicans, 
 and it is the very principle with which Louis Napoleon check- 
 mated them. It belongs to what may well be called Rousseau- 
 ism. Rousseau is distinctly against division of power. 1 His 
 Social Contract became the political Bible of the convention- 
 men, and it has ever since kept a firm hold on the mind of a 
 very large part of the French people, probably of the largest 
 portion. Indeed, we may say that the two great types of 
 government now existing among the civilized and striving por- 
 tion of mankind are representative (or, as the French choose 
 to call it, parliamentary) government, which is essentially of 
 a co-operative character it is the government of Anglican 
 liberty ; and unity of power, the Gallican type. The French 
 people themselves are divided according to these two types. 
 Mr. Guizot may perhaps be considered as the French repre- 
 sentative of the first type. A pamphlet, on the other hand, 
 on government, and generally ascribed to Louis Napoleon, 
 published not long before the explosion of the republic, for 
 which it was evidently intended to prepare the public mind, 
 advocates the unity of power in the last extreme, and as a 
 truly French principle. 
 
 It may be granted that when French publicists and his- 
 torians speak with undisguised praise of the introduction of 
 centralization and unity of power as one of the greatest 
 blessings, they may at times mean an organized and uniform 
 government, as opposed to merely specific protection in an- 
 tiquity and the middle ages, where tribunes, jurats, and other 
 officers were appointed to protect certain interests or classes, 
 somewhat like foreign ministers or consuls of the portions of 
 society, in times of peace it is possible that they occasionally 
 mean something of this sort, without being quite conscious of 
 
 has ever claimed the possession of liberty for the monks or nuns. Indeed, their 
 very vow is against it. But "republicanism" has actually been vindicated for 
 the monastic orders. In the same way Rome might be considered a republic 
 because the pope is elective. 
 
 1 [Centralization is opposed (i) to division of power between functions, (2) to 
 diffusion of power, or local self-government, which is treated of afterwards.]
 
 1 52 ON CIVIL LIBERTY 
 
 the difference ; but, as matters stand, we who love Anglican 
 liberty believe that what is now and emphatically called unity 
 of power is unvarnished absolutism. It is indifferent who 
 wields it. We insist upon the supremacy, not the absolutism, 
 of the legislature. We require the harmonious union of the 
 co-operative whole, but abhor the unity of power. 
 
 What the French republicans demand in the name of the de- 
 mocracy, kings insist upon in the name of divine right. Both 
 loudly protest against the " division of sovereignty," which 
 can only mean a clear division of power; for what in a philo- 
 sophical sense can truly be called sovereignty can never be 
 divided, and its division need not, therefore, be guarded 
 against. Sovereignty is the self-sufficient source of all power 
 from which all specific powers are derived. It can dwell, 
 therefore, according to the views of freemen, with society, the 
 nation only; but sovereignty is not absolutism. It is remark- 
 able how all absolutists, monarchical or democratic, agree on 
 the unity of power. 1 
 
 Power, according to its inherent nature, goes on increasing 
 until checked. The reason is not that power is necessarily 
 of an evil tendency, but because without it, it would not be 
 power. 2 Montesquieu says : " It is a lasting experience that 
 every man who has power is brought to the abuse of it. He 
 goes on until he finds its limits." 3 And it is so with "every 
 
 1 Innumerable official instances might be cited. The King of Prussia, when, in 
 May, 1847, he delivered his first throne speech to the united committees of the 
 provincial estates, which were to serve as a substitute for the expected estates 
 general, "appealed in advance to his people" against everything we are accus- 
 tomed to call constitutional. " My people does not want a participation of repre- 
 sentatives in ruling, . . . nor the division of sovereignty, nor the breaking up 
 of the plenitude of royal power," etc. General Bonaparte wrote to the Direc- 
 tory, May 14, 1796 : " One bad general is even better than two good ones. War 
 is like government, it is a matter of tact" words which Mr. Girardin quotes with 
 approval, and as an authority for his theory of the best government consisting in 
 a succession of perfectly absolute single rulers to be appointed, and at pleasure 
 recalled by universal suffrage. 
 
 2 This I have endeavored plainly to show in the Political Ethics. 
 
 3 Esprit des Loix, xi. 5.
 
 AND SELF- G O VERNMENT. 
 
 153 
 
 man," because it lies in the very nature of power itself. The 
 reader is invited to reperuse "The Federalist" on this weighty 
 subject. 1 
 
 The unity of power doubtless dazzles, and thus is the more 
 dangerous. The French ought to listen to their own great 
 countryman. He says : " A despotic government (and all unity 
 of power is despotic) strikes the eye, (saute pour ainsi dire aux 
 yeux;) it is uniform throughout: as it requires nothing but 
 passions to establish it, all sorts of people are sufficiently good 
 for it." 2 
 
 Our own Webster, in his speech on the presidential protest, 
 delivered the following admirable passage on the subject of 
 which we treat, and on liberty in general a passage which I 
 give entire, in spite of its length, because I cannot find the 
 courage to mutilate it. I have tried to select some sentences, 
 but it seemed to me like attempting to break off some limbs 
 of a master-work of sculpture which has happily come down 
 to us entire. 3 
 
 Mr. Webster said: "The first object of a free people is the 
 preservation of their liberty, and liberty is only to be pre- 
 served by maintaining constitutional restraints and just divi- 
 sions of political power. Nothing is more deceptive or more 
 
 1 Mr. Madison's paper on The Meaning of the Maxim, which requires a Sepa- 
 ration of the Departments of Power, examined and ascertained. Federalist, No. 
 xlvii. and sequ. 
 
 2 Esprit des Loix, book v. c. 14. 
 
 3 The speech was delivered in the Senate of the United States on the yth of 
 May, 1834. If I might place myself by the side of these men, I would refer the 
 reader to the Political Ethics, where I stated that despotism is simple and coarse. 
 It is like a block of granite, and may last in its unchanging coarseness a long 
 time ; but liberty is organic, with all the delicate vitality of organic bodies, with 
 development, growth, and expansion. Despotism may have accretion, but liberty 
 widens by its own vital power, and gains in intensity as it expands. The long 
 duration of some despotisms decides nothing. Longevity of states is indeed a 
 requisite of modern civilization, but if we must choose, who would not prefer a 
 few hundred years of Roman liberty to the thousands of Chinese dreary manda- 
 rinism and despotism ? Besides, we must not forget that a shoe once trodden 
 down to a slipper will always serve longer in its slipshod capacity than it did as 
 a shoe.
 
 154 ON CIVIL LIBERTY 
 
 dangerous than the pretence of a desire to simplify govern- 
 ment. 
 
 " The simplest governments are despotisms ; the next sim- 
 plest, limited monarchies; but all republics, all governments of 
 law, must impose numerous limitations and qualifications of 
 authority, and give many positive and many qualified rights. 
 In other words, they must be subject to rule and regulation. 
 This is the very essence of free political institutions. 
 
 "The spirit of liberty is, indeed, a bold and fearless spirit; 
 but it is also a sharp-sighted spirit; it is a cautious, saga- 
 cious, discriminating, far-seeing intelligence; it is jealous of 
 encroachment, jealous of power, jealous of man. It demands 
 checks ; it seeks for guards ; it insists on securities ; it en- 
 trenches itself behind strong defences, and fortifies itself with 
 all possible care against the assaults of ambition and passion. 
 It does not trust the amiable weaknesses of human nature, and 
 therefore it will not permit power to overstep its prescribed 
 limits, though benevolence, good intent, and patriotic purpose 
 come along with it. Neither does it satisfy itself with flashy 
 and temporary resistance to its legal authority. Far other- 
 wise. It seeks for duration and permanence. It looks before 
 and after ; and, building on the experience of ages which are 
 past, it labors diligently for the benefit of ages to come. 
 This is the nature of constitutional liberty ; and this is our 
 liberty, if we will rightly understand and preserve it. Every 
 free government is necessarily complicated, because all such 
 governments establish restraints, as well on the power of 
 government itself as on that of individuals. If we will 
 abolish the distinction of branches, and have but one branch ; 
 if we will abolish jury trials, and leave all to the judge; if we 
 will then ordain that the legislator shall himself be that judge; 
 and if we place the executive power in the same hands, we 
 may readily simplify government. We may easily bring it to 
 the simplest of all possible forms, a pure despotism. But a 
 separation of departments, so far as practicable, and the pres- 
 ervation of clear lines of division between them, is the funda- 
 mental idea in the creation of all our constitutions ; and,
 
 AND SELF-GOVERNMENT. 155 
 
 doubtless, the continuance of regulated liberty depends on 
 maintaining these boundaries." x 
 
 Unity of power, if sought for in wide-spread democracy, 
 must always lead to monarchical absolutism. Virtually it is 
 such ; for it is indifferent what the appearance or name may 
 be, the democracy is not a unit in reality ; yet actual absolut- 
 ism existing, it must be wielded by one man. All absolutism 
 is therefore essentially a one-man government. The ruler may 
 not immediately take the crown; the pear may not yet be 
 ripe, as Napoleon said to Sieyes ; but it soon ripens, and then 
 the avowed absolute ruler has far more power than the king 
 whose absolute power is traditional, because the tradition itself 
 brings along with it some limitations by popular opinion. Of 
 all absolute monarchs, however, it is true that " it is the vice 
 of a pure (absolute) monarchy to raise the power so high and 
 to surround it with so much grandeur that the head is turned 
 of him who possesses it, and that those who are beneath him 
 scarcely dare to look at him. The sovereign believes himself 
 a god, the people fall into idolatry. People may then write on 
 the duties of kings and the rights of subjects ; they may even 
 constantly preach upon them, but the situations have greater 
 power than the words, and when the inequality is immense, the 
 one easily forgets his duties, the others their rights." 2 Change 
 
 1 Page 122, vol. iv. of the Works of Daniel Webster. I have not transcribed 
 this long passage without the permission of those who have the right to give it. 
 
 To my mind it appears the most Demosthenian passage of that orator. Per- 
 haps I am biased, because the extract maintains what I have always asserted on 
 the nature of liberty, and what has shown itself with such remarkable clear- 
 ness and undraped nakedness in the late French affairs. 
 
 2 Guizot, Essais sur 1'Histoire de France, p. 359. 
 
 General Rapp, first aid of Napoleon, gives a good picture of the false position 
 of an absolute monarch, in his Memoirs, Paris, 1832, ch. 2. He says that 
 " whenever Napoleon was angry, his confidants, far from appeasing him, in- 
 creased his anger by their representations. 'Your majesty is right,' they would 
 say : ' such a person has merited to be shot, or disgraced, or discarded. ... I 
 have long known him to be your enemy. Examples are necessary ; they are 
 necessary for the maintenance of tranquillity.' When it was required to levy 
 contributions from the enemy's country and Napoleon would perhaps ask for 
 twenty thousand, he was advised to demand ten more. If it was the question to
 
 156 ON CIVIL LIBERTY 
 
 the terms, and nearly every word applies to absolute democra- 
 cies with equal truth. Aristotle says that extreme democracy 
 (what we would call democratic absolutism) has the character 
 of the tyrannis (monarchical absolutism.) 1 This is true, yet 
 we must add these modifications : The power of the absolute 
 monarch, though centred in one man, according to theory is 
 lent to him by those over whom he rules ; he may be brought 
 to an account ; but the power of an absolute democracy is fear- 
 ful reality, with which there is no reckoning. It strikes, and 
 the strikers vanish. Where shall they be impeached ? Even 
 he who led them is shielded by the inorganic multitude that 
 followed him. It is felt to be heroic to oppose the absolute 
 monarch ; it is considered unpatriotic or treasonable to oppose 
 the absolute democracy, or those people who call themselves 
 the people. 
 
 Absolute monarchs, indeed, often allow free words. The 
 philosopher Kant uttered remarkable political sentiments under 
 Frederic the Great, and Montesquieu published his Spirit of 
 Laws under the auspices of Madame de Tencin, the chanoiness 
 mistress of the Duke of Orleans, regent of France, and succes- 
 sively mistress of many others. Montesquieu was favored by 
 
 levy two hundred thousand men, he was persuaded to ask for three hundred 
 thousand ; in liquidating a debt which was indisputable, they would insinuate 
 doubts on its legitimacy, and would often cause him to reduce to a half, or a 
 third, and sometimes entirely, the amount of the demand. If he spoke of making 
 war, they would applaud the noble resolution : war alone would enrich France ; 
 it was necessary to astonish the world in a manner suitable to the power of the 
 great nation. Thus it was that in provoking and encouraging expectations and 
 uncertain enterprises he was precipitated into continual wars. Thus it is that 
 they succeeded in giving to his reign a character of violence which did not belong 
 to him. His disposition and habits were altogether good-natured. Never a man 
 was more inclined to indulgence and more awake to the voice of humanity. I 
 could cite thousands of examples." 
 
 Whether Napoleon was good-natured or not need not be discussed here, nor 
 is it important to state that he was not so weak as represented by Rapp ; but it is 
 instructive to see how a man like Rapp, an uncompromising absolutist, unawares 
 lays bare his own opinion of the character of an absolute monarch, because he 
 is absolute. 
 
 ' Pol., v. 9, \ 6; vi. 2, \\ 9, 12.
 
 AND SELF-GOVERNMENT. 157 
 
 these persons ; for nothing is more common than that sprightly 
 people have a sentimental love for the theory of liberty. But 
 neither Kant nor Montesquieu would have been suffered to 
 utter his sentiments had there been any fear whatever that 
 they might pass into reality. There is an immense difference 
 between admiring liberty as a philosophical speculation, lov- 
 ing her like an imaginary beauty by sonnet and madrigal, 
 and uniting with her in real wedlock for better and for worse. 
 Liberty is the loved wife and honored companion, through 
 this earthly life, of every true American and Englishman, and 
 no mistress for sentimental sport or the gratification of spas- 
 modic passion, nor is she for them a misty nymph with whom 
 a mortal falls in consuming love, nor is she the antiquated 
 portrait of an ancestor, looked upon with respect, perhaps even 
 with factitious reverence, but without life-imparting actuality. * 
 
 1 Since the foregoing chapter was originally written, history has furnished us 
 with many additional and impressive illustrations of some of its contents. 
 Numerous French writers, anxious to vindicate for France the leadership in the 
 race of civilization, yet sadly aware that liberty exists no more in France, have 
 declared that the essence of liberty exists simply in universal suffrage, or, if they 
 abandon even the name of liberty, that the height of political civilization con- 
 sists in two things universal suffrage and the code Napoleon, with the proclama- 
 tion of which it has been stoutly maintained a French army would find the 
 conquest of England and the regeneration of Italy an easy matter. Once the 
 principle of universal suffrage established, the French statesmen of the imperial 
 school demand that everything flowing from it, by what they term severe or 
 uncompromising logic, must be accepted. This peculiar demand of severe logic 
 is, nevertheless, wholly illogical, for politics are a means to obtain a high object, 
 and the application to certain given circumstances is of paramount importance. 
 We do not build houses, cure or sustain our bodies, by logic ; and a bill of rights 
 is infinitely more important and intrinsically true than the most symmetrically 
 logical rights of men. The " severe logic" leads, moreover, different men to 
 entirely different results, as, for instance, Mr. Louis Blanc on the one hand, and 
 the imperial absolutists on the other; and, if universal suffrage, without guaran- 
 teeing institutions, is the only principle of importance, the question presents itself 
 immediately, Why appeal to it on rare occasions only, perhaps only once in order 
 to transfer power, and what does universal suffrage mean if not the ascertaining 
 of the opinion of the majority? If this be the object, then we must further ask, 
 Why is discussion necessary to form the opinion suppressed, and how could Mr. 
 de Montalembert be charged with, and tried for, having attacked the principle of
 
 158 ON CIVIL LIBERTY 
 
 universal suffrage, in a pamphlet the whole object of which could not be any- 
 thing else than influencing those who, under universal suffrage, have to give 
 their votes? This is not " severe logic." 
 
 If much has happened and been written since the original penning of this 
 chapter to illustrate the utter falsity of universal suffrage, naked and pure, we 
 must not omit to mention, on the other hand, works of merit which have been 
 written in a very opposite train of thought, by men of great mark, of whom 
 Mr. de Tocqueville deserves particular mention on account of his Ancien 
 Regime.
 
 AND SELF-GOVERNMENT. 159 
 
 CHAPTER XV. 
 
 RESPONSIBLE MINISTERS. COURTS DECLARING LAWS UNCONSTI- 
 TUTIONAL. REPRESENTATIVE GOVERNMENT. 
 
 24. IT is not only necessary that every officer remain indi- 
 vidually answerable for his acts, but it is equally important that 
 no act be done for which some one is not responsible. This 
 applies in particular, so far as liberty is to be protected, to that 
 branch of government which directs the military. It is impor- 
 tant, therefore, that no decree of government go forth without 
 the name of a responsible person ; and that the officers, or single 
 acts of theirs, shall be tried, when trial becomes necessary, by 
 regular action at law, or by impeachment; and that no positive 
 order by the supreme executive, even though this be a king, as 
 in England, be allowed as a plea for impunity. A long time 
 elapsed before this principle came clearly to be established in 
 England. Charles I. reproved the commons for proffering their 
 loyalty to his own person, while they opposed his ministers, and 
 measures which he had personally ordered. England in this, as 
 in almost all else that relates to constitutional liberty, had the 
 start of the continent by two hundred years and more. 1 The 
 
 1 [The importance of the power of impeachment for obeying a king's unlawful 
 commands would have been practically destroyed in England, if either a pardon 
 had been pleadable against impeachment, or the dissolution of a house of 
 commons had put an end to proceedings in such sort that a new house must 
 commence them de novo. The earl of Danby had been saved for the time by 
 Charles II., by means of a dissolution of the impeaching parliament, and when a 
 new parliament revived the proceedings, pleaded a pardon in bar of the prose- 
 cution of the case. (i67o/.) It was decided in the act of settlement of 13 Wm. III. 
 that " no pardon under the great seal of England be pleadable to an impeach- 
 ment of the commons in parliament." The question whether an impeachment 
 could survive a dissolution was decided, during the impeachment of Warren 
 Hastings, by very large majorities of both houses in the affirmative. (1791.)
 
 160 ON CIVIL LIBERTY 
 
 same complaints were heard on the continent of Europe when 
 lately attempts were made to establish liberty in monarchies ; 
 and more will be heard when the time of new attempts shall 
 have arrived. Responsible ministers, and a cabinet dependent 
 upon a parliamentary majority, were the objects of peculiar 
 distaste to the present emperor of the French, as they have 
 been to all absolute monarchs. His own proclamations dis- 
 tinctly express it, and his newspapers continue to decry the 
 servile position of government when ministers are " in the ser- 
 vice of a house of representatives," 1 which means dependent 
 on a parliamentary majority. 
 
 In unfree countries, the principle prevails that complaints 
 against the act of an officer, relating to his public duty, must 
 be laid before his own superiors. An overcharge of duty on 
 imported goods cannot there be tried before a common court, 
 as is the case with us. 
 
 25. As a general rule, it may be said that the principle 
 
 After sentence on trial by impeachment, the king can pardon ; and, in fact, the 
 house of lords, in 1715, when six peers, involved in the rebellion of that year, 
 had been by this process convicted, begged the king to exercise this prerogative, 
 which he did by pardoning three of the number. Hallam, ii. 555-570. Thus a 
 king can save his minister from the results of a legal sentence by impeachment, 
 but not until he stands convicted before the country, and suffers, it may be, a 
 lifelong loss of reputation.] 
 
 1 It is sufficiently remarkable to be mentioned here, that Napoleon III., when 
 the sanguinary coup cTltat had been perpetrated, supported his demand of a 
 cabinet exclusively dependent upon the chief of the state, by the example of the 
 American president, not seeing or not mentioning that congress has a controlling 
 power. 
 
 The following extract of a letter, written by Lord Liverpool to Lord Castle- 
 reagh, (October 23, 1818,) and taken from Correspondence, Despatches, and 
 other Papers of Viscount Castlereagh, second Marquis of Londonderry, 12 vols., 
 London, 1853, is interesting, if we consider how thorough a tory minister Lord 
 Liverpool was: 
 
 " Bathurst's despatch and letter of Tuesday, and my letter of to-day, will put 
 you entirely in possession of our sentiments upon the present state of the nego- 
 tiations. The Russians must be made to feel that we have a parliament and n 
 public to which we are responsible, and that we cannot permit ourselves to be 
 drawn into views of policy which are wholly incompatible with the spirit of our 
 government. 
 
 " Ever sincerely yours, LIVERPOOL."
 
 AND SELF-GOVERNMENT. l6l 
 
 prevails in Anglican liberty, that the executive may do that 
 which is positively allowed either by the fundamental or other 
 law, and not all that which is not prohibited. The royal pre- 
 rogatives of the English crown doubtless made the evolution 
 of this principle difficult, and may occasionally make clear 
 action upon it still so ; but the modern development of liberty 
 has unquestionably tended more and more distinctly to estab- 
 lish the principle that for everything the executive does there 
 must be the warrant of the law. The principle is of high im- 
 portance, and it needs hardly to be added that it forms one of 
 the prominent elements of American liberty. Our presidents, 
 indeed, have done that for which many citizens believed they 
 had no warrant in law, for instance, when General Jackson 
 removed the public deposits from the bank of the United 
 States ; but the doubt consisted in the question whether the 1 
 law warranted the measure or not. It was not claimed that 
 he could do it because it was nowhere prohibited. The Con- 
 stitution of the United States declares that " the powers not 
 delegated to the United States by the constitution, nor pro- 
 hibited by it to the states, are reserved to the states, respect- 
 ively, or to the people;" and the principle which I have 
 mentioned may be considered as involved in it ; but in the 
 different states, where the legislature certainly has the right, 
 as a general rule, to do all that seems necessary for the com- 
 mon welfare and is not specifically prohibited, 1 the mentioned 
 principle prevails regarding the executive. 2 
 
 1 [Such specific checks on legislative power are coming more and more into 
 use. The people are beginning to distrust the legislatures, as they formerly did 
 the executives.] 
 
 2 I have already mentioned the judgment given by the French court, with refer- 
 ence to the opening of letters by the police in order to find out the traces of 
 offences. I now give an extract, and shall italicize those passages which Dear 
 upon the subject above : 
 
 " Considering that if, by the terms of existing legislation, and particularly by 
 art. 187 of the penal code, functionaries and agents of the government, and of 
 the post-office administration, are forbidden either to suppress or to open letters 
 confided to the said administration, this disposition cannot reach the pretect of 
 police, acting by virtue of powers conferred upon him by art. 10 of the Code of 
 Criminal Instruction : 
 
 II
 
 !62 ON CIVIL LIBERTY 
 
 26. The supremacy of the law requires that where enacted 
 constitutions 1 form the fundamental law there be some autho- 
 
 " Considering that the law, in giving to him the mission to investigate offences, 
 to collect evidence in support of them, and to hand their authors over to the tri- 
 bunals charged with punishing them, has not limited the means placed at his dis- 
 position for attaining that end :* 
 
 " That, in fact, the right of perquisition in aid of judicial instructions is 
 solemnly affirmed by numerous legal dispositions, and that it is of common law 
 in this matter : 
 
 " That the seizure in question was made in order to follow the trace of an 
 offence; that it resulted in the discovery of useful and important facts ; that, 
 finally, the authors of the said letters have been prosecuted in a court of justice : 
 
 " Considering, moreover, that the court is not called upon to inquire into the 
 origin of documents submitted to this appreciation ; that its mission is merely to 
 establish their authenticity or their sincerity ; that, in fact, the letters in question 
 are not denied by their authors : 
 
 " For these reasons the letters are declared admissible as evidence," etc. 
 
 It is pleasing to read by the side of this remarkable judgment so simple a pas- 
 sage as the following, which was contained in an English paper at the same time 
 that the French judgment was given. It relates to a London police regulation 
 concerning cabmen : 
 
 " Now, we have no wish to palliate the bad conduct of a class who at least fur- 
 nish amusing topics to contemporaries. By all means let the evils be remedied ; 
 but let the remedy come within the limits of law. It will be an evil day for 
 England when irresponsible legislation and police law, even for cabmen, are 
 recognized and applauded by a certain public because in a given example it 
 happens to be convenient to them. If the ordinary law is not sufficient, let it be 
 reformed ; but do not leave the making of penal laws to the police, and the 
 execution of those laws to the correctional tribunal of the same authority." 
 Spectator, April 2, 1853. 
 
 1 They are generally called written constitutions ; but it is evident that the 
 essential distinction of constitutions, derived from their origin, is not whether 
 they are written or unwritten, which is incidental, but whether they are enacted 
 or cumulative. The English constitution that is, the aggregate of those laws and 
 rules which are considered of fundamental importance, and essential in giving to 
 the state and its government those features which characterize them, or those laws 
 and institutions which give to England her peculiar political organic being consists 
 in cumulated usages and branches of the common law, in decisions of fundamental 
 importance, in self-grown and in enacted institutions, in compacts, and in statutes 
 emlxxlying principles of political magnitude. From these the Americans have 
 
 Does not this argument from the absence of restriction remind the reader of that 
 Baron Viereck, who consented to his daughter's marrying the King of Denmark, the 
 undivorced queen living, and who replied to an expostulating friend that he could find 
 no passage in the Bible prohibiting kings of Denmark from having two wives?
 
 AND SELF-GOVERNMENT. 163 
 
 rity which can pronounce whether the legislature itself has or 
 has not transgressed it in the passing of some law, or whether 
 a specific law conflicts with the superior law, the constitution. 
 If a separate body of men were established to pronounce upon 
 the constitutionality of a law, nothing would be gained. It 
 would be as much the creature of the constitution as the legis- 
 lature, and might err as much as the latter. Quis custodiet 
 custodes ? Tribunes or ephori ? They are as apt to transgress 
 their powers as other mortals. But there exists a body of 
 men in all well-organized polities, who, in the regular course 
 of business assigned to them, must decide upon clashing in- 
 terests, and do so exclusively by the force of reason, according 
 to law, without the power of armies, the weight of patronage 
 or imposing pomp, and who, moreover, do not decide upon 
 principles in the abstract, but upon practical cases which 
 involve them the middle men between the pure philosophers 
 and the pure men of government. These are the judges 
 courts of law. 
 
 When laws conflict in actual cases, they must decide which 
 is the superior law and which must yield ; and as we have seen 
 that according to our principles every officer remains answer- 
 able for what he officially does, a citizen, believing that the 
 law he enforces is incompatible with the superior law, the con- 
 stitution, simply sues the officer before the proper court as 
 
 extracted what has appeared important or applicable to our circumstances ; we 
 have added, expanded, and systematized, and then enacted this aggregate as a 
 whole, calling it a constitution enacted, not by the legislature, which is a crea- 
 ture of this very constitution, but by the people. Whether the constitution is 
 written, printed, carved in stone, or remembered only, as laws were of old, is 
 not the distinctive feature. It is the positive enactment of the whole at one time, 
 and by distinct authority, which marks the difference between the origin of our 
 constitutions and those of England or ancient Rome. Although the term written 
 constitution does not express the distinctive principle, it was nevertheless natural 
 that it should have been adopted, for it is analogous to the term lex scripta, by 
 which the enacted or statute law is distinguished from the unenacted, grown, and 
 cumulative common law. [The distinguishing feature of the English constitu- 
 tion is that the people have no direct voice in saying what it shall be ; the par- 
 liament has theoretically an uncontrolled power of adding to or taking away from 
 the fundamental laws.]
 
 !6 4 ON CIVIL LIBERTY 
 
 having unlawfully aggrieved him in the particular case. The 
 court, bound to do justice to every one, is bound also to decide 
 this case as a simple case of conflicting laws. The court does 
 not decide directly upon the doings of the legislature. It 
 simply decides, for the case in hand, whether there actually 
 are conflicting laws, and, if so, which is the higher law that 
 demands obedience when both may not be obeyed at the same 
 time. As, however, this decision becomes the leading decision 
 for all future cases of the same import, until, indeed, proper 
 and legitimate authority shall reverse it, the question of con- 
 stitutionality is virtually decided, and it is decided in a natural, 
 easy, legitimate, and safe manner, according to the principle 
 of the supremacy of the law and the independence of justice. 
 It is one of the most interesting and important evolutions of 
 the government of law, and one of the greatest protections of 
 the citizen. It may well be called a very jewel of Anglican 
 liberty, one of the best fruits of our political civilization. 1 
 
 27. Of all the guarantees of liberty there is none more im- 
 portant, and none which in its ample and manifold develop- 
 ment is more peculiarly Anglican, than the representative 
 government. Every one who possesses a slight acquaintance 
 with history knows that a government by assembled estates 
 was common to all nations arising out of the conquests of the 
 Teutonic race ; but the members of the estates were deputies 
 or attorneys sent with specific powers of attorney to remedy 
 specific grievances. They became nowhere, out of England 
 and her colonies, general representatives that is, representa- 
 tives for the state at large, and with the general power of 
 legislation. This constitutes one of the most essential differ- 
 ences between the deputative medieval estates and the modern 
 representative legislatures a government prized by us as one 
 of the highest political blessings, and sneered at by the enemies 
 
 1 The ancient juslicia of Aragon had the power of declaring laws unlawful, or 
 unconstitutional, as we call it, against the king and estates, but it was done with- 
 out the trial of a specific case and specific persons. He was therefore simply in 
 these cases above king and estates, that is, king himself; and it became necessary 
 in course of time to suppress this feature. See Pol. Ethics, vol. ii. p. 281
 
 AND SELF-GOVERNMENT. ^5 
 
 of liberty on the continent, at this moment, as " the unwieldy 
 parliamentary government." I have endeavored thoroughly 
 to treat of this important difference ; of the fact that the repre- 
 sentative is not a substitute for something which would be 
 better were it practicable, but has its own substantive value ; 
 of political instruction and mandates to the representative, 
 and of the duties of the representative, in the Political Ethics, 
 to which I must necessarily refer the reader. 
 
 With reference to the great subject of -civil liberty, and as 
 one of the main guarantees of freedom, the representative 
 government has its value as an institution by which public 
 opinion organically passes over into public will, that is law; 
 as one of the chief bars against absolutism of the executive 
 on the one, and of the masses on the other hand ; as the only 
 contrivance by which it is possible to induce at the same time 
 an essentially popular government and the supremacy of the 
 law, or the union of liberty and order ; as an invaluable high 
 school to teach the handling and the protection and to instil 
 the love of liberty ; as the organism by which the average 
 justice, on which all fair laws must be based, can be ascer- 
 tained ; as that sun which throws the rays of publicity on the 
 whole government with a more penetrating light the more 
 perfect it becomes ; and as one of the most efficacious pre- 
 ventives of the growth of centralization and a bureaucratic 1 
 
 1 The term bureaucracy is called by many barbarous, nor has it, so far as I 
 know, been introduced into dictionaries of great authority. Be it so ; but, while 
 we have innumerable words compounded of elements which belong to different 
 languages, a term for that distinct idea which is designated by the word Bureau- 
 cracy has become indispensable in the progress of political science, because the 
 thing which must be named has distinctly developed itself in the progress of 
 centralization combined with writing. In spite, therefore, of the want of lexical 
 authority, it is almost universally used ; for necessity presses. I am under this 
 necessity, and shall use it until a better and more acceptable term be proposed. 
 Mandarinism would not be preferable. Mandarinism would express indeed a 
 government by mandarins, by officials, but it would not designate the character- 
 istics which it is intended to point out by the term bureaucracy, namely, a 
 government carried on not only by a hierarchy of officials, but also by scribbling 
 bureaus. All bureaucracies must be mandarinisms, I take it; but every man- 
 darinism need not be a bureaucracy. I observe that the French, from whom
 
 !66 ON CIVIL LIBERTY 
 
 government as that institution without which no clear di- 
 vision of the functions of government can exist. 
 
 Before we consider the most prominent points of a repre- 
 sentative government, so far as it is a guarantee of liberty, it 
 may be proper to revert to two subjects just mentioned. 
 
 There was a time when, it seems, it was universally believed, 
 and many persons believe still, that a representative govern- 
 ment is indeed a very acceptable substitute, yet only a substi- 
 tute, for a state of things which would be the perfect one, but 
 which it is physically impossible to obtain at present, namely, 
 the meeting of the people themselves, instead of an assembly 
 of their representatives. A secondary value only is thus 
 allowed to the representative system. This is a grave error. 
 Even were it physically or locally possible to assemble the 
 entire American people and^rule by the Athenian pebble or 
 by cheirotonia, (the show of hands,) we must still cling to the 
 representative system as a substantive institution. The market 
 government belongs to antiquity the period of city-states 
 not to our period of national states ; and national states have 
 not only a meaning relating to physical extent of country. 
 
 It has been observed that the period of nationalization of 
 tribes toward the close of the middle ages was one of the most 
 important in the progress of civilization and modern political 
 development, as a period of medieval disintegration and di- 
 vision would be the necessary effect of denationalization. Rome 
 perished of a political bankruptcy, because the ancient city- 
 state was incompatible with an extensive empire. A represent- 
 ative government could alone have saved it ; for its recollec- 
 tions and forms of liberty prevented a full-blown centralization, 
 the only other form which could have given it a Russian 
 stability. Constantine, indeed, established a centralized court 
 government ; but it was then too late. The decree had gone 
 forth that the vessel should part amidst the breakers. 
 
 indeed the term has been received, freely use it, even in their best writings. It 
 is to be regretted that we Americans frequently use the French term Bureau for 
 the old term Board. There are different associations of ideas connected with 
 each of these words.
 
 AND SELF-GOVERNMENT. j.6/ 
 
 The market democracy is irreconcilable with liberty as we 
 love it. It is absolutism which exists wherever power, un- 
 mitigated, undivided, and unchecked, is in the hands of any 
 one or any body of men. It is the opposite of liberty. The 
 people, which means nothing more than an aggregate of men, 
 require fundamental laws of restraint, as much as each com- 
 ponent individual does. Unless we divide the power into two 
 parts into the electing power, which periodically appoints 
 and recalls, and into the power of elected trustees appointed 
 to legislate, and who, as trustees, are limited in their power 
 absolutism is unavoidable. Absolutism is the negation of pro- 
 tection ; protection in its highest sense is an essential element 
 of liberty. 1 It is the trusteeship that gives so high a value to 
 the representative government When the Athenians, trying 
 the unfortunate generals after the battle of Arginusae, were re- 
 minded that they acted in direct contradiction to the laws, they 
 exclaimed that they were the people ; they made the laws, 
 why should they not have the privilege of disregarding them ? 2 
 
 Every one feels his responsibility far more distinctly as 
 trustee than otherwise. Let a man in an excited crowd be 
 suddenly singled out and made a member of a committee to 
 reflect and resolve for that crowd, and he will feel the differ- 
 ence in an instant. How easy it would be to receive the most 
 lavish and most dangerous money grants from an undivided 
 and absolute multitude ! Is it necessary to remind the reader 
 
 1 To refer to books on such a subject is very difficult ; for it almost compre- 
 hends the whole history of modern liberty. 
 
 1 have treated on many points connected with the representative system, in 
 the Political Ethics. The reader will peruse with interest M. Guizot's Histoire 
 des Origines du Gouvernement repr6sentatif en Europe, Paris, 1851. It is in- 
 teresting to learn the views of a Frenchman of such celebrity on a subject of 
 vital interest to us. Regarding the deputative principle, the Histoire de la For- 
 mation et des Progres du Tiers-Etat, by Augustin Thierry, Paris, 1853, is in- 
 structive. I am sorry that I have not been able to read Mr. George Harris's 
 True Theory of Representation in a State, London, 1852. 
 
 2 [Xen., Hellen., i. cap. 7, 12, comp. 15. It ought, however, to be remarked 
 that the Athenians checked the action of the ecclesia by requiring previous action 
 of the senate, (probouleumata,) and by having laws emanate, in the first instarv *, 
 not from the ecclesia proper, but from a large committee of the people.]
 
 ' ,68 ON CIVIL LIBERTY 
 
 that liberty has been lost quite as often from false gratitude 
 toward a personally popular man as from any other cause ? 
 Trustees, carefully looking around them, and conscious that 
 they have to give an account of themselves, are not so easily 
 swayed by ravishing gratitude. The trusteeship in the repre- 
 sentative government is the only means yet discovered to 
 temper the rashness of the democracy and to overcome the 
 obstinacy of monarchs. 
 
 How necessary for modern liberty a national 1 representa- 
 tive government is a representative system comprehending 
 the whole state, and throwing liberty over it broadcast will 
 appear at once, if we remember that local self-government 
 exists in many Asiatic countries; where, however, there is no 
 union of these many insulated self-governments, and no state 
 self-government, and therefore no liberty. We shall also pres- 
 ently see that where there is only a national representative 
 government without local self-government, there is no liberty 
 as we understand it. 
 
 Nor must we forget two facts, which furnish us with an im- 
 portant lesson on this subject. Wherever estates or other 
 bodies have existed, no matter how great their privileges were 
 or how zealously they defended their liberties, civil liberty has 
 not been firmly established ; on the contrary, it has been lost 
 in the course of time, unless the estates have become united 
 into some national or state representative system. Where 
 are the liberties of Aragon, and where is the freedom of the 
 many Germanic polities ? It was one of the greatest political 
 blessings of England that favorable circumstances promoted 
 
 1 I take here the term national in the sense of relating to an entire society 
 spread over tl e territory of an extensive state, and as contradistinguished from 
 what belongs to a city-state, or from the system of the middle ages, which was 
 deputative, on the one hand, (see my Political Ethics on Representative System,) 
 and from a system of juxtaposition rather than of pervading organization, like the 
 Chinese language compared to our grammatical languages. In this sense, then, 
 the government of Virginia or New York would be national, although we use the 
 word in America as synonymous with federal. It were well if we could adopt 
 a distinct term for national in the first sense. See the note at the end of this 
 chapter.
 
 AND SELF-GOVERNMENT. 169 
 
 an early national fusion of the estates into two houses. On 
 *the other hand, we find that those governments which can no 
 longer resist the demand of liberty by the people, yet are bent 
 on yielding as little as possible, always have tried as long as 
 was feasible to grant provincial estates only. Some monarchs 
 of this century have shown a real horror of national representa- 
 tion, and would rather have periled their crown than granted 
 it; yet some of these monarchs have readily granted an 
 urban self-government of considerable extent. Their minis- 
 ters and servants have frequently gone so far as to extol local 
 self-government and to proclaim the idea that liberty consists 
 far more in the "administration" being left to the people, 
 than in any general representative government. In doing so, 
 they pointed to countries in which the latter, existing alone, 
 had brought no real liberty. Asia, as was before stated, fur- 
 nishes us with innumerable instances of local self-government, 
 which are there neither a source nor a test of liberty. 1 True 
 liberty stands in need of both, and of a bona fide representa- 
 tive government largely and minutely carried out. 2 
 
 1 A curious picture of Asiatic local self-government, without any liberty, has 
 lately been given to the public, in Lieutenant-Colonel C. G. Dixon's Sketch of 
 Maiwara, giving a Brief Account of the Origin and Habits of the Mairs, etc., 
 London, 1851. 
 
 2 National representation is closely connected with the idea of country, in- 
 dispensable for high modern civilization. Nations and Countries appear to me 
 so much elements of modern civilization and of modern liberty that I may be per- 
 mitted to give an extract relating to this topic, from my Inaugural Speech in 1858: 
 
 "Our government is a federal union. We loyally adhere to it and turn our 
 faces from centralization, however brilliant, for a time, the lustre of its focus may 
 appear, however imposingly centred power, that saps self-government, may hide 
 for a day the inherent weakness of military concentrated polities. But truths are 
 truths. It is a truth that modern civilization stands in need of entire countries; 
 and it is a truth that every government, as indeed every institution whatever, is, 
 by its nature, exposed to the danger of gradually increased and, at last, excessive 
 action of its vital principle. One-sidedness is a universal effect of man's state, 
 of sin. Confederacies are exposed to the danger of sejunction,as unitary govern- 
 ments are exposed to absorbing central power centrifugal power in the one 
 case, centripetal power in the other. That illustrious predecessor of ours, from 
 whom we borrowed our very name, the United States of the Netherlands, ailed 
 long with the paralyzing poison of sejunction in her limbs, and was brought to 
 an eariy grave by it, after having added to the stock of humanity the worshipful
 
 I70 ON CIVIL LIBERTY 
 
 names of William of Orange, De Witt, Grotius, De Ruyter, and William III.* 
 There is no Gennan among you that does not sadly remember that his country , 
 too, furnishes us with bitter commentaries on this truth ; and we are not exempt 
 from the dangers common to mortals. Yet, as was indicated just now, the patria 
 of us moderns ought to consist in a wide land covered by a nation, and not in a 
 city or a little colony. Mankind have outgrown the ancient city-state. Coun- 
 tries are the orchards and the broad acres where modern civilization gathers her 
 grain and nutritious fruits. The narrow garden-beds of antiquity suffice for our 
 widened humanity no more than the short existence of ancient states. Moderns 
 stand in need of nations and of national longevity, for their literatures and law, 
 their industry, liberty, and patriotism ; we want countries to work and write and 
 glow for, to live and to die for. The sphere of humanity has steadily widened, and 
 nations alone can nowadays acquire the membership of that great common- 
 wealth of our race which extends over Europe and America. Has it ever been 
 sufficiently impressed on our minds how slender the threads are that unite us in 
 a mere political system of states, if we are not tied together by the far stronger 
 cords of those feelings which arise from the consciousness of having a country to 
 cling to and to pray for, and unimpeded land and water roads to move on ? 
 
 " Should we, then, not avail ourselves of so well proved a cultural means of fos- 
 tering and promoting a generous nationality, as a comprehensive university is 
 known to be ? Shall we never have this noble pledge of our nationality ? All 
 Athens, the choicest city-state of antiquity, may well be said to have been one 
 great university, where masters daily met with masters; and shall we not have 
 even one for our whole empire, which does not extend from bay to bay like little 
 Attica, but from sea to sea, and is destined one day to link ancient Europe to 
 still older Asia, and thus to help completing the zone of civilization around the 
 globe ? All that has been said of countries and nations and a national university 
 would retain its full force even if the threatened cleaving of this broad land should 
 come upon us. But let me not enter on that topic of lowering political reality, 
 however near to every citizen's heart, when I am bidden by you to discourse on 
 political philosophy, and it is meet for me not to leave the sphere of inaugural 
 generalities." 
 
 * Every historian knows that William of Orange, the founder of the Netherlands' 
 republic, had much at heart to induce the cities of the new union to admit representa- 
 tives of the country ; but the "sovereign" cities would allow no representatives unless 
 noblemen to the farmers and land-owners, who, nevertheless, were taking their full 
 share in the longest and most sanguinary struggle for independence and liberty ; but 
 the following detail, probably, is not known to many. The estates of Holland and 
 West Friesland were displeased with the public prayers for the Prince of Orange, 
 which some high-calvinistic ministers were gradually introducing, in the latter half of 
 the seventeenth century, and in 1663 a decree was issued ordaining to pray first of all 
 " for their noble high mightinesses, the estates of Holland and West Friesland, as the 
 true sovereign, and only sovereign power after God, in this province ; next, for the 
 estates of the other provinces, their allies, and for all the deputies in the assembly of 
 the States General, and of the Council of State." 
 
 " Separatismus," as German historians have called the tendency of the German 
 princes to make themselves as independent of the empire as possible, until their 
 treason against the country reached " sovereignty," has made the political history of 
 Germany resemble the river Rhine, whose glorious water runs out in a number of 
 shallow and muddy streamlets, having lost its imperial identity long before reaching 
 the broad ocean.
 
 AND SELF-GOVERNMENT. 
 
 I/I 
 
 CHAPTER XVI. 
 
 REPRESENTATIVE GOVERNMENT, CONTINUED. BASIS OF PROP- 
 ERTY. DIRECT AND INDIRECT ELECTIONS. 
 
 28. THE prominent points of a national representative 
 government, considered as a guarantee of liberty, consist in 
 the representative principle, that is, the basis of representation 
 and the right of voting for the representative, in the election 
 laws, in the fact that those and those only who have the right 
 to vote do vote, (hence the importance, and, I believe, the 
 necessity, of registration laws,) and in the organization of the 
 representative legislature, with its own protection and liberties. 
 
 All that we can say regarding the requirements of Anglican 
 liberty with reference to the principle of representation, is that 
 it be a broad or popular one. Universal suffrage cannot be 
 said to be an Anglican principle, whatever the American view, 
 of which we shall treat by-and-by, may be. The application 
 of the principle of a wide popular representation, however, or 
 an extensive right of voting, has constantly though slowly 
 expanded in England, and continues to be expanding. 
 
 The English, not allowing universal suffrage or indeed a 
 representation based upon numbers alone, require some limit 
 beyond which the right of voting shall not go. 1 This limit is, 
 
 1 [The system of representation in Great Britain had long been most unequal 
 and absurd until 1832. To mention but one fact out of 658 members of the 
 house of commons, 487 were nominees of the aristocracy or of the government, 
 and only 173 represented independent constituencies. In 1832, after a great 
 struggle, a reform bill was passed, by which (i) fifty-six rotten boroughs, return- 
 ing one hundred and eleven members, were disfranchised, and other small 
 boroughs lost in all thirty members; (2) twenty-two large towns, including dis- 
 tricts of London, gained the right to return two members each, twenty to return 
 one each, and the members for the larger counties were increased from 94 to 
 159. (3) As for the right of electing in the boroughs it was given to IO/.
 
 ,-2 ON CIVIL LIBERTY 
 
 as a general rule, which has however its exceptions, indicated 
 either by property or by a certain annual expense which 
 usually designates the amount of income over which man may 
 dispose, namely, house-rent. Hence it is often said that prop- 
 erty is the basis of representation in England. This is not 
 correct. Property, or the enjoyment of a certain revenue 
 either from acquired property or from an industrial occupa- 
 tion, gives the right of voting, but it is not the basis of repre- 
 sentation. 
 
 When it is maintained in modern times that property ought 
 to be the basis of representation, or it is asserted that the 
 English constitution is founded on property, an inappropriate 
 term is used, which carries along with it erroneous associations 
 
 householders resident in the place, paying rates and not receiving relief from the 
 parish. In the counties several classes were added to the old forty-shilling 
 freeholders, viz. : copyholders and leaseholders for terms of years, and tenants at 
 will paying a rent of 5O/. a year. (See May, i. chap. 6.) 
 
 The more recent bill of 1867, for reforming representation, contains among 
 other provisions the following of principal importance, (i) The franchise. In 
 the boroughs any full-aged man not legally incapacitated can vote in parliamentary 
 and municipal elections, who has been for twelve months an inhabitant, as owner 
 or tenant, of any dwelling-house, has been rated to rates for the relief of the 
 poor, and paid his rates like others; but no joint occupier can vote. Also the 
 vote is given to every lodger in the boroughs who is sole tenant of a dwelling- 
 house of the clear yearly value of io/. or upward, has resided there twelve months 
 before the last day of July of any year, and put in a claim to be registered. In 
 the counties, any man of similar status can vote, who is seised in law or at equity 
 of any lands or tenements of freehold, copyhold, or any other tenure, for his own 
 or another's life or nny lives, of the clear yearly value of not less than 5^- He 
 also has the vote who is lessee or assignee of lands, on any tenure, for the un- 
 expired residue of any term originally created for a period of not less than 60 
 years, of at least 57. net yearly value; and again, one who occupies lands of the 
 ratable value of I2/. or over, has been rated and paid rates. (2) Distribution 
 of seats in parliament. No borough having in 1861 a population of less than 
 10,000 could return more than one member. 38 boroughs were thus reduced, io 
 new boroughs were created, 3 cities returned three members instead of two, 2 old 
 b iroughs returned two instead of one, I borough was divided into two, and 13 
 counties were subdivided so as to return 35 members. (3) In London no one 
 can vote for more than three, and in places where three members are returned, no 
 one can vote for more than two. In 1872, ballot, with nomination of candi- 
 dates, was introduced. The balloting has some rather troublesome formalities.]
 
 AND SELF-GOVERNMENT. 
 
 173 
 
 in almost all discussions on this subject. When we say that 
 population is the basis of representation, we mean indeed that 
 one representative is chosen for a distinct number of repre- 
 sented citizens, and that therefore a large population should 
 have more representatives than a small one ; but when it is 
 said that property is or ought to be the basis of representa- 
 tion, we mean in almost all cases nothing more than that a 
 certain amount of property or revenue is required to entitle a 
 man to vote. The Roman constitution ascribed to Servius 
 Tullius was really founded upon property, because the six 
 classes of citizens actually took a share in the government of 
 the state in proportion to the property they held. 1 Thus like- 
 wise there is a partial representation of property prescribed 
 by the constitution, of South Carolina, for the composition of 
 the state senate, inasmuch as the small but wealthy divisions 
 of the lower part of the state elect a number of senators 
 disproportionately large compared to the number of senators 
 sent from the upper districts of the state, which are very 
 populous and possessed of proportionately less property. This 
 was at least the case when the constitution was adopted. 2 
 
 What is really meant when it is said that a constitution 
 ought to be founded on property, is this : that a minimum 
 amount of property ought to be adopted as the last line be- 
 yond which no suffrage ought to be granted, but not that a 
 capital of a million or the possession of a thousand acres of 
 land ought to be entitled to a greater share in government 
 than the possession of a few thousand dollars. It is meant 
 that we seek for a criterion which will enable us to distinguish 
 those who have a fair stake in the welfare of the state from 
 those who have not. But here occurs at once the question : 
 Is this criterion in our age any longer safe, just, and natural, 
 which it may be supposed to have been in former ages ? 3 Are 
 
 1 [But it was majority of centuries, and not of votes, which determined an 
 election.] 
 
 2 [It is perhaps needless to say that great changes have been made in the con- 
 stitution of this state since the end of the war in 1865.] 
 
 3 [There are multitudes in the United States who still believe that universal
 
 174 
 
 ON CIVIL LIBERTY 
 
 there not thousands of men without property who have quite 
 as great a stake in the public welfare as those who may possess 
 a house or enjoy a certain amount of revenue? This criterion 
 becomes an actual absurdity when by property landed prop- 
 eity only is understood. It was indeed in the middle ages 
 almost the exclusive property of lasting and extensive value ; 
 but nothing has since changed its character more than prop- 
 erty itself. This whole question is one of vastest extent, 
 and emphatically belongs to the science of politics and real 
 statesmanship. In regard to the subject immediately in hand, 
 we have only to repeat that an extensive basis of representa- 
 tion is doubtless a characteristic element of Anglican liberty. 
 29. As important as the basis of representation indeed, 
 in many cases more important is the question whether there 
 shall be direct elections by the people, or whether there shall 
 be double elections ; that is to say, elections of electors by the 
 constituents, which electors elect the representative. It may 
 be safely asserted that the Anglican people are distinctly in 
 favor of simple elections. Elections by electing middle men 
 deprive the representation of its directness in responsibility 
 and temper ; the first electors lose their interest, because they 
 do not know what their action may end in ; no distinct can- 
 didates can be before the constituents and be canvassed by 
 them, and, inasmuch as the number of electors is a small one, 
 intrigue is made easy. 
 
 The fact that a double or mediate election foils in a great 
 degree the very object of a representative government, is so 
 well known by the enemies of liberty, that despotic govern- 
 ments, unable to hold their absolute power any longer, have 
 frequently struggled hard to establish universal suffrage with 
 double election. An intention to deceive, or a want of 
 acquaintance with the operation of the principle, must explain 
 the measure. 1 I believe that neither American nor English- 
 suffrage is the root of all our political evils. In one state at least Connecticut 
 the capacity to read is made a condition for being made a "freeman."] 
 
 1 According to the present constitution of Prussia (1859) there is universal 
 suffrage for the election of a certain number of electors, and in addition a
 
 AND SELF- G O VERNMEKT. 
 
 1/5 
 
 man would think the franchise worth having were double 
 elections introduced, and so decidedly is the simple election 
 ingrained in the Anglican character, that in the only notable 
 case in which a mediate election is prescribed in America, 
 namely, the election of the President of the United States, 
 the whole has naturally and of itself become a direct election. 
 The constitution is obeyed, and electors are elected, but it is 
 well known for which candidate the elector is going to vote, 
 before the people elect him. There is but one case, of old 
 date, in which an elector, elected to vote for a certain candi- 
 date for the presidency, voted for another, and his political 
 character was gone for life ; while in the month of November, 
 1856, the legislature of South Carolina, the only legislature 
 in the United States which has retained for itself the election 
 of presidential electors, actually " instructed" the electors to 
 vote for Mr. Buchanan, and in the state of Pennsylvania 
 committees belonging to different parties or sections of parties 
 agreed upon certain "Union Electoral Tickets" for the elec- 
 tion of electors, to satisfy the claims of the different voters. 
 These instances, and many more might be given, show how 
 the principle of a double election has been wholly abandoned 
 in the election for the president, although the form still exists. 
 Civil liberty demands a fair representative system ; the 
 latter requires that the representatives really represent the 
 people, which is by no means necessarily obtained by simple 
 universal suffrage. Indeed, it is one of the highest problems 
 of political philosophy on the one hand, and of genuine states- 
 manship on the other, to establish, combine, and, as circum- 
 stances may require, to change the basis of representation. 
 In England we find that a large number of persons lately 
 urged an additional " representation of education." Essential 
 representation requires a fair representation of the minority, 1 
 which, until now, has been obtained, in the system of Anglican' 
 
 graduated property qualification for the election of other electors, who with the 
 former elect representatives. 
 
 1 See Political Ethics on Opposition and Representatives.
 
 1^6 ON CIVIL LIBERTY 
 
 liberty, by making election districts sufficiently small, so that 
 persons of different political opinions would be elected, and by 
 discountenancing "general tickets." It might be supposed 
 that the most consistent method, opposite to the " general 
 ticket," would be to make election districts so small that each 
 elects but cne person, as the present constitution of the state 
 of New York prescribes ; T but practice, it seems, does not bear 
 out this supposition in the mentioned state. When election 
 districts are very small, many citizens whom it is most desira- 
 ble to see in the legislature decline contending with paltry 
 local interests and jealousies. And here it may be mentioned 
 that a marked difference between England and America con- 
 sists in the fact that in the first-mentioned country voters 
 may take their representative from any portion of the coun- 
 try, while in America the principle prevails, we believe univer- 
 sally, that the representative must be a resident in his con- 
 stituency, which is an additional reason that election districts 
 ought not to be too narrow. 2 
 
 But the idea of representing the minority in a more direct 
 manner than by a minority in the house of representatives 
 has been much discussed of late in England, and, to judge 
 from the journals of the day, there seem to be many persons 
 who believe that this could best be obtained by obliging each 
 voter to vote for a number of representatives less than the 
 whole number, to be sent to parliament, for instance, for two 
 members, if three are to be sent there, or for three, if five are 
 to be sent. This novel feature seems to have been actually 
 adopted in some colonial constitutions. No one is able to say 
 how such a principle may operate in certain conditions of the 
 voters, but, as a general principle, it would seem injudicious, 
 inoperative toward the desired object, and not Anglican. An- 
 other method was adopted to secure the representation of the 
 
 1 I8 59- 
 
 [A resident not necessarily in the district, but in the state which he repre- 
 sents. " No person shall be a representative . . . who shall not, when elected, 
 be an inhabitant of that state in which he shall be chosen." Constit., art. i. 
 sect. 2, 2.]
 
 AND SELF-GOVERNMENT. 
 
 177 
 
 minority, in the so-called Ruatan Warrant, in 1856. In this 
 instrument every voter received the right to give, if four repre- 
 sentatives are to be elected, all four votes to one person, or 
 three to one and one to another, or to cast his four votes in 
 equal halves for two persons. This is legalizing, and indeed 
 intensifying, the voting of " plumpers," * as it is vulgarly called 
 
 1 [The subject of representing the minority so important in a country where 
 government by party prevails has, since Dr. Lieber published his second edition 
 of this work, been much discussed, and already has a large literature of its own. 
 I have caused two notes of the author's, which of course could not duly present 
 the subject to the reader, to be omitted, and have put into their place a simple 
 account of the methods which have been suggested for attaining this end, with 
 the briefest possible comments. I mention i, the limited vote i.e., the vote for 
 a less number of names than there are places, as for two when three persons 
 are to be chosen. This method was introduced into the bill of 1867 for reform- 
 ing representation in Great Britain. 2. The cumulative -vote, where the voter is 
 allowed to cast all or more than one at least of his votes for one person eg., to 
 cast two, three, or four for one candidate, or to divide them among several. This 
 plan is especially applicable when the practice of voting by general tickets pre- 
 vails. 3. The election by lists, a Swiss plan, according to which a certain num- 
 ber of lists of candidates, as many on each list as there are representatives in all 
 in a district, are prepared beforehand, and each voter votes for one of these lists. 
 The representatives are selected from each of these lists according to the ratio of 
 the votes on each list to the entire number of votes e.g., if there are four lists, 
 and 10,000 voters, and 4000 votes for one list, 3000 for another, 2000 for a third, 
 looo for a fourth, then 4, 3, 2, I would be returned as representatives from the 
 several lists. 4. Preferential -voting, or Mr. Thomas Hare's plan, in a book first 
 published in 1859, and which has gone through four editions. This plan has been 
 advocated by J. S. Mill in his Representative Government, chap, vii., and by 
 other persons of note. This plan provides that each voter or elector may vote in 
 the order of preference for a number of persons, not confining himself in his selec- 
 tions to his own locality. When the votes are counted, the person having a 
 number of votes larger than the electoral quota, that is, larger than the number of 
 voters divided by the number of representatives, is elected, and all the votes for 
 him above the quota are carried down to the next person on the list needing them 
 in order to be elected. The somewhat puzzling details of this plan must be 
 passed by. Its advantages are that it gives a fair chance to all interests and t 
 classes of thinkers to unite, although dispersed over a state or country; and no 
 elector would be represented by one whom he had not chosen. 5. Substitute 
 voting. Candidates may cast surplus votes, or those over the electoral quota, and 
 insufficient votes, or those under, and may thus fill up the places which have not 
 been filled by the voting of the electors. 6. Proxy voting, by which a repre- 
 sentative may cast as many votes as he receives multiples of the electoral quota. 
 
 12
 
 ,78 ON CIVIL LIBERTY 
 
 in this country, a kind of voting generally considered unfair 
 and dishonest, and which it would be just and right to provide 
 against by our constitutions. Each ballot ought to contain as 
 many names as representatives are to be voted for ; if not, it 
 ought to be thrown out. 
 
 It does not seem to be the Anglican principle to elect, with 
 the representative, his substitute in case of absence of the 
 former from the legislature. If a representative resigns or 
 dies, another is elected ; if he absents himself, the constituents 
 lose his vote. It seems that representation is considered too 
 direct a relation to admit of a substitute beforehand. Yet 
 for conventions it is customary in America to elect substitutes. 
 They do not allow of sufficient time for a new election. On 
 the continent of Europe, suppleans are immediately elected. 1 
 
 As a matter of historical curiosity, I would direct attention 
 to the circuitous ways and multiplied elections by which it 
 was frequently attempted in the middle ages to insure an 
 impartial or pure election. The master of the Knights of 
 Malta was elected by no less than seventeen consecutive elec- 
 tions of electors, each election connected with oaths ; 2 and the 
 Doge of Venice was elected by nine different acts, namely, five 
 elections alternating with four acts of drawing lots, 3 with the 
 addition of collateral votings. 
 
 These plans admit of some modifications. There might, for instance, be an 
 aliquot part of the number of representatives chosen from localities, and the rest 
 chosen from the state at large on Mr. Hare's plan. 
 
 All of these plans, which imply voting for persons outside of a small area, re- 
 quire more knowledge of men than belongs to the great majority of voters under 
 a system of universal suffrage.] 
 
 1 We elect substitutes for executive officers. The Roman custom was to take, 
 in case of need, the predecessor of the failing incumbent, a principle adopted, at 
 least in former times, in Geneva and other cities. [When a consul or tribune 
 died, the surviving colleague, or colleagues, at first co-optated another. After- 
 wards a colleague was chosen, (suffectus.) When inferior magistrates died or 
 resigned, the superior held the comitia to fill his place. See T. Mommsen, Rom. 
 Staatsr., vol. i. p. 161.] 
 
 Vertot's History of the Knights of Malta, folio edition, London, 1728, vol 
 ii., Old and New Statutes. 
 
 3 Daru, Histoire de Venise, Paris, 1821, vol. i.
 
 AND SELF-GOVERNMENT. 
 
 179 
 
 30. The representative principle farther requires that the 
 management of the elections be in the hands of the voters, or 
 of a popular character ; that especially the government do not 
 interfere with them, either in the election bureau itself, or by 
 indecently proposing and urging certain candidates ; that the 
 house for which the candidates are elected be the sole judge of 
 the validity of the election, and that the opening of the poll 
 do not depend upon the executive, which by mere omission 
 might prevent the entire election in order to exclude a dis- 
 tasteful citizen from the house. 
 
 The beginning of an election, the appointment of managers, 
 the protection of the minority in this matter, and the con- 
 scientious counting of votes, where the ballot exists, are always 
 matters of much interest and of great practical difficulty, to 
 all those who have not traditionally learned it. Collections of 
 election laws are therefore very instructive ; and the labor of 
 giving birth to an election with nations unaccustomed to liberty 
 is very great. Mr. Dumont gives some instructive and amusing 
 anecdotes, relating to the first French elections, in his Memoirs 
 of Mirabeau. 
 
 The English law is that all the military must leave the 
 place where an election is going on, and can only enter it 
 when called in by the town authorities or the justices of the 
 peace, in case of riot. 
 
 The British house of commons is the sole judge of the 
 validity of elections ; and the same office is assigned to the 
 house of representatives by the American constitution. 1 
 
 One of the gravest charges against the Duke of Polignac 
 and his fellow-members of the cabinet, when they were tried 
 for their lives after the revolution of 1830, was that they had 
 allowed or induced Charles X. to influence certain electors, by 
 letter, to elect government candidates ; while the government 
 under the late so-called republic openly supported certain 
 
 1 A full statement of all the laws relating to these guarantees in England will 
 be found in Stephens's De Lolme, Rise and Progress of the British Constitution ; 
 and Story's Commentaries on the Constitution of the United States gives our con- 
 stitutional law on these subjects.
 
 jg ON CIVIL LIBERTY 
 
 persons as government candidates, and bishops wrote then, 
 and have since sent, solemn pastoral letters, calling on their 
 flocks to elect men of certain political color. It is wholly in- 
 different to decide here whether peculiar circumstances made 
 this interference necessary. I simply maintain that it is not 
 liberty. 
 
 31. Representative bodies must be free. This implies that 
 they must be freely chosen, neither under the threat or violence 
 of the executive, nor of the rabble or whatever portion of the 
 people; 1 that when met, they are independent of the threat 
 or seduction of the executive, or of the mob, armed or not 
 armed ; that they are protected by the law as a representative 
 body; and that a wise parliamentary law and usage protect, 
 within the body, the rights of each representative and the 
 elaboration of the law. 
 
 Representative legislatures cannot be truly the organisms 
 through which public opinion passes into public will, nor can 
 they be really considered representative bodies, if the mem- 
 bers, or at least the members of the popular branch, are not 
 elected for a moderately short period only ; if the legislature 
 does not sit frequently ; if the elections for the popular branch 
 are not for an entire renewal of the house ; and if the member 
 is made answerable for what he says in the house to any one 
 or any power besides the house to which he belongs. 
 
 What a moderately short period or the frequency of sessions 
 means, cannot, as a matter of course, be absolutely stated. 
 Fairness and practice, as well as the character of the times, 
 must necessarily settle these points. England had a law 
 
 1 Fearful cases to the contrary have happened in France and our own country. 
 In the former country a court of justice decided against a person, because, not 
 being the government candidate, he had dared to print and distribute his own 
 ticket. Mr. de Montalembert made a speech against the abuse, whereupon 
 the minister of the Interior, Mr. Billault, formerly a socialist, issued a circular 
 to the prefects, instructing them, April, 1857, how to conduct themselves 
 regarding the distribution of election tickets. In our country sanguinary troubles 
 have occurred in New Orleans and Baltimore, in October, 1857, which called 
 forth proclamations of the governors that revealed a frightful state of things. 
 And these crimes at elections were not restricted to the two mentioned cities.
 
 AND SELF-GOVERNMENT. xg, 
 
 that, from the year 1696, each parliament should not last 
 longer than three years, but in 1716 the septennial bill was 
 carried, under a whig administration, forced to do it by the 
 intrigues of the tories, who were for bringing back the 
 Stuarts. 1 This law has ever since prevailed; but even Pitt 
 called it, in 1783, one of the greatest defects in the system 
 of popular representation. Chatham, his father, had expressed 
 himself against it 2 before him, and it would really seem that 
 England will return, at no distant time, to a shorter period of 
 parliaments. 3 
 
 When Count Villele, in 1824, was desirous of diminishing 
 the liberal spirit of the French charter, he introduced and 
 carried a septennial bill, which was, however, abolished in 1830 
 by the " July revolution." Parliaments for too short a period 
 would lead to a discontinuous action of government, and un- 
 settle instead of settling ; hence they would be as much 
 against liberty as too long ones. In America, two years have 
 become a pretty generally adopted time for the duration of 
 legislatures. It is a remarkable fact that the people in 
 America feel so perfectly safe from attacks of the executive 
 that, in several states, where the constitutions have been 
 revised, a fundamental law has been enacted that the legis- 
 lature shall not meet oftener than every two years. This is 
 to avoid expense and over-legislation. The general principle 
 remains true that "parliaments ought to be held frequently," 
 as the British Declaration of Rights and Liberties ordains it. 
 The Constitution of the United States makes the meeting and 
 dissolution of congress entirely independent of the executive, 
 and enacts that congress shall meet at least once in every 
 
 1 [For the triennial bill of the Long Parliament, Feb. 16, 1641, and its repeal 
 in 1664, but with the provision continued that parliaments should not be inter- 
 mitted for more than three years, see Hallam, ii. pp. 131, 447. The govern- 
 ment could not be carried on with an annual session of parliament. Nothing 
 kept the estates on the continent from a fit development so much as frequent and 
 long intermissions of their sittings.] 
 
 3 Volume ii. page 174, of Correspondence of William Pitt, Earl of Chatham. 
 
 3 I have given a sufficiently long account of the Septennial Bill, under this 
 head, in the Encyclopaedia Americana.
 
 lS2 ON CIVIL LIBERTY 
 
 year, on the first Monday in December, and that the house 
 of representatives shall be entirely renewed every second 
 year. 
 
 As to the irresponsibility of members for their remarks in 
 parliament, the Declaration of Rights enacts " that the freedom 
 of speech, and debates or proceedings in parliament, ought not 
 to be impeached or questioned in any court or place out of 
 parliament." This was adopted by the framers of our con- 
 stitution, in the words that " for any speech or debate in either 
 house, they [senators and representatives] shall not be ques- 
 tioned in any other place." x 
 
 32. A farther and peculiar protection is granted to the 
 members of the legislature, both in the United States and in 
 England, by protecting them against arrest during session, ex- 
 cept for certain specified crimes. The English house of com- 
 mons " for the first time took upon themselves to avenge their 
 own injury, in I543," 2 when they ordered George Ferrers, a 
 burgess who had been arrested in going to parliament, to be 
 released, and carried their point. "But the first legislative 
 recognition of the privilege was under James I." 3 The Con- 
 stitution of the United States enacts that senators and repre- 
 sentatives shall "in all cases, except treason, felony, and 
 breach of the peace, be privileged from arrest during their 
 attendance at the session of their respective houses, and in 
 going to and returning from the same." 
 
 1 Free discussion on all things that appear important to the representatives is 
 a right which was obtained after hard struggles, and only in comparatively recent 
 times. Elizabeth repeatedly warned the commons, in no gentle terms, not to 
 meddle with high matters of state, which they could not understand. James I. 
 and Charles I. did the same. 
 
 A similar spirit is now visible on the continent of Europe in unfree or half-free 
 countries. In the bed of justice, held in 1602, Louis XIV., then fourteen years 
 old, forbade his parliament [which, however, was properly a -judicial body] to 
 deliberate on government and finance or upon the conduct of the ministers of 
 his choice, and forbade its members to assume too sumptuous habits in the 
 palaces of the great. Chevenix, on Nat. Charact., vol. ii. p. 510. 
 
 Hallam, Hist, of English Constitution, 5th edit., vol. i. p. 268. 
 
 3 Ibidem, vol. i. p. 303.
 
 AND SELF-GOVERNMENT. 
 
 33. It is farther necessary that every member should possess 
 the initiative, or right to propose any measure or resolution. 
 This is universally acknowledged and established where Angli- 
 can liberty exists, not by enactment, but by absence of prohibi- 
 tion, and as arising out of the character of a member of the 
 legislature itself. In most countries not under the aegis of 
 Anglican liberty, this right of the initiative has been denied the 
 members, and government, that is, the executive, has reserved 
 it to itself. So has the so-called legislative corps of the 
 present French empire no initiative. Napoleon III. took it 
 to himself exclusively, immediately after the coup d'etat. 
 The French legislative corps has indeed not even the privi- 
 lege of amendment ; it has not the right of voting on the 
 ministerial estimates, except on the whole estimate of one 
 ministry at once. 1 In some countries, as in France under the 
 charter of the July revolution, the initiative is vested in the 
 houses and in government ; that is to say, the government, as 
 government, can propose a measure through a minister, who 
 is not a member of the house. In England no bill can be 
 proposed by the executive as such, but, as every cabinet minis- 
 ter is either a peer or must contrive to be elected into the 
 commons, the ministers have of course the right of the initia- 
 tive as members of their respective houses. The Constitution 
 of the United States prohibits any officer of the United States 
 from being a member of either house, and the law does not 
 allow the members of the administration a seat and the right 
 to speak in the houses. Some think that a law to that effect 
 ought to be passed. The representatives of our territories are 
 in this position ; they have a seat in the house of representa- 
 tives, and may speak, but have no vote. A minister had the 
 right to speak in either house, under the former French char- 
 ters, in his capacity of cabinet minister, whether he was a 
 member of the house or not. Whenever the executive of the 
 United States is desirous to have a law passed, the bill must 
 
 * Why, indeed, it is called legislative corps does not appear. Legislative 
 corpse would be intelligible.
 
 j<? 4 ON CIVIL LIBERTY 
 
 be proposed by some triend of the administration who is a 
 member of one or the other house. 
 
 It has been mentioned already that the initiative of money 
 bills belongs exclusively to the popular branch of the legis- 
 lature, both in the United States and in England, by the con- 
 stitution in the one, and by ancient usage, which has become 
 a fundamental principle, in the other.
 
 AND SELF-GOVERNMENT. 185 
 
 CHAPTER XVII. 
 
 PARLIAMENTARY LAW AND USAGE. THE SPEAKER. TWO 
 HOUSES. THE VETO. 
 
 34. IT is not only necessary that the legislature be the sole 
 judge of the right each member may have to his seat, but 
 that the whole internal management and the rules of proceed- 
 ing with the business belong to itself. It is indispensable that 
 the legislature possess that power and those privileges which 
 are necessary to protect itself and its own dignity, taking 
 care, however, that this power may not, in turn, become an 
 aggressive one. 
 
 In this respect are peculiarly important the presiding officer 
 of the popular branch, or speaker, the parliamentary law, and 
 the rules of the houses. 
 
 The speaker of the English commons was in former times 
 very dependent on the crown. Since the revolution of 1688 
 his election may be said to have become wholly independent. 
 It is true that the form of obtaining the consent of the mon- 
 arch is still gone through, but it is a form only, and a change 
 of the administration would unquestionably take place were 
 the ministers to advise the crown to withhold its consent. 
 
 Were the refusal insisted on, disturbances would doubtless 
 follow, which would end in a positive declaration and distinct 
 acknowledgment on all hands that the choice of the speaker 
 "belongs, and of right ought to belong," to the house of com- 
 mons. There is no danger on that score in England, so long 
 as a parliamentary government exists there at all. The' 
 growth of the commons' independence in this respect is as. 
 interesting a study as it is historically to trace step by step 
 any other expanding branch of British liberty. 
 
 The Constitution of the United States says that " the house
 
 !86 ON CIVIL LIBERTY 
 
 of representatives shall choose their speaker and other offi- 
 cers," and, so chosen, he is speaker, without any other 
 sanction. 
 
 The charter granted by Louis XVIII. of France pre- 
 scribed that " the president of the chamber of deputies is 
 nominated by the king from a list of five members presented 
 by the chamber." This was altered by the revolution of 
 1830, and the charter then adopted decreed that "the presi- 
 dent of the chamber of deputies is to be elected by the 
 chamber itself at the opening of each session." It need not 
 be added that, according to the " constitution of the empire," 
 the emperor of the French simply appoints the president of 
 the " legislative corps." In all the states of the Union the 
 speakers are within the exclusive appointment of the houses 
 In the British colonial legislatures the speaker must be con- 
 firmed by the governor, but, as was observed of the speaker of 
 the commons,. if consent were refused it would be a case of 
 disagreement between the administration and the legislature, 
 which must be remedied either by a new administration or a 
 new house that is, by new elections. 
 
 The presiding officer of the upper house is not made thus 
 dependent upon it. In England, the chief officer of the law 
 the lord chancellor or keeper of the seals, 1 presides over the 
 house of peers. There seems to be a growing desire in Eng- 
 
 1 A keeper of the seals, whom usage does not require to be a peer, is now ap- 
 pointed as the chief officer of the law, only when, for some reason or other, no 
 lord chancellor is appointed. The keeper of the seals, nevertheless, presides in 
 the house of lords, or " sits on the woolsack." The chancellor is now always 
 made a peer if he is not already a member of the house of lords ; and he is always 
 a member of the cabinet. This mixture of a judicial and political character is 
 inadmissible according to American views; yet it ought to be remembered, as an 
 honorable fact, that no complaint of partiality has been made in modern times 
 against any lord chancellor in his judicial capacity, although he is so deeply 
 mixed up with politics. Lord Eldon was probably as uncompromising, and per- 
 haps as bigoted, a politician as has ever been connected with public affairs, but I 
 am not aware that any suspicion has existed on this ground against his judicial 
 impartiality. There is at present a traditional fund of uncompromising judicial 
 rectitude in England which has never been so great at any other period of her 
 own history, or excelled in any other country.
 
 AND SELF-GOVERNMENT. 1 87 
 
 land wholly to separate the lord chancellor from the cabinet 
 and politics. At present he is always a member of the ad- 
 ministration, and, of course, leaves his office when the cabinet 
 to which he belongs goes out. It will be an interesting 
 subject to determine who shall preside over the lords, if the 
 change thus desired by many should take place. 
 
 The United States senate is presided over by the Vice- 
 President of the United States, who is elected by the Union 
 at large, as the President is. It must be observed, however, 
 that the chancellor on the woolsack, and the Vice-President 
 of the United States as president of the senate, exercise no 
 influence over their respective legislative bodies, that can 
 in any degree be compared to that of the speakers over their 
 houses. The American senate and the British house of lords 
 allow but very little power, in regulating and appointing, to 
 the presiding officer, who interferes only when called upon to 
 do so. 1 
 
 The power of the houses of parliament over persons that 
 are not members, or the privileges of parliament, or of either 
 house, so far as they affect the liberty of individuals and the 
 support of their own power, constitute what is called parlia- 
 mentary law an important branch of the common law. L'ike 
 all common law, ft consists in usage and decisions ; there are 
 doubtful points as well as many firmly settled ones. It must 
 be learned from works such as Hatsell's Precedents, etc., 
 Townsend's History of the House of Commons, and others. 
 
 As a general remark, it may be stated that, with the rise of 
 liberty in England, the jealousy of the house of commons also 
 
 1 This difference in the position of the presiding officers appears, among other 
 things, from the fact that the members of the house of lords address " My lords," 
 and not the chancellor, while usage and positive rules demand that the member 
 of the other house who wishes to speak shall address " Mr. Speaker," and 
 receive " the floor" from him. The chancellor would only give the floor if ap- 
 pealed to in case of doubt. In the United States senate, the president of the 
 senate is, indeed, directly addressed, although occasionally " senators" have been 
 addressed in the course of a speech. That body, however, appoints its commit- 
 iees, and leaves little influence to the presiding officer, who, it will be remem- 
 bered, is not a member of the senate, and has a casting vote only.
 
 jgS ON CIVIL LIBERTY 
 
 rose, and continued during the period of its struggle with the 
 executive ; and that, as the power of the house has become 
 confirmed and acknowledged, the jealousy of the house has 
 naturally abated. I very much doubt whether at any earlier 
 period the committee of privileges would have made the same 
 declaration which it made after Lord Cochrane, in 1815, had 
 been arrested by the marshal of the king's bench, while sitting 
 on the privy councillor's bench in the house of commons, 
 prayers not yet having been read. The committee declared 
 that "the privileges of parliament did not appear to have 
 been violated so as to call for the interposition of the house." 1 
 % The two American houses naturally claim the " power of 
 sending for persons and papers and of examining upon oath," 
 and they have also exercised the power of punishing disturb- 
 ances of their debates by intruders, and libellers of members 
 or whole houses. But no power to do so is explicitly conferred 
 by the Constitution of the United States. 2 
 
 Of far greater importance is the body of the rules of 
 procedure and that usage which has gradually grown up as a 
 part of common law, by which the dispatch of parliamentary 
 business aad its protection against impassioned hurry are 
 
 1 I would refer the general reader, on this and kindred subjects, to the article 
 Parliament, in the Political Dictionary, London, 1846. 
 
 3 This is not the place for discussing the doubts which some have entertained 
 regarding the power of the houses of congress to do that which is possessed by 
 every court of justice, though the lowest, namely, to arrest and punish disturbers. 
 The doubt is simply on the ground that it has not been conferred. But there are 
 certain rights which flow directly from the existence of a thing itself, and some 
 that are the necessary consequence of action and life, and without which neither 
 can manifest itself. A legislative body without the power of sending for persons 
 to be examined by committees would be forced to legislate, in many cases, in 
 the dark. It is true that legislative bodies have become tyrannical ; but it must 
 not be forgotten that wherever, in the wide range of history, any struggle for 
 liberty has taken place, we find that a struggle to establish the habeas corpus 
 principle has always accompanied it, and that this struggle for securing personal 
 liberty is always against the executive. I do not remember a single case of an 
 established and separate guarantee of personal liberty against parliamentary 
 violence. 
 
 Tne reader is referred to Mr. Justice Story's Comm. on the Const. U. S., chap, 
 xii., and to Chancellor Kent's Commentaries.
 
 AND SELF-GOVERNMENT. 189 
 
 secured, and by which the order and freedom of debate, fair- 
 ness, and an organic gestation of the laws are intended to be 
 obtained. Parliamentary practice, or rules of proceeding and 
 debate, such as have been developed by England, independ- 
 ently of the executive, and, like the rest of the common law, 
 been carried over to our soil, form a most essential part of our 
 Anglican constitutional, parliamentary liberty. This practice, 
 as we will call it for brevity's sake, is not only one of the 
 highest importance for legislatures themselves, but serves as 
 an element of freedom all over the country, in every meeting, 
 small or large, primary or not. It is an important guarantee 
 of liberty, because it serves like the well-worn and banked 
 bed of a river, which receives the waters that, without it, 
 would either lose their force and use by spreading over plains, 
 or become ruinous by their impetuosity when meeting with 
 obstruction. Every other nation of antiquity and modern 
 times has severely suffered from not having a parliamentary 
 practice such as the Anglican race possesses, and no one 
 familiar with history and the many attempts to establish liberty 
 on the continent of Europe or in South America can help 
 observing how essentially important that practice ts to us, and 
 how it serves to ease liberty, if we may say so. 1 
 
 1 The ancients had no parliamentary law and usage. The Greek agora could 
 of course not have it. Mass meetings cannot debate ; they can only ratify or 
 refuse proposed measures. [But there was debate on the probouleumata of the 
 senate at Athens, which might be added to or modified as well as rejected, and 
 free discussion took place on other subjects! The laws of order also were not 
 bad.] It is the same in the democratic Swiss cantons, where the people meet in 
 primary assemblage. (See Political Ethics.) In the Roman senate there was no 
 debating proper. There was rather a succession of set speeches; and I may be 
 permitted to state here that in debating oratory, in replying on the spot vigorously 
 and clearly to an adversary, the best orators of the last and present centuries are 
 greatly superior to the ancients. 
 
 Since the publication of the first edition, an American senator, Mr. Edward 
 Everett, has added his testimony to the vital importance of Anglican parlia- 
 mentary rules. On December 8, 1853, when resolutions with reference to the 
 late Vice-President of the United States, (and, therefore, presiding officer of the 
 senate,) W. Rufus King, were under discussion, Mr. Everett observed, in the 
 course of his remarks : 
 
 " In fact, sir, he was highly endowed with what Cicero beautifully commends
 
 igo 
 
 ON CIVIL LIBERTY 
 
 It is not a French " reglement," prescribed by the executive 
 with but little room for self-action ; nor does it permit legis- 
 lative disorder or internal anarchy. It has been often observed 
 that the want of parliamentary practice created infinite mis- 
 chief in the first French revolution. Dumont mentions that 
 there was not even always a distinct proposition before the 
 convention ; and the stormiest sessions, which frequently ended 
 by the worst decrees the decrets d' acclamation were those 
 in which there were speeches and harangues without proposi- 
 tions. Sir Samuel Romilly 1 says: " If one single rule had 
 been adopted, namely, that every motion should be reduced 
 into writing in the form of a proposition before it was put from 
 the chair, instead of proceeding, as was their constant course, 
 by first resolving the principle, as they called it, (decreter le 
 principe,) and leaving the drawing up of what they had so 
 resolved (or, as they called it, la redaction) for a subsequent 
 operation, it is astonishing how great an influence it would 
 have had in their debates and on their measures." 2 
 
 The great importance of the subject and the general supe- 
 riority of the English parliamentary practice have been ac- 
 knowledged by French writers, practically acquainted with it ; 
 especially by the author of a work the full title of which I shall 
 give in a note, because it shows its interesting contents. 3 
 
 as the boni Senatoris prudentia, the ' wisdom of a good senator ;' and in his 
 accurate study and ready application of the rules of parliamentary law he ren- 
 dered a service to the country, not perhaps of the most brilliant kind, but 
 assuredly of no secondary importance. There is nothing which so distinguishes 
 the great national race to which we belong, as its aptitude for government by 
 deliberative assemblies ; its willingness, while it asserts the largest liberty of par- 
 liamentary right, to respect what the senator from Virginia, in another connection, 
 has called the self-imposed restrictions of parliamentary order ; and I do not 
 think it an exaggeration to say that there is no trait in their character which has 
 proved more conducive to the dispatch of the public business, to the freedom of 
 debate, to the honor of the country I will say even which has done more to 
 establish and perpetuate constitutional liberty." 
 
 1 He was himself of unmixed French descent, as Lord Brougham observes, 
 although his family had resided for generations in England. 
 
 Memoirs of the Life of Sir Samuel Romilly, etc., 2d edit., vol. i. p. 103. 
 
 3 A Treatise on the Formation of Laws, (Trait6 de la Confection des Lois,)
 
 AND SELF-GOVERNMENT. Io/ i 
 
 Foreigners frequently express their surprise at the ease with 
 which, in our country, meetings, societies, bodies, communi- 
 ties, and even territories, 1 constitute and organize themselves, 
 and transact business without violence, and without any force 
 in the hands of the majority to coerce the minority, or in the 
 hands of the minority to protect itself against the majority. 
 One of the chief reasons of this phenomenon is the universal 
 familiarity of our people with parliamentary practice, which 
 may be observed on board of any steamboat where a number 
 of persons, entire strangers to one another, proceed to pass 
 some resolution or other, and which they learn even as chil- 
 dren. There are few schools the members of which have 
 not formed some debating society, where parliamentary forms 
 are observed, and where the rigorously enforced fine im- 
 presses upon the boy of ten or eleven years the rules which 
 the man of forty follows as naturally as he bows to an ac- 
 quaintance. 2 
 
 The Constitution of the United States says that " each house 
 
 or an Inquiry into the Rules (Reglements) of the French Legislative Assemblies, 
 compared with the Parliamentary Forms of England, the United States, Belgium, 
 Spain, Switzerland, etc., by Ph. Vallette, Advocate, etc., and Secretary of the 
 Presidency of the Chamber of Deputies, and by Benat Saint-Martin, Advocate, 
 etc., 2d edit., Paris, 1839; with the words of Mr. Dupin, who long presided over 
 the chamber, as motto : " The excellence of laws depends especially upon the 
 care taken in the elaboration of the bills. The drawing up of laws constitutes a 
 large share of their efficiency." 
 
 1 As a striking instance may be mentioned the whole procedure of the people 
 of Oregon, when congress omitted to organize the territory, and ultimately 
 " Organic Laws" were adopted " until such time as the United States of America 
 extend their jurisdiction over us." They were printed by the senate, May 21, 
 1846, and, although consisting of a few pages only, form a document of great 
 interest to the political philosopher in more than one respect. A French states- 
 man of mark wrote to the author, years ago, from Algeria : " I wish your way 
 of organizing distant territories, or of allowing them to organize themselves, 
 could be transplanted to this colony." Justice requires to add now (1859) that' 
 our Kansas troubles had not then occurred. 
 
 2 An excellent book of its kind is the small work of Judge L. S. Gushing, 
 Rules of Proceeding and Debate in Deliberative Assemblies, Boston, Mass. It 
 has gone through many editions. The same author published in 1855, Law and 
 Practice of Legislative Assemblies in the United States.
 
 192 
 
 ON CIVIL LIBERTY 
 
 may determine the rules of its proceedings, punish its members 
 for disorderly behavior, and, with the concurrence of two-thirds, 
 expel a member." If, however, the parliamentary practice had 
 not already been spread over the colonies, like the common 
 law itself, this power, justly and necessarily conferred on each 
 house, would have been of comparatively little advantage. 
 Parliamentary practice that ars obstetrix animarum, as Mr. 
 Bentham calls it, although it ought to be called the obstetric 
 art of united bodies of men, for in this lies the difficulty is 
 not a thing to be invented, nor to be decreed, but must be 
 developed. 1 
 
 It is not only a guarantee of the free share of every repre- 
 sentative in the legislation of his country, but it is also, as has 
 been indicated, a guarantee, for the people, that its legislature 
 remain in its proper bounds, and that the laws be not decreed 
 as the effects of mere impulse or passion. 
 
 It is a psychological fact that whatever interests or excites 
 a number of separate individuals will interest or excite them 
 still more when brought together. They countenance one 
 another ; and that psychical reduplication which, for bad or 
 good, produces so great an effect wherever individuals of the 
 same mind or acting under the same impulse come in close 
 contact, must be guarded against in representative assemblies. 
 
 1 Mr. Jeremy Bentham's Tactique des Assemblies Legislatives, edited by E. 
 Dumont, Geneva, 1816, is no pure. invention, and could have been written by an 
 Englishman or American only. 
 
 See also Mr. Jefferson's Manual of Parliamentary Practice for the use of the 
 senate of the United States. 
 
 There is a very curious book, Parliamentary Logic, etc., by Right Hon. W. 
 Gerard Hamilton, (called in his time Single-Speech Hamilton,) with Considera- 
 tions on the Corn Laws, by Dr. Samuel Johnson, London, 1808. The copy 
 which I own belonged to Dr. Thomas Cooper. That distinguished man has 
 written the following remark on the fly-leaf: " This book contains the theory of 
 deception in parliamentary debate ; how to get the better of your opponent, and 
 how to make the worse appear the better reason. It is the well-written work of a 
 hackneyed politician. . . . The counterpart to it is the admirable tract of Mr. 
 Jeremy Bentham on Parliamentary Logic, the book of Fallacies. No politician 
 ought to be ignorant of the one book or the other. They are -well worth (not 
 perusing, but) studying. T
 
 AND SELF-GOVERNMENT. 
 
 193 
 
 Parliamentary practice, as we possess it;, is as efficient a means 
 to calm and to regulate these excitements, as the laws of evi- 
 dence and the procedure of courts are in tempering exciting 
 trials and impassioned pleadings. 
 
 These remarks may fitly conclude with the words of Judge 
 Story, which he uttered when he left the speaker's chair of the 
 Massachusetts house of representatives, to take his seat on 
 the bench of the supreme court of the United States. They 
 ought to be remembered by every one on both sides of the 
 Atlantic that prizes practical and practicable liberty : 
 
 " Cheered, indeed, by your kindness, I have been able, in 
 controversies marked with peculiar political zeal, to appreciate 
 the excellence of those established rules which invite liberal 
 discussions, but define the boundary of right and check the 
 intemperance of debate. I have learned that the rigid enforce- 
 ment of these rules, while it enables the majority to mature 
 their measures with wisdom and dignity, is the only barrier of 
 the rights of the minority against the encroachments of power 
 and ambition. If anything can restrain the impetuosity of 
 triumph, or the vehemence of opposition if anything can 
 awaken the glow of oratory, and the spirit of virtue if any- 
 thing can preserve the courtesy of generous minds amidst the 
 rivalries and jealousies of contending parties, it will be found 
 in the protection with which these rules encircle and shield 
 every member of the legislative body. Permit me, therefore, 
 with the sincerity of a parting friend, earnestly to recom- 
 mend to your attention a steady adherence to these venerable 
 usages." 1 
 
 35. If parliamentary practice is a guarantee of liberty by 
 excluding, in a high degree, impassioned legislation, and aiding 
 in embodying, in the law, the collective mind of the legisla- 
 ture, the principle of two houses, or the bicameral system, 
 as Mr. Bentham has called it, is another and no less efficient 
 guarantee. 
 
 Practical knowledge alone can show the whole advantage of 
 
 1 Life and Letters of Joseph Story, Boston, Mass., 1851, vol. i. p. 203. 
 
 13
 
 194 
 
 ON CIVIL LIBERTY 
 
 this Anglican principle, according to which we equally discard 
 the idea of three and four estates, and of one house only. 
 Both are equally and essentially un-Anglican. Although, 
 however, practice alone can show the whole advantage that 
 may be derived from the system of two houses, it must appear, 
 nevertheless, as a striking fact to every inquirer in distant 
 countries, that not only has the system of two houses his- 
 torically developed itself in England, but it has been adopted 
 by the United States, and all the states, as well as by the 
 single territories, and by all the British colonies, where 
 local legislatures exist. We may mention even the African 
 state of Liberia. The bicameral system accompanies the 
 Anglican race like the common law, 1 and everywhere it suc- 
 ceeds ; while no one attempt at introducing the unicameral 
 system, in larger countries, has so far succeeded. France, 
 Spain, Naples, Portugal, in all these countries it has been 
 tried, and everywhere it has failed. The idea of one house 
 flows from that of the unity of power, so popular in France. 
 The bicameral system is called by the advocates of democratic 
 unity of power an aristocratic institution. This is an utter 
 mistake. In reality it is a truly popular principle to insist on 
 the protection of a legislature divided into two houses ; and as 
 to the historical view of the question, it is sufficient to state 
 that two houses have been insisted upon and rejected by all 
 parties, aristocratic and popular, according to the circum- 
 stances of the times. In this the principle resembles the 
 instruction of the representative by his constituents. This 
 too has been insisted on and rejected by all parties at different 
 periods. 
 
 Attempts were made in our earlier times to establish a single 
 house, for instance in Pennsylvania, 2 but the practical and 
 
 1 No instance illustrating this fact is perhaps more striking than the meeting 
 of settlers in Oregon territory, when congress had neglected to provide for them, 
 as has been mentioned in a previous note. The people met for the purpose of 
 establishing some legislature for themselves, and at once adopted the principle 
 of two houses. It is to us as natural as the jury. 
 
 It was at the period when Dr. Franklin asked why people would put horses
 
 AND SELF-GOVERNMENT. 
 
 195 
 
 sober sense of the Anglican people led them back to the two 
 houses. The danger was perhaps not trifling. " During the 
 American revolution, there grew up a party in every state 
 who, ignorant of this great political truth, opposed the notion 
 that our state constitutions should be conformed to the English 
 model. No less a person than Dr. Franklin was of this party. 
 And through his influence, in a great measure, Pennsylvania 
 adopted a government of a single legislative assembly. When 
 he went to Paris, he took with him the different American 
 constitutions. Mr. Turgot, to whom he showed them, dis- 
 regarding, as Dr. Franklin had done, the voice of history, 
 approved that of Pennsylvania, and condemned those framed 
 after the English constitution. In a letter to Dr. Price of 
 England, Mr. Turgot says : ' I am not satisfied with the 
 constitutions which have hitherto been formed for the different 
 states of America. By most of them, the customs of England 
 are imitated without any particular motive. Instead of col- 
 lecting all authority into one centre, that of the nation, they 
 established different bodies, a body of representatives, a council, 
 and a governor, because there is in England, a house of 
 commons, a house of lords, and a king. They endeavored to 
 balance three different powers, as if this equilibrium, which in 
 England may be a necessary check to the enormous influence 
 of royalty, could be of any use in republics founded upon the 
 equality of all the citizens, and as if establishing different 
 orders of men was not a source of divisions and disputes.' 
 This notion of a single national assembly began to gain ground 
 so rapidly in America, that the elder Adams, in order to 
 counteract it, in the beginning of the year 1787 published his 
 Defence of the American Constitutions. In the September 
 of the same year, the national convention changed the federal 
 
 not only before, but also behind the wagon, pulling in opposite directions. The 
 true answer would have been, that whenever a vehicle is pulled down an inclined 
 plane we actually do employ an impeding force, to prevent its being dashed to 
 pieces. [Georgia, also, and the Confederation itself, had but one chamber. 
 Franklin wished (Curtis's Hist., i. 435) to introduce the same system into the 
 Constitution in the Convention of 1787.]
 
 r9 6 ON CIVIL LIBERTY 
 
 constitution from the single assembly of the confederacy, to a 
 government formed after the English model. Pennsylvania 
 changed her government also ; and all the states and territo- 
 ries of this vast confederacy have now governments framed on 
 the plan of the English." 1 
 
 Mr. de Lamartine pronounced the true reason why we 
 ought to hold fast to the bicameral system, although he spoke 
 against it. When in the last French constituent assembly 
 Mr. Odillon Barrot had urged with ability the adoption of two 
 houses, Mr. de Lamartine replied that the great principle of 
 unity (he meant, no doubt, of centralization) required the 
 establishment of one house, and that, unless the legislature 
 was vested in one house alone, it would be too difficult to 
 make it pass over from a simple legislature to an assembly 
 with dictatorial power. This is precisely the danger to be 
 avoided. 2 Parliamentary practice and the two-house system 
 
 1 I have quoted this long passage from the First Report of the Commissioners, 
 appointed by the General Assembly of Maryland, to revise, simplify, and abridge 
 the Rules of Practice, Pleadings, etc. in the courts of the State, Frederic City, 
 Md., 1855, a work important also with reference to the subject of codification. 
 This first report is believed to have been written by Mr. Samuel Tyler, one of 
 Ihe commissioners, a gentleman alike distinguished as advocate and writer on 
 philosophy. His last work, on the Progress of Philosophy in the Past and the 
 Future, entitles him to a place among the profoundest writers on philosophy. 
 His friend, the late Sir William Hamilton, acknowledged his great merits. 
 
 The reader is referred to De Tocqueville's Ancien Regime for numerous pas- 
 sages showing how general the error of Turgot was in France, and how sincerely 
 the Anglican diversity, necessarily accompanying self-government, was dis- 
 relished by the French, profoundly worshipping, not only unity of power, but 
 also uniformity of action. 
 
 a The speech was delivered on the 2jth September, 1848. Mr. de Lamartine 
 speaks of a division of the sovereignty into two parts, by two houses ! Poor 
 sovereignty ! What strange things have been imagined under that word ! If the 
 reader can find access to that speech, I advise him to peruse it, for it is curious 
 from beginning to end, especially as coming from a person who for a time was 
 one of the rulers of France. His exact words are these. Speaking of domestic 
 dangers, he says: "To such a danger you musbnot think of opposing two or 
 three powers. That which ought to oppose it is a direct dictatorship, uniting 
 within its hand all the powers of the state." He adds more of the kind, but 
 this extract will suffice. 
 
 Mr. Lamartine committed another grave error. He said that two houses in
 
 AND SELF-GOVERNMENT. 
 
 197 
 
 are subjects of such magnitude that it is impossible hero, 
 where they are mentioned as guarantees, to enter upon details; 
 but I cannot dismiss them without recommending them to the 
 serious and repeated attention of every one who may have 
 looked upon them as accidents rather than essentials. The 
 French acknowledge as the first thing to be obtained, power, 
 force ; and their philosophical writers, such as Rousseau, seek, 
 almost exclusively, a philosophical or legitimate source of that 
 power. Hence their view of universal suffrage, and the power, 
 be it that of an all-powerful Caesar, or of a concentrated single 
 chamber, all-providing and all-penetrating, when once estab- 
 lished, arising out of it. Hence the prosecution of Mr. de 
 Montalembert, as having attacked the legitimate power of the 
 emperor, when he had written against the French view of 
 universal suffrage. The Anglicans seek, first of all, for free- 
 dom, for self-government ; and then for guarantees of these. 
 
 Experience has proved to the English and Americans that 
 to have a measure discussed entirely de novo by a different 
 set of men, with equal powers, and combined upon a different 
 basis that this, and the three readings, with notice and leave 
 of bringing in, and the going into committee before the third 
 reading, have a wonderful effect in sifting, moderating, dis- 
 covering, and in enlightening the country. Take the history 
 of any great act of parliament or congress, and test what has 
 
 the United States were natural, because we are a confederacy, and the senate 
 was established to represent the states as such. But he seems not to have been 
 aware that all our states, in their unitary character, have established the same 
 system, and that it is as natural to the men on the shores of the Pacific as to those 
 in Maine, or to the settlers on the Swan River. 
 
 I ought in justice to add, however, that in 1850 Mr. de Lamartine said, in his 
 Counsellor of the People, that he was now for two houses, and that he had been 
 for one house in 1848 because he wanted a dictatorial power ; and, added he, La 
 dictature ne se divise pas. But how can a dictatorship be called undivided, 
 when it belongs to a house composed of eight hundred members? And must 
 not, in the nature of things, a division of execution always take place ? It is 
 surprising that something temporarily desired for a dictatorship should have been 
 insisted upon by Mr. Lamartine with so much vehemence as an integral part of 
 the fundamental law; or was peradventure the constitution of 1848 intended not 
 to last ?
 
 198 
 
 ON CIVIL LIBERTY 
 
 been asserted. This effect of two houses, and the rules of 
 procedure just mentioned, are indeed like so many pillars to 
 the fabric of liberty. 
 
 The question has been asked, Why should there be two 
 chambers ? What philosophical principle is there enshrined 
 in this number ? All we would answer is, that it has been 
 found that more than one house is necessary, and more than 
 two is too many. Three and even four houses belong to the 
 medieval estates, and to the deputative, not to the modern 
 national representative, system. The mischief of three houses 
 is as great as that of three parties. The weakest becomes the 
 deciding one by a casting vote. And one house only belongs 
 to centralization. It is incompatible with a government of a 
 co-operative or concurrent character, which we hold to be the 
 government of freedom. 
 
 I cannot agree with the opinion expressed by Lord Broug- 
 ham in his work on Political Philosophy, that it is essentially 
 necessary that the composition of the two houses should be 
 based upon entirely different principles, meaning that the one 
 ought not to be elective, and that it ought to represent entirely 
 different interests. A thorough discussion of this subject 
 belongs to the province of politics proper, but I ask the reader's 
 indulgence for a few moments. 
 
 If the two houses were elected for the same period, and by 
 the same electors, they would amount in practice to little more 
 than two committees of the same house ; but we want two 
 bona fide different houses, representing the impulse as well as 
 the continuity, the progress and the conservatism, the onward 
 zeal and the retentive element, innovation and adhesion, which 
 must ever form integral elements of all civilization. One house, 
 therefore, ought to be large ; the other, comparatively small, 
 and elected or appointed for a longer time. Now, as to the 
 right of sitting in the smaller or upper house, of longer dura- 
 tion, there are different modes of bestowing it. It may be 
 hereditary, as the English peers proper are hereditary ; or the 
 members may have seats for life and in their personal capa- 
 city, as the French peers had under the charter. This is prob-
 
 AND SELF-GOVERNMENT. 
 
 199 
 
 ably the worst of all these methods. It gives great power to 
 the crown, and keeps the house of peers in a state of sub- 
 mission, which hereditary peers generally do not know. Or, 
 again, the members may be elected for life by a class, as 
 Scottish representative peers are elected by the Scottish nobility 
 for the British house of peers ; or the members may be simi- 
 larly elected for one parliament alone, as the Irish peers are 
 that sit in parliament ; or the people may elect senators for 
 life, or for a shorter time, as the senators of Belgium and all 
 the senators in our states are ; or, lastly, the members of the 
 house we are speaking of may be elected, not by the people 
 in their primary capacity, but by different bodies, such as our 
 senators of congress are. The senators of the United States 
 are elected by the states, as states ; consequently an equal 
 number of representing senators is given to each state, irre- 
 spective of its size or population. 
 
 It would be very difficult to pronounce the one or the other 
 principle absolutely the best, without reference to circum- 
 stances, and we are sure that Lord Brougham would be the 
 last man that would maintain the absolute necessity of having 
 a hereditary peerage wherever two houses exist. As to the 
 different classes, or interests, however, which ought to be 
 represented, I would only state that the idea belongs to the 
 middle ages, and, if adopted, would lead at once to several 
 estates again. It is hostile to the idea of two houses only. 
 Why represent the different interests of the nation in two 
 houses ? Are there not more broad, national interests ? It 
 would be difficult indeed to understand why the land-owner 
 in present England should have his house, and not the manu- 
 facturer, the merchant, the wide educational interest, the 
 sanitary interest, the artisan, the literary interest, with that of 
 jpurnalism. The excellence of the bicameral system in our 
 representative (and not deputative) government does not rest 
 on the representation of different interests, but on the different 
 modes of composing the houses, and their different duration. 1 
 
 1 [Compare the defence of representation and protection of interests by Mr. 
 Calhoun, Works, i., beginning.]
 
 200 ON CIVIL LIBERTY 
 
 On the other hand, we may observe that when, in 1848, the 
 French established a legislature of one house, they found 
 themselves obliged to establish, by the constitution, a council 
 of state, as the Athenians established the council (boule) to aid 
 the general assembly (ecclesia). The French know, instinct- 
 ively if not otherwise, that a single house of French repre- 
 sentatives would be exposed to the rashest legislation. The 
 council of state, however, is not public, the members are ap- 
 pointed by the executive ; in one word, what was gained ? 
 Much indeed was lost. 
 
 Whether the representative is the representative of his 
 immediate constituents or of the nation at large, whether he 
 ought to obey instructions sent him by his constituents on 
 these and other subjects connected with them I have treated 
 at great length in my Political Ethics. I shall simply men- 
 tion here the fact that civil liberty distinctly requires the 
 representative to be the representative of his political society 
 at large, and not of his election district. The idea that he 
 merely represents his immediate constituents is an idea which 
 belongs to the middle ages and their deputative system, not 
 to our far nobler representative system. The representative 
 is not a deputy sent with simple powers of attorney, as the 
 deputy of the middle ages was. 1 
 
 36. I hesitate whether I ought to mention the Veto as an 
 Anglican guarantee of liberty. I hold it to be in our political 
 system a check upon the legislature, and therefore a protec- 
 tion of the citizen ; one that can be abused, and probably has 
 been abused ; but everything intrusted to the hands of man 
 may be abused. The question concerns its probable average 
 operation. 
 
 Although the veto is thus acknowledged to be an important 
 part of our polity, it may be said no longer to exist in England. 
 It has been mentioned before, that should parliament pass a 
 bill from which the ministers believe the royal assent ought to 
 
 1 [The same is shown ethically by the consideration that the constituents, if 
 collected, would be bound to regard the general welfare. The representative 
 takes their duties on himself with their power.]
 
 AND SELF-GOVERNMENT. 2OI 
 
 be withheld, they would not, according to the present usage, 
 expose the king to an open disagreement with the lords and 
 commons, but they would resign, upon which an administra- 
 tion would be formed which would agree with parliament ; or 
 parliament would be dissolved, and an " appeal to the country" 
 would be made. 
 
 Yet we have received the veto from England ; and it is all 
 these considerations which make me hesitate, as I said before, 
 to call the veto an Anglican guarantee. 
 
 The use of the veto can become very galling, and at such 
 times we often find the party, whose favorite measure has 
 been vetoed, vehemently attacking the principle itself. It was 
 thus that the whigs in the United States earnestly spoke and 
 wrote against the principle, when General Jackson declined 
 giving his assent to some measures they considered of great 
 importance, and the democrats were loud in favor of the veto 
 power because it had been used by a president of their own 
 party. 
 
 In treating this whole subject, much confusion has arisen 
 from the ill-chosen word veto, after the term used by the 
 Roman tribune. The veto of the Roman tribune and the so- 
 called modern veto are not the same. The tribune could veto 
 indeed. When a law was passed he could wholly or partially 
 stop its operation, by the tribunitial auxilium, the personal 
 prevention of the action of magistrates in particular cases. To 
 this was added, at a later period, the intercessio, by which the 
 tribune could prevent a decree of the senate or a rogation be- 
 fore the comitia from becoming a law. The dispensatory power 
 claimed by the Stuarts would have been the full veto power. 
 The chief of the state in the United States or England, how- 
 ever, has no such power. The law, so soon as it is law, says 
 to every one : Hands off. What we call the veto power is in 
 reality a power of an abnuent character, and ought to have been 
 called the declinative. But this declinative is possessed in a 
 much greater degree by each house against the other. To 
 make a bill a law, the concurrence of three parties is required 
 that of the two houses and the executive, and this concur-
 
 202 ON CIVIL LIBERTY 
 
 rence may be withheld as a matter of course, otherwise it 
 would not be concurrence. 
 
 It is a wise provision in our constitution which directs that 
 a bill not having received the president's approval neverthe- 
 less passes into a law if two-thirds of congress adhere to the 
 bill. Many of our state constitutions do not require the con- 
 currence of the executive. This is not felt in many cases as 
 an evil, because the action of the states is limited ; but in my 
 opinion it would be an evil day when the veto should be taken 
 from the President of the United States. It would be the 
 beginning of a state of things such as we daily observe with 
 our South American neighbors. The American conditional 
 veto is in a great measure a conciliatory principle with us, as 
 the refusal of supplies is of an eminently conciliatory character 
 in the British polity. 1 
 
 The only case in which our executives have a real vetitive 
 power is the case of pardon, and most unfortunately it is 
 used in an alarming degree, against the supremacy of the law 
 and the stability of right both essential to civil liberty. I 
 consider the indiscriminate pardoning, so frequent in many 
 parts of the United States, one of the most hostile things, 
 now at work in our country, to a perfect government of law. 
 In the only case, therefore, in which we have a full veto power, 
 we ought greatly to modify it. 2 
 
 1 [The suspensive veto in Norway, which three successive Storthings by a ma- 
 jority can make of no effect, deserves consideration, as avoiding some of the evils 
 of our qualified veto.] 
 
 a I shall append a paper on pardoning a subject which has become all-im- 
 portant in the United States.
 
 AND SELF-GOVERNMENT. 
 
 203 
 
 CHAPTER XVIII. 
 
 INDEPENDENCE OF THE JUDICIARY. THE LAW JUS, COMMON 
 
 LAW. 
 
 37. ONE of the main stays of civil liberty, and quite as im- 
 portant as the representative principle, is that of which the 
 independence of the judiciary forms a part, and which we shall 
 call the independence or the freedom of the law of jus and 
 justice. 1 It is a great element of civil liberty and part of a 
 real government of law, which in its totality has been developed 
 by the Anglican tribe alone. It is this portion of freemen 
 only, on the face of the earth, which enjoys it in its entirety. 
 
 In the present case I do not take the term law in the sense 
 in which it was used when we treated of the supremacy of the 
 law. I apply it now to everything that may be said to belong 
 to the wide department of justice. I use it in the sense in 
 which the Anglican lawyer takes it when he says that an 
 opinion, or decision, or act, is or is "not law, or good law an 
 adaptation of the word peculiar to the English language. It 
 is not the author's fault that Law must be taken in one and 
 the same essay, in which philosophical accuracy may be ex- 
 pected, in two different meanings. 
 
 The word law has obtained this peculiar meaning in our 
 language, otherwise so discriminating in terms appertaining 
 to politics and public matters, chiefly for two reasons. The 
 first is the serious inconvenience arising from the fact that 
 
 1 The lack of a proper word for jits, in the English language, induced me to 
 use it on a few occasions in the Political Ethics. The Rev. Dr. W. Whewell, 
 some years later, seems to have felt the same want, adopting in his work on the 
 Elements of Morality, including Polity, London, 1845, the word jura/, first used 
 in the Political Ethics, where a note explains why I was compelled to form the 
 word.
 
 204 
 
 ON CIVIL LIBERTY 
 
 our tongue has not two terms for the two very distinct ideas 
 which in Latin are designated by Lex and Jus, in French by 
 Loi and Droit, in German by Gesetz and Recht; the second is 
 the fact, of which every Anglican may be proud, that the 
 English jus has developed itself as an independent organism, 
 and continues to do so with undiminished vitality. It is based 
 upon a common law, acknowledged to be above the crown in 
 England, and to be the broad basis of all our own constitu- 
 tions a body of law and "practice," in the administration 
 of justice, which has never been deadened by the superinduc- 
 tion of a foreign and closed law, as was the case with the 
 common law of those nations that received the civil law in a 
 body as authority for all unsettled cases. The superinduction 
 of the Latin language extinguished, in a manner not wholly 
 dissimilar, the living common languages of many tribes, or 
 dried up the sources of expansive and formative life contained 
 in them. 
 
 The independence of the judges is a term happily of old 
 standing with all political philosophers who have written in 
 our language ; but it will be seen that the independence of the 
 judiciary, by which is meant generally a position of the judge 
 independent of the executive or legislative, and chiefly his 
 appointment for life, or immovability by the executive, and, 
 frequently, the prohibition of a decrease or increase of his 
 salary after his appointment has taken place that this inde- 
 pendence of the judiciary forms but a part of what I have been 
 obliged to call the far more comprehensive Independence of 
 the Law. 1 
 
 The independence of the law, or the freedom of the jus, in 
 the fullest and widest sense, requires a living common law, a 
 
 1 When therefore I published a small work on this subject, during my visit to 
 Germany, in 1848, I called it Die Unabhangigkeit der Justiz oder die Freiheit 
 des Rechts, Heidelberg, 1848. Literally translated, this would be The Inde- 
 pendence of Justice and Freedom of the Law. Justiz in German, however, 
 does not mean the virtue justice, but the administration of justice ; and Recht 
 means, in this connection, jus, not a single jus, but the body of rights and usages, 
 laws and legal practice, of a people.
 
 AND SELF-GOVERNMENT. 
 
 205 
 
 clear division of the judiciary from other powers, the public 
 accusatorial process, the independence of the judge, the trial 
 by jury, and an independent position of the advocate. These 
 subjects will be treated in the order in which they have been 
 enumerated here. 
 
 A living common law is, as has been indicated, like a living 
 common language, like a living common architecture, like a 
 living common literature. It has the principle of its own 
 organic vitality, and of formative as well as assimilative ex- 
 pansion, within itself. It consists in the customs and usages 
 of the people, the decisions which have been made accordingly 
 in the course of administering justice itself, the principles 
 which reason demands and practice applies to ever- vary ing 
 circumstances, and the administration of justice which has 
 developed itself gradually and steadily. It requires, there- 
 fore, self-interpretation or interpretation by the judiciary itself, 
 the principle of the precedent and " practice" acknowledged 
 as of an authoritative character, and not merely winked at ; 
 and, in general, it requires the non-interference of other 
 branches of the government or any dictating power. The 
 Roman law itself consisted of these elements, and was devel- 
 oped in this manner so long as it was a living thing. 
 
 The common law acknowledges statute or enacted law in 
 the broadest sense, but it retains its own vitality even with 
 reference to the lex scripta in this, that it decides by its own 
 organism and upon its own principles on the interpretation of 
 the statute when applied to concrete and complex cases. All 
 that is pronounced in human language requires constant 
 interpretation, except mathematics. 1 Even if the English law 
 should be codified, as at this moment the question of codifica- 
 tion has been brought before parliament, the living common 
 law would lose as little of its own inherent vigor and expan- 
 siveness as it has lost in Massachusetts or New York by the 
 
 1 Hence the peculiar power and the peculiar narrowness of the branch. I 
 have treated of this subject, and the unceasing necessity of interpretation, at the 
 beginning of my Principles of Interpretation and Construction in Law and 
 Politics, Boston, 1839.
 
 " Revised Statutes" of those states. The difference between 
 such a code in England and the codes which have been pro- 
 mulgated on the continent of Europe would always consist in 
 this, that the English digest would have a retrospective char- 
 acter. It would be the garnering of a crop ; but the living 
 orchard is expected to bear new fruits, while it was the pro- 
 nounced intention of the promulgators of continental codices to 
 prevent interpretation, for which end it was ordained analogously 
 to the rule of the civil law, that recourse should be had in all 
 doubtful cases to the legislator, that is, to the emperor or king, 
 or to the officer appointed by the monarch for that purpose. 1 
 
 Judge Story has very clearly expressed what a code, with 
 reference to the English law, ought to be. He says : " Not- 
 
 1 I cannot avoid referring again to my work on the Principles of Interpretation 
 and Construction in Law and Politics, where this subject is repeatedly treated 
 of, as it forms one of vital importance in all law, liberty, politics, and self-govern- 
 ment. I have given there instances of prohibited commenting, and even lec- 
 turing, in the universities, on the codes. This is the pervading spirit of the civil 
 law as it was adopted by modern nations. It is a necessary and combined con- 
 sequence of the principle contained in the Justinian code itself, namely, that the 
 emperor is the executive, legislator and all ; that, therefore, no self-development 
 of the law, such as had indeed produced the Roman jus, could any longer be 
 allowed ; and of the fact that the Roman law was adopted as a finished system 
 i'rom abroad. The principle of non-interpretation by the courts prevails for the 
 same reasons in the canon law. I give the following as an interesting instance: 
 
 The bull of Pope Pius IV., 26 January, 1564, sanctioning and proclaiming the 
 canons and decrees of the Council of Trent, contains also the prohibition to 
 publish interpretations and dissertations on these canons and decrees. The words 
 of the bull, which correspond exactly to the authority reserved by government 
 concerning the understanding of the law, where codes have been introduced 
 and the common law principle is not acknowledged, are these : 
 
 "Ad vitandam prseterea perversionem et confusionem, quse oriri posset, si 
 unicuique liceret, prout ei liberet, in decreta Concilii commentarios et interpreta- 
 tiones suas edere, Apostolica auctoritate inhibemus omnibus ne quis sine auc- 
 toritate nostra audeat ullos commentarios, glossas, admonitiones, scholia, ullumve 
 interpretationis genus super ipsius Concilii decretis, quocunque modo, edere, aut 
 quidquam quocunque nomine, etiam sub praetexta majoris decretorum corrobora- 
 tionis, aut executionis, aliove quaesito colore, statuere." 
 
 The papal bull goes on to declare that if there be any obscurity in the decrees 
 the doubter shall ascend to the place which the Lord has appointed, viz., the 
 apostolic see, and that the pope will solve the doubts.
 
 AND SELF-GOVERNMENT. 207 
 
 withstanding all that is said to the contrary, I am a decided 
 friend to codification, so as to fix in a text the law as it is, and 
 ought to be, as far as it has gone, and leave new cases to 
 furnish new doctrines as they arise and reduce these again at 
 distant intervals into the text." 1 
 
 Locke, on the other hand, expresses the view which is almost 
 always taken by philosophers who stop short with theory and 
 do not add the necessary considerations of the statesman and 
 friend . of practical liberty, when he proposed the following 
 passage in the constitution he drew up for South Carolina: 
 " Since multiplicity of comments as well as of laws have great 
 inconvenience, and serve only to obscure and perplex, all 
 manner of comments and expositions, on any part of these 
 fundamental constitutions, or on any part of the common or 
 statute laws of Carolina, are absolutely prohibited." 2 
 
 1 Life and Letters of Judge Story, vol. i. p. 448. The necessity of proper 
 codification has appeared more and more clearly to the English mind, since this 
 work was first published, and many preparatory steps have been taken. In the 
 month of August Lord Chancellor Cranworth presented a report to the lords, of 
 which he said that, in the first place, a list had been prepared of all the statutes 
 not obsolete, nor for temporaiy and local but for general purposes, which have 
 been passed since Magna Charta. The number is 16,000; but, taking away 
 5300 repealed or virtually repealed, a number besides those which relate to 
 Scotland or Ireland exclusively, and 3900 which the commissioners have not 
 determined on, there remain, say 2500 acts for consolidation; and these have 
 been analyzed. As there is some difference of opinion as to the best mode of 
 consolidation, specimens on different principles had been prepared; and one of 
 these, a digest of the law of distress for rent, was in the report. Mr. Coode, 
 he says, has completed a digest of the poor-laws. What Lord Cranworth then 
 proposed was to see whether the whole of the provisions relating to one subject 
 might not be put into one statute. Each of the commissioners had been re- 
 quested to take a subject and frame a scheme of consolidation with that view. 
 
 A very interesting speech on this and cognate topics was made in February, 
 1856, in the house of commons, by Mr. Napier, attorney-general of Ireland, on 
 the introduction of his motion : 
 
 " That, in the opinion of this house, as a measure of administrative reform, 
 provision should be made for an efficient and responsible department of public 
 justice, with a view to secure the skilful preparation and proper structure of 
 parliamentary bills, and promote the progressive amendment of the laws of the 
 United Kingdom." 
 
 Locke's Constitution for South Carolina, 1669, paragraph 80.
 
 20 g ON CIVIL LIBERTY 
 
 This is quite as strong as the Bavarian code or the pope's 
 decree, mentioned in a previous note. The fact is simply 
 this: on the one hand analyzing and systematizing are at- 
 tributes of humanity, and development, growth, assimilation, 
 and adaptation are the very elements of life. Man has to lay 
 out his road between the two, and will, naturally, incline more 
 to the one or the other according to the bias of his mind or 
 the general course of reasoning common to his peculiar science 
 or profession. , 
 
 If interpretation, which takes place when the general rule 
 is applied to a real case, is not left to the law itself, the 
 law ceases to have its own life, and the citizen ceases strictly 
 to live under the law. He lives under the dictating or inter- 
 fering power, because each practical case, that is, each time 
 that the rule passes over from an abstraction into a reality, is 
 subject to that power, be it, as it generally is, the executive 
 or the legislative. This does not exclude what is called au- 
 thentic interpretation, or interpretation by the legislature itself, 
 for future cases. Accurately speaking, authentic interpreta- 
 tion is no interpretation, but rather additional legislation. 
 We would distinctly exclude, however, retrospective authentic 
 interpretation ; for this amounts, indeed, to an application of 
 the law by the legislature, and is incompatible with a true 
 government of law. It is obvious that the same holds with 
 reference to all power, whether monarchical or popular. The 
 law must be the lord and our " earthly god," and not a man, 
 a set of men, or the multitude. 
 
 As to the principle of the precedent, it is one of the ele- 
 ments of all development, contradistinguished from dictation 
 and mere command. Everything that is a progressive con- 
 tinuum requires the precedent A precedent in law is an ascer- 
 tained principle applied to a new class of cases, which in the 
 variety of practical life has offered itself. It rests on law and 
 reason, which is law itself. It is not absolute. It does not 
 possess binding power merely as a fact, or as an occurrence. 
 If that were the case, Anaxarchus would have been right in 
 telling Alexander that as Dike was represented as seated by
 
 AND SELF-GOVERNMENT. 
 
 209 
 
 the side of Zeus to show that air his decrees had the quality 
 of justice, so a great king's doings must be considered to be 
 right by himself and by other men. 1 Nor is a precedent un- 
 changeable. It can be overruled. But, again, it must be done 
 by the law itself, and that which upsets the precedent cannot 
 otherwise than become, in the independent life of the law, 
 precedent in turn. 2 
 
 The continental lawyers have a great fear of the precedent, 
 but they forget that their almost worshipped Roman law itself 
 was built up by precedent. Indeed, they do not comprehend 
 the nature of the precedent, its origin, and its power, as an 
 element of a free jus. They frequently point to the fact that 
 the most tyrannical acts of the Stuarts were founded upon 
 real or presumed precedents, and that crown lawyers helped 
 in the nefarious work ; but they forget that British liberty was 
 also rescued from despotism in a great measure by lawyers 
 resting on the common law. Nothing gave to the popular 
 party more strength than the precedent. On this particular 
 subject, and on the nature of the precedent and the distinction 
 of the legal from the executive precedent, as well as the emi- 
 nent danger of regarding a mere fact as a precedent, I have 
 fully treated in two other works. 3 The present work does not 
 permit me to enter more fully on the subject, or to repeat what 
 I have there said. A truth of the weightiest importance it 
 remains, that liberty and steady progression require the prin- 
 ciple of the precedent in all spheres. It is one of the roots 
 with which the tree of liberty fastens in the soil of real life, 
 and through which it receives the sap of fresh existence. It 
 is the weapon by which interference is warded off. The prin- 
 ciple of the precedent is eminently philosophical. The English 
 
 1 Arrian, Anab., iv. 10, 7. 
 
 3 Dr. Greenleaf published, in Portland, Maine, 1821, A Collection of Cases 
 Overruled, Doubted, or Limited in their Application, taken from American and 
 English Reports. Several subsequent editions have been published, with addi- 
 tions, for which Dr. Greenleaf, however, has declared himself irresponsible. 
 
 3 In my Ethics, and especially in my Principles of Legal and Political Inter- 
 pretation and Construction.
 
 2io ON CIVIL LIBERTY 
 
 constitution would not have developed itself without it. What 
 is called the English constitution consists of the fundamentals 
 of the British polity laid down in custom, precedent, decisions, 
 and statutes; and the common law in it is a far greater portion 
 than the statute law. The English constitution is chiefly a 
 common law constitution, and this reflex of a continuous 
 society in a continuous law is more truly "philosophical," than 
 the theoretic and systematic but lifeless constitutions of recent. 
 France. 
 
 Every idea has its caricature, and the more unfailingly so 
 the more actively and practically the idea is working in real 
 life. It is, therefore, natural that we should meet with cari- 
 catures of the precedent especially in England, as the English 
 have been obliged to build up slowly and gradually that system 
 of liberty and the independence of the law, which we have 
 carried over to this country in a body, and which we have 
 farther developed. When we read that at every opening of a 
 new parliament a committee of the commons proceeds, lan- 
 tern in hand, to the cellar under the house, to see whether no 
 modern Guy Fawkes has collected combustibles there for the 
 purpose of exploding parliament, because the thing had been 
 done under James I., we must acknowledge the procedure more 
 pitiful, though far more innocent, than Alexander's dragging 
 the body of the gallant Batis at the wheels of his chariot 
 round the walls of Gaza, in order to follow the precedent of 
 his progenitor Achilles. But this is caricature, and it is un- 
 philosophical to point at the case in order to prove the futility 
 or mischief of the precedent. It is a proper subject for Punch 
 to exterminate such farces, not for us to discuss them, any 
 more than to treat seriously the French publicist who, speak- 
 ing of the intrigues of the legitimists, lately said that the elder 
 Bourbons should remember that Louis Napoleon had created 
 for himself a formidable precedent, in the spoliation of the 
 Orleans branch. Nero's fiddle might at this rate legalize the 
 sentimental burning of any capital. 
 
 The precedent has been called judge-made law, and as such 
 deprecated. A more correct term would be court-evolved
 
 AND SELF-GOVERNMENT. 211 
 
 law. If the precedent is bad, let it be overruled by all means, 
 or let the legislature regulate the matter by statute. Bacon's 
 dictum, already quoted, that the worst of things is the apo- 
 theosis of error, applies to the bad precedent as forcibly as to 
 any other error ; but the difficulty is not avoided by simply 
 disavowing the precedent. Some one must decide. Now, is it 
 better that government or a "minister of justice" shall lay 
 down a rule in the style of the civil law, or that the principle 
 shall be decided in court by the whole organism established 
 to give reality and practical life to justice, and in the natural 
 course of things ? 
 
 Continental jurists, when they compare the civil law with the 
 common law, always commit this error, that they merely com- 
 pare the contents of the two great systems of law, on which I 
 shall presently say a few words ; whilst they invariably forget 
 to add to the comparisons this difference, that the civil law, 
 where it now exists, has been introduced as a dead and foreign 
 law ; it is a matter of learned study, of antiquity ; whereas the 
 common law is a living, vigorous law of a living people. It is 
 this that constitutes more than half its excellence ; and though 
 we should have brought from England all else, our liberty, had 
 we adopted the civil law, would have had a very precarious 
 existence. Judge Story relates "as perfectly well authenti- 
 cated, that President (John) Adams, when he was Vice-Presi- 
 dent of the United States, and Blount's conspiracy was before 
 the senate, and the question whether the common law was to 
 be adopted was discussed before that body, emphatically ex- 
 claimed, when all looked at him for his opinion as that of a 
 great lawyer, that if he had ever imagined that the common 
 law had not by the revolution become the law of the United 
 States under the new government, he never would have drawn 
 his sword in the contest. So dear to him were the great privi- 
 leges which that law recognized and enforced." T 
 
 A common law, to be a real advantage to the people, must 
 be a general law, and the judicial organism must contain that 
 
 Page 299, vol. i., Life and Letters of Joseph Story.
 
 2I2 ON CIVIL LIBERTY 
 
 organic arrangement by which confusion and consequent inse- 
 curity are prevented. Without it the common law, as any other 
 system of law, ceases proportionately to be a protection of the 
 citizen; while the gradual generalization of the law, in the re- 
 spective countries occupied by our race, as well as the steady 
 extension and internal growth of international law, forms one of 
 the most important topics of that portion of our history which, 
 for want of better terms, may be called the nationalization and 
 uniformation of our race, in governments, languages, litera- 
 ture, and law systems. 
 
 The civil law excels the common law in some points. Where 
 the relations of property are concerned, it reasons clearly and 
 its language is admirable ; but as to personal rights, the free- 
 dom of the citizen, the trial, the independence of the law, the 
 principles of self-government, and the supremacy of the law, 
 the common law is incomparably superior. 1 
 
 Nor has the civil law remained without its influence ; but it 
 never superseded the common law. The common law remained 
 a living system, and it assimilated to itself parts of the civil 
 law as it assimilates any other element. For instance, Judge 
 Story, in one of his essays, says : " The doctrine of bailments, 
 too, was almost struck out at a single heat by Lord Holt, 2 who 
 had the good sense to incorporate into the English code that 
 
 1 " The civil law, a law of wisdom but of servitude ; the law of a great com- 
 mercial empire, digested in the days of Justinian, and containing all the principles 
 of justice and equity suited to the relations of men in society with each other; 
 but a law under which the head of government was ' Imperator Augustus, 
 legibus solutus.' "John Quincy Adams, seventh President of the United States, 
 in a letter to Judge Story, page 20, vol. ii., Life and Letters of Judge Story. 
 
 The young American reader is recommended to peruse a letter to a young 
 friend, by Mr. Legare, first published in the National Intelligencer, in which he 
 urges the study of the civil law as one of the best means of mental legal 
 training. That distinguished advocate told the author that whenever he was 
 peculiarly complimented on an argument in civil suits, or had gained a very 
 difficult case, he could trace the reason to his having thoroughly studied the civil 
 law in his younger days in Europe. Mr. Legare also wrote an extensive article 
 on Roman Law and Legislation in the Southern Review. 
 
 7 The case of Coggs vs. Bernard, ad ed. Raym. R. 909 note by Judge Story.
 
 AND SELF-GOVERNMENT. 
 
 213 
 
 system which the text and the commentaries of the civil law 
 had already built up on the continent of Europe." 1 
 
 The common law is all the time expanding and improving. 
 I have given a very interesting instance of this fact, in the law 
 of whalers, which has developed itself among the hardy 
 hunters of the Pacific, 2 and has been acknowledged, when the 
 proper occasion offered itself, in the courts of Massachusetts. 3 
 
 The idea of a common law, with its own inherent vitality 
 and independence, is, as a matter of course, wholly disavowed 
 by those who follow the French views, and who, as we have 
 seen, strive above all for union of force, and who consider the 
 
 1 Story's Miscellaneous Writings, p. 224. 
 
 * In a similar, though in a far less interesting way, I observe that a whole 
 coile 1ms established itself for the extensive sale of books at auction in London. 
 It is a real specimen of the genius of one part of common law. 
 
 3 See article Common Law, in the Encyclopaedia Americana. It was written, 
 as many others on subjects of law, by my lamented friend, Judge Story. An 
 opportunity has never offered itself to me publicly to acknowledge the great 
 obligation under which I am to that distinguished jurist for the assistance he 
 most readily and cheerfully gave me in editing the Americana. I shall never 
 forget the offer he made to contribute some articles when I complained of my 
 embarrassment as to getting proper articles on the main subjects of law, for my 
 work intended for the general reader. Many of them were sent from Washing- 
 ton, while he was fully occupied with the important business of the supreme 
 court. He himself made out the list of articles to be contributed by him, and I 
 do not remember ever having been obliged to wait for one. The only condition 
 this kind-hearted man made was that I should not publish the fact that he had 
 contributed the articles in the work until some period subsequent to their appear- 
 ance. They have met with much approbation, and I hope I am not guilty of 
 indiscretion if I state here that another friend, a distinguished orator and 
 lawyer, the Hon. William C. Preston, has repeatedly expressed his admiration 
 of them. 
 
 The contributions of Judge Story to the Americana "comprise more than 1 20 
 pages, closely printed in double columns. But a higher interest than that grow- 
 ing out of their intrinsic worth belongs to them. They were labors dedicated 
 purely to friendship, and illustrate a generosity which is as beautiful as it is rare." 
 To these words, copied from p. 27, vol. ii. of Life and Letters of Joseph Story, 
 where a list of all his contributions may be found, I may add that Judge Story 
 made his offer at a time when he to whom it was made was known to very fe\v 
 persons in this country, and had but lately arrived here ; and that Judge Story 
 took at once the liveliest and most active interest in the whole enterprise, and 
 contributed much to cheer on the stranger in his arduous task.
 
 ON CIVIL LIBERTY 
 
 essence of democracy to consist in absolute equality concen- 
 trated in absolute dominion, whether of the majority, or of one 
 to whom the majority has transferred the absolute power the 
 democratic Caesar. Those American writers, therefore, who 
 take this Gallican or Rousseau's view of democracy, share with 
 the French this hostility to the common law. It was rifest at 
 the time of the French revolution, since which time I believe 
 it may be affirmed that it has greatly subsided. Yet it sub- 
 sists still, and is occasionally uttered with an energy which 
 surprises those who believe that the severest lesson taught by 
 the first half of the nineteenth century is, perhaps, that abso- 
 lute democracy has no connection with liberty. 1 
 
 1 Theory of Politics : An Inquiry into the Foundations of Governments, and 
 the Causes and Progress of Political Revolutions. By Richard Hildreth, author 
 of " The History of the United States of America," etc.; New York, 1853. In 
 this work the reader will find the opinion maintained that the practical working 
 of a democratic government in our own country is obstructed by several disturb- 
 ing causes, of which the greatest is the common law " a scheme directly hostile 
 to the spirit of democracy," and therefore, "under an enlightened democratical 
 government, entirely out of place."
 
 AND SELF-GOVERNMENT. 215 
 
 CHAPTER XIX. 
 
 INDEPENDENCE OF JUS, SELF-DEVELOPMENT OF LAW, CONTINUED. 
 
 ACCUSATORIAL AND INQUISITORIAL TRIALS. INDEPENDENCE 
 
 OF THE JUDGE. 
 
 38. THE practice or usage of the administration of justice 
 belongs of right to the development of that administration 
 itself, avowedly .so, and not merely by indulgence or con- 
 nivance. 1 
 
 In countries in which this important principle is not acknowl- 
 edged, certain changes, produced by " practice," were and are, 
 nevertheless, winked at, and happily so, because legislation has 
 neglected to make the necessary changes, and humanity will 
 not be outraged. Thus, in German countries, practice had 
 abolished the application of the torture and fearful punish- 
 ments, demanded by positive law, long before they were abol- 
 ished by law. But it was an exception only demanded by 
 common sense and by a general feeling of humanity. 
 
 The common law of the Anglican race, however, assigns 
 the right of development to the courts. It is part and parcel 
 of the common law. Innumerable instances, and of almost 
 daily occurrence, might be given. 
 
 The following instance is given here simply because the 
 writer happens to think of it, and because it seems to be an 
 apt illustration. 
 
 When a court is directed to sit two weeks, and a jury, being 
 summoned to act for the first week of the term, and having 
 
 1 Lord Mansfield, in a note to a Scottish judge who had asked his advice as 
 to the introduction of trial by jury in civil cases into Scotland, has this remark: 
 " Great alterations in the course of the administration of justice ought to be 
 sparingly made and by degrees, and rather by the court than by the legislature." 
 Lord Campbell's Chief Justices of England, vol. ii. p. 554.
 
 2i6 ON CIVIL LIBERTY 
 
 retired to consider their verdict before midnight of Saturday, 
 in the first week, return into court after midnight, and before 
 daylight of Sunday, shall or shall not their verdict be received 
 and published ? Shall it be rejected on the ground that Sun- 
 day is a dies nonjuridicus ? This question was lately decided 
 in South Carolina, not by applying for information to a " minis- 
 ter of justice," or " the emperor," as the civil law directs, but 
 by itself, upon the principle of vital self-sufficiency, by inquiry 
 into its own principles, and an examination of precedents in 
 the whole range of English law, and of statute laws, if there 
 were any exactly applying to the case under consideration. 1 
 
 This principle of self-development is important likewise with 
 reference to a clear division of the judiciary from other branches 
 of the public power. The law is not independent, and conse- 
 quently the citizen not free, where aught else than the admin- 
 istration of justice belongs to the court, and where anything 
 that belongs to the administration of justice is decided by any 
 one but the courts ; where things are decided by aught else 
 than the natural course of law, and where, as has been stated, 
 interpretation or application belongs to any one else than to 
 the judiciary. 2 Hence there ought to be no pressure from 
 without, either by a Stuart sending for the judges to tamper 
 with them, or to ask them how they would decide a certain 
 case if brought before them, or by a multitude assuming the 
 name of the people. No judge ought to give his opinion be- 
 fore the practical case has come on and been discussed accord- 
 
 1 The learned " opinion" of the court of errors was delivered by Judge Ward- 
 law, Killer vs. English, 4 Strobhart's Reports, Columbia, S. C., 1850. While I 
 was writing this, the supreme court of Massachusetts decided that the " squeeze 
 of the hand" of a dying person, unable to speak, but having been made aware of 
 the fact that the pressure would be taken as an affirmative, may be taken as " a 
 dying declaration," though with caution. National Intelligencer, Washington, 
 May 21, 1853. 
 
 2 Even the Constitution of the French Republic of 1848 said, article 89 : 
 
 " Conflicts of privileges and duties between the administrative and judicial au- 
 thority shall be regulated by a special tribunal composed of members of the court 
 of cassation and of counsellors of state, to be appointed, every three years, in 
 equal number, by the respective bodies to which they belong. This tribunal 
 shall be presided over by the minister of justice."
 
 AND SELF- G O VERNMENT. 
 
 217 
 
 ing to law, either to monarch, political party, or suitor. He 
 is an integral part of the law, but only a part, which must not 
 be disconnected from the law. There must not be what are 
 called in France jugements administratifs, nor any extraordi- 
 nary or exceptional courts, as has been mentioned; no judg- 
 ments by extraordinary commissions, nor any decisions by the 
 executive regarding the application of the law. The following 
 instance is here given, not because the case is of itself important, 
 but because it exhibits the principle with perfect clearness, and 
 because it refers to a royal proclamation an executive act. 
 The English government had published in 1852 a proclamation 
 against the public appearance of Roman Catholics in their re- 
 ligious vestments; and the well-known Father Newman asked 
 the secretary for the home department whether this royal 
 proclamation must be considered as directed also against the 
 wearing of "cassocks and cloaks" in the streets of Birming- 
 ham, where the Roman Catholics had been in the habit of ap- 
 pearing thus, "under legal advice," for full four years. The 
 answer of secretary Walpole, one of the ministers, was this : 
 
 " I am to inform you, that her majesty's proclamation is 
 directed against all violations of the 26th section of the statute 
 loth George IV. c. 7, and that if you feel any difficulty in 
 the construction of the enactment, your proper course will be 
 to consult your legal adviser. The secretary of state would 
 not be justified in pronouncing an opinion on the question 
 submitted to him ; for if any doubt exists on the point, the 
 decision of it must rest with the courts of law, and not with 
 the government." * 
 
 There is no country except ours and England where a simi- 
 lar answer would, or indeed could, have been given. Every- 
 where else it would have been called a destruction of the prin- 
 ciple of unity in the government. We call it a small but choice 
 cabinet specimen of a most noble principle, forming an element 
 of our very politics. Nor must it be forgotten that it was a 
 tory government which made this exclusively Anglican reply. 
 
 1 The letter is dated June 24, 1852. London Spectator, July 3, 1852.
 
 2 i8 ON CIVIL LIBERTY 
 
 The reader will remember the directly opposite principle de- 
 clared in the bull of Pope Pius IV., quoted before, as well as 
 Locke's provision in his constitution of South Carolina. 
 
 39. The public accusatorial 1 trial is another element of the 
 independence of the law, as it is one of the efficient protections 
 of the citizen. By accusatorial process is understood here, not 
 what is generally understood by the term of trial by accusation, 
 (that is, individual accusation,) 2 but that penal trial which 
 places the court wholly above the two parties in criminal mat- 
 ters, as the judge is everywhere placed, at least theoretically 
 so, in civil cases ; although the two parties be the prosecuting 
 state or government on the one hand, and the indicted person 
 on the other. The accusatorial trial is thus contradistinguished 
 from the inquisitorial trial, which came into use through the 
 canon law, and especially through the unhallowed witch-trials. 
 In it, the judge inquires, investigates, in one word, is the pros- 
 ecuting party as well as the judging, and in some cases he is 
 even expected to be likewise the protecting party of the in- 
 dicted prisoner, thus uniting a triad of functions within himself 
 which amounts to a psychological incongruity. 3 
 
 It maybe said that the public accusatorial trial has prevailed 
 or been aimed at by all free nations, modern and ancient. We, 
 the English, the Netherlanders, the Norwegians, the Swedes, 
 the French since the first revolution, 4 the Germans in the 
 
 1 The trial by accusation has a distinct meaning in the English law ; still, I 
 have adopted the term Accusatorial Trial, in conformity to continental lawyers. 
 A distinct term in contradistinction to the Inquisitorial Trial is necessary, and I 
 prefer Accusatorial to Litigious Trial, which I observe Mr. Stephen uses in an 
 interesting paper on English Criminal Law in the collection of articles published 
 from time to time by former students of the two English universities, Oxford and 
 Cambridge, respectively. 
 
 There was no public prosecutor in Rome. An individual appeared as ac- 
 cuser, and formed throughout the trial the prosecuting party. See article Crim- 
 inal Law, in the Encyclopaedia Americana. 
 
 3 See Feuerbach on the Jury. 
 
 * Under the present absolutism, the trial is of course at the mercy of the ex- 
 ecutive, if the government has any interest in the matter ; that is, punishments 
 are inflicted without trial, and certain offences are punished summarily, although 
 punishable with severe visitation of the law.
 
 AND SELF-GOVERNMENT. 
 
 219 
 
 earlier times, the Greeks and Romans all have or had it, but 
 it has nowhere been carried out with that consistency which 
 we find in the Anglican penal trial. 
 
 The penal trial or procedure is quite as important as the 
 criminal law itself, and with reference to protection, to liberty, 
 to a pervading consciousness of manly rights, it is even more so. 
 This is the chief reason which explains why the English, the 
 freest nation of Europe, endured so long one of the worst and 
 most unphilosophical bodies of criminal laws so sanguinary 
 in its character that the monstrosity came to pass, of calling 
 all punishments not capital, secondary punishments, as if death 
 were the current penal coin, and the rest of punishments merely 
 the copper to make small " change." The English public ac- 
 cusatorial process, since the expulsion of the Stuarts, contained 
 great guarantees of public security, even while those deficien- 
 cies yet existed which have been remedied of late, thanks to 
 Sir Samuel Romilly and Sir Robert Peel. For a long time 
 the English judge was the short bridge of fairness, such as even 
 that was in earlier times, between the cruel treatment of pris- 
 oners before and after the trial, for it was only in 1774 that, 
 at the earnest solicitation of Howard, parliament passed an act 
 according to which jailers should be paid from public funds, 
 and not, as theretofore, by fees of the prisoners, so that per- 
 sons found not guilty should no longer be returned to prison, 
 there to be kept until they could pay the jailer. 1 
 
 We consider that the accusatorial procedure, carried out with 
 consistency and good faith, requires that the accusation itself 
 be not made by the executive, but upon information, by whom- 
 soever made, through an act, which itself includes a guarantee 
 against frivolous or oppressive accusation ; for, as has been 
 stated, trial itself, though followed by acquittal, is a hardship. 
 Hence the importance of a grand jury. The Constitution of 
 the United States ordains that " no person shall be held to 
 
 1 Such fearful inconsistencies are almost bewildering; but Woe to the penally 
 indicted, was the word of the law on the whole continent. There are similarly 
 glaring and cruel inconsistencies still existing in our proud race.
 
 220 ON CIVIL LIBERTY 
 
 answer for a capital or otherwise infamous crime unless on a 
 presentment or indictment of a grand jury." The French penal 
 trial contains no such guarantee, but it has passed over into the 
 fundamental laws of all our states. It is farther necessary 
 that the whole trial be bona fide public and remain bona fide 
 accusatorial. Hence there ought to be no secret examina- 
 tions of the prisoner by the public prosecutor before the trial, 
 the results of which are to be used at the trial, as this actually 
 forms part of the French penal trial. On the other hand, the 
 judge should remain, during the trial, mere judge, and never 
 become inquirer or part of the prosecution, as this likewise is 
 the case in France. Nor must the prisoner be asked to in- 
 criminate himself. All this belongs to the inquisitorial trial. 
 The indictment must be clear, and the prosecuting officer must 
 not be allowed to influence the jury by an address before the 
 witnesses are examined, nor be allowed to bring in irrelevant 
 matter. Lastly, full scope must be given to counsel for the 
 prisoner. In all these details most of the accusatorial trials, 
 except the Anglican, are more or less, and some sadly, deficient. 
 
 40. The independence of the law or administration of justice 
 requires the independence of the judge. All the guarantees 
 we have mentioned support the judge in his independence, 
 and are requisite for it. He cannot be so without a distinct 
 separation of the judiciary from the other branches of the 
 government, without a living, self-sustaining jus, or without 
 the accusatorial procedure. But more is necessary. 
 
 The appointment, the duration in office, and the removal, 
 must be so that the judge feels no dependence upon any one 
 or anything, except the law itself. This ought to be the case 
 at least in as high a degree as it is possible for human wisdom 
 to make it, or for human frailty to carry out. 1 Where there 
 is a pervading publicity in the political life, an independent 
 bar and self-sustaining jus and administration of justice, with 
 responsible ministers of the executive or a responsible chief 
 magistrate, carefully limited in his power, there is probably as 
 
 1 See " Federalist," No. Ixxviii. and sequ.
 
 AND SELF-GOVERNMENT. 221 
 
 little danger of having bad judges, in giving the appointing 
 power to the executive, especially if, as is the case with us, the 
 senate must confirm the appointment, as in any other mode of 
 appointing indeed, far less danger than in those other modes 
 which so far have been adopted in most of our states. Where 
 peculiar fitness, peculiar skill and learning, and peculiar apti- 
 tude are requisite, it is for many psychological reasons best 
 to throw the responsibility of appointing on a few or one, so 
 that it be concentrated, provided these few or the one are made 
 to feel by a proper organization that they are responsible to 
 the public. It is unwise to give such appointments to irre- 
 sponsible bodies, or to numerous bodies, which, according to 
 the universal deception of a divided responsibility, are not apt 
 to feel the requisite pressure of responsibility, and necessarily 
 must act by groups or parties. If it be done, that hallowed 
 character, a wise and upright judge a type of humanity which 
 antiquity and modern times, paganism, Mahometanism, the Old 
 and New Testaments, and the most revered passages of civil 
 history, have ever held as one of the highest and most worthy 
 soon fades away in the forgetfulness of one of the most im- 
 portant elements of all that is right, honorable, and civilized. 1 
 
 1 Hard as the task of recording the following occurrence may be, it is better 
 that the distemper be known, so that its cure may become possible. In the year 
 1857, after the Police Law had long been resisted by the mayor of the city of 
 New York, and after the supreme court of the state had declared it constitu- 
 tional, a convention of one of the largest parties was held in that state, in order 
 to nominate proper candidates for the various offices to be filled by the approach- 
 ing election. When the judge of the supreme court, who belonged to the same 
 party, and who, on the bench, had decided for the constitutionality of the Police 
 Law, came to be nominated, the nomination was opposed by the person who 
 had been mayor of New York, in a public speech, on the avowed ground that 
 judges had been made elective by the party, although he himself had been 
 adverse to it; that therefore the judges had been drawn into the sphere of party 
 politics. The party had voted against the Police Law, and the judge had de- 
 clared it constitutional, therefore he ought not to be nominated for re-election. 
 The worst of the Stuarts never said anything worse concerning judges, and the 
 painful account has been given here to show to the younger students of this work 
 how fearfully rapid the decline of national sentiment is. Not more than ten 
 year? ago, such sentiments, publicly avowed, would have created universal
 
 222 ON CIVIL LIBERTY 
 
 Laws ought to be the result of mutually modifying com- 
 promise; many appointments ought not. Election in such 
 cases by a large body would lead to few efficient and truly 
 serviceable ambassadors, and it has long been settled by that 
 nation which probably knows most about efficient appoint- 
 ment of university professors, the Germans, that their appoint- 
 ment by election, either by a numerous corporation or by the 
 professors of a university themselves, ought to be discarded. 1 
 
 If the appointment of judges ought not to be vested in legis- 
 latures, far less ought the people at large to burden them- 
 selves with the election of judges. The election of judges by 
 the people themselves, which has now been established in 
 many of the United States, is founded, in my opinion, on a 
 radical error the confusion of mistaking popular power alone 
 for liberty, and the idea that the more the one is increased, in 
 so much a higher degree will the other be enjoyed. As if all 
 power, no matter what name be given to it, if it sways as 
 power alone, were not absolutism, and had not the inherent 
 tendency, natural to all power whatever, to increase in absorb- 
 ing strength ! All despotic governments, whether the abso- 
 lutism rests with an individual or the people, (meaning of 
 course the majority,) strive to make the judiciary dependent 
 upon themselves. Louis XIV. did it, Napoleon did it, and 
 every absolute democracy has done it. All essential, practical 
 
 abhorrence. May my younger readers remember that the curses pronounced on 
 unjust judges extend to those who appoint judges known to be unjust, or adopt 
 a system which must make them so; be they monarchs or the people execra- 
 tions and blessings make no distinction between them. That judges ought to 
 judge by the law alone, has been often felt even by absolute monarchs. Frederic 
 II. of Prussia wrote a letter to the supreme court of his kingdom, enjoining the 
 members to be faithful to their oath, and to do justice in spite of royal demand. 
 The court ordered the letter to be framed and hung up in its hall. Louis XII. 
 of France, in his edict of 1499, concerning the parliaments or high courts of 
 justice, ordained that the law should always be followed, in spite of royal orders, 
 which, as the ordinance says, importunity may have wrung from the monarch. 
 
 1 The remarks of that wise philosopher, Sir William Hamilton, on the elec- 
 tion of professors, in his minor works, apply, so far as I remember them now, 
 with equal force, and probably even with greater strength, to the election of 
 judges.
 
 A ND SELF- G O VERNMENT. 
 
 223 
 
 liberty, like all sterling law itself, loves the light of common 
 sense and plain experience. All absolutism, if indeed we 
 except the mere brutal despotism of the sword, which despises 
 every question of right, loves mysticism the mysticism of 
 some divine right. The monarchical absolutists wrap them- 
 selves in it, and the popular absolutists do the same. But 
 there is no mystery about the word People. People means an 
 aggregate of individuals to each of whom we deny any divine 
 right, and to each of whom I, you, and every one included 
 we justly ascribe frailties, failings, and the possibility of sub- 
 ordinating our judgment and virtue to passion and vice. Each 
 one of them separately stands in need of moderating and pro- 
 tecting laws and constitutions, and all of them unitedly as 
 much as the individual. Where the people are the first and 
 chiefest source of all power, as is the case with us, the electing 
 of judges, and especially their election for a limited time, is 
 nothing less than an invasion of the necessary division of 
 power, and the submission of the judiciary to the influence of 
 the power-holder. It is therefore a diminution of liberty, for 
 it is of the last importance to place the judge between the 
 chief power and the party, and to protect him as the inde- 
 pendent, not indeed as the despotic, organ of the law. 
 
 It has been repeated by some who, not long ago, urged an 
 elective judiciary, that an independent judiciary may be neces- 
 sary in order to stand between the crown and the people, but 
 that these two parties do not exist with us, and that therefore 
 the judges ought to be dependent on the people, whose simple 
 servants they are. Not to mention that the word people is 
 used in this fallacious argument, as it is often in other cases, 
 for a mysterious unit which exists nowhere, it may suffice to 
 say that the English judge does not stand between the crown 
 and the people. The crown, opposite the people, is sufficiently 
 weak. The English judge stands between the crown and the 
 accused individual, while with us the judge stands between the 
 people and the individual, which creates a far greater difficulty. 
 To resist the crown is considered patriotic, heroic ; to resist 
 the people (and frequently, nay, in most excited cases, this
 
 22 4 ON CIVIL LIBERTY 
 
 means only a loud or impassioned portion of them) is con- 
 sidered unpatriotic, mean, and even treasonable. 
 
 An independent judiciary is one of the most indispensable 
 elements of self-government, for self-government always im- 
 plies mutual restraint. It is one of the wisest acts in a per- 
 fectly free people to establish the highest possible degree of 
 judicial independence, while they only act as all common 
 power acts, if they wish to retain absolute power. 1 
 
 Those of our states which have of late given the appoint- 
 ment of judges to popular elections, labor under a surprising 
 inconsistency; for all those states, I believe, exclude judges 
 from the legislature. They fear "political judges," yet make 
 them elective. Now, everything electional within the state 
 becomes necessarily, in time, political. If the physician of a 
 hospital, the captain of a vessel, or the watchmaker to repair 
 our timepieces, were elected by the people, they would, to a 
 certainty, in most cases, be elected not according to their 
 medical, nautical, or horological skill and trustworthiness, but 
 on political grounds. There is nothing reproachful in this to 
 the people at large. It is the natural course of things. Even 
 members of the French Academy have been elected on polit- 
 ical grounds, when the government has taken a deep interest 
 in the election. 
 
 The question whether judges ought to sit in the house of 
 commons was recently before parliament. 2 There are many 
 English authorities on the American side of the question, at 
 least so far as the house of commons is concerned. Lords 
 Brougham and Langdale, Sir Samuel Romilly and Mr. Curran, 
 may be mentioned as such. On the other hand, Mr. Bentham 
 was of opinion that there was so little legislative talent in 
 
 1 In 1 774 parliament passed an act making the justices of the supreme court of 
 Massachusetts independent of the people for their salaries. The grand jurors 
 refused to serve. Paul Revere was one of the grand jury. 
 
 2 See Mr. Macaulay's speech in the commons, June I, 1853, on a bill to ex- 
 clude judges from the house of commons. The chief question was to exclude 
 the vice-chancellor from a seat in the commons. Mr. Macaulay is decidedly in 
 favor of letting judges sit in the commons.
 
 AND SELF-GOVERNMENT, 
 
 225 
 
 the world that no place fits so well for legislative business as 
 the bench, and that it was suicidal to exclude the judges. 
 The questions we have to answer are these : Does experience 
 teach us that judges, having a seat in the legislature, where 
 they needs must belong to one or the other party, allow them- 
 selves to be influenced on the bench ? In England, there are 
 striking instances that, in modern times, they may resist their 
 own political bias, in Eldon, Thurlow, Mansfield, and Hard- 
 wicke. But this remark extends to common cases only. Were 
 they, or would they have been, utterly unbiased in all those 
 trials that may be called political ? The pervading character 
 of self-government and independence of the law has certainly 
 given to the English bench a traditional independence. But 
 how long has this existed, and what times may not possibly 
 recur ? . It appears, throughout the Life and Correspondence 
 of Justice Story, that so soon as he was elevated to the bench 
 he not only avoided being mixed up with politics in any de- 
 gree whatsoever, but even the mere semblance of it. He 
 seems to have been peculiarly scrupulous on this point. 
 
 The second question we must answer is this : How does the 
 judge get into the legislature? Can he do so without elec- 
 tioneering? The more popular a representative government 
 is, the more necessary the immediate contact between the 
 candidate and the constituents becomes. And who wishes to 
 see the judge, that ought to be the independent oracle of the 
 law, in this position ? 
 
 Mr. Bentham's observation regarding the general unfitness 
 of the world at large for legislative business, and the peculiar 
 fitness of judges for it, requires also some modification. How 
 is it with sanitary laws ? Few physicians sit in legislatures, 
 and those that have a seat are not placed there because they 
 are at the head of their profession. We must necessarily trust 
 to the general influence under which a legislature legislates. 
 As to the fitting of the bench for legislative business, it is un- 
 doubtedly true with regard to a large class of that business ; but 
 we must not forget that the judge is and ought to be a peculiar 
 representative of conservatism ; which nevertheless unfits him, 
 
 15
 
 22 6 ON CIVIL LIBERTY 
 
 in a measure, for all that business which is of a peculiarly pro- 
 gressive character. Almost all law reforms have originally 
 been resisted by the bench. It is not in all cases to be re- 
 gretted. The judges are the brakes which prevent the vehicle 
 from descending too fast on an inclined plane ; but the retard- 
 ing force must be overcome in many cases, however serviceable 
 it may be that the action of overcoming the difficulty may have 
 been modified by the very process. 
 
 I cannot help believing, then, that upon the whole judges 
 ought to be excluded from the legislature; they certainly 
 ought to be so with us. To allow them a seat in concentrated 
 governments, as in France, would be calamitous. But this 
 reason is, a fortiori, one why judges ought not to be elected 
 by the people. 
 
 We are frequently asked whether the elective judiciary 
 works badly. The answer is, that a ball rolls awhile from 
 the first impulse given to it. So far, old judges have generally 
 been elected under the new system ; and we would ask, on the 
 other hand : Has the former system worked badly ? I believe, 
 then, that elective judges are a departure from substantial 
 civil liberty, because it is a departure from the all-important 
 independence of the law. 
 
 The foregoing paragraph was written in 1853 ; and I have 
 now to add, in 1859, tnat a judiciary elected by the people 
 seems to be, universally and unqualifiedly, considered a serious 
 failure. I state this, conscientiously to record facts concerning 
 so important a topic. The most attentive observation, exten- 
 sive perusal of public journals, consultation of lawyers and 
 statesmen, have not brought to my knowledge a single opinion 
 in favor of an elective judiciary. Everywhere it seems to be 
 acknowledged that it was introduced into our constitutions from 
 no dissatisfaction with the existing system or with the judges, 
 but simply to satisfy the desire of increasing the power of the 
 power-holder to be subservient to the sovereign; that in 
 reality it does not increase the power of the people, since per- 
 sons, if appointed by popular vote, are nominated by a small 
 number of so-called leading politicians, and the people at large
 
 AND SELF- G O VERNMENT. 
 
 227 
 
 can discuss the matter as little as the ecclesia in the agora could 
 discuss ; that the confidence of the people in the judiciary has 
 been lessened, and through it the confidence even in the jury 
 system ; that if a possible increase of salary is believed to be 
 capable of influencing the judges, for which reason it is pro- 
 hibited by all our constitutions, it follows, a fortiori, that a re- 
 election by the people, or the losing it, must influence the judge 
 far more; that instances of want of independence have occurred 
 in various states, and the lack of independence has especially 
 and sadly interfered with our penal trials and the salutary 
 operation of the law ; that it has in many cases elevated indi- 
 viduals to the bench who had no standing among their fellow 
 lawyers, and whom no governor would have dared to appoint, 
 feeling his responsibility as a trustee, while the electing people 
 are irresponsible, and that in several states it has actually oc- 
 curred that candidates for judicial seats have been asked in 
 the public journals how they mean to decide if certain questions 
 (e.g., the constitutionality of the New York liquor law) should 
 come before them, in the same way in which certain political 
 questions are put to candidates for the legislature. 1 
 
 It is necessary to appoint judges for a long period, and the 
 best is probably for life, with a proper provision which prevents 
 incapacity from old age. 2 The experience which is required, 
 and the authority he must have, although unsupported by any 
 material power, make this equally desirable, as well as the fact 
 that the best legal talents cannot be obtained for the bench if 
 the tenure amounts to a mere interruption of the business of 
 the lawyer. 3 The constitution of the French republic of 1848, 
 
 1 The report of the Reform Committee of the New York legislature reveals a 
 state of things which reminds us of the worst state of Athens, while the Louisiana 
 papers copied the most important portions, with strengthening commentaries and 
 illustrations from their state. Numerous individuals, judges, and lawyers have 
 publicly expressed their disapprobation. We trust so great an evil will soon be 
 redressed. 
 
 a See Political Ethics, under the heads of Judge, Independence of the Judi- 
 ciary. 
 
 3 I would refer the reader, on all these subjects, to Judge Chambers's Speech 
 on the Judicial Tenure, in the Maryland Convention, Baltimore, 1851. [The
 
 22 8 ON CIVIL LIBERTY 
 
 so democratic in its character, decreed the tenure of judicial 
 office to be for life. 1 
 
 It is for a similar reason of public importance that the salary 
 of the judges be liberal, which means that, combined with the 
 honor attached to a seat on the bench, it be capable of com- 
 manding the fairest legal talents. The judge must enjoy, as 
 has been stated, proper independence ; but he is dependent, and 
 in the worst degree so, if he is conscious that the best lawyers 
 before him are superior to him in talent, experience, learning, 
 and character. None but such inferior men can be obtained 
 for an illiberal salary, according to the universal law that the 
 laborer is worthy of his hire, and that he will seek to obtain 
 this hire in the great market of labor and talent. Even the 
 common consideration that every private individual expects 
 that his affairs will be served best by an efficient clerk for a 
 liberal hire, and not by a poorly-paid hireling whose incapacity 
 can command no higher wages, should induce us to pay judges, 
 as indeed every one who must be paid, and is worthy of being 
 paid at all, with a liberality which equally avoids lavishness 
 and penury. Liberal salaries are essential to a popular 
 government. 
 
 To make judges independent or remove from them the pos- 
 sible suspicion of dependence, it has been ordered in the Con- 
 stitution of the United States that the "judges of the supreme 
 and inferior courts shall hold their offices during good be- 
 havior, and shall at stated times receive for their services a 
 compensation which shall not be diminished during their con- 
 tinuance in office." This principle has been adopted in most, 
 if not in all our constitutions ; many have added that it shall 
 not be increased either, during continuance in office. 2 But 
 
 evils pointed out by Dr. Lieber are admitted and deprecated by multitudes, but 
 hitherto there are no steps backward. In New York, the state which has suffered 
 most from a judiciary elected by the people and on party grounds, a vigorous 
 effort has lately (1873) Deen made to change the mode of election, without suc- 
 cess. Perhaps if the whole bar of a state was united and strong in desiring such 
 a change it could be effected.] 
 
 1 This constitution will be found in the Appendix. 
 
 When it has become necessary to increase the salary of judges, the difficulty
 
 AND SELF-GOVERNMENT. 
 
 229 
 
 what is the possible dependence feared from an increase or 
 decrease of salary, compared to that unavoidable dependence 
 which must be the consequence of short terms of office, and 
 of appointment by election ? It will hardly be necessary to 
 mention that a fixed salary, independent of fees and fines, is 
 indispensable for the independence of the judge and the pro- 
 tection of the citizen. Even common decency requires it. 
 Don Miguel of Portugal made the judges who tried political 
 offenders depend upon part of the fines and confiscations they 
 decreed ; and we know what was done under James II. and 
 Lord Jeffreys. The hounds receiving part of the hunted game 
 suggest themselves at once. 
 
 With a view of making the judiciary independent, the 
 removal of judges from office has been justly taken out of the 
 hands of the executive. The immovability of judges is an 
 essential element of civil liberty. Neither the executive nor 
 the sever ;'L n himself ought to have the power of removing a 
 judge. He can therefore be removed by impeachment only, 
 and this requires, according to the Constitution of the United 
 States, two-thirds of the votes of the senate. In some states 
 they can be removed by two-thirds of the whole legislature. 1 
 
 Although the principle of arbitration cannot be called a 
 characteristic of liberty, for as a characteristic it belongs rather 
 to the patriarchal government, and courts of arbitration may 
 flourish in despotic states, it will be necessary to consider this 
 topic in the present place. It is very possible that our people 
 would more readily give up an elective judiciary, where it has 
 been established, if the law or the state constitutions directed 
 or admitted of regular courts of arbitration. Wherever they 
 have been tried in modern times, they have been found of the 
 greatest benefit to the people, for instance, in Prussia and 
 
 has sometimes been avoided by the judges resigning, upon the understanding 
 that, after the legislature shall have increased the salary, they should be re- 
 appointed. 
 
 1 It seems to me a strange anomaly that, as it would seem by a late resolution 
 of the United States senate, the president has authority to remove judges in the 
 "territories."
 
 230 
 
 ON CIVIL LIBERTY 
 
 Denmark. Great efforts are made in England, by such lead- 
 ing men as Lord Brougham, to introduce them in that country 
 of law. In England as well as in the United States the law 
 admits indeed of arbitration, but a single arbitration, though 
 acknowledged by law if certain prescribed conditions have 
 been fulfilled, differs in effect, and the advantage resulting from 
 it, from a court of arbitration. 
 
 Where these courts now exist, the following are, I believe, 
 their characteristics : 
 
 The country is divided into certain arbitration districts, in 
 each of which the people elect several judges of arbitration, so 
 that the people may have a choice, because the whole business 
 transacted by them is an affair of confidence ; 
 
 Parties must agree to go to arbitration, and select the 
 judge; 
 
 They must commence business by handing in a written 
 declaration that they will abide by the decision of the judge, 
 without any appeal, and the decision of the judge has full 
 force in all courts ; 
 
 Going to arbitration is a purely voluntary matter; 
 
 Parties must state their own cases, and no pleaders for others, 
 no lawyers, are admitted ; 
 
 There is no jury ; 
 
 The arbitration extends to civil cases only, as a matter of 
 course; 
 
 The judges of arbitration are elected for a limited time ; 
 
 The judge decides on the common principles of fairness; 
 
 Great care is taken to establish, as the first step, that the 
 parties come into court, truly and verily, of their own accord 
 and free will. 
 
 The chief objections to Lord Brougham's repeated propo- 
 sitions to introduce courts of arbitration have been made by ' 
 professional lawyers, namely, that parties ignorant of their full 
 rights would expose themselves to great losses. The statistics 
 of those countries where these peculiar courts exist seem to 
 prove the contrary. The number of cases decided by them 
 has been increasing from year to year, and is now, as well as
 
 AND SELF-GOVERNMENT, 
 
 231 
 
 the amount of property upon which they have decided, 
 surprisingly large. Cases in which the disputed property 
 amounted to several hundred thousand dollars have been taken 
 before these courts, and it has repeatedly happened, in Prussia, 
 that in a suit before the regular courts of law the settlement 
 of portions of the suit has been taken, by common consent, 
 to arbitration, and the suit at law has proceeded with the de - 
 cision of the court of arbitration. It is remarkable that the 
 amount of property at stake, thus taken out of the court of 
 law to the court of arbitration, has sometimes been very large. 
 
 The establishment of courts of arbitration has produced a 
 signal decrease of litigation and diminution of expenses. 
 
 Finally, it may be observed that the fundamental idea of 
 courts of arbitration somewhat resembles, in one point, the 
 principle upon which, originally at least, 1 the house of lords 
 decided as the last court of appeal, a principle which many 
 of our states had imitated, by giving the last appeal to the state 
 senates, and which, so far as my inquiry has led me to con- 
 clude, produced beneficial results. The introduction of courts 
 of arbitration, along with the abolition of elective judges, and 
 especially of judges elected for a short term, would produce 
 the best effects in our country. 2 
 
 1 At present, when the house of lords sits as a court of appeal, none but the 
 law lords are generally present. 
 
 a In some manufacturing districts on the continent of Europe, for instance in 
 Rhenish Prussia, so called Manufactory Courts exist. They consist of elected 
 employers and employed, and judge of all the minor difficulties which may arise 
 between the employers and the employed out of their immediate relation to one 
 another. The common question, for instance, whether the woven piece, returned 
 by the weaver, contains all the material given to him, or whether it be returned 
 in a perfect state, is adjudged by them. General satisfaction seems to prevail 
 with these courts, whose German name is Fabrik-Gerichte. [Courts or councils 
 somewhat like these have been introduced also into Great Britain.]
 
 232 
 
 ON CIVIL LIBERTY 
 
 CHAPTER XX. 
 
 INDEPENDENCE OF JUS, CONTINUED. TRIAL BY JURY. THE 
 ADVOCATE. 
 
 41. THE judge cannot occupy a sufficiently independent 
 position between the parties by the accusatorial proceeding 
 alone. If there is not what may be called a division of the 
 judicial labor, separating the finding of guilt or innocence, or 
 of the facts, from the presiding over the whole trial and the 
 application as well as the pronouncing and expounding of the 
 law, the judge must still be exposed to taking sides in the trial. 
 This division of judicial labor is obtained by the institution of 
 the jury. This, it seems to me, is one of the most essential 
 advantages of this comprehensive, self-grown institution. It 
 is likewise a guarantee of liberty in giving the people a parti- 
 cipation in the administration of justice, without the ruin and 
 horrors of an administration of justice by a multitude, as it 
 was in Athens. The jury is moreover the best school of the 
 citizen, both for teaching him his rights and how to protect 
 them, and for practically teaching him the necessity of law and 
 government. The jury, in this respect, is eminently conserva- 
 tive. In this, as in many other respects, it is necessary that 
 the institution of the jury exist for the civil trial as well as for 
 the penal, and not, as in many countries, for the latter only. 
 The necessity of the jury does not militate against the arbi- 
 tration courts, which have proved, as has been stated, a great 
 blessing in all countries in which they have been properly 
 established, or against certain courts of minor importance 
 which may be advantageously conducted without a jury. 1 
 
 1 For the history of this institution in general, the reader is referred to William 
 Forsyth, History of the Trial by Jury, London, 1852.
 
 AND SELF- G O VERNMENT. 
 
 233 
 
 The results of trial by jury have occasionally been such that 
 even in England and here, voices have been raised against it. 
 Men feel the existing evil only ; they do not see those evils 
 that would result a hundredfold from an opposite state of 
 things. Nor are those, who feel irritated at some results of 
 the trial by jury, acquainted with the operation of trials with- 
 out jury. So is occasionally the publicity of trials highly 
 inconvenient ; yet should we desire secret trials ? Liberty, as 
 we conceive it, can no more exist without the trial by jury 
 that " buttress of liberty," as Chatham called it, 1 and as our 
 ancestors worshipped it than without the representative sys- 
 tem. But we must remember that in all spheres the exception 
 is patent ; the continuous operation of the rule is latent. 2 
 
 The Declaration of Independence specifies, as one of the 
 reasons why this country was justified in severing itself from 
 the mother-country, that Americans have been " deprived in 
 many cases of the benefits of trial by jury." 
 
 It may not be improper here to enumerate briefly all the 
 advantages of so great an institution, whether they are directly 
 connected with liberty or not. 
 
 1 Lord Erskine, when he was raised to the peerage, adopted the words Trial 
 by Jury, as the scroll of his coaf of arms. 
 
 2 The laxity now unfortunately so common in the administration and execu- 
 tion of the laws ; the crying evil that in our large cities numerous idlers, of a 
 low character, make their living, during court time, by being ready to serve as 
 jurymen when called upon, of which they are now very sure, owing to the 
 facility with which judges excuse citizens from serving ; the frequency of non- 
 agreement and consequent new trials ; the length to which the doctrine is carried 
 that juries are judges of law as well as fact ; and many other things, have induced 
 several persons loudly to call for the abolition of the jury. They do not seem 
 to know much of history, or they would know that courts without juries are not 
 exempt from falling into abuses or from becoming actual nuisances. Let us 
 imagine our present elective judges without jury : would that mend matters? The 
 opposite is hardly ever the cure of an evil. A glutton would not take the right 
 step of amendment by the resolution of starving himself to death. Our jury 
 trials exhibit many deplorable facts, in the present time, owing to the general 
 spirit of disorder; but the administration of justice, it would seem, suffers far 
 more from want of energy in the judges. Let us fervently hope that the recu- 
 perative power which has been shown by modern nations, and by modern nations 
 alone, will manifest itself also with us. At any rate, no good is done, when the 
 ship of state is in danger, by cutting away the very ribs of the ship.
 
 234 
 
 ON CIVIL LIBERTY 
 
 The trial by jury, then, if properly and intelligently ad- 
 ministered, divides the labor of the administration of justice, 
 and permits each part quietly to find the truth in the sphere 
 assigned to it ; 
 
 It allows the judge to stand, as the independent organ of 
 the law, not only above the parties, hostilely arraigned against 
 each other, but also above the whole practical case before the 
 court; 
 
 It enables plain, common, and practical sense properly to 
 admix itself with keen professional and scientific distinction, 
 in each single case, and thus prevents the effect of that dispo- 
 sition to sacrifice reality to attenuated theory, to which every 
 individual is liable in his own profession and peculiar pursuit 
 the worship of the means, forgetting the end; 1 
 
 1 And this is the reason that nearly all great reforms have worked their way 
 from without, and from the non -professional to the professional, or from below 
 upward. 
 
 I beg to arrest the reader's attention for a moment on this topic. 
 
 In all civilized countries it is acknowledged that there are some important 
 cases, which on the one hand it is necessary to decide, for Mine and Thine are 
 involved, and which, on the other hand, are not of a character that the lines of 
 demarcation can be drawn with absolute distinctness, in a manner which would 
 make it easy to apply the law ; e.g., the cases which relate to the imitation of a 
 part of a work of art, of a pattern, or the question of a bona fide extract from an 
 author's work, which, according to the Prussian copyright law, was decided by 
 a jury of " experts," long before the general introduction of the jury in that 
 country. A similar case is presented when an officer is accused of unofficer-like 
 and ungentlemanly conduct. Now the question becomes : Are not these cases 
 far more frequent than it is supposed in the countries where the trial by jury 
 does not exist? Are not almost all complex cases such as require in a high 
 degree strong common sense, the tact of practical life, together with the law, in 
 order to be justly decided ? Are not perhaps the greater part of civil cases such ? 
 The English and Americans seem to believe they are. They believe that close 
 logical reasoning is indeed necessary in the application of the law, and they 
 assign this to the law-officers, but they believe also that a high degree of plain 
 good common sense, unshackled by technicalities, is necessary to decide whether, 
 " upon the whole," " taken all in all," the individual case in hand is such as to 
 bring it within the province of the specific law, with reference to which it is 
 brought before the court, and they assign this part of the trial to the jury, that 
 is, to non-professional citizens. The English, and the people of some American 
 states, do not only follow this view in the first stage of a case, but, in order to
 
 AND SELF-GOVERNMENT. 
 
 235 
 
 It makes a participation of the people in the administration 
 of justice possible without having the serious evil of courts, 
 consisting of multitudes or mobs, or the confusion of the 
 branches of the administration of justice, of judges and triers; 
 
 It obtains the great advantage of a mean of views of facts, 
 regarding which Aristotle said that many persons are more 
 just than one, although each of the many were less so than 
 the one; without incurring the disadvantages and the injustice 
 of vague multitudes ; 
 
 It brings, in most cases, a degree of personal acquaintance 
 with the parties, and frequently with the witnesses, to aid in 
 deciding; 
 
 It gives the people opportunities to ward off the inadmissi- 
 ble and strained demands of the government ; T 
 
 It is necessary for a complete accusatorial procedure ; 
 
 avoid the evil of letting technicalities get the better of essential justice, of letting 
 the minds of professional lawyers, whose very duty it is to train themselves in 
 strict, uncompromising logic, decide complicated and important cases in the last 
 resort, they allow an appeal from all the judges to the house of lords, or to the 
 senate. 
 
 It appears to me an important fact, which ought always to be remembered 
 when the subject of trial by jury in general is discussed, that by the trial by jury 
 the Anglican race endeavors, among other things, to insure the continuous and 
 necessaiy admixture of common sense in the decision of cases; and who can 
 deny that in all practical cases, in all controversies, in all disputes, and in all 
 questions which require the application of general rules or principles to concrete 
 cases, common sense is indispensable, that is, sound judgment, which avoids the 
 Nimium ? Who will deny that every one is liable to have this tact and plain 
 soundness of judgment impaired in that very line or sphere in which his calling 
 has made it his duty to settle general principles, to find general rules, to defend 
 general points? The grammarian, by profession, frequently, perhaps generally, 
 writes pedantically and stiffly; the religious controversialist goes to extremes; 
 the philosopher, by profession, is apt to divide, distinguish, and classify beyond 
 what reality warrants ; the soldier, by profession, is apt to sacrifice advantages to 
 his science. Dr. Sangrado is the caricature of the truth here maintained. 
 
 The denial of the necessity of profound study and professional occupation 
 would be as fanatical as the disregard of common sense would be supercilious 
 and unphilosophical. Truth stands, in all spheres, emphatically in need of 
 both. 
 
 1 The whole history of the libel, down to Charles Fox's immortal bill, may serve 
 as an illustration.
 
 236 
 
 ON CIVIL LIBERTY 
 
 It makes the administration of justice a matter of the people, 
 and awakens confidence ; 
 
 It binds the citizen with increased public spirit to the 
 government of his commonwealth, and gives him a constant 
 and renewed share in one of the highest public affairs, the 
 application of the abstract law to the reality of life the 
 administration of justice ; 
 
 It teaches law and liberty, order and rights, justice and 
 government, and carries this knowledge over the land ; * it is 
 the greatest practical school of free citizenship ; 
 
 It throws a great part of the responsibility upon the people, 
 and thus elevates the citizen while it legitimately strengthens 
 the government ; 
 
 It does not only elevate the judge, but makes him a popular 
 magistrate, looked up to with confidence and favor ; which is 
 nowhere else the case in the same degree, and yet is of great 
 importance, especially for liberty ; 
 
 It is the great bulwark of liberty in monarchies against the 
 crown ; 
 
 It stands, in republics, as a committee of the people, between 
 the accused and the people themselves, a more exacting king 
 when excited than one that wears a crown ; 
 
 It alone makes it possible to decide to the satisfaction of the 
 public those cases which must be decided, and which, never- 
 theless, do not lie within the strict limits of the positive law; 
 
 1 Lord Chancellor Cranworth said, in February, 1853, in the house of lords: 
 " There were many other subjects to be considered. Trial by judge instead of 
 by jury had been eminently successful in the county courts; but, in attempting to 
 extend this to cases tried in other courts, we must not lose sight of the fact that we 
 should be taking a step towards unfitting for their duties those who are to send 
 representatives to the other house of parliament, who are to perform municipal 
 functions in towns, and who are to exercise a variety of those local jurisdictions 
 which constitute in some sort in this country a system of self-government. It 
 may be very dangerous to withdraw from them that duty of assisting in the ad- 
 ministration of justice. Mechanics' schools may afford valuable instruction, but 
 I doubt if there is any school that reads such practical lessons of wisdom, and 
 tends so much to strengthen the mind, as to serve as a juryman in the adminis- 
 tration of justice."
 
 AND SELF-GOVERNMENT. 237 
 
 It alone makes it possible to reconcile, in some degree, old 
 and cruel laws, if the legislature omits to abolish them, with 
 a spirit of humanity, which the judge could never do without 
 undermining the ground on which alone he can have a firm 
 footing ; 
 
 It is hardly possible to imagine a living, vigorous, and 
 expanding common law without it ; 
 
 It is with the representative system one of the greatest 
 institutions which develop the love of the law, and without 
 this love there can be no sovereignty of the law in the true 
 sense; 
 
 It is part and parcel of the Anglican self-government ; 
 
 It gives to the advocate that independent and honored 
 position which the accusatorial process as well as 'iberty re- 
 quires, and it is a school for those great advocates without 
 which broad popular liberty does not exist. 
 
 Mr. Hallam, speaking in his work on the Middle Ages of 
 " the grand principle of the Saxon polity, the trial of facts 
 by the country," says, "from this principle (except as to that 
 preposterous relic of barbarism, the requirement of unanimity) 
 may we never swerve may we never be compelled in wish to 
 swerve by a contempt of their oaths in jurors, a disregard 
 of the just limits of their trusts." To these latter words I 
 shall only add, that the fact of the jury's being called by the 
 law the country, and of the indicted person's saying that 
 he will be tried by God and his country, are facts full of 
 meaning, and expressive of a great part of the beauty and the 
 advantages of the trial by jury. 1 There is, however, no 
 mysterious efficacy inherent in this or any other institution, 
 nor any peculiar property in the name. Juries must be well 
 organized, and must conscientiously do their duty. They be- 
 come, like all other guarantees of liberty, very dangerous in 
 the hands of the government, when nothing but the form is 
 left and the spirit of loyalty and of liberty is gone. A cor- 
 
 1 On all these subjects connected with the jury I must refer to the Political 
 Ethics.
 
 2 3 8 ON CIVIL LIBERTY 
 
 rupt or facile jury is the most convenient agent for despotism, 
 or a sure road to anarchy. 
 
 The jury trial has been mentioned here as one of the guar- 
 antees of liberty, and it might not be improper to add some 
 remarks on the question whether the unanimous verdict ought 
 to be retained, or whether a verdict as the result of two-thirds 
 or a simple majority of jurors agreeing ought to be adopted. 
 This is an important subject, occupying the serious attention 
 of many persons. But, however important the subject may 
 be, and connected as I believe it to be with the very continu- 
 ance of the trial by jury as a wholesome institution, and with 
 the supremacy of the law, it is one still so much debated that 
 a proper discussion would far exceed the limits to which this 
 work is restricted; and the mere avowal that it is my firm 
 conviction, after long observation and study, that the una- 
 nimity principle ought to be given up, would be of no value. 1 
 I beg, however, to add, as a fact at all events of interest to 
 the student, that Locke was against the unanimity principle. 
 His constitution for South Carolina has this provision : 
 " Every jury shall consist of twelve men ; and it shall not be 
 necessary they should all agree, but the verdict shall be 
 according to the consent of the majority." 
 
 The "duke's laws" in New York, generally ascribed to the 
 
 1 My conviction has been much strengthened since the original writing of this 
 work. The Scottish jury (consisting of fifteen members) decides by majority. 
 Our continued failures of verdicts would cease. Whenever the jury is out more 
 than half an hour, it is a pretty sure sign that the unanimity is, after all,[only one in 
 form and not in truth. Perhaps most professional men adhere to the unanimity 
 principle; but reforms very rarely proceed from the profession, in any sphere. 
 It was not the theologians of the pope from whom the Reformation proceeded. 
 We can add, however, high authority in favor of our opinion. In January, 1859, 
 Lord Campbell, chief justice of England, declared in court, after the jury had 
 pronounced an absurd verdict, which he declined accepting, that he intended to 
 propose a bill, in parliament, for the purpose of adopting the majority principle in 
 civil cases ; and while I was revising these pages, a very respectable petition, 
 urged even by judges, to allow judges to decide in civil cases by the majority of 
 jurymen, when they cannot agree on a unanimous verdict, was presented to the 
 Massachusetts legislature. I consider, however, the principle of ve-dicts by two- 
 thirds in penal cases even more important than in civil cases.
 
 A ND SELF- G O VERNMENT. 
 
 Lord Chancellor Clarendon, the father-in-law of the Duke of 
 York, demanded seven jurors, and unanimity only in capital 
 cases. 1 
 
 It is, besides, well known that our number of twelve jury- 
 men, and the principle of their unanimity, arose from the 
 circumstance that in ancient times at least twelve of the 
 compurgators were obliged to agree before a verdict would be 
 given, and that compurgators were added until twelve of them 
 agreed one way or the other. 2 
 
 I conclude here my remarks on the institution of the jury, 
 and pass over to the last element of the independence of the 
 law the independent position of the advocate. 
 
 42. Where the inquisitorial trial exists, where the judiciary 
 in general is not independent, and where the judges more or 
 less feel themselves, and are universally considered, as govern- 
 ment officers, it is in vain to look for independent advocates, 
 as a class of men. Their whole position, especially where 
 the trial is not public, prevents the development of this inde- 
 pendence, and the consideration they have to take of their 
 future career would soon check it where it might occasionally 
 happen to spring forth. 3 
 
 1 Judge Daly's Historical Sketch of the Judicial Tribunals of New York, New 
 York, 1855, page 53. 
 
 2 Forsyth, History of the Trial by Jury. 
 
 3 Feuerbach, in his Manual of the Common German Penal Law, loth edition, 
 \ 623, says that in the inquisitorial proceeding we have to represent the judge to 
 our minds as the representative of the offended state, inasmuch as it is his duty 
 to see justice done for it according to the penal law ; as representative of the ac- 
 cused, inasmuch as he is bound at the same time to find out everything on which 
 innocence or a less degree of criminality can be founded ; and finally, as judge, 
 inasmuch as he must decide upon the given facts. Why not add to this fearful 
 triad the jailer, the executioner ? 
 
 Although a " defensor" is appointed, it is difficult for him to do his work 
 properly ; for in the German inquisitorial process the defence begins when the 
 inquiring judge has finished, OF the "acta" are closed, that is, when the written 
 report of the judge is made. Now, a lawyer does not feel very free to attack the 
 writing of a judge upon whom his advancement probably depends, even if any 
 latitude were given to the advocate. Mr. Mittermaier, note d, \ 14, of his 
 Art of Defending, ad edition, speaks openly of the great difficulty encountered
 
 240 
 
 ON CIVIL LIBERTY 
 
 The independence of the advocate is important in many re- 
 spects. The prisoner, in penal trials, ought to have counsel. 
 Even Lord Jeffreys, who among judges is what Alexander VI. 
 was among popes, declared it, as far back as the seventeenth 
 century, a cruel anomaly that counsel were permitted in a case 
 of a few shillings, but not in a case of life and death. But 
 counsel of the prisoner can be of no avail if they do not feel 
 themselves independent in a very high degree. This inde- 
 pendence is necessary for the daily protection of the citizen's 
 rights. It is important for a proper and sound development 
 of the law; for it is not only the decisions of the judges which 
 frequently settle the most weighty points and fights, but also 
 the masterly arguments of the advocates ; and, lastly, it is 
 important in all so-called political trials. 
 
 May we never have reason to wish it otherwise ! The limits 
 of the advocate, especially as counsel in criminal cases, and 
 which doubtless form a subject connected with liberty itself, 
 nevertheless belong more properly to political and especially 
 to legal ethics. As such I have treated of them in the Polit- 
 ical Ethics. I own, however, that, when writing that work, the 
 topic had not acquired in my mind all the importance and 
 distinctness which its farther pursuit, and the perusal of works 
 on this important chapter of practical ethics, have produced. 
 I am sorry to say that very few of these works or essays seem 
 manfully to grapple with it and to put it upon solid ground. 
 It is desirable that this should be done thoroughly and philo- 
 sophically. This is the more necessary, as the loosest and 
 vaguest notions on the rights of the advocate are entertained 
 
 by the "defensor" in unveiling the imperfections of the acta which have been 
 sent him, bec\use he thereby offends his superior, upon whom his whole career 
 may depend; and Mr. Voget, the de r ensor of the woman Gottfried, in Bremen, 
 who had poisoned some thirty persons, fully indorses these remarks of Mr. Mrt- 
 termaier, in his work, The Poisoner, G. M. G< ttfried, Bremen, 1830, (first di- 
 vision, pp. 17 and 18.) He concludes his remarks with these words: "Who 
 does not occasionally think of the passage, I Sam. 29 : 6 Non inveni in te quid- 
 quam mali, sed satrnpis non places," (or, as our version of the Bible has it : 
 Nevertheless, the lords favor thee not.)
 
 AND SELF-GOVERNMENT. 
 
 241 
 
 by many respectable men, and the most untenable opinions 
 have been uttered by high authorities. 1 
 
 In this work, however, all that I am permitted to do is to 
 indicate the true position of the advocate in our Anglican 
 system of justice, and to allude to the duties flowing from it. 
 
 Most writers discuss " the time-honored usage of the pro- 
 fession in advocating one side," and of saying all that can be 
 said in defence of the prisoner. No one at all conversant with 
 the subject has ever had any doubt upon this point. It is a 
 necessary effect of the accusatorial procedure. Indeed, it forms 
 an essential part of it. But the writers go on maintaining 
 that therefore the -advocate may, and indeed must, do and 
 say for his client all that the latter would do and say for him- 
 self, had he the requisite talent and knowledge. And here 
 lies the error, moral as well as legal. 2 
 
 No man is allowed to do wrong, for instance to tell an 
 untruth, or to asperse the character of an innocent person, 
 either in his own behalf or for another. The prisoner would 
 do wrong in lying, and no one has a right to do it for him. 
 The lawyer is no more freed from the moral law or the obliga- 
 tion of truth than any other mortal, nor can he divest himself 
 of his individuality any more than other men. If he lies, he 
 lies as every other man, at his own individual peril. If, as 
 Lord Brougham stated it, the only object of counsel is to free 
 the prisoner, at whatever risk, why, then, not also do certain 
 things for the prisoner which he would do were he free ? 
 Many an indicted murderer would make away with a danger- 
 
 1 For instance, Lord Brougham's well-known assertion uttered at the trial of 
 Queen Caroline often commented upon, but never taken back or modified by 
 the speaker, p. 91, Legal and Political Hermeneutics. See also an article on 
 License of Counsel in the January number, 1841, of Westminster Review. The 
 case of Sir Arthur Pigott, attorney-general of the Duchy of Cornwall, stating in 
 court, for the Prince of Wales, that he had never heard of bonds of the Dutch 
 loan, which the prince an r l some of his brokers had made, has been referred to 
 before. The list of shameful tricks actual tricks to which counsel have occa- 
 sionally resorted in our courts, would require a large space. 
 
 2 Consult Hortensius : an Historical View of the Office and Duties of an 
 Advocate, by William Forsyth, London, 18 3. 
 
 16
 
 242 
 
 ON CIVIL LIBERTY 
 
 ous witness, if the prison did not prevent him. Why, then, 
 ought not the lawyer to do this for him ? Because it would 
 be murder? And why not? If the advocate is to say and do 
 all the prisoner would do and say for himself, irrespective of 
 morality, the supposed case is more glaring, indeed, but in 
 principle the same with many actual ones. The fact is, the 
 rights of the advocate, or the defence of his speaking on one 
 side, cannot be put on a worse foundation than by thus making 
 him a part of the prisoner's individuality, or a substitute. Nor 
 could there be a more degrading position than that of letting 
 one's talent or knowledge for hire, no matter whether for just 
 or unjust, moral or immoral purposes. Indeed, why should 
 this knowledge for hire begin its appropriate operation during 
 the trial only, if escape is the only object ? Why not try to foil 
 the endeavors of the detective police ? Is it only because the 
 retaining fee has not yet been paid, and that, so soon as it is in 
 the advocate's hand, he has a right to say, with the ancient 
 poet: I deem no speaking evil that results in gain? 1 This 
 cannot be. All of us have learned to venerate Socrates, whom 
 Lord Mansfield calls the greatest of lawyers, for having made 
 victorious war on the sophists, and having established ethics 
 on pure and dignified principles ; and now we are called upon 
 to sanction everything, without reference to morality and truth, 
 in an entire and highly privileged class, and in the perform- 
 ance of the most sacred business of which political man has 
 any knowledge. If lawyers insist upon this revolting exemp- 
 tion from the eternal laws of truth and rectitude, they ought 
 to consider that this will serve in the end as a suggestion to 
 the people of returning to the Athenian court of the people. 
 
 The true position of the advocate in the Anglican accusato- 
 rial trial, and in a free and orderly country, is not one which 
 would almost assimilate him to the "receiver." It is a far 
 different one. Nearly in all free countries, but especially in 
 all modern free countries, has the advocate assumed a promi- 
 nent position. He is an important person as advocate, and as 
 
 1 Ao/tw fjh> oviev p^ua oi)v icepdei KOKOV.
 
 AND SELF-GOVERNMENT. 
 
 243 
 
 belonging to that profession from which the people necessarily 
 must always take many of their most efficient law-makers, 
 from which arise many of the greatest statesmen, whatever 
 the English prejudice, even of such men as Chatham, to the 
 contrary may long have been, and which has formed in free 
 states many of their immortal orators. 1 
 
 'There was a time when "diplomacy and dishonest subtlety were nearly 
 synonymous when it was discussed how signatures might be written so that 
 after a number of years they would vanish. Since that time, diplomacy has 
 signally improved. We are now living in an age in which a corresponding im- 
 provement is manifestly going on in legal ethics. We discuss the pertinent topics 
 at least, and public attention is alive. The following article, taken from the 
 London Spectator, Sept. 3, 1853, may find an appropriate place in a note: 
 
 " However little the Smyth case can have answered the purpose of the man 
 who claimed the property, it will not be entirely without beneficial result, since 
 it has put in a very strong light a moral which has not escaped the legal profes- 
 sion. Some time ago it was argued that a barrister becomes completely the 
 agent and advocate of his client, engaged solely to present all that may be said 
 on the side of that client, and disengaged from any moral responsibility as to the 
 merits of the case. This doctrine, however, although it was convenient for the 
 consciences of professional men less sensitive than Romilly, could not be sus- 
 tained entirely ; and barristers have gone to the equally erroneous opposite 
 extreme that of throwing up a brief as soon as a grossly fraudulent character 
 was exposed in their case. Mr. Bovill threw up his brief in the Smyth case, and 
 in doing so, we think, violated the true principle upon which a barrister should 
 act ; a principle which has not been unrecognized by the profession. It is, that 
 the barrister is engaged for the purpose of seeing that his client be treated accord- 
 ing to law and in no other way ; that he have all the evidence that can be pro- 
 cured and set forth for him ; that the evidence be taken according to rule and 
 practice; that the judge charge the jury according to law and rule; in short, 
 that the whole proceedings be regular and complete in all that is required on the 
 part of the client. Acting on this principle, the barrister can retain his brief to 
 the last, as well as on the principle of absolute agency; but he is not required to 
 be an accomplice in suborning false evidence, or in setting forth pleas that he 
 knows to be fraudulent; nor is he bound to anticipate the judgment by a declara- 
 tion of the verdict in the act of throwing up his brief. 
 
 " This principle has been recognized so far that there is a prospect of its be- 
 coming more generally adopted as the rule of the profession. But the Smyth 
 case suggests to us that it may very properly be extended to the other half of 
 the profession the attorneys. They are bound to exercise discretion in their 
 conduct with their clients, otherwise they become parties to conspiracy and fraud. 
 Considering all the opportunities that a man in the profession has of discrimina- 
 ting, it is difficult to find him thus placed and to acquit him either of an extraor-
 
 244 ON CIVIL LIBERTY 
 
 The advocate is part and parcel of the whole machinery of 
 administering justice, as much so as the jury, the judge, or 
 the prosecutor. He forms an integral part of the whole con- 
 trivance called the trial ; and the only object of the trial is to 
 find out legal truth so that justice may be administered. In 
 this trial, it has been found most desirable to place the judge 
 beyond the parties, to let both parties appear before him, and 
 to let both parties say all they can say in their favor, so that 
 the truth may be ascertained without the judge's taking part 
 in the inquiry, and thus becoming personally interested in the 
 conviction, or in either party. The advocate is essentially an 
 amicus curiae ; he helps to find the truth, and for this purpose 
 it is necessary that all that can be said in favor of his client 
 or in mitigation of the law be stated ; because the opposite 
 party does the opposite, and because the case as well as the 
 law ought to be viewed from all sides, before a decision be 
 made. The advocate ought not only to say all that his client 
 might say had he the necessary skill and knowledge, but even 
 more ; but the client or prisoner has no right to speak the 
 untruth in his own behalf, nor has the lawyer the right to do 
 it for him. 
 
 Chief-Justice Hale severely reproves the misstating authori- 
 ties and thus misleading the court ; but why should this be 
 wrong, and the misstating of facts not? Many prisoners 
 would certainly misstate authorities if they could. Trials are 
 not established for lawyers to show their skill or to get their 
 fees, nor for arraigned persons to escape. They are estab- 
 lished as a means of ascertaining truth and dispensing jus- 
 tice ; not to promote or aid injustice or immorality. The 
 advocate's duty is, then, to say everything that possibly can 
 
 dinary degree of dulness or of culpable knowledge. It is, for example, excess- 
 ively difficult to understand how any professional man could see Smyth, hear 
 him tell his lies nay, take them down in writing in order to insert them in the 
 brief and not understand the whole character of the fraud. Now, no attorney 
 would put himself into this position, however fraudulent his client might be, if 
 he confined himself to the principle which we have mentioned as adopted by 
 barristers."
 
 AND SELF-GOVERNMENT. 
 
 245 
 
 be said in favor of his case or client, even if he does not feel 
 any strong reliance on his argument, because what appears to 
 himself weak may not appear as such to other minds, or may 
 contain some truth which will modify the result of the whole. 
 But he is not allowed to use falsehood, nor to injure others. 
 Allowing this to him would not be independence, but an arbi- 
 trarily privileged position, tyrannical toward the rest of society. 1 
 To allow tricks to a whole profession, or to claim them by law, 
 seems monstrous. There is no separate decalogue for lawyers, 
 any more than for king, partisan, or beadle. 4 
 
 The lawyer is obliged, as was stated before, to find out 
 everything that can be found in favor of the person who has 
 intrusted himself to his protecting care, because the opposite 
 will be done by the opposite party. He has no right to 
 decline the defence of a person, which means the finding out 
 for him all that fairly can be said in his favor, except indeed in 
 very peculiar cases. Declining the defence beforehand would 
 amount to a prejudging of the case; and in the division of 
 judicial labor every one ought to be defended. 2 The defence 
 
 1 The famous case of Mr. Philips, now on the bench, when defending Cour- 
 voisier, is treated at considerable length in Townsend's Modern State Trials, 
 under the trial of Courvoisier. It must be allowed that the defence is not suc- 
 cessful, though ingenious. On page 312 of vol. i. of that work, the reader will 
 also find the titles of numerous writings bearing on the moral obligations of the 
 advocate, to which may be added those I have mentioned in the notes appended 
 to my remarks on the advocate in the 2d vol. of the Political Ethics. I also 
 refer to pp. 59 and sequ. in my Character of the Gentleman, Charleston, S.C., 
 1847- 
 
 2 At the very moment that these pages are passing through the press, (in 1853,) 
 a case has occurred in an English court, of a young man indicted for burgla- 
 riously entering the room of Some young woman. His counsel in the defence 
 suggested that probably the young lady had given an appointment to the pris- 
 oner. " That is not in the brief," cried the prisoner himself, and the court justly 
 reprimanded the barrister. It ought to be added that in this case the barrister 
 wrote a letter of submission to the court. This has not been done in other cases 
 quite as bad in principle. Thus, another publicly reproved barrister insisted that 
 he had done what the profession required when he had resorted to the following 
 trick. He had subpoenaed the chief witness against his client, so that he could 
 not appear, and then argued that the prosecutor must know his client to be 
 innocent, else he would certainly have produced his witness, etc. 
 
 Since this was written, the following case has occurred, (in Cincinnati, 1853.)
 
 2 4 6 ON CIVIL LIBERTY 
 
 of possible innocence, not the defeat of justice, is the aim of 
 counsel. 
 
 Great advocates, such as Romilly, 1 have very distinctly 
 pronounced themselves against that view which still seems the 
 prevailing one among the lawyers ; and Dr. Thomas Arnold 
 was so deeply impressed with the moral danger to which the 
 profession of the law, at present, exposes its votary, that he 
 used to persuade his pupils not to become lawyers ; while Mr. 
 Bentham openly declared that no person could escape, and 
 that even Romilly had not remained wholly untainted. 
 
 It ought to be observed, however, that a more correct opinion 
 on the obligations of the advocate seems to be fast gaining 
 ground in England. At present it seems to be restricted to 
 the public ; but the time will come when this opinion will reach 
 the profession itself. Like almost all reforms, it comes from 
 without, and will ultimately force an entrance into the courts 
 and the inns. We are thus earnest in our desire of seeing 
 correct views on this subject prevail, because we have so high 
 an opinion of the importance of the advocate in a modern 
 free polity. 2 
 
 When the defence came on, three hundred witnesses were sworn. The prosecu- 
 tion of course did not believe thai its turn would come for a long time. But the 
 defence only examined some four witnesses, and then declared it had done. The 
 prosecution was not prepared to proceed, and asked for delay; but the court 
 decided that the case could not be stopped. Thus the whole trial was upset, 
 and a verdict of not guilty was found. Now, are such atrocities to be borne 
 with? Does freedom consist in giving all possible protection to trickery? 
 
 1 There is a very excellent passage on this topic in the reflections of Sir Samuel 
 Romilly on himself and the good he might do should he be appointed lord 
 chancellor, page 384 and sequ. of vol. iii. of his Memoirs, 2d ed., London, 1840. 
 
 ' This was written in 1853.
 
 AND SELF-GOVERNMENT. 247 
 
 CHAPTER XXL 
 
 SELF-GOVERNMENT. 
 
 THE last constituent of our liberty that I shall mention is 
 local and institutional self-government. 1 Many of the guaran- 
 
 1 The history of this proud word is this : It was doubtless made in imitation of 
 the Greek autonomy, and seems originally to have been used in a moral sense 
 only. It is of frequent occurrence in the works of the divines who flourished in 
 the sixteenth and seventeenth centuries. After that period it appears to have 
 been dropped for a time. We find it in none of the English dictionaries, although 
 a long list of words is giveti compounded with self, and among them many which 
 are now wholly out of use ; for instance, Shakspeare's Self-sovereignty. In Dr. 
 Worcester's Universal and Critical Dictionary, the word is marked with a star, 
 which denotes that he has added it to Dr. Johnson's, and the authority given is 
 Paley, who, to my certain knowledge, does not use it in his Political Philosophy, 
 nor have several of my friends succeeded in finding it in any other part of his 
 works, although diligent search has been made. [It is in Webster, ed. of 1848.] 
 
 Whether the term was first used for political self-government in England or 
 America I have not been able to ascertain. Richard Price, D.D., used it in a 
 political sense in his Observations on the Nature of Civil Liberty, etc., 3d edition, 
 London, 1776, although it does not clearly appear whether he means what we 
 now designate by independence, or internal (domestic) self-government. Jeffer- 
 son said, in 1798, that "the residuary rights are reserved to their (the American 
 states') own self -government." The term is now freely used both in England 
 and America. In the former country we find a book on Local Self-government; 
 in ours, Daniel Webster said, on May the 22d, 1852, in his Faneuil Hall speech : 
 " But I say to you and to our whole country, and to all the crowned heads and 
 aristocratic powers and feudal systems that exist, that it is to self-government, the 
 great principle of popular representation and administration the system that lets 
 in all to participate in the counsels that are to assign the good or evil to all that 
 we may owe what we are and what we hope to be." 
 
 Earl Derby, when premier, said, in the house of lords, that the officers sent 
 from abroad to assist in the funeral of the Duke of Wellington would " bear wit- 
 ness back to their own country how safely and to what extent a people might be 
 relied upon in whom the strongest hold of their government was their own rever- 
 ence and respect for the free institutions of their country, and the principles of 
 popular self-government controlled and modified by constitutional monarchy."
 
 24 8 ON CIVIL LIBERTY 
 
 tees of individual liberty which have been mentioned receive 
 their true import in a pervading system of self-government, 
 and on the other hand are its refreshing springs. Individual 
 liberty consists, in a great measure, in politically acknowledged 
 self-reliance, and self-government is the sanction of self-reliance 
 and self-determination in the various minor and larger circles 
 in which government acts and of which it consists. Without 
 local self-government, in other words, self-government con- 
 sistently carried out and applied to the realities of life, and not 
 remaining a mere general theory, there is no real self-govern- 
 ment according to Anglican views and feelings. Self-govern- 
 ment is founded on the willingness of the people to take care 
 of their own affairs, and the absence of that disposition which 
 looks to the general government for everything ; as well as on 
 
 In one word, self-government is now largely used oti both sides of the Atlantic, 
 in a political sense. 
 
 This modern use of the word is no innovation, as it was no innovation when 
 St. Paul used the old Greek word marif in the vastly expanded sense of Christian 
 faith. Ideas must be designated. The innovation was Christianity itself, not 
 the use of the word to designate an idea greater than Pistis could have signified 
 before. 
 
 That self-government in politics is always applied by the English-speaking 
 race for the self-government of the people or of an institution, in other words, 
 that self has in this sense a reflective meaning, is as natural as the fact itself that 
 the word has come, in course of time, to be applied to political government, 
 simply because we must express the idea of a people or a part of a people who 
 govern themselves and are not governed by some one else. 
 
 Self-government belongs to the Anglican race, and the English word is used 
 even by foreigners. A German and a French statesman, both distinguished in 
 literature and politics, used not long ago the English word in conversations in 
 their own languages with me. 
 
 Donaldson's Greek Dictionary renders frvrovofua by self-government. 
 
 The word self, or its corresponding term in other languages, may have a 
 reflective sense, as in self-murder, or it may have a merely emphatic or exclusive 
 meaning, ipse, he himself. Hence the fact that the Emperor of Russia calls him- 
 self autocrat of all the Russias, (self-ruler, himself and alone the ruler,) and we 
 use the corresponding word self-government for the opposite, the government in 
 which the ruling is left to the ruled. The old English self-sovereign is the exact 
 rendering of autocrat. The Germans use the word Selbst-Verlag, i.e., sale of the 
 book by the author himself. German wine-shops in New York have frequently 
 on their signs, in English, the ludicrous words Self-Imported Wines.
 
 AND SELF-GOVERNMENT. 
 
 the willingness in each to let others take care of their own 
 affairs. It cannot exist where the general principle of inter- 
 ference prevails, that is, the general disposition in the executive 
 and administration to do all it possibly can do, and to substi- 
 tute its action for individual or minor activity and for self- 
 reliance. Self-government is the corollary of liberty. 
 
 .So far we have chiefly spoken of that part of liberty which 
 consists in checks, except indeed when we treated of repre- 
 sentative legislatures ; self-government may be said to be 
 liberty in action. It requires a pervading conviction through- 
 out the whole community that government, and especially the 
 executive and administrative branch, should do nothing but 
 what it necessarily must do, and which cannot, or ought not, 
 or will not be done by self-action ; and that, moreover, it should 
 allow matters to grow and develop themselves. Self-govern- 
 ment implies self-institution, not only at the first setting out 
 of government, but as a permanent principle of political life. 
 In a pervading self-government, the formative action of the 
 citizens is the rule ; the general action of the government 
 is the exception, and only an aid. The common action of 
 government in this system is not originative, but regulative 
 and moderative, or conciliative and adjusting. Self-govern- 
 ment, therefore, transacts by far the greater bulk of all public 
 business through citizens, who, even while clad with authority, 
 remain essentially and strictly citizens, and parts of the people. 
 It does not create or tolerate a vast hierarchy of officers, form- 
 ing a class of mandarins for themselves, and acting as though 
 they formed and were the state, and the people only the sub- 
 stratum on which the state is founded, similar to the view 
 that the church consists of the hierarchy of priests and that 
 the laity are only the ground on which it stands. 
 
 A pervading self-government, in the Anglican sense, is 
 organic. It does not consist in the mere negation of power, 
 which would be absurd, for all government implies power, 
 authority on the one hand and obedience on the other ; nor 
 does it consist in mere absence of action, as little as the 
 mere absence of censorship in China is liberty of the press
 
 250 
 
 ON CIVIL LIBERTY 
 
 It consists in organs of combined self-action, in institutions, 
 and in a systematic connection of these institutions. It is 
 therefore the opposite at once of a disintegration of society 
 into individual, dismembered and disjunctive independencies, 
 and of c'espotism, whether this consist in the satrap despotism 
 of the East, (in which the pacha or satrap embodies indeed 
 the general principle of unfreedom in relation to his superior, 
 but is a miniature despot or sultan to all below him,) or 
 whether it consist in the centralized despotism resting on a 
 dense and thoroughly systematized hierarchy of officials, as 
 in China or in the European despotic countries. Anglican 
 self-government differs in principle from the sej unction into 
 which ultimately the government of the Netherlands lapsed : 
 and it is equally far from popular absolutism, in which the 
 majority is the absolute despot. The majority may shift, in- 
 deed, in popular absolutism, but the principle does not, and the 
 whole can only be called a mutually tyrannizing society, not 
 a self-government. An American orator of note has lately 
 called self-government a people sitting in committee of the 
 whole. It is a happy expression of what he conceives self- 
 government to be. We understand at once what he means ; 
 but what he means is the Athenian market democracy, in its 
 worst time, or, as a French writer has expressed it, Le peuple- 
 empereur, the people-despot. It is, in fact, one of the oppo- 
 sites of self-government, as much so as the one expressed 
 in the favorite saying of Napoleon I.: "Everything for the 
 people, nothing by the people." Self-government means 
 Everything for the people, and by the people, considered as 
 the totality of organic institutions, constantly evolving in their 
 character, as all organic life is, but not a dictatorial multitude. 
 Dictating is the rule of the army, not of liberty ; it is the 
 destruction of individuality. But liberty, as we have seen, 
 consists in a great measure in protection of individuality. 
 
 While Napoleon I. thus epigrammatically expressed the 
 essence of French centralization, 1 his chief antagonist, William 
 
 1 As to the first part of this imperial dictum tout pour le peuple we know 
 very well how difficult it is to know what is for the people, without institutional
 
 AND SELF-GOVERNMENT. 
 
 251 
 
 Pitt, even the tory premier, could not help becoming the organ 
 of Anglican self-government, as appears from the anecdote 
 which I relate in full as it was lately given to the public, 
 because the indorsement by the uncompromising soldier gives 
 it additional meaning : 
 
 " A day or two before the death of the Duke of Wellington, 
 referring to the subject of civic feasts, he told an incident in 
 the life of Pitt which is worth recording. The last public 
 dinner which Pitt attended was at the Mansion-house ; when 
 his health was proposed as the savior of his country. The 
 duke expressed his admiration of Pitt's speech in reply; which 
 was, in substance, that the country had saved herself by her 
 own exertions, and that every other country might do the 
 same by following her example." 1 
 
 Self-government is in its nature the opposite to political 
 apathy and that moral torpidity or social indifference which is 
 sure to give free play to absolutism, or else to dissolve the 
 whole polity. We have a fearful instance in the later Roman 
 empire. It draws its strength from self-reliance, as has been 
 stated, and it promotes it in turn ; it cannot exist where there 
 is not in each a disposition and manliness of character will- 
 ing and able to acknowledge it in others. Nothing strikes 
 an observer, accustomed to Anglican self-government, more 
 strongly in France than the constant desire and tendency 
 even in the French democracy to interfere with all things 
 and actions and to leave nothing to self-development. Self- 
 government requires politically, in bodies, that self-rule which 
 moral self-government requires of the individual the readi- 
 ness of resigning the use of power which we may possess, 
 
 indexes of public opinion, and how easy it is, even for the wisest and' the best, 
 to mistake and substitute individual, family, and class interests, and passions, for 
 the wants of the people. This, indeed, constitutes one of the inherent and 
 greatest difficulties of monarchical despotism. A benevolent Eastern despot 
 could not have said it, for there is no people, politically speaking, in Asia; and 
 for a European ruler it was either hypocritical, or showed that Napoleon was 
 ignorant of the drift of modern civilization, of which political development forms 
 so large a portion. 
 
 1 London Spectator of September 18, 1852.
 
 252 
 
 ON CIVIL LIBERTY 
 
 quite as often as using it. Yet it would be a great mistake to 
 suppose that self-government implies weakness. Absolutism 
 is weak. It can summon great strength upon certain occa- 
 sions, as all concentration can ; but it is no school of strength 
 or character ; nor is a certain concentration by any means 
 foreign to self-government, but it is not left in the hands of 
 the executive to use it arbitrarily. Nor is it maintained that 
 self-government necessarily leads in each single case soonest 
 and most directly to a desired end, especially when this belongs 
 to the physical welfare of the people ; nor that absolute and 
 centralized governments may not occasionally perform brilliant 
 deeds, or carry out sudden improvements on a vast scale 
 which it may not be in the power of self-governments so 
 rapidly to execute. But the main question for the freeman is, 
 which is the most befitting to man in his nobler state ; which 
 produces the best and most lasting results upon the whole 
 and in the long run ; which effects the greatest stability and 
 continuity of development ; in which is more action of sound 
 and healthful life and not of feverish paroxysms ; which pos- 
 sesses the greatest tenacity ? Is it the brilliant exploits which 
 constitute the grandeur of nations if surveyed in history, and 
 are there not many brilliant actions peculiar to self-government 
 and denied to centralized absolutism ? 
 
 In history at large, we observe that the material and bril- 
 liant influence of states is frequently in accordance with their 
 size and the concentration of their governments, but that the 
 lasting and essential influence exercised by states is in propor- 
 tion to their vigorous self-government. This influence, how- 
 ever, is less visible, and requires analyzing investigation to be 
 discovered and laid open. The influence of England on the 
 whole progress of our race has been far greater than that of 
 France, but far less brilliant than that of the period of Louis 
 XIV. A similar observation may be made in all spheres. 
 The influence which the mind of Aristotle has had on our race 
 far surpasses the effects of all the brilliant exploits of his im- 
 perial pupil ; yet thousands learn the name of Alexander the 
 Great, even in our primary schools, who never hear of Aris-
 
 AND SELF-GOVERNMENT. 
 
 253 
 
 totle. Nature herself furnishes man with illustrations of this 
 fact. The organic life which silently pervades the whole with 
 a creative power, is not readily seen, while convulsions, erup- 
 tions, and startling phenomena attract the attention, or cause 
 at least the wonder of the least observing. 
 
 Where self-government does not exist, the people are always 
 exposed to the danger that the end of government is lost 
 sight of, and that governments assume themselves as their 
 own ends, sometimes under the name of the country, some- 
 times under the name of the ruling house. Where self- 
 government exists, a somewhat similar danger presents itself in 
 political parties. They frequently assume that they themselves 
 are the end and object, and forget that they can stand on defen- 
 sible ground only if they subserve the country. Man is always 
 exposed to the danger of substituting the means for the ends. 
 The variations we might make on the ancient Propter vitam 
 vivendi perdere causas, with perfect justice, are indeed endless. 1 
 
 Napoleon I., who well knew the character of absolute 
 government and pursued it as the great end of his life, never- 
 theless speaks of the " impuissance de la force" the impo- 
 tency of power. 2 He felt, on his imperial throne, which on 
 another and public occasion he called wood and velvet unless 
 occupied by him, and which was but another wording of Louis 
 XIV.'s L'etat c'est moi, that which all sultans have felt when 
 their janizaries deposed them he felt that of all governments 
 the czar-government is the most precarious. He felt what, 
 
 1 Do not all the following, and many more, find their daily or historical 
 applications : Propter imperium imperandi perdere causas ; Propter ecclesiam 
 ecclesiee perdere causas; Propter legem legis perdere causas; Propter argumenta- 
 tionem argument! perdere causas; Propter dictionem dicendi perdere causas? 
 
 2 The Memoirs of Count Miot, the first volumes of which have lately been 
 published, show more in detail than any other work with what eagerness, con- 
 sistency, and boldness Napoleon I. endeavored, step by step, to break down 
 every guarantee of liberty which the French people had established. He did 
 this so soon as he had been made consul for life, and succeeded, through the 
 newly-established senate and council of state, in nearly all cases. When he 
 attempted to abolish the trial by jury, supported as he was by his high law-officers, 
 the institution was saved by a few men, showing, on that occasion, a degree of 
 resolution which had become rare, even at so early a period.
 
 ON CIVIL LIBERTY 
 
 with other important truths, Mr. de Tocqueville had the bold- 
 ness to tell the national assembly, in a carefully considered 
 report of a committee, in 1851, when he said: 
 
 " That people, of all nations in the whole world, which has 
 indeed overthrown its government more frequently than any 
 other, has, nevertheless, the habit, and feels more than any 
 other the necessity, of being ruled. 
 
 "The nations which have a federal existence, even those 
 which, without having divided the sovereignty, possess an 
 aristocracy, or who enjoy provincial liberties deeply rooted in 
 their traditions these nations are able to exist a long time 
 with a feeble government, and even to support, for a certain 
 period, the complete absence of a government. Each part of 
 the people has its own life, which permits society to support 
 itself for some time when the general life is suspended. But 
 are we one of those nations ? Have we not centralized all 
 matters, and thus created of all governments that which, in- 
 deed, it is the easiest to upset, but with which it is at the same 
 time the most difficult to dispense for a moment ?" x 
 
 1 Mr. de Tocqueville made this report on the 8th of July, in the name of the 
 majority of that committee, to which had been referred several propositions 
 relating to a revision of the constitution. It was the time when the constitutional 
 term of the president drew to its end, and the desire of annulling the ineligibility 
 for a second term became manifest. It was the feverish time that preceded the 
 second of December, destined to become another of the many commentaries on 
 the facility with which governments founded upon centralization are upset, by 
 able conspiracies or by a terror-striking surprise, such as the revolution of 
 February had been, when the Orleans dynasty was expelled, and another proof 
 how easy it is in such states to obtain an acquiescent majority or its semblance. 
 
 In connection with the foregoing, I must ask leave to add the concluding 
 remarks of the Ancien Regime, published since the first edition of Civil Liberty 
 was issued. I know of no passage in modern literature which reminds the 
 reader so directly of the energy and gloom of Tacitus. I quote from Mr. Bon- 
 ner's translation, New York, 1856, and wish to say that the whole work of Mr. 
 de Tocqueville is a continued historical commentary of all that is said in the 
 present work on Gallican political tendencies. 
 
 " When I examine that nation (the French) in itself, I cannot help thinking it 
 is more extraordinary than any of the events of its history. Did there ever 
 appear on the earth another nation so fertile in contrasts, so extreme in its acts 
 more under the dominion of feeling, less ruled by principle ; always better or 
 worse than was anticipated now below the level of humanity, now far above ;
 
 AND SELF-GOVERNMENT. 
 
 255 
 
 With this extract I conclude, for the. present, my remarks 
 on self-government, and with them the enumeration of the 
 guarantees and institutions which characterize, and in their 
 aggregate constitute, Anglican liberty. 
 
 They prevail more or less developed wherever the Anglican 
 race has spread and formed governments or established dis- 
 tinct polities. Yet, as each of them may be carried out with 
 peculiar consistency, or is subject to be developed under the 
 influence of additional circumstances, or as a peculiar character 
 may be given to the expansion of the one or the other element, 
 it is a natural consequence that the system of guarantees which 
 we have called Anglican presents itself in various forms. All 
 the broad Anglican principles, as they have been stated, are 
 necessary to us, but there is, nevertheless, that which we can 
 call American liberty a development of Anglican liberty pecu- 
 liar to ourselves. Those features which may, perhaps, be called 
 the most characteristic are given in the following chapter. 
 
 a people so unchangeable in its leading features, that it may be recognized by 
 portraits drawn two or three thousand years ago, and yet so fickle in its daily 
 opinions and tastes that it becomes at last a mystery to itself, and is as much 
 astonished as strangers at the sight of what it has done ; naturally fond of home 
 and routine, yet, once driven forth and forced to adopt new customs, ready to 
 carry principles to any lengths, and to dare anything; indocile by disposition, 
 but better pleased with the arbitrary and even violent rule of a sovereign than 
 with a free and regular government under its chief citizens ; now fixed in hos- 
 tility to subjection of any kind, now so passionately wedded to servitude that 
 nations made to serve cannot vie with it ; led by a thread so long as no word 
 of resistance is spoken, wholly ungovernable when the standard of revolt has 
 been raised thus always deceiving its masters, who fear it too much or too little ; 
 never so free that it cannot be subjugated, nor so kept down that it cannot break 
 the yoke; qualified for every pursuit, but excelling in nothing but war; more 
 prone to worship chance, force, success, eclat, noise, than real glory; endowed 
 with more heroism than virtue, more genius than common sense ; better adapted 
 for the conception of grand designs than the accomplishment of great enterprises ; 
 the most brilliant and the most dangerous nation of Europe, and the one that is 
 surest to inspire admiration, hatred, terror, or pity, but never indifference? 
 
 " No nation but such a one as this could give birth to a revolution so sudden, 
 so radical, so impetuous in its course, and yet so full of missteps, contradictory 
 facts, and conflicting examples. The French could not have done it but for the 
 reasons I have alleged ; but, it must be admitted, even these reasons would not 
 suffice to explain such a revolution in any country but France."
 
 256 ON CIVIL LIBERTY 
 
 CHAPTER XXII. 
 
 AMERICAN LIBERTY. 
 
 AMERICAN liberty belongs to the great division of Anglican 
 liberty. It is founded upon the checks, guarantees, and self- 
 government of the Anglican race. 1 The trial by jury, the 
 representative government, the common law, self-taxation, 
 the supremacy of the law, publicity, the submission of the 
 army to the legislature, and whatever else has been enumer- 
 ated, form part and parcel of our liberty. There are, how- 
 ever, features and guarantees which are peculiar to ourselves, 
 and which, therefore, we may say constitute American liberty. 
 They may be summed up, perhaps, under these heads : repub- 
 lican federalism, strict separation of the state from the church, 
 greater equality and acknowledgment of abstract rights in the 
 citizen, and a more popular or democratic cast of the whole 
 polity. 
 
 The Americans do not say that there can be no liberty with- 
 out republicanism, nor do they, indeed, believe that wherever 
 a republican or kingless government exists, there is liberty. 
 The founders of our own independence acknowledged that 
 freedom can exist under a monarchical government, in the 
 very act of their declaration of independence. Throughout 
 that instrument the Americans are spoken of as freemen whose 
 
 1 We have discussed the trial by jury, and even the grand jury, as elements of 
 Anglican liberty. I am now obliged to add, that when this page was correcting 
 for the press, the author learned that the state of Michigan had passed a law by 
 which, after the 1 2th day of April, 1859, the grand jury is to be dispensed with 
 as an ordinary instrument of criminal proceeding, though power is reserved to 
 the judges to resort to it in certain special cases. The people of Michigan have 
 thus shown an inclination toward the French system. French, and continental 
 European lawyers in general have an aversion to the grand jury.
 
 AND SELF-GOVERNMENT. 
 
 257 
 
 rights and liberties England had unwarrantably invaded. It 
 rests all its assertions and all the claimed rights on the liberty 
 that had been enjoyed, and, after a long recital of deeds of 
 misrule ascribed to the king, it says : " A prince, whose 
 character is thus marked by every act which may define a 
 tyrant, is unfit to be the ruler of a free people." It broadly 
 admits, therefore, that a free people may have a monarch, and 
 that the Americans were, and considered themselves, a free 
 people before they claimed to form a separate nation. 
 
 Nevertheless it will be denied by no one that the Americans 
 believe that to be the happiest political state of things in which 
 a republican government is the fittest ; nor that republicanism 
 has thoroughly infused itself into all their institutions and 
 views. This republicanism, though openly pronounced at the 
 time of the revolution only, had been long and historically 
 prepared, by nearly all the institutions and the peculiarly 
 fortunate situation of the colonies, or it may be said that the 
 republican elements of British self-government found a pecu- 
 liarly favorable soil in America from the first settlements. 
 
 A fault of England, to speak from an English point of view, 
 was of great service to American republicanism. England 
 never created a colonial aristocracy. Had she sprinkled this 
 country with a colonial peerage and put this peerage in some 
 vital connection with the peerage of Great Britain, for instance, 
 had she allowed the colonial peers to elect representative peers 
 to sit in the British house of lords, as is the case with Scot- 
 tish peers, and had she given some proportionate precedence 
 to American noblemen, e.g., had she allowed an American 
 duke to take rank with a British earl, she would have had a 
 strong support in this country at the time of the revolution. 
 Possibly, we would have had not only a simple war of inde- 
 pendence, but a civil war, and our so-called revolution, which 
 was no revolution in the sense in which we take the word when 
 we apply it to the revolutions of England and France, and 
 which in German is called an Abfall, (severance,) must have 
 had a far different character. It was one of our great bless- 
 ings that we were not obliged to pass through an internal con- 
 
 17
 
 25 8 ON CIVIL LIBERTY 
 
 vulsion in order to establish independence and republican free- 
 dom. It was a blessing, a fortune, vouchsafed us, not made 
 by us a fact which we must never forget when we compare 
 our struggle, or that of the Netherlands, with the real revo- 
 lutions of other countries, if we desire to be just. 
 
 But it is not only republicanism that forms one of the prom- 
 inent features of American liberty ; it is representative repub- 
 licanism and the principle of confederation or federalism, 1 
 which must be added, in order to express this principle cor- 
 rectly. We do not only consider the representative principle 
 necessary in all our states in their unitary character, but the 
 framers of our constitution boldly conceived a federal republic, 
 or the application of the representative principle, with its two 
 houses, to a confederacy. It was the first instance in history. 
 The Netherlands, which served our forefathers as models in 
 many respects, even in the name bestowed on our confederacy, 
 furnished them with no example for this great conception. It 
 is the chief American contribution to the common treasures 
 of political civilization. It is that by which America will 
 influence other parts of the world more than by any other 
 political institution or principle. Already are voices heard 
 in Australia for a representative federal republic like ours. 
 Switzerland, so far as she has of late reformed her federal con- 
 stitution, has done so in avowed imitation of the federal pact 
 of our Union. I consider the mixture of wisdom and daring, 
 shown in the framing of our constitution, as one of the most 
 remarkable facts in all history. Our frame of government, 
 then, is justly called a federal republic, with one chief magis- 
 trate elected by what the Greeks called, in politics, the Koi- 
 non, the Whole, with a complete representative government 
 for that whole, a common army, a judiciary of the Union, and 
 with the authority of taxing the whole. It is called by no one 
 a league. 
 
 Of the strict separation of the church from the state, in all 
 the federated states, I have spoken already. The Americans 
 
 1 Federalism is taken here, of course, in its philosophical and not in its party 
 sense.
 
 A ND SELF- G O VERNMENT. 
 
 259 
 
 consider it as a legitimate consequence of the liberty of con- 
 science. They believe that the contrary would lead to dis- 
 astrous results with reference to religion itself, and it is un- 
 deniable that another state of things could not by possibility 
 have been established here. We believe, moreover, that the 
 great mission which this country has to perform, with refer- 
 ence to Europe, requires this total divorce of state and church 
 (not religion.) 1 Doubtless, this unstinted liberty leads to 
 occasional inconvenience ; even the multiplicity of sects itself 
 is not free from evils ; but how would it be if this divorce did 
 not exist ? The Americans cling with peculiar fervor to this 
 very principle. 
 
 We carry the principle of political equality much farther 
 than any free nation. We had no colonial nobility, although 
 some idea of establishing it was entertained in England when 
 the revolution broke out, and the framers of the constitution 
 took care to forbid every state, and the United States collect- 
 ively, from establishing any nobility. Even the establishment 
 of the innocent Cincinnati Society gave umbrage to many. 2 
 We have no right of primogeniture. 3 This equality has more 
 
 1 I lately saw a pamphlet, written by an American minister, in which the Con- 
 stitution of the United States was called atheistical an expression I have seen 
 before. I do not pretend exactly to understand its meaning. I suppose, how- 
 ever, that the word atheistical is taken in this case as purely negative, and as 
 equivalent to not mentioning God, not, of course, as equivalent to reviling the 
 deity. Even in this more moderate sense, however, the expression seems to me 
 surprising. There was a time when every treaty, nay, every bill of lading, began 
 with the words, In the name of the Holy Trinity, and every physician put the 
 alpha and omega at the top of his recipe. Whatever the sources may have been 
 from which these usages sprang, I believe it will be admitted that the modern 
 usage is preferable, and that it does not necessarily indicate a diminished zeal. 
 The most religious among the framers may not have thought of placing the name 
 of God at the head of our constitution, for the very reason that God was before 
 their eyes, and that this occasion did not suggest to them the idea of specially 
 expressing their belief. Nee deus intersit nisi dignus vindice nodus. 
 
 2 In Europe, where an accurate knowledge of the American state of things did 
 not exist, it was, I believe, universally considered as the beginning of a new 
 nobility, and pointed out as a glaring inconsistency. 
 
 3 We can do entirely without it as to property in land. Our abundance of 
 land does not require it; but there are countries in which the constant parcelling
 
 2 6o ON CIVIL LIBERTY 
 
 and more developed itself, and all states I believe have adopted 
 the principle of universal suffrage. Property qualification for 
 voting does not exist any longer, and for being elected it exists 
 in very few states. The Constitution of the United States pro- 
 vides for representation in the lower house, according to num- 
 bers, except that slave property is represented. 
 
 But here it must be observed that, however unqualifiedly 
 the principle of political equality is adopted throughout the 
 whole country with reference to the white population, it stops 
 short with the race. Property is not allowed to establish any 
 difference, but color is. Socially the colored man is denied 
 equality in all states, and politically he is so in those states 
 in which the free colored man is denied the right of voting, 
 and where slavery exists. I believe I may state as a fact 
 that the stanchest abolitionist, who insists upon immediate 
 manumission of all slaves, does not likewise insist upon an 
 immediate admission of the whole manumitted population 
 to a perfect political equality. In this, however, I may be 
 mistaken. 1 
 
 Two elements constitute all human progress, historical de- 
 velopment and abstract reasoning. It results from the very 
 nature of man, whom God has made an individual and a social 
 being. His historical development results from the continuity 
 of society. 2 Without it, without traditional knowledge and 
 institutions, without education, man would no longer be man ; 
 without individual reasoning, without bold abstraction, there 
 
 of land led to such a ruinous subdivision that the governments were obliged to 
 establish a minimum beyond which land shall not be allowed to be divided, and 
 which, thus undivided, goes either to the oldest or the youngest of the sons. The 
 late president von Vincke, one of the most distinguished Prussian statesmen, 
 mentioned in an elaborate report on the extreme division of land, that there had 
 been a lawsuit in the Rhenish province about a square foot or two of vineyard 
 land. Such cases, probably, are of frequent occurrence in China. What would 
 be said, in those densely-peopled countries, of our Virginia or worm-fences, which 
 waste a strip of land five feet wide throughout the South and West ? 
 
 1 [Since Dr. Lieber published these words, in 1859, the system of slavery has 
 disappeared, and perfect, or nearly perfect, political equality of all colors exists.] 
 
 2 This is treated more fully in the Political Ethics.
 
 AND SELF-GOVERNMENT. 2 6l 
 
 would be no advancement. Now, single men, entire societies, 
 whole periods, will incline more to the one or to the other 
 element, and both present themselves occasionally in indi- 
 viduals and entire epochs as caricatures. One-sidedness is to 
 be shunned in this as in all other cases ; perfection, wisdom, 
 results from the well-balanced conjunction of both, and I do 
 not know any nobler instance of this wisdom than that which 
 is presented by the men of our revolution. They were bold 
 men, as I have stated already ; they went fearlessly to work, 
 and launched upon a sea that had as yet been little navigated, 
 when they proposed to themselves the establishment of a re- 
 public for a large country. Yet they changed only what im- 
 peratively required change ; what they retained constituted an 
 infinitely greater portion than that which they changed. It 
 does not require an extraordinary power of abstraction, nor 
 very profound knowledge, to imagine what must have been 
 the consequence had they upset the whole system in which 
 they lived, and allowed their ill will toward England, or a 
 puerile vanity, to induce them to attempt an entirely new state 
 of things. 
 
 They, on the contrary, adopted every principle and institu- 
 tion of liberty that had been elaborated by the English. They 
 acted like the legislators of antiquity. Had they acted other- 
 wise, their constitution must have proved a still-born child, as 
 so many other constitutions proclaimed since their days have 
 done. Their absence of all conceit, and their manly calmness, 
 will forever redound to their honor. 
 
 It seems to me that while the English incline occasionally 
 too much to the historical element, we, in turn, incline occa- 
 sionally too much toward abstraction. 
 
 However this may be, it is certain that we conceive of the 
 rights of the citizen more in the abstract and more as attri- 
 butes of his humanity, so long as this means our own white 
 race. Beyond it the abstraction ceases, so much so that the 
 supreme court lately decided that people of color (although 
 they were unquestionably subjects to the King of England 
 before the independence of the United States) are not citizens
 
 ON CIVIL LIBERTY 
 
 in the sense of the constitution, 1 and that several free states 
 have enacted laws against the ingress of people of color, which 
 seem to be founded exclusively on the power which the white 
 race possesses over the colored, and which elicit little exami- 
 nation because the first basis of all justice, sympathy, is want- 
 ing between the two races. 2 
 
 From this conception of the citizenship this carrying of 
 the ancient jus ante omnia jura natum, so long as it relates to 
 our own race, much farther than the English do arises the 
 fact that in nearly all states universal suffrage has been estab- 
 lished, while in England the idea of class representation much 
 more prevails. The Americans do not know, I believe, in a 
 single case the English rate-paying suffrage ; but it must be 
 recorded that the serious misrule of American cities has in- 
 duced the opinion of many reflecting men that populous cities 
 cannot be ruled by bare universal suffrage ; since universal 
 suffrage, applied to city governments, gives to the great 
 majority, that do not own houses or land, the right to raise 
 and dispose of the taxes solely levied on real property. 
 
 On the other hand, it appears to Americans a flagrant act to 
 disfranchise entire corporate constituencies for gross pervading 
 bribery, as has been repeatedly done in English history. In- 
 deed the right of voting has been often pronounced in England 
 a vested right of property. 
 
 I have also stated that our whole government has a more 
 popular cast than that of England, and with reference to this 
 fact, as well as to the one mentioned immediately before it, I 
 would point out the following farther characteristics of Ameri- 
 can liberty. 
 
 We have established everywhere voting by ballot. There 
 is an annually increasing number of members voting in the 
 English commons for the ballot. It is desired there to pre- 
 vent intimidation. Probably it would have that effect in Eng- 
 
 1 The Dred Scott case, already so famous, but which will become far more 
 famous still in the course of our history. 
 3 See p. 260, note I.
 
 AND SELF-GOVERNMENT. 263 
 
 land, but certainly not in such a degree as the English seem 
 to expect. The ballot does not necessarily prevent the vote 
 of a person from being known. 1 Although the ballot is so 
 strongly insisted upon in America, it is occasionally entirely 
 lost sight of. 2 
 
 " Tickets" printed on paper whose color indicates the party 
 which has issued it, are the most common things ; and, in the 
 place of my former residence, it happened some years ago that 
 party feeling ran to such a height, that, in order to prevent 
 melancholy consequences, the leaders came to an agreement. 
 It consisted in this : that alternate hours should be assigned 
 to the two parties, during which the members of one party 
 only should vote. This open defeat of the ballot was carried 
 out readily and in good faith. 
 
 The Constitution of the United States, and those of all the 
 states, provide that the houses of the legislatures shall keep 
 their journals, and that on the demand of a certain, not very 
 large, number of members, the ayes and noes shall be recorded. 
 The ayes and noes have sometimes a remarkable effect. It is 
 recorded of Philip IV. of Spain, 3 that he asked the opinion of 
 his council on a certain subject. The opinion was unani- 
 mously adverse ; whereupon the monarch ordered every coun- 
 sellor to send in his vote signed with his name, and every vote 
 turned out to be in favor of the proposed measure. The ayes 
 and noes have unfortunately sometimes a similar effect with 
 us. Still, this peculiar voting may operate upon the timid as 
 often beneficially as otherwise ; at any rate, the Americans 
 
 1 There is an instructive article on voting in the Edinburgh Review, of Octo- 
 ber, 1852, on Representative Reform. The writer, who justly thinks it all- 
 important that every one who has the right to vote for a member of parliament 
 should vote, proposes written votes to be left at the house of every voter, the 
 blanks to be rilled by him, as is now actually done for parish elections. There 
 existed written votes in the early times of New England, 'and people were fined 
 for not sending them. It was not necessary to carry them personally to the poll. 
 These written votes prevailed in the middle ages. For this and other subjects 
 connected with elections, see the paper on elections in the Appendix. 
 
 2 [The ballot is now introduced into England.] 
 i Coxe's Memoirs of the Bourbons in Spain.
 
 264 
 
 ON CIVIL LIBERTY 
 
 believe that it is proper thus to oblige members to make their 
 vote known to their constituents. 
 
 We never give the executive the right of dissolving the 
 legislature, nor to prorogue it. 
 
 We have never closed the list of the states composing the 
 Union, in which we differ from most other confederacies, an- 
 cient or modern ; we admit freely to our citizenship those who 
 are foreigners by birth, and we do not believe in inalienable 
 allegiance. 1 
 
 1 The character of the English and of our allegiance is treated at length in 
 the Political Ethics. I there took the ground that even English allegiance is a 
 national one, whatever the language of the law-books may be to the contrary. 
 The following may serve as a farther proof that English allegiance, after all, is 
 dissoluble. It appears from the New England charter, granted by James I., that 
 he claimed, or had the right " to put a person out of his allegiance and protec- 
 tion." Page 16, Compact, with the Charter and Laws of the Colony of New 
 Plymouth, etc., Boston, 1836. 
 
 Had we any nobility, or had we closed our confederacy, we must have been 
 exposed to the troubles to which the ancient republics were exposed, and which 
 form a leading feature through the whole history of Rome. We acquired 
 Louisiana, and, with her French population, she is fairly assimilated with our 
 great polity. She would have been a dangerous cancer had we treated her as 
 Rome treated her acquisitions, and a war of the Socii, as the Romans had it, 
 must ultimately have broken out. In this, then, we differ in a marked way from 
 the English. When Scotland was united to England, by establishing one legis- 
 lature for both, and when a similar process took place with reference to Ireland, 
 a perfect assimilation was not the consequence, as had been the case with Wales. 
 The non-assimilation is still more marked in the case of the colonies. English 
 readers may possibly believe that a foreign author passes his proper boundary if 
 he ventures to discuss a subject of the highest statesmanship peculiarly domestic 
 in its character, but " the by-stander often sees the faults of the men in the ring." 
 How could we write on foreign history were we not allowed to judge of foreign 
 subjects? Nor is this subject wholly foreign to an American, because he naturally 
 knows more of Canada than most English do, and he knows his own colonial 
 history. Thus justified, and making full allowance for the difficulties that may 
 exist, we cannot help feeling surprised that England, in many other respects the 
 only ] ower that has*shown true liberality toward colonies so different from 
 Spain ! and with our war of independence before her eyes, should not think of 
 tying the distant empires she creates in all the portions of the globe, by a repre- 
 sentation in her parliament, making it, so far as the colonies are concerned, the 
 imperial congress. Though each distinct colony with a colonial self-government 
 should have but two or three representatives in the commons, representing the
 
 AND SELF-GOVERNMENT. 265 
 
 We allow, as it has been seen, no attainder of blood. 
 
 We allow no ex post facto laws. 
 
 American liberty contains as one of its characteristic ele- 
 ments the enacted or written constitution. This feature dis- 
 tinguishes it especially from the English polity with its accu- 
 mulative constitution. 
 
 We do not allow, therefore, our legislatures to be politically 
 " omnipotent," as, theoretically at least, the British parliament 
 is. 1 This characteristic, again, naturally led to the right and 
 duty of our supreme courts in the states, and of the supreme 
 court of the United States, to decide whether a law passed, 
 by the legislature or by congress, is in conformity with the 
 superior law the constitution or not ; in other words, on the 
 constitutionality of a law. It has been stated already that the 
 courts have no power to decide on the law in general ; but 
 they decide, incidentally, on the whole law, when a specific 
 case of conflict between a certain law and the constitution is 
 brought before them. 
 
 I may add as a feature of American liberty that the Ameri- 
 can impeachment is, as I have stated before, a political and 
 
 colony as such, it seems that the effect upon the consistency of the whole gigantic 
 empire would be distinct, and that such a measure is the only one that would 
 promise continued cohesiveness. 
 
 1 For the English reader I would add that the following works ought to be 
 studied or consulted on this subject: The Constitution of the United States, and 
 the constitutions of the different states, which are published from time to time, 
 collected in one volume ; the Debates on the Federal Constitution ; The Federal- 
 ist, by Hamilton, Madison, and Jay; the Writings of Chief-Justice Marshall, 
 Boston, 1839; the History of the Constitution of the United States, by G. T. 
 Curtis, a work of mark ; Mr. Justice Story's Commentaries on the Constitution 
 of the United States; Mr. Calhoun's and Mr. Webster's Works; Mr. Rawle's 
 work on the Constitution, and Mr. Frederic Grimke's Considerations upon the 
 Nature and Tendency of Free Institutions, Cincinnati, 1848. To these may be 
 added the Course of Lectures on the Constitutional Jurisprudence of the United 
 States, by W. A Duer, Boston, 1856, [and Pomeroy's Constitutional Law, New 
 York, 1868.] An entire literature of its own has accumulated, by this time, on 
 the constitution, jurisprudence, and constitutional history of the United States. 
 The chief of the enumerated works will suffice to lead the student to the more 
 detailed works of this department.
 
 266 ON CIVIL LIBERTY 
 
 not a penal institution. It seems to me that I am borne out 
 in this view by the Federalist. 1 
 
 In conclusion, I would state as one of the characteristics of 
 American liberty the freedom of our rivers. The unimpeded 
 navigation of rivers belongs to the right of free locomotion 
 and intercommunication, of which we have treated ; yet there 
 is no topic of greater interest to the historian, the economist, 
 and the statesman, than the navigation of rivers, because, 
 though the rivers are nature's own highways, and ought to be 
 as efficient agents of civilization as the Road or the Mail, their 
 agency has been thwarted by the oppressive force of man, in 
 almost all periods of our history. The Roman empire, doing 
 little indeed for commerce by comprehensive statesmanship, 
 effected at least a general freedom of the rivers within its 
 territory, as a natural consequence of its unity. The Danube 
 became free, from the interior of Germany to the Black Sea. 
 But the barbarous times which succeeded reduced, once more, 
 the rivers to the state of insecurity in which they had been 
 before the imperial arm had warded off intrusion and inter- 
 ruption. Free navigation had not even been re-established in 
 all the larger empires of the European continent, when the first 
 French revolution broke out. It was one of the most important 
 provisions of the act of confederation agreed upon at Vienna, 
 in 1815, between the Germanic states, that immediate steps 
 should be taken to make the river navigation in Germany 
 free, but the desired object had not been obtained as late as 
 in i848. 2 The long dispute about the navigation of the river 
 
 1 No. Ixv. 
 
 As to the parties in America, they may fairly be said to have little to do with 
 civil liberty, which will be readily seen by the so-called National Platforms, 
 resolved upon as the true indexes of the parties by the conventions held pre- 
 paratory to the presidential elections. Nor do the names of the parties indicate 
 anything with reference to Liberty. The term Democratic has wholly lost its 
 original meaning, as used to designate the party which has taken it. Among 
 others, the Resolutions published by the different conventions in the year 1853, 
 previous to Mr. Pierce's election, and which were drawn up with great care, 
 fully prove this. 
 
 3 I owe to the friendship of Mr. Kapp (author of the Life of Baron Steuben)
 
 AND SELF-GOVERNMENT. 267 
 
 Scheldt has become famous in the history of law and of human 
 progress. In this case, however, a foreign power, the Nether- 
 lands, denied free navigation to those in whose country the 
 river rises and becomes navigable. 1 Magna Charta declares, 
 indeed, what has been called "the freedom of the rivers;" but, 
 on the one hand, English rivers are, comparatively speaking, 
 of little importance to navigation, and, on the other hand, 
 England had not to overcome the difficulty which arises out 
 of the same river passing through different states. It was 
 therefore a signal step in the progress of our species when the 
 wise framers of our constitution enacted that vessels bound to 
 or from one state shall not be obliged to enter, clear, or pay 
 duties in another, 2 and every one who cherishes his country 
 and the essential interests of our species must be grateful that 
 subsequent legislation, and decisions by courts, have firmly 
 established 3 the inestimable right of free navigation in a coun- 
 try endowed with a system of rivers more magnificent and 
 more benign, if left free and open, than that of any other 
 country. An able writer and comprehensive statesman says : 
 
 " It was under the salutary instruction thus afforded by 
 the Scheldt, and just before the French revolution broke its 
 shackles, that our thirteen confederated states acquired the 
 Mississippi. 
 
 " In March, 1785, Rufus King, then a delegate from Massa- 
 chusetts in the congress of the confederation, received from 
 
 a book of remarkable interest, in many respects : Gottlieb Mittelberger's Journey 
 to Pennsylvania in the Year 1750 and Return to Germany in 1754, Frankfurt, 
 1756. Mittelberger was organist and schoolmaster.- He was seven weeks on 
 his way from Wiirtemberg to Rotterdam, chiefly on the Rhine. The Journal of 
 Albert Diirer, the great painter, gives the same lamentable account of his jour- 
 ney on the Main and Rhine. 
 
 1 A t me may come I believe it will when the international law of our 
 family of nations will acknowledge that those who border on a navigable river 
 have a right, by nature, to sail down that river to the sea without hindrance, toll, 
 or inconvenience. 
 
 2 Constitution of the United States, section 9. 
 
 > See, among others, Duer's Lectures on the Constitutional Jurisprudence of 
 the United States, 2d edition, page 258 and sequ.
 
 208 ON CIVIL LIBERTY 
 
 Timothy Pickering a letter containing these emphatic and 
 memorable words : 
 
 " 'The water communications in that country will always be 
 in the highest degree interesting to the inhabitants. It seems 
 very necessary to secure the freedom of navigating these to 
 all the inhabitants of all the states. I hope we shall have no 
 Scheldt* in that country.' * 
 
 "The high duty of carrying into effect that great suggestion 
 immediately occupied the attention of Mr. King and his asso- 
 ciates. The honor of framing the clause which secures, ' not 
 for a day, but for all time/ freedom of commerce over an un- 
 broken net-work of navigable water spread out for more than 
 sixteen thousand miles was shared between Massachusetts 
 and Virginia, then standing shoulder to shoulder, where they 
 had stood throughout the Revolution. 
 
 " The clause was formally introduced into the congress 
 by Mr. Grayson, of Virginia, and seconded by Mr. King, of 
 Massachusetts. Listen to its words, so broadly national, so 
 purely American : 
 
 " ' The navigable waters leading into the Mississippi and St. 
 Lawrence, and the carrying places between the same, shall be 
 common property, and FOREVER FREE, as well to the inhabit- 
 ants of the said country, as to the citizens of the United 
 States, and those of any other states that may be admitted 
 into the confederacy WITHOUT ANY TAX, DUTY, OR IMPOST 
 
 THEREFOR.' 
 
 "The clause was immediately incorporated into the ordi- 
 nance, and passed by the congress on the I3th day of July, 
 1787. 
 
 " Here, then, we behold the Magna Charta of the internal 
 navigation of America," 2 which we enjoy, and have first en- 
 
 1 The original is in the possession of Dr. Charles King, president of Columbia 
 College, New York. 
 
 a This passage is copied from a Defence of the Right and the Duty of the 
 American Union to improve the Navigable Waters, by Samuel B. Ruggles, a 
 speech delivered in October, 1852. The speaker has given his views on this and 
 kindred topics more extensively in a state paper of rare excellence, whether the
 
 AND SELF-GOVERNMENT. 269 
 
 joyed, of all confederacies, ancient or modern. It gives the 
 absolutely free use of the noblest river system extending over 
 a continent. 
 
 contents, the historical survey and statistic knowledge, or the transparency of the 
 style and language be considered. The paper bears the title, Memorial of the 
 Canal Board and Canal Commissioners of the State of New York, asking for the 
 Improvement of the Lake Harbors by the General Government, Albany, N. Y., 
 1858, and was, as such, adopted by the legislature of New York and presented 
 to congress. 
 
 [It ought to be added, however, that this ordinance applied only to the North- 
 west territory, over which the treaty of peace with Great Britain, in 1783, gave 
 to the Confederation full power to act. Navigation within or between the old 
 thirteen states was not touched by this ordinance. The present freedom of navi- 
 gable rivers depends on the constitutional power of Congress " to regulate com- 
 merce with foreign nations and among the several states, and with the Indian 
 tribes;" as well as on the right of governing the territories, conferred by the 
 constitution.]
 
 ON CIVIL LIBERTY 
 
 CHAPTER XXIII. 
 
 IN WHAT CIVIL LIBERTY CONSISTS, PROVED BY CONTRARIES. 
 
 I HAVE endeavored to give a sketch of Anglican liberty. It 
 is the liberty we prize and love for a hundred reasons, and 
 which we would love if there were no other reason than that 
 it is liberty. We know that it is the political state most 
 befitting to conscious man. History as well as our own preg- 
 nant times proves to us the value of those guarantees, their 
 necessity if we wish to see our political dignity secure, and 
 their effect upon the stability of government, as well as on the 
 energies of the people. We are proud of our self-government 
 and our love of the law as our master, and we cling the faster 
 to all these ancient and modern guarantees, the more we 
 observe that, wherever the task which men have proposed to 
 themselves is the suppression of liberty, these guarantees are 
 sure to be the first objects of determined and persevering 
 attack. It is instructive for the friend of freedom to observe 
 how uniformly and instinctively the despots of all ages and 
 countries have assailed the different guarantees enumerated 
 in the preceding pages. We can learn much in all practical 
 matters by the rule of contraries. As the arithmetician proves 
 his multiplication by division, and his subtraction by addition, 
 so may we learn what those who love liberty ought to prize, 
 by observing what those who hate freedom suppress or war 
 against. This process is made peculiarly easy as well as 
 interesting at this very period, when the government of a 
 large nation is avowedly engaged in suppressing all liberty 
 and in establishing the most uncompromising monarchical 
 absolutism. 
 
 I do not know a single guarantee contained in the foregoing
 
 A ND SELF- G O VERNMENT. 
 
 271 
 
 pages, which might not be accompanied by a long historical 
 commentary showing how necessary it is, from the fact that it 
 has been attacked by those who are plainly and universally 
 acknowledged as having oppressed liberty or as having been 
 at least guilty of the inchoate crime. It is a useful way to 
 turn the study of history to account, especially for the youth 
 of free nations. It turns their general ardor to distinct reali- 
 ties, and furnishes the student with confirmations by facts. 
 We ought always to remember that one of the most efficient 
 modes of learning the healthful state of our body and the 
 normal operation of its various organs consists in the study 
 of their diseased states and abnormal conditions. The patho- 
 logic method is an indispensable one in all philosophy and 
 in politics. The imperial time of Rome is as replete with 
 pathetic lessons for the statesman as the republican epoch. 
 
 It would lead me far beyond the proper limits of this work, 
 were I to select all the most noted periods of usurpation, or 
 those times in which .absolutism, whether monarchical or 
 democratic, has assumed the sway over liberty, and thus to 
 try the gauge of our guarantees. It may be well, however, to 
 select a few instances. 
 
 In doing so I shall restrict myself to instances taken from 
 the transactions of modern nations of our own race; but the 
 student will do well to compare the bulk of our liberty with 
 the characteristics of ancient and modern despotism in Asia, 
 and see how the absence of our safeguards has there always 
 prevented the development of humanity which we prize so 
 highly. He ought then to compare this our own modern 
 liberty with what is more particularly called antiquity, and see 
 in what we excel the ancients or fall behind them, and in what 
 that which they revered as liberty differed from ours. He 
 ought to keep in mind our guarantees in reading the history 
 of former free states, and of the processes by which they lost 
 their liberty, or of the means to which the enemies of liberty 
 have resorted, from those so masterly delineated by Aristotle, 
 down to Dr. Francia and those of the present time, and he 
 ought again to compare our broadcast national liberty with
 
 272 ON CIVIL LIBERTY 
 
 the liberties of the feudal age. He ought, lastly, to present 
 clearly to his mind the psychologic processes by which liberty 
 has been lost by gratitude, hero-worship, impatience, indo- 
 lence, permitting great personal popularity to overshadow 
 institutions and laws, hatred against opposite parties or classes, 
 denial of proper power to government, the arrogation of more 
 and more power, and the gradual transition into absolutism ; 
 by local jealousies, by love of glory and conquest, by passing 
 unwise laws against a magnified and irritating evil laws which 
 afterwards serve to oppress all, by recoiling oppression of a 
 part, by poverty and by worthless use of wealth, by sensuality 
 and that indifference which always follows in its train. 
 
 Liberty of communion is one of the first requisites of free- 
 dom. Wherever, therefore, a government struggles against 
 liberty, this communion forms a subject of peculiar attention. 
 Not only is liberty of the press abolished, but all communion 
 is watched over by the power-holder, or suppressed as far as 
 possible. The spy, the mouchard, the delator, the informer, 
 the sycophant, are sure accompaniments of absolutism. 1 The 
 British administration under Charles II. and James II. looked 
 with a jealous eye on the " coffee-houses," and occasionally 
 suppressed them. One of the first things done by the French 
 minister of police, after the second of December, was to close 
 a number of " cabarets" at Paris, and to put all France under 
 surveillance. This may become necessary for a time under 
 pressing circumstances, which may place a government in the 
 position of a general in a beleaguered city, but it is not liberty; 
 it is the contrary, and if the measure is adopted as a per- 
 manent one it becomes sheer despotism. So soon as Louis 
 Napoleon had placed himself at the head of an absolute 
 government, he not only abolished the liberty of the press, 
 but he went much farther, as we have seen; he placed the 
 printing-presses themselves and the sale of type under the 
 
 1 Much that relates to the history of the spy and informer, in ancient and 
 modern times, may be found in the second volume of Political Ethics, where 
 the citizen's duty of informing is discussed.
 
 AND SELF-GOVERNMENT. 
 
 2/3 
 
 police, and ordered that no press with the necessary printing 
 materials should be sold or change hands without previous 
 information being given to the police. 
 
 While it is a characteristic of our liberty that the public 
 funds are under the peculiar guardianship of the popular house 
 of the legislature y and that short appropriations are made for 
 distinct purposes, especially for the army and navy, all govern- 
 ments hostile to liberty endeavor to rule without appropria- 
 tions, or, if this is not feasible, by having the appropriations 
 made for a long term and not for detailed purposes. The last 
 decree of Napoleon III., relating to this subject, is that the 
 legislative corps must vote the budget of each department en 
 bloc, that is, in a lump, and either wholly reject or adopt it, 
 without amendment. English history furnishes a long com- 
 mentary on this point of appropriations. Charles I. lost his 
 head in his struggle for a government without parliament, 
 which then meant, in a great measure, without regular appro- 
 priations, or the assumption of ruling by taxation on royal 
 authority. Wherever on the European continent it has been 
 the endeavor to establish a constitutional government, the 
 absolutists have complained of the " indecency" of making 
 governments annually "beg" for supplies. 
 
 Liberty requires the supremacy of the law ; the supremacy 
 of the law requires the subordination of the army to the legis- 
 lature and the whole civil government. The Declaration of 
 Rights enumerates the raising and keeping a standing army 
 without consent of parliament, as one of the proofs that James 
 II. had endeavored " to subvert and extirpate the laws and 
 liberties" of England; while all governments reluctantly yield- 
 ing to the demands of liberty have struggled to prevent at 
 least the obligation of the army to take the oath of fidelity to 
 the constitution. The army is studiously separated from the 
 people, and courted as peculiarly allied to the prince. Napo- 
 leon I. treated the army as the church was often treated in the 
 middle ages the main body in the state ; and Napoleon III. 
 lately said in a solemn speech that he desired to present the 
 new empress to the people and the army, as if it formed at 
 
 18
 
 274 
 
 ON CIVIL LIBERTY. 
 
 least one-half of the state and were a body separate from the 
 people. When he gave eagles to the whole army at what is 
 called the fete of the eagles, in 1852, he said: "The history 
 of nations is in a great measure the history of armies," and 
 continued in a strain sounding as if it belonged to the times 
 of the migration of nations. 1 
 
 But English and American freemen will never forget that 
 the highest glory of a great people, and that by which it 
 most signally performs the task assigned to it in the further- 
 ance of our race, are its literature and its law, if this con- 
 sists in a wise system founded on justice, humanity, and 
 freedom. 
 
 The supremacy of the law is an elementary requisite of 
 liberty. All absolutism spurns, and has a peculiar dislike of, 
 the idea of fundamental laws. Aristotle enumerates as the 
 fourth species of government that in which the multitude and 
 not the law is the supreme master ; James II. claimed the dis- 
 pensing power, and Louis Napoleon affirmed, when yet presi- 
 dent under the republican constitution which prohibited his 
 re-election, that if the people wanted him to continue in office 
 he should do it nevertheless, and all his adherents declared 
 
 1 I quote the whole passage of this stupendous allocution, which no historian 
 or political philosopher, had he discovered it, as Cuvier found and construed 
 remains of animals, would have assigned to the middle of the nineteenth cen- 
 tury. What becomes of England and the United States if the essence of history 
 does not lie in the development of the nation and especially of its institutions ? 
 The following are the exact words : 
 
 " Soldiers, the history of nations is in great part the history of armies. On 
 their success, or on their reverses, depends the fate of civilization and of the 
 country. When they are vanquished, there is either invasion or anarchy; when 
 victorious, glory or order. 
 
 " In consequence, nations, like armies, pay a religious veneration to the em- 
 blems of military honor, which sum up in themselves a whole past existence of 
 struggles and of triumphs. 
 
 " The Roman eagle, adopted by the Emperor Napoleon at the commencement 
 of the present century, was the most striking signification of the regeneration 
 and grandeur of France ;" and so on. 
 
 When the democratic Csesar reviewed the guards, before they started for the 
 Crimea, in 1855, he called the army the nobility of the French nation.
 
 AND SELF-GOVERNMENT. 275 
 
 that the people being the masters could do as they liked, 
 which reminds us of the Athenians who impatiently ex- 
 claimed : " Can we not do what we list ?" when told that there 
 was a law forbidding what they intended to do. 
 
 The division of power, which was already observed as an 
 important point in government by "the master of all that 
 know," is invariably broken down as far as possible by the 
 absolutists. The judiciary is interfered with whenever its slow 
 procedure or its probable results irritate the power-holder. 
 The history of all nations, from the earliest times to Napo- 
 leon III.'s taking the trial on the legality of the Orleans 
 spoliation out of the hands of the judiciary, proves it on every 
 page. 
 
 Self-government, general as well as local, is indispensable 
 to our liberty, but interference and dictation are the essence 
 of absolutism. Monarchical absolutisms presume to do every- 
 thing and to provide for everything, and Robespierre, in his 
 " great speech" for the restoration of the Supreme Being, 
 said : The function of government is to direct the moral and 
 physical forces of the nation. For this purpose the aim of a 
 constitutional government is the republic. 1 
 
 Liberty requires that every one should be judged by his 
 common court. All despots insists on extraordinary courts, 
 courts of commission, and an easy application of martial 
 law. 
 
 Forcible expatriation or deportation "beyond the seas" by 
 the executive is looked upon with peculiar horror by all free- 
 men. The English were roused by it to resistance; Napo- 
 leon III. began his absolute reign with exile and deportation. 
 So did the Greek factions banish their opponents when they 
 had the power of doing so, because no "opposition" in the 
 modern sense was known to them. With them it was the 
 blundering business of factions ; moderns know better, and if 
 
 1 The words of Robespierre are sufficiently clear, if taken as an illustration of 
 what has been stated in the text ; otherwise, I own, the sense is not perfectly 
 apparent.
 
 276 
 
 ON CIVIL LIBERTY 
 
 they return to it, it is because despotism is a thing full of fear 
 and love of show. 
 
 How great an offence it is to deprive a man of his lawful 
 court and to judge him by aught else than by the laws of the 
 land, now in the middle of the nineteenth century, will appear 
 the more forcibly if the reader will bring to his mind that 
 passage of Magna Charta which appeared to Chatham worth 
 all the classics, and if he will remember the year when the 
 Great Charter was carried. The passage, so pregnant to the 
 mind of Chatham, is this: 
 
 " No freeman shall be taken, or imprisoned, or be disseised 
 of his freehold or liberties, or free customs, or be outlawed 
 or exiled, or any otherwise destroyed, nor will we (the 
 king) pass upon him, nor condemn him, but by lawful judg- 
 ment of his peers, or by the law of the land. We will sell 
 to no man, we will not deny or defer to any man, justice or 
 right." ' 
 
 Publicity is a condition without which liberty cannot live. 
 The moment it had been concluded by the present government 
 of France to root out civil freedom, it was ordained that neither 
 the remarks of the members of the legislative corps, nor the 
 pleadings in the courts of justice, should be reported in the 
 papers. Modern political publicity, however, consists chiefly 
 in publication through the journals. We acknowledge this 
 practically by the fact that, although our courts are never 
 closed, 3 yet, for particular reasons arising out of the case 
 under consideration, the publication of the proceedings is 
 sometimes prohibited by the judge until the close of the trial, 
 but never beyond it. 
 
 Liberty stands in need of the legal precedent, and Charles I. 
 pursued Cotton because he furnished Pym and other patriots 
 with precedents, while the present French government has 
 
 1 [/.<., chap. xxix. of the Charter of 9 Henry III., confirmed by Edward I. in 
 the twenty-fifth year of his reign, and nearly agreeing with chapters xlvi. and 
 xlvii. of John's Charter, as given in Appendix IV.] 
 
 * Very scandalous judicial cases, offensive to public morals, are, in France, 
 conducted with closed doors.
 
 AND SELF-GOVERNMENT. 
 
 277 
 
 excluded instruction in history from the plan of general edu- 
 cation. History, in a certain point of view, may be called the 
 great precedent. History is of all branches the most nourish- 
 ing for public life and liberty. It furnishes a strong pabulum 
 and incites by great examples removed beyond all party or 
 selfish views. The favorite book of Chatham was Plutarch, 
 and his son educated himself upon Thucydides. 1 The best 
 historians have been produced by liberty, and the despot is 
 consistent when he wishes to shackle the noble muse. 
 
 Sincere civil liberty requires that the legislature should have 
 the initiative. All governments reluctant to grant full liberty 
 have withheld it, and one of the first things decreed by Louis 
 Napoleon after the second of December was that the " legis- 
 lative corps" should discuss such propositions of laws only as 
 the council of state should send to it. The council of state, 
 however, is a mere body of officers appointed and discharged 
 at the will of the ruler. 
 
 Liberty requires that government do not form a body perma- 
 nently and essentially separated from the people; all modern 
 absolute rulers have resorted to a number of distinctions 
 titles, ribbons, orders, peacock-feathers and buttons, uniforms, 
 or whatever other means of separating individuals from the 
 people at large may seem expedient. 
 
 Liberty requires the trial by jury. Consequently, one of the 
 first attacks which arbitrary power makes upon freedom is 
 regularly directed against that trial. There is now a law in 
 preparation in France, of which the outlines have been pub- 
 lished, and which will place the jurors under the almost 
 exclusive influence of the government. 
 
 Liberty requires, as we have seen, a candid and well- 
 guaranteed trial for treason ; all despotic governments, on the 
 contrary, endeavor to break down these guarantees in par- 
 ticular. They arrogate the power of condemning political 
 offenders without trial, or strip the trial for treason of its best 
 guarantees. 
 
 So Bishop Tomlinson tells us in the Life of his pupil.
 
 278 ON CIVIL LIBERTY 
 
 But we might go through the whole list of safeguards and 
 principles of liberty, and find that in each case absolutism does 
 the opposite. 
 
 If the American peruses the Declaration of Independence, 
 he will find there, in the complaints of our forefathers, almost 
 a complete list of those rights, privileges, and guarantees 
 which they held dearest and most essential to liberty ; for 
 they believed that nearly every guarantee had been assailed.
 
 AND SELF-GOVERNMENT. 
 
 2/9 
 
 CHAPTER XXIV. 
 
 GALLICAN LIBERTY. SPREADING OF LIBERTY. 
 
 HAVING considered Anglican liberty, it will be proper for us 
 to examine the French type of civil freedom, orGallican liberty. 
 
 In speaking here of Gallican liberty, we mean, of course, 
 that liberty which is characteristically French, either in reality, 
 if we shall find that at any period it has taken actual root, or 
 in theory, if it have remained such, and never practically 
 developed itself. Liberty has sprouted in France as in other 
 countries. People have felt there, as all over Europe, that the 
 administration of justice ought to be independent of the other 
 branches of government. The separation of the three great 
 functions of government was proclaimed by the first constituent 
 assembly. But the question here is, whether any of these or 
 other endeavors to establish liberty have been consolidated 
 into permanent institutions, whether they have been allowed 
 to develop themselves, and whether they were or are peculiar 
 to the French, or were adopted from another system of devel- 
 oped civil liberty, as we adopt the whole or parts of an order 
 of architecture or a philosophical system ; and, if we find no 
 such institutions or guarantees peculiar to the French, whether 
 there be a general idea and conception of liberty which per- 
 vades all France and is peculiar to that country. 
 
 In viewing the French institutions which have been in- 
 tended for the protection of individual rights or the preserva- 
 tion of liberty, I can discover none which has had a permanent 
 existence, except the court of cassation or quashing. It is the 
 highest court of France, possessing the power of annulling or 
 breaking 1 the judgments of all other courts of justice, whether 
 
 1 Casser is the French for breaking ; hence the name of the court.
 
 2 go ON CIVIL LIBERTY 
 
 in civil or criminal matters, on account of faults and flaws in 
 the judicial forms and procedure, or of misapplications of the 
 existing law. It has no power to examine the verdict. It 
 resembles, therefore, the court of Westminster, in England, 
 when the assembled judges hear questions of law, or our su- 
 preme court of the United States on similar occasions, and the 
 supreme courts or courts of appeal or error in the different 
 states. The court of cassation must necessarily sometimes 
 judge of certain procedures of the government against indi- 
 viduals, and declare whether individual rights, publicly guar- 
 anteed, have been invaded. Thus it showed its power to 
 some extent when Paris was declared in a state of siege and 
 the whole city was under martial law. But the high attribute 
 of pronouncing upon the constitutionality of the laws them- 
 selves, which we cherish in our supreme courts, does not 
 belong to it, nor can its power be vigorously and broadly 
 exercised in a conflict with the supreme power, since this 
 power bears down everything in a country so vast and yet 
 so centralized as France, and in which the principle of de- 
 velopment, independent of the executive or central power, is 
 not acknowledged in the different institutions. The court of 
 cassation has at the same time a supervisory authority over 
 the judges of other courts, and can send them before the 
 keeper of the seals (the minister of justice) to give an account 
 of their conduct. It is likewise an object of the court of 
 cassation to keep the application of the law uniform in the 
 different portions of the country. This is a necessary effect 
 of its power to quash judgments. 
 
 The institution of the justice of the peace ought to be 
 mentioned here, although it can only be considered as indi- 
 rectly connected with liberty. The French justice of the peace 
 differs from the English officer of the same name in this, that 
 his function is exclusively of a conciliatory character. Courts 
 of conciliation have existed in many countries, and long 
 before the present justices of the peace were established in 
 France by the first constituent assembly ; but, as we see them 
 now there, they must be called a French institution. It has
 
 AND SELF-GOVERNMENT. 2 8l 
 
 proved itself in France, as well as in other countries, of the 
 highest value in preventing litigation, with all the evils which 
 necessarily attach themselves to it. 1 
 
 No one, I suppose, would expect the senate, first established 
 by Napoleon I. and then called the conservative senate, that 
 is, the senate whose nominal duty it was to conserve the 
 constitution, and now re-established by Napoleon III., to be 
 enumerated as an institution for the support of liberty. It has 
 no more connection with liberty than the Roman senate had 
 under the emperors. Its very origin would lead no one to 
 expect in it a guarantee of liberty. On the contrary, the 
 French senate has been a great aid to imperial absolutism, by 
 giving to comprehensive measures of monarchical despotism 
 the semblance of not having originated with the absolute 
 monarch or of having received the countenance of a high and 
 numerous political body. In this respect the French senate 
 seems to me worse than that of Russia. The Russian senate 
 is nothing but a council, leaving all power and responsibility 
 with the czar, in appearance as well as in reality. 
 
 That which after careful examination must be pronounced 
 to be Gallican liberty is, I take it, the idea of equality founded 
 upon or acting through universal suffrage, or, as it is frequently 
 called by the French, " the undivided sovereignty of the 
 people" with an uncompromising centralism. As it is neces- 
 sarily felt by many, that the rule of universal suffrage can, 
 practically, mean only the rule of the majority, liberty is 
 believed in France, as has been said, to consist in the absolute 
 rule of the majority. 2 
 
 1 We have seen that courts of conciliation have attracted renewed attention 
 in England since Lord Brougham's proposition of an act for the Farther Cheap- 
 ening of Justice, in May, 1851. An instructive article on this important subject, 
 and the excellent effects these courts have produced in many countries, shown 
 by official statistics, can be found in the German Staats-Lexicon, ad verbum 
 Friedensgericht. 
 
 3 I have given my views on the subject of the nature of sovereignty and the 
 way it acts, at length in the first volume of the Political Ethics. If I have not 
 succeeded there in mastering the subject, I should not be able to do it here; if 
 I have succeeded, I cannot in fairness repeat a long discussion.
 
 2 8 2 ON CIVIL LIBERTY 
 
 Every one who has steadily followed the discussions of the 
 late constituent and national assemblies, who has resolutely 
 gone through the debates of the first constituent* t and studied 
 the history of the revolution, and who is fairly acquainted with 
 French literature, will agree, I trust, that the idea of Gallican 
 liberty has been correctly stated. There are many French- 
 men, indeed, who know that this is not liberty, that at most 
 it can only be a means to obtain it ; but we now speak of the 
 conception of liberty peculiar to the French school. 
 
 Institutions, such as we conceive their necessary character 
 to be, that is, establishments with the important element of 
 self-government, and of a system of guarantees beyond the 
 reach of daily change, do not enter as necessary elements into 
 the idea of Gallican liberty. Self-government is sought for in 
 the least impeded rule of the majority. It has been seen, 
 however, that, according to the Anglican view, the question 
 who shall rule is an important question of liberty indeed, but 
 only one about the means ; for if the ruler, whoever he be, 
 deprives the ruled of liberty, there is of course no liberty. A 
 suicide does not the less cease to live because he kills himself; 
 and two game fowls nearly matched, as the parties in a nation 
 may be, do not symbolize liberty, because at one time the one 
 may be uppermost, and at another time the other. 
 
 There seems to be in France a constant confusion of equality 
 and democracy on the one hand, and of democracy and liberty 
 on the other; now, although equality largely enters as an 
 element in all liberty, and no liberty can be imagined without 
 a democratic element, equality and democracy of themselves 
 are far from constituting liberty. They may be the worst of 
 despotisms : the one by annihilating individuality, as the com- 
 munist strives to do ; the other if it means democratic abso- 
 lutism by being real sweeping power itself not power lent, 
 as that of the monarch always must be power without per- 
 sonal responsibility. It acts ; but where is the actor, who is 
 responsible, who can be made responsible, who will judge? 
 
 It is with reference to this rule, and this mistaken view of 
 liberty, that one of their wisest, best, and most liberty-loving
 
 AND SELF-GOVERNMENT. 283 
 
 men, Mr. Royer Collard, has said : * "It is nothing but a 
 sovereignty of brute force, and a most absolute form of abso- 
 lute power. Before this sovereignty, without rule, without 
 limit, without duty, and without conscience, there is neither 
 constitution nor law, neither good nor evil, nor past nor 
 future. The will of to-day annuls that of yesterday, without 
 engaging that of to-morrow. The pretensions of the most 
 capricious and most extravagant tyranny do not go so far, 
 because they are not in the same degree disengaged from all 
 responsibility." 
 
 Where any one, or any two, or any three, or any thousand, 
 or any million, can do what they have the mere power to do, 
 there is no liberty. Arbitrary power does not become less 
 arbitrary because it is the united power of many. 
 
 Napoleon said : " The French love equality ; they care 
 little for liberty." 2 Napoleon certainly mistook the French, 
 and mankind in general, very seriously in some points, as all 
 men of his stamp are liable to do ; there are some entire in- 
 stincts wanting in them ; but we fear that he was right in this 
 saying with reference to a large part of the French people. 
 Present events seem to prove it. 3 
 
 This equality is again very generally mistaken for uniform- 
 ity, so that it would naturally lead of itself to centralization, 
 even if the French had not contracted a real passion for cen- 
 tralization ever since the reigns of Richelieu and Louis XIV. 
 It has increased with almost every change of government. It 
 is the love of power carried into every detail, and therefore the 
 
 1 Royer Collard's Opinion, of October 4, 1831. 
 
 3 Words spoken to Lord Ebrington, in his exile on the island of Elba. 
 
 3 Rousseau expressed the political idea of equality, the aversion to representa- 
 tive governments and institutional politics, and the disapproval of private prop- 
 erty, boldly and clearly in his Social Contract, a masterly written work, which 
 has exercised an incalculable effect on French affairs. It was the favorite book 
 of the leading men of the first revolution, and continues largely to influence the 
 French. Yet Rousseau only pronounced more clearly, and boldly carried farther, 
 the ideas of unity, concentration, and equality, that had been gradually growing 
 stronger in the French mind long before him. They can be traced not only in 
 politics, but in all spheres.
 
 284 ON CIVIL LIBERTY 
 
 opposite of what we call self-government ; 1 it is the exceeding 
 partiality of the French for logical neatness and consistency 
 of form, strikingly manifested in the fact that the word logical 
 is now universally used in French for consistency of action or 
 natural sequence of changes it is this mathematical enthu- 
 siasm, if the expression be permitted, applied to the vast field 
 of political practice. 
 
 It seems that we can explain the cry of Republique demo- 
 cratique et sociale, so often repeated by the most advanced of 
 the democrats during the late government without a king, only 
 
 1 I have given some remarkable instances of interference on the part of modern 
 absolute governments, in the Political Ethics. I shall add the following recent 
 instance : I am sure that no one accustomed to Anglican self-government considers 
 such details trivial, however well he may be acquainted with the fact in general, 
 that government in those countries tries to guide, direct, manage, initiate, and 
 complete everything that seems of any importance. Some years ago a German 
 king ironically called, in a throne speech, constitutions Paper Providences. The 
 expression was every way most unfortunate. It seems to me that it is these very 
 governments of centralized mandarinism that play at Providence, in which they 
 closely resemble the communists, as indeed all absolutism contains a strong 
 element of communism. 
 
 The following is taken from the Paris Moniteur, the French official paper, or 
 organ of government, in October, 1852. I do not give the entire decree, but the 
 principal articles : 
 
 There will be published, under the care of the minister of public instruction, 
 a general collection of the popular poetry of France, either to be found in manu- 
 script in the libraries, or transmitted by the successive memories of generations. 
 
 The collection of the popular poetry of France will consist of 
 
 Religious and warlike songs; 
 
 Festive songs and ballads ; 
 
 Historical recitals, legends, tales, satirical songs. 
 
 The committee of language, history, and the arts of France, connected with 
 the ministry of public instruction, is charged with the selection of all pieces sent 
 for inspection, and to determine which are to be received, to regulate them, and 
 give the necessary commentaries. 
 
 A medal is to be given to those persons who, by their discoveries and re- 
 searches, particularly contribute to enrich the collection, which will be called 
 Recueil des Poesies Populaires. 
 
 It is unnecessary to remind the reader that, if this undertaking has been dic- 
 tated by any desire of promoting literature, a political motive has been at least 
 equally strong, according to the old saying : Give me the ballad-making, and I 
 will rule the people.
 
 AND SELF-GOVERNMENT. 285 
 
 on the ground of equality being considered the foundation of 
 all liberty. Indeed, it is considered by many a requisite which 
 lies beyond liberty, and the banners of socialists bore the 
 motto Equality and Fraternity, or Equality, Fraternity, In- 
 dustry, the word Liberty having been altogether dropped from 
 that once-worshipped legend : Liberty, Fraternity, Equality. 
 I have never been able to find an explanation of the watch- 
 word, Democratic and Social Republic, given by those who 
 use it, but it seems to bear no other interpretation than this : 
 Democratic republic signifies that republic which is founded 
 upon the total political equality of its members, carried to its 
 last degree, and social republic must mean a republic based on 
 equality of social condition. Whether this be possible, or de- 
 sirable if it were possible, cannot occupy us at present. The 
 frequent use of this term by a very large part of the French 
 nation has been mentioned here as one of the evidences show- 
 ing the prevailing love of mere equality among the French. 
 
 Still, it is not easy to say what the French exactly mean by 
 equality, or what Napoleon meant by it when, at St. Helena, 
 he said that he had given equality to the French, and that this 
 was all he could give them, but that his son would have given 
 them liberty. How he knew that his son would have done it, 
 we certainly do not know ; but how did he give them equality, 
 when it was he who re-established the ancient orders of no- 
 bility ? So there are, in spite of all the love of equality, no 
 people who more universally love uniforms and an order with 
 a ribbon, than the French. This inconsistency is a political 
 misfortune. In theory, equality and democracy, carried to 
 the utmost, are demanded^ while the habits, tendencies, and 
 desires of the people have a different bent. There is in this 
 respect, it seems, an intellectual and psychical dualism with 
 antagonistic elements in France, similar to that which we 
 frequently observe in individuals in regard to liberty and 
 despotism. 1 
 
 1 Nothing is more common than men with a decided intellectual bent towards 
 freedom and an equally decided psychical inclination towards absolutism.
 
 2 86 ON CIVIL LIBERTY 
 
 It is evident how nearly allied this desired equality and uni- 
 formity, together with universal but uninstitutional suffrage, 
 and that kind of sovereignty which is in addition confounded 
 with absolute power, are to those political extravagances 
 which strike our eyes in present France. 
 
 They are the natural effects of the one or the other, strictly 
 carried out, however inconsistent they may appear with one 
 another. Equality absolutely carried out leads to communism; 
 the idea of undivided sovereignty leads to Mr. Girardin's con- 
 ception of having no legislature, no division of power nothing 
 but a succession of popular sultans ; the idea of seeking all 
 liberty in universal suffrage alone leads with the greatest ease 
 to a Napoleon a transfer of everything to one man, and of 
 all future generations to his descendants, thus actually real- 
 izing the fearful theory of Hobbes ; and the absence of a love 
 of institutions leads to a remarkable tendency to worship one 
 man, to centralization, or, in some cases, to the very opposite 
 a desire to abolish all government and establish the "sove- 
 reignty of the individual." All extremes in politics meet. 
 
 There is no greater error than the idea of making the vote 
 or election the sole basis of liberty of believing that, with 
 the establishment of an extensive or universal suffrage, we 
 set up liberty, however true it is that liberty stands in need of 
 election. Absolutism may rest on this as on any other basis. 
 The deys of Algiers were elective, but, once elected, they were 
 unbounded masters, in the oriental sense of the term. The 
 generals of nearly all, I believe of all, the monastic orders 
 are elective, but, once elected, the vow of obedience of every 
 monk, and the distinct renunciation of liberty, make the gen- 
 
 Their intellect admires the grandeur of liberty, their reason acknowledges the 
 principles of justice; their desires are for free action, and yet their souis resent 
 every opposition. They appear, therefore, often as hypocrites, without being 
 such in reality. There is a dualism within them whose two elements are at war, 
 very similar to that which, without hypocrisy, makes many persons sincerely 
 preach peace and charity abroad, but act at home as domestic tyrants. 
 
 History is full of such characters, and we have had an exhibition of it in one 
 of our presidents. Happily, our institutional system did not allow a very wide 
 play of such a disposition.
 
 AND SELF-GOVERNMENT. 287 
 
 eral master. No order, no human association, has carried the 
 doctrine of absolute obedience to a more frightful extent than 
 the Jesuits, whose founder demands that the inferior shall be 
 in the hands of the superior ut baculum, like a mere staff, and 
 whose distinctly expressed principle it is, that every command 
 of the superior shall be like a commandment from on high, 
 even though sin be commanded. Yet the government of the 
 order is founded on election. Mr. Guizot, in speaking of the 
 monastic orders, 1 says: "As regards the political code of the 
 monasteries, the rule of St. Benedict offers a singular mixture 
 of despotism and liberty. Passive obedience is its funda- 
 mental principle; at the same time the government is elective; 
 the abbot is always chosen by the brothers. When once the 
 choice is made, they lose all liberty, they fall under the abso- 
 lute domination of their superior. Moreover, in imposing 
 obedience on the monks, the rule orders that the abbot con- 
 sult them. Chap. iii. expressly says, ' Whenever anything of 
 importance is to take place in the monastery, let the abbot 
 convoke the whole congregation, and say what the question 
 is ; and after having heard the advice of the brothers, he shall 
 think of it apart, and shall do as appears to him most suitable.' 
 Thus, in this singular government, election, deliberation, and 
 absolute power were coexistent." 
 
 The pope is an elective monarch over the States of the 
 Church. No one has ever maintained that on this account 
 liberty has a home in that country. Nor would the case be 
 altered if the 'pope were elected, not by the college of cardinals, 
 but by a more numerous body of electors, or by all male 
 adults, or even by the whole population, male and female. 
 The high priest or president in the polity of that stupendous 
 outrage called Mormonism is elective, and the Mormons 
 themselves call their government a theo-democracy ; * yet a 
 
 1 History of Civilization in France, lect. xiv., sub fin. 
 
 3 Theo-democracy does not contain a contradiction, however novel and, at 
 first sight, startling the term may appear to us. If democracy necessarily ex- 
 pressed the idea of liberty, then indeed the name theo-democracy would be 
 senseless, for all theocracy or sacerdotal rule is a negation of civil liberty. It 
 immures in dogma.
 
 2 88 ON CIVIL LIBERTY 
 
 greater absolutism has never existed, indeed, we may fairly 
 say, none equal to it. It unites democracy and communism, 
 which is absolutism, with continuous and permanent revela- 
 tions of the deity, not only on dogmatic points, but on every 
 measure of weight. It is a jus divinum such as the ancients 
 did not even dream of when they derived their kings from the 
 loins of the gods, and it is a communism such as Mohammed 
 never dared to embody in his politico-religious system. 
 
 The unicameral system must be mentioned here as a fea- 
 ture of Gallican liberty, because it is held by all those persons 
 who seem to be the most distinct enunciators of this species 
 of liberty, a necessary requisite if they allow the principle of 
 representation at all. They consider that the bicameral system 
 of representatives is aristocratic, or else, as one of their writers 
 expresses it, that two houses can never be reconciled except 
 by money or by blood. The partiality for a legislature of one 
 house is a necessary consequence of the French idea of unity 
 in the government or the unity of the state, and actual abhor- 
 rence of confederacies. 
 
 The Anglican wants union in his general government ; the 
 Gallican, unity. He wants his government to be a solid unit. 1 
 
 In a similar manner, and with equal justice, the Rev. Mr. Payne says of the 
 Grebo tribe, at Cape Palmas, that their constitution is patriarchal, with a purely 
 democratic government. His account is contained in "The Report of the Rev. 
 R. R. Gurley, who was recently sent out by the government to obtain informa- 
 tion in respect to Liberia," published by the senate of the United States, in 1850, 
 thirty-first congress, first session, executive document No. 75. The political 
 philosopher can hardly read a more interesting paper than this. 
 
 1 The extent to which this idea is occasionally carried out is almost incon- 
 ceivable to us, accustomed as we are to so essentially different a system and train 
 of political thoughts. A few years ago the minister of the interior had given 
 some new directions regarding the quarantine regulations. They were more in 
 conformity with the opinions of scientific men on the contagiousness of the 
 plague. The people of Marseilles, who still keep the terrible plague of the last 
 century in vivid remembrance, disapproved of these orders from the central 
 government, and a meeting of certain persons was called together. Whereupon 
 most newspapers took part with the government, and charged the citizens, with 
 whom this little germ of self-government had shown itself, with the hideous sin 
 of federalism, the crime for which many had lost their heads in the first revolu- 
 tion. This was in the times of the so-called republic, before the second of
 
 AND SELF-GOVERNMENT. 289 
 
 He wishes to deprive every institution, as much as possible, 
 of the principle of self-government and independence, and the 
 only question which remains is, who shall be the ruler and re- 
 ceive that power which government gives ? To this subject, 
 as to many others on which I have touched, we shall return 
 when I shall treat more fully of the institutional government 
 and its opposite. 
 
 It is not likely that people who speak with derision of par- 
 liamentary government, by which nothing is meant but a 
 government in which a deliberative and representative legisla- 
 ture forms an integral part, and of parlementarism, as the new 
 phrase is, would treat the legislature as an institution with 
 self-government and a necessary degree of independence. Ac- 
 cording to their idea, the safeguards which we believe are 
 found in a mutually moderative contrivance ought to be done 
 away with. Speedy energy, absence of opposition and of 
 results which are the products of mutual modification and 
 mutual toleration, unity of ideas, not consisting in collective 
 effects but in a merely logical carrying out of some abstract 
 principle ; these are the main objects, according to Gallican 
 views. The United States are far from being favorably looked 
 upon by the French people, and they are viewed with real ill 
 will by the Red Republicans on account of our decentralization. 
 Rousseau seems to have harbored a positive ill will toward the 
 representative system, and his followers have a still stronger 
 antipathy against federal governments, and self-government 
 which may be said, in one point of view, to be a minute 
 application of the federative principle. 
 
 The Spaniards, the Portuguese, the Neapolitans, have made 
 
 December, and the few papers which took side with the citizens were legitimist 
 papers, thus furnishing, by the way, another instance of the fact that all sorts of 
 things are possible under peculiar circumstances. It was the Tories who resisted 
 the septennial bill abolishing triennial parliaments in 1716; it was the Jesuits 
 who first enunciated the doctrine of the sovereignty of the people, in order to 
 get a fulcrum against heretical monarchs ; it was a Spanish Jesuit who defended 
 regicide under Philip II. ; and here we have legitimists, working for a descend- 
 ant of Louis XIV., who took side for a principle of self-action against the central 
 government ! 
 
 19
 
 290 
 
 ON CIVIL LIBERTY 
 
 the trial of copying the French, but have succeeded with the 
 system of one house no better than the French themselves, 
 and have passed over to the bicameral legislature, or abolished 
 representation altogether. 
 
 There are governments in which the medieval principle of 
 estates still exists. But it may be fairly maintained that this 
 is a remnant of the middle ages, at variance with the changed 
 state of modern society. Nowhere do they present themselves 
 as a system of civil liberty it is rather a system (and rarely 
 even this) of privileges or liberties. In Sweden the estates 
 still exist, namely the clergy, nobility, citizens, and peasants, 
 and a high degree of liberty is enjoyed. But in examining 
 the constitution of Sweden we cannot fail to observe that 
 modern liberty is rather superinduced or engrafted on the 
 system of states, than evolved out of it. The constitution of 
 Norway, on the other hand, is clearly of the character of that 
 liberty which we have designated as Anglican. 1 
 
 Frenchmen would probably point out their national guards 
 as an element or guarantee of Gallican liberty. They were 
 established during the first revolution, and have always been 
 diminished in number and restricted in power in those periods 
 in which the government made war upon liberty. They can- 
 not, however, be considered a valid guarantee in so concen- 
 trated a government as the French, and in a country in which 
 the army is so gigantic. It was chiefly as a popular force 
 against the king, that the national guards appeared as an 
 important element of liberty in the first French revolution; 
 
 1 [In 1866 the four estates of Sweden were converted into two houses, of 
 which the first or upper consists of one hundred and twenty-five members, who 
 represent the noblesse, other landed proprietors, and the clergy, and are elected 
 by landsthings or provincial assemblies, and the second, of one hundred and 
 ninety-one members, represents the towns and rural districts. The term of office 
 of the upper house is, we believe, nine years. In Norway the storthing, or legis- 
 lature, chosen by electors chosen by the qualified citizens, holds office for three 
 years, and divides itself on assembling into two houses, the odalstking, having 
 three-quarters of the whole body for its members, and the lagthing, composed 
 of one-quarter. All projects of laws or acts originate in the odalsthing ; and if 
 the lagthing rejects them twice over, the storthing meets and legalizes the project 
 only by a vote of two thirds.]
 
 AND SELF-GOVERNMENT. 
 
 291 
 
 but they cannot be called a real guarantee of civil liberty, 
 especially when no institutional guarantees of self-government 
 exist. 
 
 It must have plainly appeared that liberty seems to me effi- 
 ciently secured only by the Anglican system. Other attempts 
 in modern times have been but very partially successful, and of 
 these there are only a few. The question arises at once, are 
 those persons in the main correct who roundly assert that no 
 people are fit for liberty except the Anglo-Saxons? For thus 
 they call the English nation, and those who have descended 
 from it. Or is it correct to say that whoever wishes to enjoy 
 liberty must copy the main institutions of Anglican liberty ? 
 On these and some cognate subjects so many startling errors 
 exist, that the remarks on the different types of liberty may 
 be appropriately concluded by some observations on these 
 misconceptions. They have a practical bearing, and influence 
 large masses. 
 
 It is doubtless true that the greatest amount of liberty is at 
 present enjoyed by the Anglican race, whose institutions and 
 guarantees seem to form the only extensive and consistent, as 
 well as practical, system of civil liberty, the only one in which 
 liberty and law have become firmly interlocked, and by which 
 it has thus become possible to establish, as a practical reality, 
 what Tacitus held to be impossible the union of libertas 
 and imperium'. It is true also that the Anglican division has 
 had a greater influence than any other tribe on the whole white 
 race, and that other nations seem to have enjoyed liberty or 
 advanced on the path of freedom, in recent times, in the same 
 proportion only in which they have adopted the main principles 
 and chief institutions elaborated by this portion of our race ; 
 and it is equally true that we enjoy so great an amount of free- 
 dom because we are accustomed to liberty and a government 
 of law, and because our race has perseveringly developed it for 
 centuries. But it must not be forgotten, on the one hand, that 
 other nations and races may possibly develop certain princi- 
 ples in a manner peculiar to their character and circumstances; 
 and, on the other hand, that it is the rule of all spreading
 
 2Q2 
 
 ON CIVIL LIBERTY 
 
 advancement of humanity that the full amount of what has 
 been gained by patience, blood, or fortunate combinations is 
 transferred to other regions and distant tribes. 
 
 The missionary from St. Paul, when he went to Rome, to 
 those who now embark for the Pacific does not demand the 
 neophyte to pass through the dispensations of the Old Testa- 
 ment, and all the experience of the early church, before he 
 begins to teach the dispensation of the New Testament, and 
 to establish churches according to the government and the 
 theology which exist at his home. 
 
 There are many persons who pretend to admire liberty, but 
 withhold it from the people on the plea that they are not pre- 
 pared for it. Unquestionably, all races are not prepared for 
 the same amount of liberty, and many are not yet fit for any 
 real liberty at all. But two things are certain, that all nations, 
 and especially those belonging to our own civilized family, 
 prove that they are prepared for the beginning of liberty, by 
 desiring it and insisting upon it, and that you cannot other- 
 wise prepare nations for enjoying liberty than by beginning to 
 establish it, as you best prepare nations for a high Christianity 
 by beginning to preach it. 
 
 There are persons even among ourselves who, observing how 
 many and sad failures have taken place with other nations, 
 bluntly assert that none but the Anglo-Saxons are fit for 
 liberty, and that it cannot be enjoyed by others. That some 
 nations are fitter for the elaboration or peaceful enjoyment of 
 liberty than others, according to their character, which makes 
 them perhaps less fit to excel in some other branches of civili- 
 zation, cannot be denied. So was the Greek more fit for the 
 fine arts than the Roman. That some tribes appear on the 
 stage of history, act their part, and vanish again without 
 having made any progress in civil liberty, or ever having be- 
 come conscious of it as an element of advancing civilization, is 
 equally true. But do we hold any nation, once fairly entered 
 upon the path of civilization, unfit for science or the arts, or a 
 stable government, or a literature, or for Christianity ? That 
 in which m n rises highest, and manifests himself most intel-
 
 AND SELF-GOVERNMENT. 
 
 293 
 
 lectually Christianity is believed to be meet for all; but 
 should liberty be restricted to a tribe or a single nation ? Il 
 is not likely. I have admitted that some nations are fitter 
 for the one or the other. All will not equally cultivate all 
 branches ; each cannot originate every branch ; but all will 
 partake of every element of civilization ; and while it may be 
 proper for the historian to say such a nation has not been able 
 to act with originality in this or another branch, it is not be- 
 coming to the philosopher to say that such a portion of our 
 race will not be able to do so. When the Greek scholars from 
 Constantinople carried the last embers of Grecian civilization 
 and intellectuality over the West; when the restoration of letters 
 prepared the way for still higher achievements, no one said 
 that the English, or French, or Germans were unfit to partake 
 in the humanizing blessing, although the Italian soil, still bear- 
 ing the effects of former culture, was the first to bring forth 
 delectable fruit. When Gothic architecture had been elabor- 
 ated by some, it was not believed that other nations could not 
 raise cathedrals in the same style, and enjoy it and develop it 
 in their own way. 
 
 On the other hand, we meet with the very reverse. Angli- 
 can liberty is opposed on the ground that it is not indigenous, 
 and that it is both inexpedient and unworthy to adopt it. 
 Large numbers in France, both communists and imperialists, 
 treat "parliamentarism" in this manner; and the emperor 
 said, when he had assembled the senate and the legislative 
 corps, soon after the restoration of the empire, that France 
 for " the first time enjoyed the happiness of possessing in- 
 stitutions exclusively French and original." * As to the 
 
 1 This idea has been, since, carried much farther. A large number of persons, 
 and, it would seem, all imperialists, love to dwell upon the idea that imperial- 
 ism represents Latin civilization, opposite to Teutonic unwieldy, uncentralized, 
 barbaric freedom. When thus Latinism is taken as a distinctive mark, Roman 
 imperialism is meant, not of course Republican Roman self-government. The 
 French, in trying to renovate Latinism, seem to fall, as to principle, into an 
 anachronism not dissimilar to that into which the Germans fell as to language 
 when they officially called their empire, down to its dissolution, the Holy Roman 
 Empire of the Germans.
 
 294 
 
 ON CIVIL LIBERTY 
 
 originality, we would only observe that they are fac-similes 
 of what Napoleon I. had established, and that he copied the 
 senate, as he did the eagle, the title and idea of emperor, the 
 name of legion, of prefect, from Rome, unfortunately at her 
 worst period, for the Roman senate during the better time was 
 part of the proud Senatus Populusque Romanus ; and the 
 corps legislatif, if there be any element of a representative 
 legislature in it, is not of French origin; if it be a mute body, 
 however, there is no originality in it either. Even if it were 
 as the emperor proclaimed it, there would be nothing in it to 
 be rejoiced at. The law of all spreading civilization is emigra- 
 tion, transmission, and addition. Ought the French to reject 
 the Grecian orders of architecture because they are not 
 French, or ought our medical students not to go to Paris 
 because the French science of medicine is not ours ? Has 
 modern music been rejected by all the nations except the 
 Italians and the Germans because it is of native growth with 
 these nations ? Ought the French to reject saving-banks be- 
 cause they were first established and developed in England, 
 and ought the English to discard Jacquard's loom because 
 invented in France ? 
 
 The son of Sirach said, that wisdom was hovering like the 
 clouds until it "took root in an honorable people" 1 the 
 Israelites. It is thus with all wisdom, all" great ideas and 
 comprehensive systems. They take root with " an honorable 
 people," that develops them. After that come the winds of 
 he-'.ven and carry the seeds far and about. Patriotism and 
 national vanity are not the same. Patriotism is excellent so 
 long as it is the love of its own to such a degree that it is 
 ready to make any sacrifice and to do all for its benefit; it is 
 not a virtue when it consists in being enamored with itself. 
 Narcissus is not the symbol of patriotism, but Lycurgus and 
 Solon are, travelling far in order to gather knowledge for their 
 own country. 
 
 At all great and distinct periods of modern history, there 
 
 1 Ecclesiasticus, xxiv. 12.
 
 AND SELF-GOVERNMENT. 295 
 
 are a general idea and certain adequate forms pervading the 
 whole. Such was the papal period at the beginning of the 
 middle ages ; such was the universal feudal system ; such the 
 period of universities springing up everywhere; such the 
 periods of art ; such tjie periods of Abelard and scholastic 
 philosophy ; such the rising of free cities in all active parts of 
 Europe ; such the ardor of maritime discovery and enthusiasm 
 for " cosmography ;" such the period of monasteries ; such 
 Protestantism; and such is, I believe, the present period of 
 civil liberty, which, for centuries to come, will be essentially 
 of the Anglican type. To learn liberty, I believe that nations 
 must go to America and England, as we go to Italy to study 
 music and to have the vast world of the fine arts opened to 
 us, or as we go to France to study science, or to Germany 
 that we may learn how to instruct and spread education. It 
 was a peculiar feature of antiquity that law, religion, dress, 
 the arts and customs, that everything in fact, was localized. 
 Modern civilization extends over regions, tends to make 
 uniform, and eradicates even the physical differences of tribes 
 and races. 1 Thus made uniform, nations receive and give 
 more freely. If it has pleased God to appoint the Anglican 
 race as the first workmen to rear the temple of liberty, shall 
 others find fault with Providence ? The all-pervading law of 
 
 1 The mutual influence of different literatures is daily extending. Take as an 
 instance the literature of England, France, Germany, and the United States, 
 and add the mutual influence of the journals of these nations. Then consider 
 how many of the elements of civilization are not national, but common to all 
 the alphabet, the numeric signs, with the decimal system, musical notation and 
 music itself, commercial usages and bookkeeping, international law, social inter- 
 course and laws of politeness; the visiting-card, the railway, the steamboat, the 
 post-office, the institution of money, the bill of exchange, insurance indeed, it 
 is impossible to enumerate all the agreements of nations belonging to our race. 
 I shall only add the dress, the furniture, and even cookery. 
 
 The most recent and a choice illustration of progressive uniformity of our race 
 and its civilization, is the adoption of Commander Maury's, U.S.N., plan of a 
 uniform maritime observation and record, adopted by many governments in 
 consequence of the naval congress at Brussels, in 1853. May a uniform standard 
 of value soon follow. The wide-spread dollar or scudo has prepared the way 
 for it.
 
 296 
 
 ON CIVIL LIBERTY 
 
 civilization is physical and mental mutual dependence, and 
 not isolation. 
 
 Many governments deny liberty to the people on the ground 
 that it is not national; yet they copy foreign absolutism. 
 There is doubtless something essential in the idea of national 
 development, but let us never forget two facts : Men, however 
 different, are far more uniform than different ; and most of the 
 noblest nations have arisen from the mixture of others.
 
 AND SELF-GOVERNMENT. 
 
 297 
 
 CHAPTER XXV. 
 
 THE INSTITUTION. ITS DEFINITION. ITS POWER FOR GOOD 
 
 AND EVIL. 
 
 IT has been shown that civil liberty, as we understand and 
 cherish it, consists in a large amount of individual rights, 
 checks of power, and guarantees of self-government. We have 
 more or less fully indicated that self-government, in the sense 
 in which we take it, and in connection with liberty, consists in 
 the independence of the whole political society, in a national 
 representative government and local self-government, which 
 implies that even general laws and impulses are carried out 
 and realized, as far as possible, by citizens who, in receiving 
 an office, be it by election or appointment, essentially remain 
 citizens, and do not become members of a hierarchy of place- 
 men. 1 We have seen that self-government, in general, requires 
 
 1 At a sumptuous ball, which the city of Paris gave, in the year 1851, to the 
 commissioners of the London Exhibition, I was sitting in a corner and reflecting 
 on the police officers in their uniforms and the actual patrols of the military 
 pompiers in the very midst of the festive and crowded assemblage, when I was 
 introduced to one of the first statesmen of France and a liberal member of the 
 national assembly. He had been at London, to view the exhibition. It was the 
 first time he had visited England. " Do you know," said he, " what struck me 
 most far more than the exhibition of works of art and industry ? It was the 
 exhibition of the civisme anglais (this was the term he used) in the London 
 police." It may be readily supposed that an American citizen turned his face 
 toward the speaker, to hear more, when the Frenchman continued : " I am in 
 earnest. The large number of policemen, with their citizen appearance, although 
 in uniform, seeming to be there for no other purpose than to assist the people 
 and the people ever ready to assist them this is what has most attracted my 
 attention. Liberty and the government of law are even depicted in their police, 
 where we should seek it least. What is it that strikes you most in coming 
 here?"
 
 298 
 
 ON CIVIL LIBERTY 
 
 that there be an organism to elaborate and ascertain public 
 opinion, and that, when known, it shall pass into law, and, 
 plainly, rule the rulers ; that government interfere as an ex- 
 ception, and not as the rule; and that, on the other hand, 
 self-government neither means self-absolutism, nor absence of 
 rule, but that, on the contrary, liberty requires a true govern- 
 ment. A weak government is a negation of liberty; it cannot 
 furnish us with a guaranteeing power, nor can it procure 
 supremacy for public will. In other spheres it may be true 
 that license is exaggerated liberty, but in politics there can be 
 nothing more unlike liberty than anarchy. 
 
 We have still to ascertain how this system of civil liberty 
 is to be realized. Liberty cannot flourish, nor can freedom 
 become a permanent business of actual life, without a perma- 
 nent love and a habit of liberty. How is the one to be engen- 
 dered, and the other to be acquired? 
 
 There is no mathematical formula by which liberty can be 
 solved, nor are there laws by which liberty can be decreed, 
 without other aids. We gain no more by throwing power un- 
 checked into the hands of the people. It remains power, and 
 is hot liberty, and people still remain men. Flattery does not 
 change us, for we are all 
 
 " The American," I replied, " in visiting the continent of Europe, is most 
 impressed by the fact that the whole population, from Moscow to Lisbon, seems 
 to be divided into two wholly distinct parts the round hats, the people, and the 
 cocked hats, the visible government. The two layers are as distinct as the hats, 
 and the traveller sees almost as many of the one form as of the other." 
 
 There are large police establishments in all European states. Densely-peopled 
 countries require them. The different spirit and organization, however, of these 
 establishments are most characteristic. Nothing, perhaps, shows more the char- 
 acter of a citizen-government in England than the wide-spread institution of the 
 police, which has developed itself, under Sir Robert Peel, out of the ancient 
 constable. It has great power; it has preventive, detective, and custodial 
 authority; yet it is supported by the citizens, and no one fears that it ever will be 
 used as an institution of political espionage and denunciation as delatores of old 
 and mouchards of modern times. It is strictly under the public law, and that 
 implies under publicity. There is a whole literature on this subject, but I know 
 of no brief paper exhibiting so well its essential character as the seventh para- 
 graph of Mittermaier's English, Scottish, and American Penal Processes.
 
 AND SELF-GOVERNMENT. 299 
 
 " Obnoxious, first and last, 
 To basest things," l 
 
 and thus flattery is no foundation for liberty. Each one of us 
 may be declared a sovereign, as every Frenchman was desig- 
 nated in a solemn circular, 2 by the provisional government; or 
 the people may be called almighty le peuple tout-puissant 
 as in the midst of loathsome political obscenity they were 
 termed by the dictatorial government when they were expected 
 and led to vote for a new emperor, and thus by an act of 
 omnipotence to extinguish every vestige of their power. They 
 were asked to divest themselves of this very omnipotence, 
 which nevertheless is exclusively claimed for the nation as 
 inherent in its own nature, and to submit their omnipotence 
 to a still greater power of one man. Nothing of all this is 
 liberty. Self-immolation, even where it is an actual and not a 
 theoretical act of free agency, is not life. 
 
 Enthusiasm is necessary for liberty, as for every great and 
 noble work, but enthusiasm comes and goes like the breezes 
 of the ocean. How shall they be used for the positive interests 
 of the navigator ? Enthusiasm is not liberty, nor does the 
 reality of liberty consist in an aesthetical love of freedom. The 
 poet may be as much the priest of liberty as he is the seer of 
 love, but poetry is no more the thing it sings than theory is 
 the deed, or ethics the character of man. 
 
 Education has been considered by many as the true basis 
 of popular liberty. It is unquestionably true, and proudly ac- 
 knowledged by every lover of modern popular liberty, that a 
 wide-spread and sound education is indispensable to liberty. 
 But it is not liberty itself, nor does it necessarily lead to it. 
 
 1 Paradise Lost, book 9, line 170. 
 
 a In a circular, sent by the provisional government all over France before the 
 general election for the national constituent assembly, in 1848, was this sentence: 
 " Every Frenchman of the age of manhood is a political citizen ; every citizen is 
 an elector ; every elector is a sovereign. There is no one citizen who can say to 
 another: 'You are more of a sovereign than I.' Contemplate your power, pre- 
 pare to execute it, and be worthy of entering on the possession of your kingdom." 
 The author of these phrases is Mr. de Lamartine, who says, in his Revolution of 
 1848: " The reign of the people is called the republic."
 
 3 
 
 ON CIVIL LIBERTY 
 
 Prussia is one of the best educated of countries, but liberty 
 has not yet found a dwelling-place there. The Chinese govern- 
 ment is avowedly based upon general education and democratic 
 equality in the hierarchy of officers, but China has never made 
 a step in the path of liberty. Education is almost like the 
 alphabet it teaches. It depends upon what we use it for. 
 Many despotic governments have found it their interest to 
 promote popular education, and the schoolmaster alone cannot 
 establish or maintain liberty, although he will ever be acknowl- 
 edged as an efficient and indispensable assistant in the cause 
 of modern freedom. Liberty stands in need of character. 
 
 How then is real and essential self-government, in the ser- 
 vice of liberty, to be obtained and to be perpetuated ? There 
 is no other means than a vast system of institutions, whose 
 number supports the whole, as the many pillars support the 
 rotunda of our capitol. They may be modest in their appear- 
 ance, and even unseen by the passer-by, as those pillars are, 
 but they are nevertheless the real support. 
 
 Let us then consider the nature of institutional liberty more 
 closely. In order to appreciate this subject, it will be desirable 
 to inquire first into the nature of institutions in general. 
 
 According to the highest meaning which the term has grad- 
 ually acquired, an institution is a system or body of usages, 
 laws, or regulations of extensive and recurring operation, con- 
 taining within itself an organism by which it effects its own 
 independent action, continuance, and generally its own farther 
 development. Its object is to generate, effect, regulate, or 
 sanction a succession of acts, transactions, or productions of a 
 peculiar kind or class. The idea of an institution implies a 
 degree of self-government. Laws act through human agents, 
 and these are, in the case of institutions, their officers or 
 members. 
 
 We are likewise in the habit of calling single laws or usages 
 (which are laws of spontaneous growth) institutions, if their 
 operation is of vital importance and vast scope, and if their 
 continuance is in a high degree independent of any interfering 
 power. These two characteristics establish a close affinity
 
 AND SELF-GOVERNMENT. 
 
 301 
 
 between such laws and institutions proper as they have been 
 just defined. Thus, we call marriage an institution in consid- 
 eration of its pervading importance, its extensive operation, the 
 innumerable relations it affects, and the security which its con- 
 tinuance enjoys in the conviction of almost all men, against 
 any attempts at its abolition. Indeed, we generally mean by 
 the term Institution of Marriage, pretty much the institution 
 of the family, that is, the family as a community sanctioned 
 and fostered by the law, by authoritative usages, and by 
 religion the cluster of laws and usages, social, political, and 
 religious, which relate to this well-defined community. 
 
 It always forms a prominent element in the idea of an insti- 
 tution, whether the term be taken in the strictest sense or not, 
 that it is a group of laws, usages, and operations standing in 
 close relation to one another, and forming an independent 
 whole with a united and distinguishing character of its own. 
 
 A system of laws very often consists of a variety of systems, 
 each enjoying a proportionate degree of self-government, as a 
 general organism is composed of many organs with distinct and 
 peculiar functions of their own, although working in unison 
 and according to the principles and regulative laws of the 
 general organism. We have many institutions which consist 
 of a number of institutions either of the first mentioned or 
 second sort; and, as institutions may exist in all the great 
 spheres of human action, it naturally results that there are in- 
 stitutions of the greatest variety in character and extent. A 
 bank, parliament, a court of justice, the bar, the church, the 
 mail, a state, are institutions, as well as the Lord's supper, a 
 university, the Inquisition, all the laws relating to property, 
 the sabbath, the feudal system. The Roman triumph, the 
 Hindoo castes, the bill of exchange, the French Institute, our 
 presidency, the New York tract society, the Areopagus or 
 the Olympic games, an insurance company, the janizaries, 
 the English common law, the episcopate, the tribunate, the 
 "captainship" of a fishing-fleet on the banks, "the crown," 
 the German book-trade, the Goldsmiths' Company at London, 
 our senate, our representatives, our congress, our state legis-
 
 302 
 
 latures, courts of conciliation, the justiceship of the peace, the 
 priesthood, a confederacy, the patent, the copyright, hospitals 
 for lunatics, estates, the East India Company all these and 
 thousands more are or were institutions in the one or the other 
 adaptation of the term. Whether they are good or bad, ex- 
 pedient or unwise, human or divine, has nothing to do with 
 the distinctive character of an institution as such. 
 
 " The School," that is to say, the whole school system, as 
 well as the modern national army, in Prussia, have been called 
 institutions, when it was desired to express the idea that they 
 are establishments of vast importance and that they enjoy a 
 supposed degree of independent vitality. Baron Bunsen, in 
 his Hippolytus, calls the book of common prayer a " national 
 institution." 1 
 
 The noun Institution is, indeed, formed of the verb to Insti- 
 tute, but it does not, on that account, express, as noun, the 
 action or the effect of that which constitutes the meaning of 
 the verb. The sense of the noun frequently diverges from 
 that of the verb, in all languages, and especially so in the 
 English. 2 We institute an inquiry ; but an inquiry is not an 
 
 1 Vol. iii. p. 293. A member of the late French national assembly, speaking of 
 the enormous California lottery, which was then in its full ruinous operation in 
 France, used the expression : " This is not a lottery ; it is a series of lotteries ; I 
 ought to say an institution of lotteries." 
 
 The exaggeration was carried farthest when an English newspaper called the 
 Duke of Wellington an institution. We see, however, through the exaggeration, 
 the original sense universally attributed to the term. 
 
 3 The word is a finished and a given thing ; the idea is in a constant state of 
 expansion or contraction, far exceeding the formative powers even of the most 
 perfect language, so that frequently a whole class of words derived from the same 
 root retains little in common but an association of ideas, which often almost 
 vanishes. The history of the changing meaning of man's words is instructive, 
 and equally so the history of the changing word. I need only allude to such re- 
 markable words as Stare, Status, Statute, Stand, Establishment, Stabilis, Estate, 
 and the whole history through which the meaning of the word State has passed 
 and is still passing on the one hand, and the many branches such as Stable, Sta- 
 tion, Statistics; or we may take Civis, Civitas, Civilis, Civilitas, Civility, Civil 
 (in its two distinct terms,) Civilization, Citizen; Nascor, Nation, National; Pop- 
 ulus, Publicus (for populicus,) Public, People, Popular; Gignere, Genus, Gens, 
 Gentile, Gentle, Genteel, Gentleman, with the different meanings through which
 
 A ND SELF- G O VERNMENT. 
 
 303 
 
 institution ; and, on the other hand, there are many institutions 
 which have never been instituted. They have grown. 
 
 This class of institutions forms in a certain point of view 
 the most important, as will be admitted when we consider that 
 the jury, systems of common law, the British parliament and 
 our bicameral systems of the legislature, most governments 
 and the states themselves, are grown institutions. 
 
 The English language has but one term for both, the cres- 
 cive institutions, as they might be termed, and the instituted 
 or enacted institutions, such as a corporation, congress, or our 
 legislatures ; whose institutors are the people enacting the 
 constitutions. Grown or spontaneous institutions are not ill 
 defined or loosely distinguished from one another on that 
 account ; they may be as individualized as a shady tree in the 
 forest ; and enacted or contrived institutions are not confined 
 and narrow on that account. They may be as extensive in 
 action as an Atlantic steamship. The speakership is a well- 
 defined crescive institution ; the supreme court of the United 
 States is a vast enacted institution. 
 
 Most of the institutions which owe their origin to spon- 
 taneous growth have become in course of time mixed institu- 
 tions. Positive legislation has become mingled with self-grown 
 usage, as is the case with the institution of property, the jury, 
 the bill of exchange, the Hindoo castes, money. 
 
 It is for the purpose of comprehending the grown as well 
 as the established institutions, that the words " usages, laws, 
 or regulations " have been employed in the definition at the 
 head of this discussion. 
 
 Dr. Thomas Arnold, whose name few mention without 
 veneration, says, at the beginning of his Lectures on History : 
 " I would first say that by institution I wish to understand 
 such officers, orders of men, public bodies, settlements of 
 property, customs or regulations, concerning matters of gen- 
 
 this last word has passed from the time when it meant a man of gentle that is, 
 not vulgar, not common-blood or extraction, to its present import, which relates 
 exclusively to character and breeding. Breeding itself might be mentioned 
 here.
 
 ON CIVIL LIBERTY 
 
 eral usage, as do not owe their existence to any express law 
 or laws, but having originated in various ways, at a period of 
 remote antiquity, are already parts of the national system, at 
 the very beginning of our historical view of it, and are recog- 
 nized by all actual laws, as being themselves a kind of primary 
 condition on which all recorded legislation proceeds. And I 
 would confine the term laws to the enactments of a known 
 legislative power at a certain known period." 
 
 It will be seen that this writer restricts the meaning of the 
 term institution to what has been called grown institutions; 
 nor does he do this with philosophical cogency. He enu- 
 merates instances rather than gives a definition ; and it seems 
 arbitrary to bestow the term on grown institutions only. It 
 is contrary to universal usage, as well as to the necessity of 
 the case. What is an instituted legislature of Wisconsin, an 
 incorporated bank, an orphan asylum, or a chartered city 
 government, if it be not an institution ? According to Dr. 
 Arnold, scarcely a pure institution exists, for in all or nearly 
 all institutions positive enactments have become mixed up with 
 the unenacted usage, as has been mentioned before. 
 
 Nor is it accurate to call certain " officers or orders of men" 
 institutions. What unites the individual officers into an insti- 
 tution ? or how can the institution outlast the individual offi- 
 cers existing at any given period ? How could the house of 
 representatives of congress be an institution, which every one 
 calls it, and which assuredly it is, when its members cease to 
 be such every two years ? They are but temporary members 
 of the perpetual institution. The institution itself is the 
 organic law in the Constitution of the United States which 
 provides for the organization and periodical renewal of the 
 house. The same is true with reference to the state and its 
 citizens, living at any given time. 1 Citizens are born and die, 
 
 1 [If Dr. Arnold means orders of men embodying a certain principle, idea, or 
 political habit of a nation, he cannot be found fault with. So of officers. A 
 tribune and the tribuneship cannot be separated. He conceived of the officer as 
 gradually reaching, in old time, certain political functions, which could have 
 otherwise no existence.]
 
 AND SELF-GOVERNMENT. 305 
 
 but the state is a continuum. The jury of the common law 
 is an institution now spreading over the territory of at least 
 sixty-eight millions of people, but the jurors form only very 
 transitory, although continually repeated, representations or 
 embodiments of the institution. 1 
 
 It is this very fact, passed over by Dr. Arnold, that consti- 
 tutes one of the most important practical features of the 
 institution. It spreads the framework of the same system of 
 laws over sets of men periodically renewed, prescribing their 
 line of action, so that it becomes a consistent continuation of 
 that which their predecessors have done, or, to express it in 
 other words, it breathes the same leading principles into 
 different aggregates of men and different generations, as the 
 same principles in varying matter produce and reproduce the 
 same seasons. The institution thus insures perpetuity, and 
 renders development possible, while without it there is little 
 more than subjective impulsiveness, which may be good and 
 noble, or ruinous and purely passionate, but always lacks con- 
 tinuity, and consequently development and safe assimilating 
 growth. A market assembly, convened at stated intervals, 
 without institutions, can produce little more than a succession 
 of instinctive or impulsive actions the more impulsive the 
 more exciting the subject is on which the uninstitutional mul- 
 titude acts. The same applies to larger communities, if they 
 
 1 The term Institute seems to differ from Institution, according to present 
 usage, in this, that the first, when it does not mean the initiatory knowledge of 
 a wide system of science, (as the institutes of the pandects, of medicine,) is chiefly 
 used as a noun proper for an institution of learning or the diffusion of knowl- 
 edge, for instance French Institute, Mechanics' Institute. It may be used as a 
 generic term for institutions of diffusion of knowledge of a higher character; but 
 it is frequently abused in these cases. Schools of some pretence are called in- 
 stitutes, with that deplorable extravagance with which common schools are called 
 academies, common colleges universities, auction rooms auction marts, a single 
 and simple person a party, every chairman a president, and which has so sadly 
 invaded our manly language that many superlative words, such as splendid, 
 magnificent, giantlike, transcendent, illustrious, and hundreds of others, can 
 hardly be any longer used by a sober and vigorous writer, and have become 
 worth little more than old coins, once good, but now clipped, punched, and 
 sweated by unlawful usage. 
 
 20
 
 ON CIVIL LIBERTY 
 
 act without institutions, and in this resemble the Indians of 
 the pampas, who meet and act on each question by simple 
 majority, unguided, unmoulded, unrestrained by permanent 
 laws and usages, or without a maturing organism. 
 
 There is nothing so void of lasting good as that history 
 which consists of a mere succession of acts through which 
 there runs no connecting idea, and which show neither growth 
 nor expansion. It sinks to mere anecdotical chronology. All 
 that is deeply good or truly great, and not only vast, in the 
 sense of Attila's conquest, requires development and progress. 
 Impulsiveness without institutions, enthusiasm without an 
 organism, may produce a brilliant period indeed, but it is 
 generally like the light of a meteor. That period of Portu- 
 guese history which is inscribed with the names of Prince 
 Henry the Navigator, Camoens, and Albuquerque is radiant 
 with brilliant deeds, but how short a day between long and 
 dreary nights ! Portugal had no institutions to perpetuate 
 her glory, and that splendor was but the accidental effect of 
 fortunate circumstances happening to combine at that period. 
 Noble national impulses, without institutions, are at best 
 happy accidents. 
 
 When it is said that one of the requisites of the institution 
 is that it shall contain within itself an organism by which it 
 effects its own independent action and continuance, it is obvious 
 that this must be taken in a comparative sense, because every 
 institution ought to stand in connection with others, and is 
 frequently a minor organism of a more comprehensive one; or 
 an institution may be actually the creature of the legislature, 
 and the legislature itself may be the creature of the constitu- 
 tion, which may have emanated from the sovereign will of the 
 people. Yet we call a body of laws or usages an institution 
 only when we unite the idea of an independent individuality 
 with it. It must have its own distinct character, its own pecu- 
 liar action, and it must not owe its continuance to the arbi- 
 trary mandate of a will foreign to it. Independence does not 
 mean disjunction or isolation. 
 
 If this were not so, we would not stand in need of the
 
 AND SELF-GOVERNMENT. 
 
 307 
 
 term institution, and the simple term of Law or Ordinance 
 would suffice. 
 
 Neither the Romans nor the Greeks had a separate term for 
 institution ; * indeed, the Greeks had not even distinct words for 
 the Latin jus and lex, a paucity of language which we share 
 with them ; and if the Romans had no word for institution, 
 although they had many real institutions, we have many im- 
 portant separate systems of law, such as the law of insurance, 
 of bailment, the maritime law, without having an appropriate 
 term for separate bodies of laws and rules. Nor did the 
 Roman probably feel the want of a word for Institution, for 
 the same reason that he expressed time by saying: "Two 
 hundred years after the founded city'' The thing itself, the 
 city, was in his mind. We would say : Two hundred years 
 after the foundation of the city. The foundation of the city, 
 an abstraction, is in our mind. The Roman said Respublica, 
 the Public Thing, and upon this raft of words, strong but 
 coarse, his own political progress and civic life forced him to 
 put a heavy freight of meaning, until it came to designate the 
 vast idea Commonwealth. The Roman was adverse to ab- 
 stract terms. 2 Abstracting was a process at which he was no 
 
 1 The Latin Institutum does not exactly correspond to our word institution. 
 It means a purpose, object, plan, or design, and, finally, a settled procedure, by 
 which it is intended to obtain a certain object; hence a uniform method of action, 
 to be observed when similar cases occur. Institutum is very frequently used in 
 conjunction with consuetudo, and often means nothing more than settled usage 
 with reference to certain cases. Institutum thus designates one of the elements 
 of our Institution, but it does not include the idea of a distinctly limited system 
 of laws or usages with a considerable degree of autonomy, nor does it compre- 
 hend the idea of our enacted institutions. Institatum retains the idea of usage 
 throughout. Still, it is readily seen how the Roman word institutum was natu- 
 rally changed and expanded into the modern word Institution. 
 
 a The Roman shunned abstraction even though he should become illogical. He 
 said : In medias res, into the middle things, instead of into the middle of things, 
 and we moderns abstract even against all sense. I read but yesterday in large letters 
 over a shop this word Carpetings. Here we have first an unmeaning abstrac- 
 tion of a simple and sound word, carpet, and then a plural is made of the more 
 abstract term. The Americans, altogether inclined to use pompous and grandilo- 
 quent words, are also given to use abstract terms, or those that approach abstrac- 
 tion, far more than the English. The sign of the smallest, baker's shop will not
 
 3 08 ON CIVIL LIBERTY 
 
 good hand. 1 .The Greeks, however, may have lacked a proper 
 term for the idea institution, although so ready to abstract, 
 and possessed of a plastic language, which offered peculiar 
 facilities for the formation of abstract terms, while yet the 
 people were characterized by an eminently political tempera- 
 ment, simply because the Greeks were, comparatively speak- 
 ing, not a tribe of a strongly institutional bias. They were 
 not prone to establish political institutions, and, with the ex- 
 ception of the Dorians, preferred to bring everything under 
 the more or less direct will of the mass. But, although the 
 Greeks abstracted well, and had a language in which they 
 could readily cast any abstraction, it must not be forgotten 
 that they rather restricted their terms of abstraction, to philo- 
 sophical speculation, and in all the other spheres of life and 
 action they manifested the true antique spirit, that of positive 
 reality. Their style and expressions accorded with this bias. 
 They might as easily as ourselves have said the Union or the 
 League of the Achaeans, but their word for our union was 
 simply " the common body," (r xocvov.) 
 
 Few nations have evinced a greater and more constant tend- 
 ency to build up institutions, or to cluster together usages and 
 laws relating to cognate subjects into one system and to allow 
 it its own vitality, than the Romans in their better period. The 
 Greeks, as has been observed, were far less an institutional 
 people. There is a degree of adhesiveness and tenacity a 
 willingness to accumulate and to develop precedents, and a 
 
 be John Smith, Baker, but Bakery by John Smith, perhaps even American 
 Bakery, or, should it happen to be near the sea, Ocean Bakery. A common 
 shop of a green-grocer in the second largest city of the United States, calls itself 
 United States Market. The negroes have caught the fever. Not long ago I saw 
 a common shanty, erected in a Southern forest to accommodate travellers with 
 coffee while their luggage was ferried over a river, adorned with the following 
 words on a pine board : Jenny Lind and Sontag Hotel. The railway bridge had 
 been carried away, and this cafe was erected for a few days only. 
 
 1 The best grammarians tell us that Latin nouns ending in to, and adjectives 
 ending in His, (that is, abstract terms,) must be used with circumspection, and 
 not without good authority, since they are comparatively rare in the best writers. 
 It speaks volumes concerning the Roman character and mental constitution.
 
 AND SELF-GOVERNMENT. 
 
 309 
 
 political patience to abide by them necessary for the growth 
 of strong and enduring institutions, which little agreed with 
 the brilliant, excitable, and therefore changeable Greeks. This 
 was at least the case with the Athenians and all their kindred, 
 and to them belongs the main part of all that we honor and 
 cherish as Grecian. 
 
 The London Times has called the Queen of England an 
 institution. This is rhetorically putting the representative for 
 the thing the queen for the crown, which itself is a figura- 
 tive expression for the kingly element of the British polity. 
 Nevertheless, the meaning of the position that the Queen of 
 England is an institution, is correct and British. It originated 
 from a conviction that the monarch of Great Britain is not 
 such by his own individuality, that he is not appointed by a 
 superior power or divine right, but that he enjoys his power by 
 the law of the land, which confines and regulates it. It means 
 that he is the chief office-bearer, or, it may be, the chief 
 emblem-bearer, of a vast institution which forms an integral part 
 of the still more comprehensive institution called the British 
 government or the state. 1 In the same way are the lord chan- 
 
 1 The reader who desires to become acquainted with the opposite view must 
 turn to the Christian Politics, by Rev. Wm. Sewell, Fellow and Subrector of 
 Exeter College, London, 1848 ; a book which carries out the views of Filmer to an 
 extent which that apologist of absolutism never contemplated. It may be fairly 
 considered to occupy the point opposite to that of the most rabid socialist of 
 France; and, according to the rule that we ought to dwell on works which carry 
 their principles to the fullest length, no matter what those principles maybe, it is 
 worth the student's while to make himself acquainted with it. If he can get 
 through the whole, however, he is more patient than I found it possible to be. 
 According to Mr. Sewell, there is but one true government, absolute monarchy, 
 demanding absolute obedience ; the king makes the state and the view I have 
 endeavored to prove in my Ethics, that the state, despite of its comprehensive im- 
 portance, still remains a means to obtain certain ends, is attacked as the opinion 
 of mere " philosophers." The king, the house of lords, and that of the commons, 
 as they ought to be considered, indicate, according to this writer, the relation in 
 which possibly the three persons of the one deity stand. Filmer stopped short at 
 least with Adam. To counteract the revolting effect which may have just been 
 produced, I refer the reader to page 146, where he will find, in a passage of 
 great length, that the Greek at Marathon fought only for his country, his hearth, 
 and his laws, while the Persian far surpassed him, because he fought for his king
 
 3io 
 
 ON CIVIL LIBERTY 
 
 cellor, the justice of the peace, the coroner, institutions ; not 
 indeed the individuals who happen to be invested with the 
 office, but those systems of laws and usages which they repre- 
 sent at the time. 
 
 It is likewise obvious why very old usages or offices of 
 large influence are often called institutions. The fact of their 
 being old proves a degree of independent action or existence. 
 No change of things around them has swept them away ; no 
 power has ventured to strike them down. They appear to be 
 rooted in society itself, beyond the reach of government ; and 
 single offices occasionally are called institutions, by way of 
 flattery, because all feel that a real institution is in dignity 
 superior to a single law or office, on account of its inherent 
 principle of self-government. 
 
 The following, then, are necessary attributes of a complete 
 institution, taking the term in its full modern adaptation : 
 
 A system or an organic body of laws or usages forming a 
 whole ; 
 
 Of extensive operation, or producing widely-spread effects ; 
 
 Working within a certain defined sphere ; 
 
 Of a high degree of independent permanency ; 
 
 With an individual vitality and an organism, providing for 
 its own independent action, and, frequently, for its own de- 
 velopment or expansion, or with autonomy ; 
 
 And with its own officers or members, because without these 
 it would not be an actual system of laws, but merely a pre- 
 script in abeyance. 
 
 (those also who, according to Herodotus, were whipped into battle ?), and that 
 " a Christian eye will look with far greater satisfaction and admiration on the 
 Persians who threw themselves out of the sinking vessel that by their own death 
 they might save their king, than upon Thermopylae or Marathon." Enough ! I 
 should not have alluded to such extravagances and crudities, were not the book 
 a very learned yet illogical apology for a doctrine which many may have sup- 
 posed to be dead, and did it not occupy, in view of its preposterous theory, the 
 first place of its class. Nor is it historically uninteresting that such a work has 
 been written in the middle of the nineteenth century. So much is certain, that 
 were the English government actually founded upon that hyper-absolutism 
 which the author considers so Christian, no one would be permitted to assail its 
 fundamental principles with that impunity which he now enjoys.
 
 AND SELF-GOVERNMENT. 
 
 The institution is the opposite of subjective conception, 
 individual disposition, and mere personal bias. The institu- 
 tion implies organic action. In this lies not only its capacity 
 of perpetuating principles and of insuring continuous homoge- 
 neous and expansive action, but also its great power, its gran- 
 deur, its danger, and its mischief, according to its original 
 character and its inherent principle. Christ imprinted on his 
 church the missionary character, and, from the apostles to the 
 servants of the gospel who lately starved near Cape Horn, the 
 institution of the missionary ministry has been the pioneer and 
 handmaid of extending civilization. But if the institution is 
 intrinsically bad, or contains vicious principles, it lends ad- 
 ditional and fearful power to the evil element within it, and 
 gives a proportionate scope to its calamitous influence. If it 
 be established in a sphere in which the subjective ought to 
 prevail, it becomes an agent of ruin by making the objective 
 prevail more than is desirable, or by making the annihilation 
 of individuality one of its very objects. The gigantic institu- 
 tion of the Society of Jesus, and some of the modern Trades' 
 Unions, are impressive and amazing examples. 
 
 Whenever men allow themselves to glide into the belief that 
 moral responsibility can be aught else than individual, and 
 that responsibility is divisible, provided many perform but one 
 act; whenever the esprit du corps prevails over the moral con- 
 sciousness of man, which is inseparable from his individuality, 
 the institution gives a vigor to that which is unhallowed and 
 unattainable by the individual. The institution is, like every 
 union of men, subject to the all-pervading, elementary law of 
 moral reduplication, as I have called it on previous occasions, 
 and which consists in this, that any number of united indi- 
 viduals, moved by the same impulse, conviction, or desire, 
 whether good or bad whether scientific, aesthetic, or ethical, 
 patriotic or servile, self-sacrificing or self-seeking will coun- 
 tenance and impel each other to far better or far worse acts, 
 and will develop in each other the powers for the specific good 
 or evil, in a far greater extent, than would have been possible 
 in each separate individual. It is the law which is illustrated
 
 ON CIVIL LIBERTY 
 
 by the excellence of whole periods in one particular sphere ; 
 by the rapid decadence of nations when once their fall begins; 
 by the lofty character of some times, and by the contaminating 
 effect of indiscriminate imprisonment; by the power of exam- 
 ple ; by the silliness which at times pervades whole classes or 
 communities ; by the sublime, calm heroisn on board a sinking 
 man-of-war, and at other' times by the panic of large masses. 
 It is the universal law of mutual countenance and excitement. 
 
 If an institution is founded on a vicious principle, or if a bad 
 impulse has seized it for a time, it will not only add to the evil 
 force, according to the general law of moral reduplication, but 
 lend additional strength by the force of its organization and 
 the continuity of its action. Members of an institution will 
 do that which, singly, they would never have dared to perpe- 
 trate. They will deny the obligation of paying what is due to 
 widows and orphans, in cases which would have made them 
 look upon the denial as disgraceful, had they acted in their 
 own individual capacity. Thousands who have committed acts 
 of crying cruelty as members of the Holy Office would not 
 have been capable of committing. them individually. The in- 
 stitution in these cases has the same effect which all united 
 and continuous action has. 
 
 On the other hand, institutions have been able, for the 
 same reason, to resist iniquitous inroads, or its members have 
 been wrought up to a manly devotion, when the individual 
 would not, and, often at least, could not, have resisted. In 
 almost all cases of an invasion of rights by one of the domestic 
 powers, we find that some institution has formed the breakwater 
 against the rushing tide of power. There are many instances, 
 such as the " Case of the Bishops" under James II., and the 
 rejoicing of the better-disposed Frenchmen when the court 
 of Paris declared itself, although in vain as it turned out, 
 competent to judge of the spoliation which the dictator had 
 decreed against the Orleans family, that show how instinct- 
 ively men look toward institutions for support and political 
 salvation. 
 
 I have purposely restricted my remarks on the resisting
 
 AND SELF- G O VERNMENT. 
 
 force of institutions to cases of invasion by domestic powers. 
 When foreign invaders trample upon rights and grind down 
 a people, something different and sharper is required to rouse 
 them, to electrify them into united resistance. Humanity 
 itself must be stung ; an element in man's very nature must 
 be offended, so that the most patient cannot endure the 
 oppression any longer. We find, therefore, that innumerable 
 popular risings against foreign despots, in antiquity and modern 
 times, have taken place, when the insolent oppressor, having 
 gone all lengths, at last violates a wife or a daughter. Such 
 outrage comes home to the most torpid heart, and will not be 
 borne by the veriest slave. 
 
 We investigate, here, the nature of the institution in general. 
 Like everything possessing power, it may serve for weal or 
 woe, as we have seen. Constituted evil is as much worse, as 
 constituted good is more efficaciously good than that effected 
 by the individual. When we know the essential nature of the 
 Institution, we shall be able to judge when, and where, and 
 how it may be used beneficially. An institution is an arch : 
 but there are arches that support bridges, and cathedrals, 
 and hospitals ; and others that support dungeons, banquet- 
 rooms of revelry, torture-chambers, or spacious halls in which 
 criminal folly enacts a melancholy farce with all the pitiful 
 trappings of unworthy submission. 
 
 The greater or less degree in which the institutional spirit 
 of different nations is manifested furnishes us with a striking 
 characteristic of whole nations. The Romans, the Nether- 
 landers, and indeed all the Teutonic tribes, until the dire 
 spirit of dis-individualizing centralization seized nearly all the 
 governments of the European continent, were institutional na- 
 tions. The English and ourselves are still so. The Russians 
 and all the Sclavonic nations, the Turks and the Mongolian 
 tribes, seem to be remarkably uninstitutional. 
 
 A similar remark naturally applies to different species of 
 governments. Some do not only result from a decidedly insti- 
 tutional tendency of the people at large, but they also promote 
 it, while there is in others an inherent antagonism to the
 
 3H 
 
 ON CIVIL LIBERTY 
 
 institution. No absolutism, whether that of one or many, 
 brooks institutions. Cunning monarchical absolutism, some- 
 times, allows the forms of institutions to exist, in order to use 
 them for its own purpose. The reason why all absolutism is 
 hostile to living institutions is not only because all absolute 
 rulers discountenance opposition, but because there is in 
 every despotism an ingrained incompatibility with independent 
 action and self-government, in whatsoever narrow circle or 
 moderate degree it may strive to maintain itself. This is so 
 much the case that often despots of the best intentions for the 
 welfare. of the people have been the most destructive to the 
 remnants of former or to the germs of future institutions, in 
 the very proportion in which they have been gifted with bril- 
 liant talents, activity, and courage. These served them only 
 to press forward more vigorously and more boldly in the 
 career of all absolutism, which consists in the absorption of 
 individuality and institutional action, or in levelling everything 
 which does not comport with a military uniformity, and with 
 sweeping annihilation of diversity. 
 
 As institutions may be good or bad, so may they be favor- 
 able or unfavorable to liberty. They may indeed give to the 
 representative of the institution great freedom, but only for 
 the repression of general freedom. The viziership is an insti- 
 tution all over Asia, and has been so from remote periods, but 
 it is an institution in the spirit of despotism, and forms an 
 active part of the pervading system of Asiatic monarchical 
 absolutism. The star chamber was an institution, and gave 
 much freedom of action to its members, yet the patriots under 
 the Stuarts made it their first business to break down this 
 preposterous institution. When in 1660 the Danes made their 
 king hereditary and absolute, binding him by the only oath 
 that he should never allow his or his successors' power to be 
 restricted, the Danish crown became undoubtedly a new insti- 
 tution, but assuredly not propitious to liberty. Of all the 
 Hellenic tribes the Spartans were probably the most institu- 
 tional, but they were communists, and communism is hostile to 
 liberty. They dis-individualized the citizens, and, as a matter
 
 AND SELF- G O VERNMENT. 
 
 315 
 
 of course, extinguished in the same degree individual liberty, 
 development, and progress. A state in which a citizen could 
 be punished because he had added one more to the commonly 
 adopted number of lute-strings, cannot be allowed to have 
 been favorable to liberty. 
 
 Many of those very attributes of the institution proper, 
 which make it so valuable in the service of liberty, constitute 
 its inconvenience and danger when the institution is used 
 against it. It is a bulwark, and may protect the enemy of 
 liberty. It is like the press. Modern liberty or civilization 
 cannot dispense with it, yet it may be used as its keenest 
 enemy.
 
 3I 6 ON CIVIL LIBERTY 
 
 CHAPTER XXVI. 
 
 THE INSTITUTION, CONTINUED. INSTITUTIONAL LIBERTY. IN- 
 STITUTIONAL LOCAL SELF-GOVERNMENT. . 
 
 CIVILIZATION, so closely connected with what we love in 
 modern liberty, as well as progress and security, themselves 
 ingredients of civil liberty, stands in need of stability and 
 continuity, and these cannot be secured without institutions. 
 This is the reason why the historian, when speaking of such 
 organizers or refounders of their nations as Charlemagne, 
 Alfred, Numa, Pelayo, knows of no higher name to give them 
 than that of institutors. 
 
 The force of the institution in imparting stability and giving 
 new power to what otherwise must have swiftly passed away, 
 has been illustrated in our own times in Mormonism. Every 
 observer who has gravely investigated this repulsive fraud will 
 agree that as for its pretensions and doctrines it must have 
 passed as it, came, had it not been for the remarkable charac- 
 ter which Joseph Smith possessed as an institutor. 1 Thrice 
 blessed is a noble idea, perpetuated in an active institution, as 
 charity in a hotel-dieu ; thrice cursed, a wicked idea embodied 
 in an institution. 
 
 The title of institutor is coveted even by those who repre- 
 sent ideas the very opposite to institutions. 
 
 Louis Napoleon Bonaparte, when he inaugurated his gov- 
 
 1 The great ability of this man seems to be peculiarly exhibited in his mixture 
 of truth and arrant falsehood, his uncompromising boldness and insolence, and 
 his organizing instituting mind. Two men have met almost simultaneously with 
 great success in our own times Joseph Smith and Louis Napoleon. Of the 
 two, the first seems the more clever. What he performed he did against all 
 probability of success, without any assistance from tradition or prestige.
 
 AND SELF-GOVERNMENT. 
 
 317 
 
 ernment, dwelt on the " institutions" he had established, 1 with 
 pride, or a consciousness that the world prizes the founding 
 of good institutions as the greatest work of a statesman and 
 a ruler. 
 
 Institutions may not have been viciously conceived, or have 
 grown out of a state of violence or crime, and yet they may 
 have become injurious in the course of time, as incompatible 
 with the pervading spirit of the age, or they may have be- 
 come hollow, and in this latter case they are almost sure to 
 be injurious. Hollow institutions in the state are much like 
 empty boxes in an ill-managed house. They are sure to be 
 filled with litter and rubbish, and to become nuisances. But 
 great wisdom and caution are necessary to decide whether an 
 institution ought to be amputated or not, because it is a notable 
 truth in politics that many important institutions and laws are 
 chiefly efficient as preventives, not as positive agents. It is 
 not sufficient, therefore, that at a glance we do not discover 
 
 1 He meant, of course, the senate, legislative corps, and the council of state. 
 Why he calls these new institutions we cannot see, but he evidently wished to 
 indicate his own belief, or desired that others should believe, in their perma- 
 nency, as well perhaps as in their own independent action. To those, however, 
 who consider them as nothing more than the pared and curtailed remnants of 
 former institutions, who do not see that they can enjoy any independent action 
 of their own, and are aware that their very existence depends upon the mere 
 forbearance of the executive; who remember their origin by a mere decree of a 
 dictator bound by no superior law, to those who know with what studied and 
 habitual sneer "parliamentary governments" are spoken of by the ruling party 
 in France, all these establishments appear in principle no more as real institutions 
 than a tent on a stage. The " constitution" of the present empire (Napoleon I. 
 always spoke of les constitutions de r empire} is a close copy of the organic laws 
 of the first empire. Now, few of my readers, probably, are aware that the very 
 name of senatus-consultum, which played so important a part in the first empire, 
 and by which the most violent fundamental changes were effected, was literally 
 smuggled in by Napoleon I. He did so on occasion of the conspiracy of Ceracchi 
 and others, when the council of state resolved that no law should be demanded, 
 because that " would lead to discussion." The list of condemned was passed 
 by the council of state, upon a report of the police, not even signed, and the 
 senate adopted and decreed it, as a senatus-consultum. Memoirs of Miot de 
 Melito, (himself a counsellor of state,) vol. i. page 360 and sequ. It hardly 
 deserves mention here, that Napoleon adopted the term from the Roman empire, 
 which was his political beau-ideal, as he did many other terms and symbols.
 
 ON CIVIL LIBERTY 
 
 any palpable good produced by the institution, to justify us in 
 destroying it. Antiquity is prima facie evidence in favor of 
 an institution, 1 and must not rashly be confounded with obso- 
 leteness ; but antiquity is certainly no proof against positive 
 and grounded arguments. On the other hand, hollow institu- 
 tions have frequently the serious inconvenience of deceiving 
 and changing the proper venue, as lawyers would express it. 
 The form of a representative government, without the spirit, 
 true principles, and sincere guarantees of self-government in 
 that body, or without being founded upon a candid and real 
 representation, is worse than a government without these 
 forms, because it eases the executive of the responsibility 
 which without that hollow form would visibly rest on it alone. 3 
 But here, again, it is necessary to observe that an institution 
 may for a time become a mere form, and yet that very form 
 
 T I am aware that many persons believe nowadays so little in this truth that 
 not only does antiquity of itself appear to them as a proof of deficiency, but they 
 turn their face from the whole Past, as something to be shunned, thus forgetting 
 the continuity of society, progress, and civilization. Mr. Guizot, in his lectures 
 on the History of Representative Governments, delivered in Paris, 1820, found 
 it necessary to warn his hearers against this horror of the Past. The reader will 
 find remarks on the impossibility of " beginning entirely anew," in my Political 
 Ethics. 
 
 a Count Miot relates that when Napoleon, as consul, desired to change the 
 entire character of the house of representatives, in order to bring it under the 
 exclusive control of the executive, but hesitated to make an organic change by 
 mere violence, Talleyrand at last suggested that the other assembly had no 
 business assigned to it; why should it not be made to sanction the measure? 
 The history of the whole consulate, and of the early period of the empire, is a 
 striking and continuous illustration of the assistance which a despot derives from 
 mere forms of liberty without the reality of freedom. It would seem that Napo- 
 leon I. established certain forms, in conquered countries, for the very purpose of 
 assigning the appearance of responsibility to certain bodies of the state, while he 
 left the government absolute. It is difficult otherwise to explain the constitution 
 which he decreed for Naples, (page 359, vol. ii. of Memoirs of Count Miot de 
 Melito,) according to which " the national representation" was to consist of one 
 chamber divided into five sections, namely : the clergy, nobility, proprietors, 
 savans, and traders; the clergy, nobility, and savans holding their places for life; 
 the others removable at pleasure by the government. The Roman senate, when 
 it had become the recording body of the imperial decrees, gave much support to 
 the emperors, by its appearance of an ancient institution.
 
 AND SELF-GOVERNMENT. 
 
 319 
 
 may soon be animated again by a proper spirit Parliament 
 under Henry VIII. had become a subservient tool, highly 
 noxious because it formally sanctioned? many atrocious meas- 
 ures of the king. Yet it was that same parliament which 
 rose to action and importance within fifty years, and within a 
 century and a half became the virtual seat of government and 
 supreme power in the state. There is hardly a portion of the 
 penal trial which has not at times and for an entire period 
 been abused ; yet the existence of this very trial, intended 
 to rest on the principle of independence, became in a better 
 period the starting-point of a new order of things. 
 
 We must also mention the fact that there are perennial and 
 deciduous institutions, or institutions avowedly fit only for a 
 preparatory state of civilization. Their office is limited in 
 duration, like that of the deciduous teeth, which must be drawn 
 if they do not drop of themselves, or if they resist too obsti- 
 nately their perennial substitutes. 
 
 We may here close our general remarks on institutions, and, 
 now, investigate in what the force of the institution consists, 
 when wisely taken into the service of liberty, and inquire into 
 the characteristics of self-government in particular. 
 
 By institutional self-government is meant that popular gov- 
 ernment which consists in a great organism of institutions 
 or a union of harmonizing systems of laws instinct with self- 
 government. It is essentially of a co-operative character, and 
 thus the opposite to centralism. It is articulated liberty, and 
 thus the opposite to an inarticulated government of the ma- 
 jority. It is of an inter-guaranteeing, and, consequently, inter- 
 limiting character, and in this aspect the negation of absolutism. 
 It is of a self-evolving and genetic nature, and thus is contra- 
 distinguished from governments founded on extra-popular 
 principles, such as divine right. Finally, institutional self- 
 government is, in the opinion of our race, and according to 
 our experience, the only practical self-government, or self- 
 government carried out in the realities of life, and is thus the 
 opposite of a vague or theoretical liberty, which proclaims 
 abstractions, but, in reality, cannot disentangle itself from the
 
 2 20 ON CIVIL LIBERTY 
 
 despotism of one part over another, however permanent or 
 changing the ruling part may be. 
 
 Institutional self-government is the political embodiment of 
 self-reliance and mutual acknowledgment of self-rule. It is 
 in this view the political realization of equality. 
 
 Institutional self-government is the only self-government 
 which makes it possible to unite ^^/-government and self- 
 g&vcrnment. 
 
 According to the Anglican view, institutional self-govern- 
 ment consists in the fact that all the elementary parts of the 
 government, as well as the highest and most powerful branches, 
 consist in real institutions, with all the attributes which have 
 been ascribed to an institution in the highest sense of the term. 
 It consists, farther, in the unstinted freedom and fair protection 
 which are granted to institutions of all sorts, commercial, 
 religious, cultural, scientific, charitable, and industrial, to ger- 
 minate and to grow provided they are moral and do not 
 invade the equal rights of others. It receives its aliment from 
 a pervading spirit of self-reliance and self-respect the real 
 afflatus of liberty. 
 
 It does not only require that the main functions of the 
 government the legislative, the judicial, and the executive 
 be clearly divided, but also that the legislature and the judi- 
 ciary be bona fide institutions. The first French constituent 
 assembly pronounced the separation of the three powers, and 
 was obliged to do so, since it intended to demolish the abso- 
 lutism which had grown up under the Bourbons ; but so long 
 as there existed an absolute power, no matter of what name, 
 that could dictate, liberty was not yet obtained. Indeed, it 
 may be said that an efficient division of power cannot exist, 
 unless the legislature and the judiciary form real institutions, 
 in our sense of the term. 
 
 These institutions, again, consist of many minor institutions, 
 as an organism consists of many minor ones. Our congress 
 is a real institution, but its component parts, the senate and 
 house of representatives, are its constituent institutions, and 
 the whole is in close connection with other institutions, for
 
 AND SELF-GOVERNMENT. 
 
 321 
 
 instance the state legislatures, or depends upon others such as 
 the common law. 
 
 Yet the self-government of our country or of England would 
 be considered by us little more than oil floating on the surface 
 of the water, did it consist only in a congress and state legis- 
 latures with us, and in a parliament in England. Self-govern- 
 ment, to be of a penetrative character, requires the institutional 
 self-government of the county or district; it requires that 
 everything which, without general inconvenience, can be left 
 to the circle to which it belongs, be thus left to its own man- 
 agement; it consists in the presenting grand jury, in the petty 
 jury, in the fact that much which is called on the European 
 continent the administrative branch be left to the people. It 
 requires, in one word, all the local appliances of government 
 which are termed local self-government ; * and Niebuhr says 
 that British liberty depends at least as much on these as on 
 parliament, and in contradistinction to them he calls the 
 governments of the continent Staats-Regierungen, (state gov- 
 ernments, meaning governments in which all detail is directed 
 by the general and supreme power.) 2 
 
 1 T. Toulmin Smith's Local Self-government and Centralization, etc., Lon- 
 don, 1851. 
 
 A work which many of my readers will peruse with interest and instruction is 
 Ferdinand B6chard's Lois Municipales des Re"publiques de la Suisse et des 
 Etats-Unis, Paris, 1852. Mr. Bdchard is also the author of a Trait6 de 1'Admi- 
 nistration Int6rieure de la France a work which must be welcome to eveiy in- 
 quiring citizen, because it pictures the details of French centralization, the most 
 consistently carried-out centralization in existence. 
 
 Mr. B6chard uses repeatedly in his French work the English term Self-govern- 
 ment. 
 
 a A German work, the title of which is : An Account of the Internal Adminis- 
 tration of Great Britain, by Baron von Vincke, edited by B. G. Niebuhr, Berlin, 
 1815. Niebuhr, who had spent a portion of his early manhood in England, pub- 
 lished, and probably modelled in a great measure, this work in order to influence, 
 if possible, the Prussian government to reorganize the state after the expulsion of 
 the French, and to reclaim that kingdom from the centralization it had adopted 
 in many respects from the invaders of Germany. Niebuhr was a follower and 
 great admirer of Baron von Stein, who, when minister of Prussia, had given to 
 the cities some degree of self-government by his Stadte-Ordnung causing not 
 
 21
 
 ON CIVIL LIBERTY 
 
 It must be in view of this local self-government, combined 
 with parliamentary freedom, that Sir Edward Coke said of the 
 Justice of the Peace : " It is such a form of subordinate 
 government for the tranquillity and quiet of the realm as no 
 part of the Christian world hath the like, if the same be duly 
 executed." * 
 
 Anglican self-government requires that every institution of 
 local self-government shall have the right to pass such by- 
 laws as it finds necessary for its own government, without 
 obtaining the consent of any superior power, even that of the 
 crown or parliament, and that of course such by-laws shall 
 stand good in the courts of law, and shall be as binding upon 
 every one concerned as any statute or law. I believe that it 
 is in the Anglican system of liberty alone that by-laws are 
 enacted and have full force without consent of superior power. 
 There are in other countries exceptions, but they are rare in- 
 deed, and very limited in power, while the by-law is the rule 
 in our system. The whole subject of the by-law is character- 
 istic and important, and stands out like the comprehensive and 
 peculiar doctrine of the Anglican warrant. The character of 
 self-government is moreover manifested by the fact that the 
 right of making by-laws is not derived from any grant of 
 superior power, but has been ever considered in the English 
 polity as inherent in the local community a natural right of 
 freemen. Coke says, with reference to these laws and their 
 force : "Of more force is the agreement of the folk and people 
 
 a little umbrage to Napoleon. Niebuhr desired to give increased life to the 
 principles contained in the Cities' Charter, when he published the work I have 
 mentioned. 
 
 1 Coke's Institutes, part 10, ch. xxi., Justices of the Peace. The Earl of Straf- 
 ford, who, like his royal master, died so well, after, politically speaking, having 
 lived so ill, bade his brother, on the scaffold, to take this among other messages 
 to his eldest son : " Wish him to content himself to be a servant to his country, 
 as a justice of the peace in his county, not aiming at higher preferment." May 
 12, 1641. Kushworth, (who was on the scaffold,) vol. viii. p. 760. George 
 \Vasbington, after having aided in founding a great commonwealth, and after 
 having been twice its chief magistrate, was a justice of the peace in his county, 
 in which he was imitated by John Adams, and, perhaps, by other ex-presidents.
 
 AND SELF-GOVERNMENT. 323 
 
 than the grant of the king;" 1 and in another place he says : 
 " The inhabitants of a town, without any custom, may make 
 ordinances or by-laws for any such thing which is for the 
 general good of the public, 2 unless indeed it be pretended by 
 any such by-law to abridge the general liberty of the people, 
 their inherent birthright, assured to all by the common law 
 of the whole land, and which that common law, in its jealous 
 regard for liberty, does not allow to be abrogated or lessened 
 even by their own consent much less, therefore, by the con- 
 sent of their delegates in parliament." 3 
 
 It may be added that by-law does not mean, as many suppose, 
 additional law, law by the side of another or complementary, 
 but it means law of the place or community, law of the by or 
 pye that is, of the collection of dwellers, or of the settlement 
 as we, in America, perhaps would naturally express it. 4 
 
 1 8 Reports, p. 125. 2 5 Reports, p. 63. 3 Ibid., p. 64. 
 
 * See Smith's Local Self-government, p. 230. The quotations from Coke to 
 which the three last notes refer are likewise in Smith's work, which I recommend 
 to every reader. 
 
 By, in by-law, is the same syllable with which the names of many English 
 places end, such as Derby, Whitby, and is etymologically the same with the Ger- 
 man Bauen (to build, to settle, to cultivate,) which is of the same root with the 
 Gothic Bua and Boo, and especially the frequentative Bygga, cedificare. See 
 Adelung, ad verbum Bauen. It is a word which runs through all the Teutonic 
 languages, ancient and modern. 
 
 Gradually, indeed, bye-laws came to signify laws for a limited circle, a small 
 society, laws which any set of men have the right to pass for themselves within 
 and under the superior law, charter, etc., which constitutes them into a society, 
 and thus it happened that bye-law was changed into by-law, as we have by-ways, 
 roads by the side of others. It cannot be denied that by-law at present is used in 
 the sense of law passed by the side, as it were, of another main law. Very few 
 persons know of the origin, and the present sense of by-law is doubtless that of 
 collateral, expletive, or subordinate law. Such double derivations are not un- 
 common in our language. The scholar is probably reminded, by this note, of 
 the term God, which we Christians derive from good, and a better, holier deriva- 
 tion, as to the sense of the word, we cannot give to it ; yet the historical deriva- 
 tion, the verbal etymology, if I might so say, is an entirely different one. See 
 Jacob Grimm's German Mythology, ad verbum Gott. The starting-point of 
 adoration is, with all tribes, dread, acknowledgment of superior power; then 
 follows acknowledgment of wisdom, and last of all acknowledgment of goodness, 
 purity, holiness.
 
 ON CIVIL LIBERTY 
 
 CHAPTER XXVII. 
 
 EFFECTS AND USES OF INSTITUTIONAL SELF-GOVERNMENT. 
 
 IN order fully to appreciate institutional self-government, 
 and not unconsciously to enjoy its blessings, as most of us 
 enjoy the breath of life without reflecting on the organ of 
 respiration and the atmosphere we inhale, it is necessary to 
 present to our minds clearly what effects it produces on the 
 individual, on society, and on whole periods, and how it acts 
 far beyond the limits of the country where it prevails. 
 
 The advantages of institutional liberty and organized self- 
 government, diffused over a whole country or state, and pene- 
 trating with its quickening power all the branches of govern- 
 ment, may be briefly summed up in the following way : 
 
 Institutional self-government trains the mind and nourishes 
 the character for a dependence upon law and a habit of liberty, 
 as well as of a law-abiding acknowledgment of authority. It 
 educates for freedom. It cultivates civil dignity in all the 
 partakers, and teaches to respect the rights of others. It 
 has thus a gentlemanly character. It brings home palpable 
 liberty to all, and gives a consciousness of freedom, rights, and 
 corresponding obligations such as no other system does. It 
 is the only self-government which is a real government of self, 
 as well as by self, and indeed is the only real self-government, 
 of which all other governments assuming the name of self- 
 government are but semblances, because they are at most the 
 unrestricted rule of accidentally dominating parties, which do 
 not even necessarily consist of the majorities. For it is a 
 truth that what is called a majority in uninstitutional coun- 
 tries, which struggle nevertheless for liberty, is generally a 
 minority, and often even a small minority.
 
 AND SELF-GOVERNMENT. 325 
 
 Institutional self-government incarnates, if the expression 
 may pass, the idea of a free country, and makes it palpable, as 
 the jury is nobly called the country for the prisoner. It seems 
 that as long as institutions exist in full vigor, and no actual 
 revolution takes place, that odious and very stale part of a 
 successful general who uses the wreaths he has gained abroad, 
 as a means of stifling liberty at home, is unknown. Rome had 
 her Syllas and Marius, with their long line of successors, only 
 from the time when the institutional character of Rome had 
 begun to fade. A French writer of ability T mentions as a fact 
 worthy of note, that the Duke of Wellington never carried his 
 ambition higher than that of a distinguished subject, although 
 Napoleon expected the contrary ; and General Scott, in his 
 account of the offer which was made to him in Mexico, to take 
 the reins of that country into his own hands and rule it with 
 his army, twice mentions the love of his country's institutions, 
 which induced him to decline a ruler's chaplet. 2 
 
 1 Mr. Lemoisne, Wellington from a French Point of View. 
 
 3 General Scott has given an account of this affair in some remarks he made at 
 a public dinner at Sandusky, in the year 1852. The generals of most couutries 
 would probably charge the victorious general with niaiserie, for declining 
 so tempting an offer. We delight in the dutiful and plain citizen who did 
 not hesitate, and, as the occurrence possesses historical importance, the entire 
 statement of the general is here given. I have it in my power to say, from the 
 best information, that the following account is " substantially correct," and as 
 authentic as reports of speeches can well be made : 
 
 " My friend," said General Scott, " has adverted to the proposition seen float- 
 ing about in the newspapers. I have nowhere seen it correctly stated that an 
 offer was made to me to remain in that country and govern it. The impression 
 which generally prevails, that the proposition emanated from congress, is an 
 erroneous one. The overture was made to me privately, by men in and out of 
 office, of great influence five of whom, of enormous wealth, offered to place the 
 bonus of one million of dollars (mentioned below) to my credit in any bank I 
 might name, either in New York or London. On taking possession of the city 
 of Mexico, our system of government and police was established, which, as the 
 inhabitants themselves confessed, gave security for the first time perfect and 
 absolute security to person and property. About two-fifths of all the branches 
 of government, including nearly a majority of the members of congress and the 
 executive, were quite desirous of having that country annexed to ours. They 
 knew that, upon the ratification of the treaty of peace, nineteen out of twenty of
 
 326 
 
 ON CIVIL LIBERTY 
 
 Institutional self-government is of great importance regard- 
 ing the obedience of the citizen. 
 
 Obedience is one of the elements of all society, and conse- 
 quently of the state. Without it political society cannot hold 
 together. This is plain to every one. Yet there exists this 
 great distinction, that there may be obedience demanded on 
 the sole ground of authority ; such is the obedience expected 
 by the parent. The authority of the parent comes from a 
 source not within the circle of the obeyers. And there may 
 
 the persons belonging to the American army would stand disbanded, and would 
 be absolutely free from all obligations to remain in the army another moment. It 
 was entirely true of all the new regiments called regulars, of all the volunteers, and 
 eight out of ten of the rank and file of the old regiments. Thirty-three and a third 
 per cent, were to be added to the pay of the American officers and men retained 
 as the nucleus of the Mexican army. When the war was over, the government 
 overwhelmed me with reinforcements, after there was no possibility of fighting 
 another battle. When the war commenced, we had but one-fourth of the force 
 which we needed. The Mexicans knew that the men in my army would be 
 entitled to their discharge. They supposed, if they could obtain my services, I 
 would retain these twelve or fifteen thousand men, and that I could easily obtain 
 one hundred thousand men from home. The hope was, that it would immediately 
 cause annexation. They offered me one million of dollars as a bonus, with a 
 salary of $250,000 per annum, and five responsible individuals to become security. 
 They expected that annexation would be brought about in a few years, or, if not, 
 that I could organize the finances and straighten the complex affairs of that gov- 
 ernment. It was understood that nearly a majority of congress was in favor of 
 annexation, and that it was only necessary to publish a pronunciamento to secure 
 the object. We possessed all the fortresses, all the arms of the country, their 
 cannon foundries and powder manufactories, and had possession of their ports 
 of entry, and might easily have held them in our possession if this arrangement 
 had gone into effect. A published pronunciamento would have brought congress 
 right over to us, and, with these fifteen thousand Americans holding the fortresses 
 of the country, all Mexico could not have disturbed us. We might have been 
 'here to this day, if it had been necessary. I loved my distant home. I was not 
 in favor of the annexation of Mexico to my own country. Mexico has about 
 eight millions of inhabitants, and out of these eight millions there are not more 
 than one million who are of pure European blood. The Indians and mixed 
 races constitute about seven millions. They are exceedingly inferior to our own. 
 As a lover of my country, I was opposed to mixing up that race with our own. 
 This was the first objection, on my part, to this proposition. May I plead some 
 little love of home, which gave me the preference for the soil of my own country 
 and its institutions? I came back to die under those institutions, and here I am. 
 I believe I have no more to add in reply."
 
 AND SELF-GOVERNMENT. 327 
 
 be obedience which has its very source within the circle of the 
 obeyers. Such is the source of obedience due to authority in 
 that society the component members of which live in jural 
 relations in one word, in the state. The freeman obeys, not 
 because the government exists before the people and makes 
 them, but because man is a being destined to live in a political 
 state because he must have laws and a government. It is 
 his privilege, and distinguishes him from the brute creation. 
 Yet, the government existing as a consequence of the jural 
 nature of society and of man, it is unworthy of a freeman to 
 obey any individual as individual, to follow his commands 
 merely because issued by him, while the citizen of a free 
 country acknowledges it as a prerogative to obey laws. 
 
 The obedience of a loyal free citizen is an act of self-direct- 
 ing compliance with a rule of action; and it becomes a triumph 
 of reason and freedom when self-directing obedience is thus 
 paid to laws which the obeyer considers erroneous, yet knows 
 to be the laws of the land, rules of action legitimately pre- 
 scribed by a body of which he forms a constituent part. This 
 noble attribute of man is never politically developed except 
 by institutions. To obey institutions of self-government has 
 nothing galling in it on the ground of submission. We do not 
 obey a person whom as individual we know to be no more than 
 ourselves, but we obey the institution of which we know our- 
 selves to be as integral a part as the superior, clothed with 
 authority. The religious duty of obeying for conscience' sake 
 is not excluded from this obedience. On the contrary, it forms 
 an important element. The term "law-abiding people" could 
 never have become so favorite an expression with us, and would 
 not be inscribed even on the banners of some who defy the law, 
 were we not an institutional people under the authority of 
 institutional self-government. 
 
 Rulers over thirty millions of people, like our presidents, 
 could not be easily changed, without shock or convulsion, 
 were not the thirty millions trained by institutional self-gov- 
 ernment, were not the ousted minority conscious that, in the 
 spontaneous act of submitting, they obey an institution of
 
 328 
 
 ON CIVIL LIBERTY 
 
 which they form as important a portion as the ruling party, 
 and did not their own obedience foreshadow the obedience 
 which the others must yield when their turn comes. The 
 "principle of authority" has become for the time being as 
 popular, at least as often-repeated, a phrase, in France, as 
 " abiding by the law" is with us. Pamphlets are written on it, 
 the journals descant on it. If the object of these writings is to 
 prove that there must be authority where there is society, it 
 would prove that the writers must consider the opinion of some 
 communists, that all government is to be done away with, far 
 more serious and disseminated than people at a distance can 
 believe, to whom such absurdity appears as a mere paper and 
 opposition fanaticism. If, however, all those discourses are 
 intended to establish the principle of authority in politics as 
 an independent principle, such as we find it in the church, be- 
 cause its institutor gave divine commandments, it would only 
 show that the ruling party plainly desires absolutism. 1 
 
 1 There is no doubt in my mind that the institutional government is the real 
 school of civil obedience. Whether the following remarkable passage, which I 
 found in Baron Miiffling's Memoirs of the Campaign of 1813 and 1814, edited by 
 Col. Philip Yorke, London, 1853, must be in part explained by the general self- 
 government of England, and by the fact that every English gentleman is accus- 
 tomed to political self-government and consequently to obedience, I shall not 
 decide, but I strongly incline to believe that we must do so. General Miiffling 
 was the Prussian officer in the staff of the Duke of Wellington who served as an 
 official link between the two armies. He was, therefore, in constant personal 
 intercourse with the English commander, and had the very best opportunity of 
 observing that which he reports. 
 
 " I observed," says General Muffling, " that the duke exercised far greater 
 power in the army he commanded than Prince Bliicher in the one committed to 
 his care. The rules of the English service permitted the duke's suspending 
 any officer and sending him back to England. The duke had used this power 
 during the war in Spain, when disobedience showed itself among the higher 
 officers. Sir Robert Wilson was an instance of this. 
 
 " Amongst all the generals, from the leaders of corps to the commanders of 
 brigades, not one was to be found in the active army who had been known as 
 refractory. 
 
 " It was not the custom in this army to criticise or control the commander-in- 
 chief. Discipline was strictly enforced ; every one knew his rights and his 
 duties. The duke, in matters of service, was very short and decided. He
 
 AND SELF-GOVERNMENT. 329 
 
 Institutional self-government distinguishes itself above all 
 others for tenacity and a formative, assimilative, and transmis- 
 sible character. 
 
 Its tenacity is shown by the surviving of many institutions 
 even in the most violent changes, although little of a self- 
 governing character may be left in them. In no period is 
 this truth more strikingly illustrated than in the conquest of 
 the Roman empire by the Northern races. The Gothic sword 
 took lands and scaled towns, but it could not scale institutions, 
 and Theodoric assimilated his Germanic hosts to the remnants 
 of Roman institutions, rather than the Italians to the con- 
 querors. It has been so wherever the conqueror met with 
 institutions and did not in turn oppose institutions of his own, 
 as, in a great measure, the Visigoths did in Spain. The mili- 
 tary despotism which swept over the whole continent of Europe 
 left England unscathed; even in spite of Cromwell's military 
 and organized absolutism, the institutions survived Cromwell's 
 vigor and the prostitution of England under Charles II. 
 
 Lord Macaulay says that it was probably better that the 
 English allowed Charles II. to return without insisting upon 
 distinct and written guarantees of their liberties. This may 
 be a disputable point, for we see that the English were after 
 all obliged to resort to them in the Declaration of Rights and 
 Settlement ; but it will hardly be disputed that the reigns of 
 Charles II. and James II. would have been fatal to England 
 had she not been eminently institutional in her character. 
 
 The tenacious life of institutional liberty is proved perhaps 
 best in times of political mediocrity and material well-being. 
 Gloomy, or ardent, and bold times may try men's souls, but 
 periods of material prosperity and public depression try a 
 country's institutions. They are the most difficult times, and 
 liberty is lost at least as often by stranding on pleasant shores 
 as by wrecking on boiling breakers. 
 
 The formative character of institutional self-government is 
 
 allowed questions, but dismissed all such as were unnecessary. His detractors 
 have accused him of being inclined to encroach on the functions of others a 
 charge which is at variance with my experience."
 
 330 
 
 ON CIVIL LIBERTY 
 
 shown in such cases as the formation of the Oregon govern- 
 ment, mentioned before. So does the extensive British empire 
 in the East show the formative and vital character of self- 
 government. No absolute government could have established 
 or held such an empire at such a distance, and yet an absolute 
 ruler would consider it indicative of feebleness and not of 
 strength in a government, that a board of shareholders could 
 recall a governor-general, and that a man like Sir Robert Peel, 
 as premier, acquiesced in it. 
 
 Even the Liberians may be mentioned here. People who, 
 while with us, belonged to a degraded class, many of whom 
 were actual slaves, and the rest socially unfree, nevertheless 
 have carried with them an amount of institutionalism which 
 had percolated even down to them ; and a government has been 
 established by them which enjoys internal peace, and seems to 
 grow in strength and character every day, at the same time 
 that hundreds of attempts in Europe have sadly miscarried. 
 And, again, people of the same race, but having originally 
 lived under a government without the element of institutional 
 self-rule the inhabitants of St. Domingo resemble their 
 former masters in the rapid succession of different govern- 
 ments destitute of self-government and peace. 
 
 The words of Mr. Everett are doubtless true, that " the 
 French, though excelling all other nations of the world in the 
 art of communicating for temporary purposes with savage 
 tribes, seem, still more than the Spaniards, to be destitute of 
 the august skill required to found new states. I do not know 
 that there is such a thing in the world as a colony of France 
 growing up into a prosperous commonwealth. A half a 
 million of French peasants in Lower Canada, tenaciously 
 adhering to the manners and customs which their fathers 
 brought from Normandy two centuries ago, and a third part 
 of that number of planters of French descent in Louisiana, are 
 all that is left to bear living witness to the amazing fact that 
 not a century ago France was the mistress of the better half 
 of North America." ' Are they succeeding in establishing a 
 
 1 Mr. Everett's Address before the New York Historical Society, 1853.
 
 AND SELF-GOVERNMENT. 
 
 331 
 
 vigorous colony in Algeria ? It seems not ; and the question 
 presents itself, what is the reason of this inability of so in- 
 telligent a nation as the French to establish flourishing colo- 
 nies ? I believe that the chief reason is this: The French are 
 thoroughly wedded to centralism, and eminently uninstitutional 
 in their character. They want government to do everything 
 for them. They are peculiarly destitute of self-reliance in all 
 public and communal matters. They do not know self-gov- 
 ernment ; they cannot impart it. Every Frenchman's mental 
 home is Paris, even while residing in France ; as to a colonial 
 life, he always considers it a mere exile. 1 
 
 The assimilative power and transmissible character of the 
 institution are closely connected with its tenacity and forma- 
 tive character. Few things in all history seem to me more 
 striking, and, if analyzed, more instructive, than the fact that 
 Great Britain, though monarchical in name, and aristocratic 
 in many points, plants freedom wherever she sends colonies, 
 and becomes thus the great mother of republics; while France, 
 with all her democratic tendencies, her worship of equality 
 and repeated proclamations of a republic, has never ap- 
 proached nearer to the republic than setting aside a ruling 
 dynasty ; her colonies are, politically speaking, barren depend- 
 encies. They do not bloom into empires. The colonies of 
 Spain also teach a grave lesson on this subject. 2 
 
 1 There are doubtless many causes operating together, and one of these may 
 be that the French are not inherently fond of agriculture, as the Germanic races 
 are. The English are eminently so. 
 
 From the Canadian census published in 1853, the following difference between 
 the French and the Anglo-Saxon colonists appeared : The inhabitants of Lower 
 Canada are chiefly of French origin, and are not much fewer in number than the 
 Upper Canadians; the latter being 952,004, and the former 890,261, according 
 to the last census. But although so close to them in point of numbers, and also 
 in the quantity of land they have under cultivation, the inhabitants of Lower 
 Canada raise a much smaller quantity of agricultural produce than the Upper 
 Canadians obtain from the soil. With the exception of maple sugar and flax, in 
 which they far surpass the inhabitants of the Upper Province, they fall greatly 
 below them in nearly all the more valuable products. 
 
 " The reader has a right to ask here, why then did not the Netherlands, so
 
 ON CIVIL LIBERTY 
 
 The power by which institutional self-government assimilates 
 various and originally discordant elements is forcibly shown 
 in the United States, where every year several hundred thou- 
 sand emigrants arrive from countries under different govern- 
 ments. The institutions of our country soon absorb and 
 assimilate them as integral parts of our polity. In no other 
 political system of which liberty forms any part, could this 
 be done. Imagine an influx of foreigners in a country like 
 France when she called herself republican, and the danger of 
 so large a body of foreigners would soon be perceived. It 
 would be an evil day indeed for the United States and for the 
 emigrants, if our institutions were to be broken up and popu- 
 lar absolutism erected on the ruins of our institutional liberty. 
 We, of all nations on earth, are most interested in the vigorous 
 life and healthful development of institutional self-government. 
 No nation has so much reason to shun mere inarticulated 
 equality and barren centralization as ourselves. 
 
 On the other hand, it may be observed that the Turks to 
 
 institutional in their character, establish prosperous self-governments in foreign 
 parts, as England did ? I believe the answer which must be given is this : 
 
 The Netherlands lacked at home a protecting national government proper 
 one that could furnish them with a type of a comprehensive yet popular general 
 government. The Netherlandish colonies always remained mere dependencies 
 upon the executive. The Netherlanders did not plant colonial legislatures. 
 
 The Netherlands, moreover, had lapsed into a state of sejunction. The idea 
 of their petty sovereignty was carried to the most ruinous extreme. The Greeks 
 colonized, indeed, by dotting as it were foreign parts. The shores of the Medi- 
 terranean were sprinkled with Greek and Phoenician colonies corresponding to 
 the ancient city-states from which they had branched off. But a Netherlandish 
 town could not thus have established a little colony in Java or the West Indies. 
 
 Lastly, I believe the Netherlanders did not become the disseminators of self- 
 government, although institutional in their character, because they had no living 
 common law to take with them, as the talent of the mother-country. They had 
 learned the civil law at least sufficient of it to stifle farther development of 
 common law. We know already that the Roman Law, however excellent some 
 of its principles are, is void of the element of self-government, and, because 
 superinduced, antagonistic to self-development of law. 
 
 Nevertheless, it is a question of interest to Americans, whether, and how far, 
 the settlers of New England were influenced by their sojourn in the republican 
 Netherlands. I throw out the question. It deserves a thorough yet very plain 
 and unbiased inquiry.
 
 AND SELF-GOVERNMENT. 
 
 333 
 
 this day are little more than they were on the day of their 
 conquest isolated rulers, unassimilated and unassimilating, 
 having for centuries been in possession of the finest country 
 in Europe, whence in the fifteenth century our civilization re- 
 ceived a new impulse. So unidentified are the Turks with the 
 country or its population that the idea of their expulsion from 
 Europe has in it nothing strange, or difficult to imagine. The 
 reasons cannot lie in their race, for they are no longer Mon- 
 golians ; they cannot lie in their religion, for Mohammedans 
 have flourished. They have no political institutions, carrying 
 life and action within them, nor did they find institutions, 
 which might have absorbed the conquerors. The Byzantine 
 empire had become a mere court government long before the 
 Turks conquered it, and the worst court government that ever 
 existed in Europe. 1 
 
 The stability obtained by an institutional government is 
 closely connected with the tenacity which has been mentioned; 
 but it is necessary to observe that an institutional self-govern- 
 ment seems to be the only one which unites the two necessary 
 elements of continuity and progression, or applicability to 
 changing conditions. Asia, with its retrospective and tradi- 
 tional character, and without political mutations proper, offers 
 the sight of stagnation. France, with her ardently prospective 
 and intellectual character, but without political institutions 
 proper, lacks continuity and political development. There is 
 a succession of violent changes, which made Napoleon I. ex- 
 claim, observing the fact but not perceiving the cause, " Poor 
 nations ! in spite of all your enlightening men, 2 of all your 
 
 1 The same is said of the Manchous in China. The ruling soldier tribe has 
 not assimilated itself with the Chinese, and the expulsion of the dynasty seems 
 no incredible occurrence, even though the present rebellion should not be suc- 
 cessful. In the case of China, the conquered race had many firmly-established 
 laws and civil institutions, to which the conquering race continued strangers, at 
 least so far as to remain chiefly soldiers. No reliance is weaker than that which 
 rests mainly on the army, even if the army is in fighting-order, which the Chinese 
 \r, not. 
 
 8 The word reported to have been used by Napoleon is lumiires, which may 
 mean men who enlighten, or the light which is given. The passage is found in
 
 3 34 ON CIVIL LIBERTY 
 
 wisdom, you remain subject to the caprices of fashion like 
 individuals." Now, it is pre-eminently institutional self-gov- 
 ernment which prevents the rule of political fashion, because, 
 on the one hand, it furnishes a proper organism by which 
 public opinion is elaborated, and may be distinguished from 
 mere transitory general opinion, 1 from acclamation or panic ; 
 and, on the other hand, it seems to be the only government 
 strong enough to resist momentary excitement and a sweeping 
 turn of the popular mind. Absolute popular governments are 
 liable to be influenced by every change of general passion or 
 desire, and monarchical concentrated absolutism is as much 
 exposed to the mutations of passions or theories. The differ- 
 ence is only that single men ministers or rulers may effect 
 the sudden changes according to the views which may happen 
 to prevail. The English government, with all its essential 
 changes and reforms, and the lead it has taken in many of the 
 latter, during this century, has proved itself stable and con- 
 tinuous in the same degree in which it is popular and institu- 
 tional, compared to the chief governments of the European 
 continent. The history of a people, longing for liberty but 
 destitute of institutional self-government, will always present 
 a succession of alternating tonic and clonic spasms. Many 
 of the Italian cities in the middle ages furnish us with addi- 
 tional and impressive examples. 
 
 Liberty is a thing that grows, and institutions are its very 
 garden beds. There is no liberty which as a national blessing 
 has leaped into existence in full armor like Minerva from the 
 
 the Memorial de Sainte- Helena, by Las Cases. Napoleon was speaking of the 
 clergy, and the whole passage runs thus : 
 
 "Je ne fais rien pour le clerge qu'il ne me donne de suite sujet de m'en re- 
 pentir, disait Napoleon; peut-fttre qu'apres moi viendront d'autres principes. 
 Peut-fitre verra-t-on en France une conscription de prfitres et de religieuses, 
 comme on y voyait de mon temps une conscription militaire. Peut-etre mes 
 casernes deviendront-elles des couvents et des seminaires. Ainsi va le monde ! 
 Pauvres nations ! en depit de toutes vos lumieres, de toute votre sagesse, vous 
 demeurez soumises aux caprices de la mode comme de simples individus." 
 
 1 Public Opinion and General Opinion have been discussed in the first volume 
 of Political Ethics.
 
 AND SELF-GOVERNMENT. 
 
 335 
 
 head of Jove. Liberty is crescive in its nature. It takes 
 time, and is difficult, like all noble things. Things noble are 
 hard, 1 was the favorite saying of Socrates, and liberty is the 
 noblest of all things. It must be defended, developed, con- 
 quered, and bled for. It can never be added, like a mere 
 capital on a column; it must pervade the whole body. If the 
 Emperor of China were to promulgate one of the charters of 
 our states for his empire, it would be like hanging a gold 
 collar around the neck of a camel. 
 
 Liberty must grow up with the whole system ; therefore we 
 must begin at once, where it does not exist, knowing that it 
 will take time for perfection, and not indeed discard it, be- 
 cause it has not yet been commenced. That would be like 
 giving up the preparation of a meal, because it has not been 
 commenced in time. Let institutions grow, and sow them at 
 once 
 
 We see, then, how unphilosophical were the words of the 
 present Emperor of the French to the assembled bodies of 
 state in February, 1853, when he said: "Liberty has never 
 aided in founding a durable edifice ; liberty crowns it when it 
 has been consolidated by time." 
 
 History denies it ; political philosophy and common sense 
 alike contradict it. Liberty may be planted where despotism 
 has reigned, but it can be done only by much undoing, and 
 breaking down ; by a great deal of rough ploughing. We 
 cannot prepare a people for liberty by centralized despotism, 
 any more than we can prepare for light by destroying the 
 means of vision. Nowhere can liberty develop ftself out of 
 despotism. It can only chronologically follow the rule of ab- 
 solutism ; and if it does so, it must begin with eliminating its 
 antagonistic government. Every return to concentrated des- 
 potism, therefore, creates an additional necessity of revolution, 
 and throws an increased difficulty in the way of obtaining 
 freedom. 
 
 XaheKo. T(l KO./UU. May we not add o2 /ca/la TV* Catena ?
 
 336 ON CIVIL LIBERTY 
 
 CHAPTER XXVIII. 
 
 DANGERS AND INCONVENIENCES OF INSTITUTIONAL SELF- 
 GOVERNMENT. 
 
 INSTITUTIONAL self-government has its dangers and incon- 
 veniences, 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 origi- 
 nally 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 gov- 
 ernments 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-govern- 
 ment 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
 
 AND SELF-GOVERNMENT, 337 
 
 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 legis- 
 lature, 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 re- 
 quires 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 independ- 
 ence can alone decide the proper degree of union, and the 
 necessary balance. 
 
 One of the dangers of a strongly institutional self-govern- 
 ment is that the tendency of localizing may prevail over the 
 equally necessary principle of union, and that thus a disinte- 
 grating 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. confedera- 
 tion. 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 ex- 
 treme 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 Portu- 
 guese grandeur, though it resulted from the opposite cause. 1 
 
 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 
 
 22
 
 338 
 
 ON CIVIL LIBERTY 
 
 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 na- 
 tion, 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 gov- 
 ernment, 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 com- 
 mentaries 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-govern- 
 ment lies in this, that the importance of the institutional 
 character may be forgotten, that the limitations may be con- 
 sidered as fetters, and that thus the people may come to forget 
 that part of self-government which relates to the being gov- 
 erned, 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 
 
 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.
 
 AND SELF-GOVERNMENT. 
 
 339 
 
 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." * 
 
 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 constitu- 
 tions, if conceived in the spirit of liberty. The office of a 
 good constitution, besides that of pronouncing and guarantee- 
 ing 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 
 
 1 " The epitaph inscribed upon the tomb of Sardanapalus, ' Sardanapalus, the 
 son of Anacyndaraxos, built Anchiola and Tarsos in one day : eat, drink, and lust; 
 the rest is nothing,' has been quoted for ages, and its antiquity is generally ad- 
 mitted." Layard's Nineveh, vol. ii. p. 478. 
 
 2 Constitutions, therefore, must not be changed too easily or too frequently j 
 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. Parlia- 
 ment 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.
 
 340 ON CIVIL LIBERTY 
 
 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 constitu- 
 tions 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 
 p'ace in a strongly institutional government. It is, as we 
 have called it, of a co-operative character, and all co-opera- 
 tion may lead to conflict. There is, however, occasional jar- 
 ring 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 uncompromis- 
 ing 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. Wha domestic conflicts have there not been in 
 the history of Russia and Turkey ! 
 
 The institution unquestionably results in part from, and in
 
 AND SELF-GOVERNMENT. 
 
 341 
 
 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 P 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 con- 
 venient for despotism, as the remaining forms of an obsolete 
 
 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 Hamp- 
 den. 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 grimacing 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 advo- 
 cate 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 misconcep- 
 tion of the firmest truths."
 
 ON CIVIL LIBERTY 
 
 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 trem- 
 bling hand," lest you destroy what only appeared to your one- 
 sided 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 so- 
 ciety 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 exempli- 
 fied in Westminster Abbey and the Champ-de-Mars. Century 
 after century the former has stood, and what course of his-
 
 AND SELF-GOVERNMENT. 343 
 
 torical development has flowed through it ! What representa- 
 tive festivities, on the other hand, from the feast of the uni- 
 versal 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, impe- 
 rial, royal, imperial-restorational, again Bourbonian, Orlean- 
 istic, 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 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 I4th of July, the anniversary of the taking of the Bastile was 
 celebrated by what was called the Fete 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 regi- 
 ment of cavalry. These " confederates," as they were styled, were all enter- 
 tained 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 Abb Sieyes 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 i8th of September, there was a splendid Fete for the publica- 
 tion of the constitution, and for receiving the oath of fidelity to it from Louis 
 XVI. 
 
 In 1792, on the I5th of April, the Fete 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 fete in honor of the abolition of slavery. On the loth 
 of August of the same year, there was v.fete for the acceptance of the constitution
 
 344 ON CIVIL LIBERTY 
 
 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 Primaiy 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 Fife 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 2 1st 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 Fete of the Supreme Being commenced at the Tuileries, and was termi- 
 nated 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 2ist 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, 
 fVi ira, and various patriotic songs. On the 3Oth of March following, the Fett 
 of Youth took place, on occasion of arming all the young men over sixteen years 
 of age ; and on the 3Oth of April, on the proposition of Carnot, the Fete of 
 Victories was celebrated. 
 
 In 1798, on the 2Oth of March, was the Fife of the Sovereignty of the People. 
 On the tenth Vendemiaire, there was a funeral /#* in memory of General Hoche. 
 On the tenth Messidor, the Flte of Agriculture took place, with a great display 
 of chariots, cattle, fruits, etc. During the five supplementary days of the revo- 
 lutionary year, there was a series of flies, with an exposition of all the products 
 of French industry, on the Champ-de-Mars. 
 
 In 1801 there were fetes 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 loth 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 dis- 
 tributed colors to the National Guard of Paris. The object of this distribution 
 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 Angoulfime, and the Duke of Berri. Mass was celebrated by the 
 archbishop of Paris, M. Talleyrand-Perigord, uncle of the bishop of Autun, who, 
 as we have seen, officiated at the Fite of Federation in 1790. The National 
 Guards defiled before the throne, while the band played Vive Henri IV and 
 Charmante Gabrielle.
 
 AND SELF-GOVERNMENT. 
 
 345 
 
 In 1815, on the ist of June, there was aftte 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 Napoleon ! 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 fete in honor of the marriage of the Duke of Or- 
 leans, 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 Fete of Concord was celebrated with great 
 pomp. The Moniteur alluded to the occasion thus: 
 
 " This solemnity was celebrated with an 6clat 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 Republique ! Vive la Re- 
 publiquc Democratique ! Vive I ' Assemblee Nationale ! broke out, in formidable 
 chorus, every instant, as if to proclaim the respect of the people for the institu- 
 tions which they have adopted, and their invincible repugnance to every retro- 
 grade or reactionary idea." 
 
 To the foregoing must be added the gigantic military fete on the loth of May, 
 1852, called the Fete of Eagles, that is, the distribution of eagles to all the regi- 
 ments of the army. A cock had been adopted as symbol of the first republic, 
 owing either to an etymological misconception of the word Gallia, or to an in- 
 tended 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
 
 ON CIVIL LIBERTY 
 
 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 his- 
 tory 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 conti- 
 nental languages with which I am acquainted, the correspond- 
 ing 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-meme sorti de 
 la canaille. 1 In German, the words Volk and Nation came 
 
 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 
 honnites gens. (But there are very wicked proverbs.) Honnste means, indeed, 
 frequently something like the Latin honeslus, and not exclusively our honest, but
 
 AND SELF-GOVERNMENT, 347 
 
 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 admira- 
 tion, aped the pride of that class. It is a universal law of 
 social degradation that it consists always of a chain of de- 
 graded 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 revolu- 
 tion. 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 no- 
 bility, 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 position. 1 
 
 even with this addition the English term People could never have been contradis- 
 tinguished from honnfres 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 rabble 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
 
 348 ON CIVIL LIBERTY 
 
 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 com- 
 mentaries 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 govern- 
 ment. This is frequently not only admitted by the absolutists, 
 but in bad faith insisted upon. Continental servilists fre- 
 quently 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 insti- 
 
 is no nobility in the continental sense. The law knows of peers, hereditary law- 
 givers, 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 
 misalliance 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.
 
 AND SELF-GOVERNMENT. 
 
 349 
 
 tutional 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 participa- 
 tion. 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 por- 
 trait 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 Eng- 
 land. 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, try- 
 ing 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. 
 
 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 uncom- 
 promising 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.)
 
 ON CIVIL LIBERTY 
 
 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 Galilean 
 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 courtesans 1 as with 
 the prime ministers. The effect of this example of the court 
 has been most disastrous to all France. The courts of Eng- 
 land 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. 
 
 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 con- 
 cerning political literature, for which every scholar of this branch must feel 
 deeply indebted to him. 
 
 ' The very etymology, with its present meaning, is significant.
 
 AND SELF- G O VERNMENT. 
 
 351 
 
 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 gen- 
 erally 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 aban- 
 dons the intensive improvement of its institutions, and directs 
 its attention solely to foreign conquest, it enters on its down- 
 ward course, and loses the influence which otherwise might 
 have been its share. The truest, most intense, and most en- 
 during 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 may be 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 in- 
 
 1 There are persons among us who have fallen into this error ; and it will 
 always be found that they pioportionately 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.
 
 352 ON CIVIL LIBERTY 
 
 stitutions 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 institu- 
 tions and a national representative government, that diplo- 
 macy 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.* 
 
 Some remarks on the undue influence of capitals in coun- 
 tries void of institutions would find an appropriate place here ; 
 but they are deferred until we shall have considered some- 
 what 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 
 
 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.
 
 AND SELF-GOVERNMENT. 353 
 
 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 par- 
 ticular 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 
 
 1 The cyclopean walls in Greece and Italy, built before the memory even of 
 che 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 Aris- 
 totle's figure. 
 
 23
 
 354 
 
 ON CIVIL LIBERTY 
 
 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 intro- 
 duction 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 pa- 
 trician 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 Englanc 
 has not been toward a more and more fully developed institu- 
 tional self-government and virtual republicanism, or whether 
 the absolutists of the continent may be right when they main- 
 tain that England is no bona fide monarchy, and by her unfor- 
 tunate 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 
 
 1 In my Political Ethics, first published in 1838. 
 
 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 loyalty centre in these, but not in oui 
 president, any more than an Englishman's loyalty finds a symbol in his prime 
 ministei
 
 AND SELF-GOVERNMENT. 
 
 355 
 
 why I have called the English polity thus, and I may be per- 
 mitted 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." J It will be our duty to consider more 
 in detail the question, whether inorganic, bare, universal suf- 
 frage has any necessary and intrinsic connection with liberty 
 or not, and to inquire into the consequences to which unin- 
 stitutional 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-govern- 
 ment, we have no more right to call it "the republic," or 
 to consider it a form of liberty, than those ancient Germans 
 
 1 Mr. Emil Girardin, who has been referred to several times. He is an un- 
 reserved 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 Napo- 
 leon 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 her- 
 self 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.
 
 356 ON CIVIL LIBERTY 
 
 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 Caesars, 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 ad- 
 vantages. 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 Lord Brougham, in his Political Philosophy, speaks in terms of high praise 
 of the elective government of the former Germanic empire. Native and con- 
 temporary 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.
 
 AND SELF-GOVERNMENT. 357 
 
 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 establish- 
 ing 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 
 
 1 Machiavelli tanto nomini nullum par elogium says in his Prince, " But in 
 the new government lies the greatest difficulty." This depends upon circum- 
 stances. 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 imaginaiy shipwreck, or 
 promises to do so. Wearied people will take a stone for a pillow, and no per- 
 sons 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 administra
 
 358 ON CIVIL LIBERTY 
 
 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 ap- 
 pearing negative with reference to that which is vetoed, never- 
 theless 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 nega- 
 tivism. 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- 
 
 tions 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.
 
 AND SELF-GOVERNMENT. 
 
 359 
 
 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 pro- 
 ducing 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 hun- 
 dred 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 construct- 
 ing. 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 can- 
 not hope for liberty in a pervading negation, but must find 
 it in comprehensive action. All that is good or great is cre- 
 ative and positive. Negation cannot stand for itself, or impart 
 life. But that negation which is necessary to check and re- 
 frain 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 seven- 
 
 1 Harris, in his Oceana, St. Just, in the first French revolution, and many 
 former and recent writers, might be mentioned.
 
 360 
 
 ON CIVIL LIBERTY 
 
 teenth 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 con- 
 trary, 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 com- 
 prehensive aim of all humanity. 
 
 We must have national states (and not city-states ;) we must 
 
 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 his- 
 tory, 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 ot 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," Komer makes him say, " I fear the 
 gods will punish me.")
 
 AND SELF-GOVERNMENT. 361 
 
 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 offi- 
 cial 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 fre- 
 quently 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 produc- 
 tion ; it is highly expensive. Yet our liberty needs civilization 
 as a basis and a prop ; our progressive liberty requires pro- 
 gressive 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 im- 
 measurable wealth, but it is diffused, widely-spread and widely- 
 enjoyed wealth, necessary for widely-diffused and widely-en- 
 joyed culture. 
 
 To last long to last with liberty and wealth is the great 
 
 1 Indeed, the enormous treasures occasionally met with in Asia are indications 
 of her comparative poverty.
 
 362 ON CIVIL LIBERTY 
 
 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 Chris- 
 tian morality, Roman legality, and Teutonic individuality and 
 independence, form the main elements of the great phenom- 
 enon 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
 
 AND SELF-GOVERNMENT. 363 
 
 CHAPTER XXXI. 
 
 INSECURITY OF UNINSTITUTIONAL GOVERNMENTS. UNORGANIZED 
 INARTICULATED POPULAR POWER. 
 
 THE insecurity of concentrated governments has been dis- 
 cussed 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 govern- 
 ments 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 strug- 
 gle, and nothing that approached to a civil war. To an 
 observer at a distance, it almost appeared as if those govern- 
 ments 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 coun- 
 try 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 govern- 
 ment 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
 
 ON CIVIL LIBERTY 
 
 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-govern- 
 ment 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 govern- 
 ment 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 re- 
 mained 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 im- 
 prisonments. 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 ques- 
 tions 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 be- 
 cause they have not yet arrived at the period of contending 
 elements. 
 
 1 A London journal said some years ago, with great bitterness, yet with truth : 
 A Russian czar is a highly assassinative substance.
 
 AND SELF-GOVERNMENT. 365 
 
 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 citlte, a 
 sort of official religion. Any infraction of justice, any hard- 
 ship, 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 abso- 
 lutism, 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 Lacedaemonian government 
 Lacedaemon 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 govern- 
 ment 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 Lacedsemon 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 can- 
 not 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 hap-
 
 366 
 
 ON CIVIL LIBERTY 
 
 pen. 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 polit- 
 ical 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 organ- 
 ism ; 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 accom- 
 plishment 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 abso- 
 lutism. 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 un-
 
 AND SELF-GOVERNMENT. 367 
 
 acquainted with the appliances of self-government, that they 
 believe that popular power alone, uniform, sweeping, and in- 
 organic, constitutes liberty, or is all that is necessary to insure 
 it. It is doubtless this kind of popular power which is gen- 
 erally 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 neces- 
 sary for protection, and liberty consists in a great measure in 
 the protection of certain rights and certain institutions ; never- 
 theless, 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, popu- 
 lar 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 for- 
 mation, 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 un- 
 organized state, we cannot mean anything else but the power 
 of the majority ; and where liberty is believed to consist in the 
 
 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 ouvriers 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.
 
 ON CIVIL LIBERTY 
 
 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 as- 
 sumes 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 abso- 
 lutism 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 
 
 1 This, it will be observed, is very different from the English maxim, the par- 
 liament is omnipotent. Unguarded and extravagant as it is, it only means 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 omnipo- 
 tent 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.
 
 AND SELF-GOVERNMENT. 369 
 
 change of government. It was the case in Rome when Caesar 
 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 ad- 
 herents. We may go farther. The rise of the modern prin- 
 cipate, 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 in- 
 quire, 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 remark- 
 able 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 con- 
 ferred 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, gen- 
 erally, 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." x 
 
 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 
 
 1 Mr. Burke, in 1788. 
 24
 
 370 
 
 ON CIVIL LIBERTY 
 
 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 chang- 
 ing ministers, when England was his ally. 2 But was he sin- 
 cere 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 refer- 
 ence 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. 
 
 1 He spoke of Wilkes's expulsion. 
 
 a 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, 
 lhat 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 abso- 
 lute 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.
 
 AND SELF-GOVERNMENT. 
 
 371 
 
 Nothing is easier than to show to an American or English 
 reader that the origin of power has of itself no necessary con- 
 nection 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 presi- 
 dent of the whole, though he alone were 'left to be elected 
 every four years by the sweeping majority of the entire coun- 
 try, from New York to San Francisco ? Or what English- 
 man 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-gov- 
 ernment 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 car- 
 ried out the old French idea of unity of power, of centraliza- 
 tion, 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 uncompro- 
 mising 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 
 
 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
 
 ON CIVIL LIBERTY 
 
 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 con- 
 trary, 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, unin- 
 stitutional 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 impas- 
 sioned 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 ex- 
 perience 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. 
 
 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 he traced through- 
 out 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 Plutatchism. 
 It is an element in that great event. It showed itself especially with the Bris- 
 sotists, 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.
 
 AND SELF-GOVERNMENT. 373 
 
 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 appar- 
 ently elected for ten years, after the second of December ; or 
 the praetorians may appoint the Caesar; 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-govern- 
 ment; 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.
 
 ON CIVIL LIBERTY 
 
 CHAPTER XXXII. 
 
 . 
 
 IMPERATORIAL SOVEREIGNTY. 
 
 THE Caesars 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 intimi- 
 dated senate, as the representatives, for the time, of the people. 
 The Cnesars 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 Caesars, made 
 himself sole ruler by the popular element, against the insti- 
 tutions 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 every- 
 
 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 Csesar,) 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 
 coetu hominum recitabis, ut scias auribus serviendum : plane non ubique et omni 
 modo, attamen nonnunquam et aliquando. Quod ubi facies, simile facere te repu- 
 tato, atque illud facitis, ubi eos qui bestias strenue interfecerint, populo postulante 
 ornatis aut manumittitis, nocentes etiam homines out sceltre damnatos, sed populo 
 postulante conceditis. Ubique igitur populus dominatur et prcepollet. Igitur ut 
 populo gratum erit, ita facies atque ita dices." Epist. ad Marc. Cses., lib. i. 
 epist. I.
 
 AND SELF-GOVERNMENT. 375 
 
 thing 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 government 1 it will be allowed, I say, that at any rate 
 Caesar 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, unfortu- 
 nately, the rulers vested with this imperatorial sovereignty 2 
 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. 
 
 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 Caesareus would have authorized me, to use the term Csesarean Sovereignty. 
 It is unquestionably preferable to imperatorial sovereignty, except that the Eng- 
 lish term Caesarean has acquired a peculiar and distinct meaning, which might 
 even have suggested the idea of a mordant pun. 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.
 
 3/6 
 
 ON CIVIL LIBERTY 
 
 Whatever Caesar'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 Caesar ? 
 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 spread- 
 ing 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 sov- 
 ereignty, and once more to confound an apparently voluntary 
 divestment of all freedom with liberty, is difficult to be un- 
 derstood 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 his- 
 tory people only see prominent facts, as at a distance we see 
 only the steeples of a town, and not the dark lanes and crowd- 
 ing 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 central- 
 ized government and an enormous army 1 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 
 
 1 See paper on Elections, in the Appendix.
 
 AND SELF-GOVERNMENT. 
 
 377 
 
 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 
 Csesar and in Augustus the era of its tardy avenement."* 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 avenement 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 ques- 
 
 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 
 
 7 homes Aniello de Amalfio 
 
 Cetario mox Cesareo 
 
 Honore conspicuo 
 
 qui 
 Oppressa patria Parthenope 
 
 cum 
 
 Suppressions nobilium 
 Combustions mobilium 
 
 Purgatione exulutn 
 Extinctione vectigalium 
 Proregis injustilia 
 
 Liberata 
 
 Ab his quos liberavit est peringrate occisus 
 ^Etads su& anno vigesimo setitimo, imperil vero 
 
 Decennio 
 Mortuus non minus quam vivus 
 
 Triumphavit 
 
 Tantce rei populus Neapolitanus tanquam immemor 
 Posuit.
 
 378 
 
 tion: 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 consid- 
 erable 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 fol- 
 lowing 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 avenement 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 excel- 
 lent aspect, and of a candid and honest soul and clear intellect. 
 This being confirmed the righteous possessors in their prop- 
 erty, and obliged the unrighteous possessors to give up what 
 they had unjustly acquired. Thereupon the fields were dis- 
 tributed 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 Cha- 
 gran (the many-elected Monarch.)" 1 
 
 1 The History of the East Mongols, by Ssanang Ssetsen Changsaidshi, trans- 
 lated into German by I. J. Schmidt. I owe this interesting passage to my frier-i 
 the Rev. Professor J. W. Miles, who directed my attention to the work.
 
 AND SELF-GOVERNMENT. 379 
 
 " 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 impor- 
 tance 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 sen- 
 timental words, Fides Mutua, Liberalitas Augusta, Felicitas 
 Publica. 
 
 Why, it may still be asked, did the Caesars recur to the 
 people as the source of their power, and why did the civilians 
 say that the emperor was legislator, and power-holder, inas- 
 much as the majestas of the Roman people, who had been 
 legislators and power-holders, had been conferred upon him ? 
 Because, partly, the first Caesars, 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 acquiesce 1 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 observ- 
 able 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 
 
 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 
 in which I take them, which indeed I have done at length in my Political 
 Ethics.
 
 ON CIVIL LIBERTY 
 
 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 com- 
 manded 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 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 ^Etolians 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 !
 
 AND SELF-GOVERNMENT. 381 
 
 CHAPTER XXXIII. 
 
 IMPERATORIAL SOVEREIGNTY, CONTINUED. ITS ORIGIN AND 
 
 CHARACTER EXAMINED. 
 
 IT has been said in the preceding pages that imperatorial 
 sovereignty must be always the most stringent absolutism, 1 
 especially when it rests theoretically on election by the whole 
 people, and that the transition from an uninstitutional popular 
 absolutism to the imperatorial sovereignty is easy and natural. 
 At the time of the so-called French republic of 1848, it was 
 a common way of expressing the idea then prevailing, to call 
 the people le peuple-roi (the king-people,) and an advocate, 
 defending certain persons before the high court of justiciary 
 sitting at Versailles in 1 849, for having invaded the chamber 
 of representatives, and consequently having violated the con- 
 stitution, used this remarkable expression: "the people" (con- 
 founding of course a set of people, a gathering of a part of the 
 inhabitants of a single city, with the people) " never violate 
 the constitution." 2 
 
 Where such ideas prevail, the question is not about a change 
 of ideas, but simply about the lodgment of power. The minds 
 and souls are already thoroughly familiarized with the idea of 
 absolutism, and destitute of the idea of self-government. This 
 is also one of the reasons why there is so much similarity be- 
 tween monarchical absolutism, such for instance as we see in 
 
 1 That absolutism and imperatorial sovereignty go hand in hand, was neatly 
 acknowledged by an inscription over the sub-prefecture of Dunkerque, when the 
 imperial couple passed it, in 1855. It was to this effect : A 1'heritier de Napo- 
 leon, la ville de Louis XIV. 
 
 a Mr. Michel, on the loth of November. I quote from the French papers, 
 which gave detailed reports. Mr. Michel, to judge from his own speech, seems 
 to have been the oldest of the defending advocates.
 
 3 82 ON CIVIL LIBERTY 
 
 Russia, and communism, as it was preached in France; and it 
 explains why absolutism, having made rapid strides under the 
 Bourbons before the first revolution, has terminated every suc- 
 cessive revolution with a still more compressive absolutism 
 and centralism, except indeed the revolution of 1830. This 
 revolution was undertaken to defend parliamentary govern- 
 ment, and may be justly called a counter-revolution on the 
 part of the people against a revolution attempted and partially 
 carried by the government. It explains farther how Louis 
 Napoleon after the second of December, and later when he 
 desired to place the crown of uncompromising absolutism on 
 his head, could appeal to the universal suffrage of all France 
 he that had previously curtailed it, with the assistance of 
 the chamber of representatives. This phenomenon, however, 
 must be explained also by the system of centralism, which 
 prevails in France. I shall offer a few remarks on this topic 
 after having treated of some. more details appertaining to the 
 subject immediately in hand. 
 
 The idea of the peuple-roi (it would perhaps have been more 
 correct to say peuple-czar) also tends to explain the other- 
 wise inconceivable hatred against the bourgeoisie, by which the 
 French understand the aggregate of those citizens who inhabit 
 towns and live upon a small amount of property or by traffic. 
 The communists and the French so-called democrats enter- 
 tained a real hatred against the bourgeoisie ; the proclama- 
 tions, occasionally issued by them, openly avowed it; and the 
 government, when it desired to establish unconditional abso- 
 lutism in form as well as principle, fanned this hatred. Yet 
 no nation can exist without this essential element of society. 
 In reading the details of French history of the year 1848 and 
 the next succeeding years, the idea is forced upon our mind 
 that a vast multitude of the French were bent on establish- 
 ing a real and unconditional aristocracy of the ouvrier the 
 workman. 1 
 
 1 This error broke forth into full blaze at the indicated time, but it had of 
 course been long smouldering, and, as is customary, had found some fuel even
 
 AND SELF-GOVERNMENT, 383 
 
 If the imperatorial sovereignty is founded upon an actual 
 process of election, whether this consist in a mere form or not, 
 it bears down all opposition, nay all dissent, however lawful it 
 may be, by a reference to the source of its power. It says : 
 " I am the people, and whoever dissents from me is an enemy 
 to the people. Vox Populi vox Dei. My divine right is the 
 voice of God, which spake in the voice of the people. The 
 government is the true representative of the people." 1 
 
 in our country. In the year 1841, during the presidential canvass, a gentleman 
 who has since become the editor of a Catholic periodical, and has probably 
 changed his views published a pamphlet in which he attacked individual prop- 
 erty, and fell into the same error which is spoken of in the text above. 
 
 The author of the pamphlet, which was very widely distributed, found it of 
 course impossible to draw the line between the workmen and those who are not 
 " working," and I recollect that he did not even allow the superintendent of a 
 factory to be a workman. I have treated of these subjects in detail in my Essays 
 on Labor and Property, and believe that a Humboldt is a harder " working man," 
 not indeed than the poor weaver who allows himself but five hours' rest in the 
 whole twenty-four, but certainly a far harder working man than any of those 
 physically employed persons who want to make their class a privileged order. 
 The fact is simply this, that there is no toiling man, however laboriously em- 
 ployed in a physical way, that does not guide his efforts by an exertion of the 
 brain, and no mentally employed man that is not obliged to accompany his labor 
 by some, frequently by much, physical exertion. To draw an exact line between 
 the two, for political purposes, is impossible. All attempts at doing so are mis- 
 chievous. The hands and the brain rule the world. All labor is manual and 
 cerebral, but the proportion in which the elements combine is infinite. So soon 
 as no cerebral labor is necessary, we substitute the animal or the machine. In 
 reading some socialist works, one would almost suppose that men had returned 
 to some worship of the animal element, raising pure physical exertion above all 
 other human endeavors. Humanity does not present itself more respectably than 
 in the industrious and intelligent artisan, but every artisan justly strives to reach 
 that position in which he works more by the intellect than by physical exertion. 
 He strives to be an employer. The type of a self-dependent and striving Ameri- 
 can artisan is a really noble type. The author hopes to count many an American 
 operative among his readers; and, if he be not deceived, he takes this opportunity 
 of declaring that he believes he too has a very fair title to be called a hard- 
 working man, without claiming any peculiar civil privileges on that account. 
 
 1 The idea that God speaks through the voice of the people, familiar to th ; 
 middle ages, is connected with the elections of ruder times by general acclaim. 
 It reminds us also of the Dieu le veut, at Clermont, when Peter the Hermit called 
 on the chivalry and the people to take the sign of the cross. And again it reminds 
 us of the disastrous dfcrets d' 1 acclamation of the first French revolution. That
 
 384 ON CIVIL LIBERTY 
 
 The eight millions of votes, more or less, which elevated the 
 present French emperor, first to the decennial presidency and 
 then to the imperial throne, are a ready answer to all objec- 
 tions. If private property is confiscated by a decree ; if per- 
 sons are deported without trial ; if the jury trial is 'shorn of 
 its guarantees, the answer is always the same. The emperor 
 is the unlimited central force of the French democracy ; thus 
 the theory goes. He is the incarnation of the popular power, 
 and if any of the political bodies into which the imperatorial 
 power may have subdivided itself, like a Hindoo god, should 
 happen to indicate an opinion of its own, it is readily given to 
 understand that the government is in fact the people. Such 
 bodies cannot, of course, be called institutions ; for they are 
 devoid of independence and every element of self-government. 
 The president of the French legislative corps in 1853, found 
 it necessary, on the opening of the session, to assure his col- 
 leagues, in an official address, that their body was by no means 
 without some importance in the political system, as many 
 seemed to suppose. 
 
 The source of imperatorial power, however, is hardly ever 
 what it is pretended to be, because, if the people have any 
 power left, it is not likely that they will absolutely denude 
 themselves of it, surely not in any modern and advanced 
 nation. The question in these cases is not whether they love 
 liberty, but simply whether they love power and every one 
 loves power. On the one hand, we have to observe that no 
 case exists in history in which the question, whether impera- 
 torial power shall be conferred upon an individual, is put to 
 the people, except after a successful conspiracy against the 
 existing powers or institutions, or a coup d'etat, if the term 
 be preferred, on the part of the imperatorial candidate ; and, 
 on the other hand, a state of things in which so great a ques- 
 tion is actually left to the people is wholly unimaginable. 
 
 the government is the true representative of the people has been often asserted in 
 recent times in France, and Napoleon I., in one of his addresses, delivered in 
 the council of state, said : The government, too, is the representative of the 
 people. Miot de Melito, in his Memoirs.
 
 AND SELF-GOVERNMENT. 385 
 
 There may be a so-called interregnum during the conclave, 
 when the cardinals elect a pope, but a country cannot be 
 imagined in a state of perfect interregnum while the question 
 is deciding whether a hereditary empire shall be established. 
 It is idle to feign believing that this is possible, most especially 
 so where the question is to be decided not by representatives, 
 but by universal suffrage, and that, too, in a country where 
 the executive power spreads over every inch of the territory 
 and is characterized by the most consistent centralism. The 
 two last elections of Louis Napoleon prove what is here stated. 
 Ministers, prefects, bishops, were openly and officially influ- 
 encing the elections ; not to speak of the fact that large 
 elections concerning persons in power, which allow to vote 
 only yes or no, have really little meaning, as the history of 
 France abundantly proves. 1 But how elections at present 
 are managed in France, even when the question is not so 
 comprehensive, may be seen from a circular addressed by the 
 minister, Mr. de Morny, 2 to the prefects, previous to the elec- 
 tions for the first legislative corps. It is an official paper, 
 strikingly characteristic, and I shall give a place to a transla- 
 tion of it in the Appendix. We ought to bear in mind that 
 one of the heaviest charges against Mr. de Polignac, when 
 tried for treason, was that he had allowed Charles X. to in- 
 fluence the elections. 
 
 When such a vote is put to the people under circumstances 
 which have been indicated, the first question which presents 
 itself is : And what if the vote turn out No ? Will the can- 
 didate, already at the head of the army, the executive, and of 
 every other branch ; whose initials are paraded everywhere, 
 and whose portrait is in the courts of justice, some of which 
 
 1 See the Paper on Elections, in the Appendix. 
 
 2 Mr. de Morny is the/r^i? adult 'frin of Louis Napoleon, on the mother's side, 
 Queen Hortense. He aided his half-brother very actively in the overthrow of 
 the republic, and the establishment of the empire. Mr. de Morny lost the min- 
 istry at the time when L. Bonaparte despoiled the Orleans family of their lawful 
 property, and, it was believed, because the minister could not in his conscience 
 sanction an act at once so unlawful and ungrateful. 
 
 25
 
 3 86 ON CIVIL LIBERTY 
 
 actually have styled themselves imperial, and who has been 
 addressed Sire ; who has an enormous civil list will he make 
 a polite bow, give the keys to some one else, and walk his 
 way ? And to whom was he to give the government ? The 
 question was not, as Mr. de Laroche-Jacquelin had proposed, 
 Shall A or B rule us ? Essentially this question would not 
 have been better ; but there would have been apparently some 
 sense in it. The question simply was : Shall B rule us ? Yes 
 or No. It is surprising that some persons can actually believe 
 reflecting people may thus be duped. 
 
 The Caesar always exists before the imperatorial govern- 
 ment is acknowledged and openly established. Whether the 
 praetorians or legions actually proclaim the Caesar or not, it is 
 always the army that makes him. A succeeding ballot is no- 
 thing more than a trimming belonging to more polished or 
 more timid periods, or it may be a tribute to that civilization 
 which does not allow armies to occupy the place they hold in 
 barbarous or relapsing times, at least not openly so. 
 
 First to assume the power and then to direct the people to 
 vote, whether they are satisfied with the act or not, leads 
 psychologically to a process similar to that often pursued by 
 Henry VIII., and according to which it became a common 
 saying: First clap a man into prison for treason, and you will 
 soon have abundance of testimony. It was the same in the 
 witch-trials. 
 
 The process of election becomes peculiarly unmeaning, be- 
 cause the power already assumed allows no discussion. There 
 is no free press. 1 
 
 Although no reliance can be placed on wide-spread elec- 
 tions whose sole object is to ratify the assumption of impera- 
 
 1 When the question of the new imperial crown was before the people of 
 France, Count Chambord, the Bourbon prince who claims the crown of France 
 on the principle of legitimacy, wrote a letter to his adherents, exhorting them 
 not to vote. The leading government papers stated at the time that government 
 would have permitted the publication of this letter, had it not attacked the prin- 
 ciple of the people's sovereignty. The people were acknowledged sovereign, 
 yet the government decides what the sovereign may read !
 
 AND SELF-GOVERNMENT. 387 
 
 torial sovereignty, and when therefore it already dictatorially 
 controls all affairs, it is not asserted that the dictator may not 
 at times be supported by large masses, and possibly assume 
 the imperatorial sovereignty with the approbation of a majority. 
 I have repeatedly acknowledged it ; but it is unquestionably 
 true that generally in times of commotion, and especially in 
 uninstitutional countries, minorities rule, for it is minorities 
 that actually contend. Yet, even where this is not the case, 
 the popularity of the Caesar does in no way affect the ques- 
 tion. Large, unarticulated masses are swayed by temporary 
 opinions or passions, as much so as individuals, and it requires 
 but a certain skill to seize upon the proper moment to receive 
 their acclamation, if they are willing and consider themselves 
 authorized to give away, by one sudden vote, all power and 
 liberty, not only for their own lifetime, but for future gen- 
 erations. In the institutional government alone, substantial 
 public opinion can be generated and brought to light. 
 
 It sometimes happens that arbitrary power or centralism 
 recommends itself to popular favor by showing that it intends 
 to substitute a democratic equality for oligarchic or oppressive, 
 unjust institutions, and the liberal principle may seem to be 
 on the side of the levelling ruler. This was doubtless the case 
 when in the sixteenth and seventeenth centuries the power of 
 the crown made itself independent on the continent of Europe. 
 Instead of transforming the institutions, or of substituting new 
 ones, the governments levelled them to the ground, and that 
 unhappy centralization was the consequence which now draws 
 every attempt at liberty back into its vortex. At other times, 
 monarchs or governments disguise their plans to destroy 
 liberty in the garb of liberty itself. Thus, James II. endeavored 
 to break through the restraints of the constitution, or perhaps 
 ultimately to establish the Catholic religion in England, by 
 proclaiming liberty of conscience for all, against the estab- 
 lished church. Austria at one time urged measures, appar- 
 ently liberal for the peasants, against the Gallician nobles. In 
 such cases, governments are always sure to find numerous 
 persons that do not look beyond the single measure, or to
 
 3 88 
 
 ON CIVIL LIBERTY 
 
 the means by which it is carried out ; yet the legality and 
 constitutionality of these means are of great, and frequently 
 of greater importance than the measure itself. Even his- 
 torians are frequently captivated by the apparently liberal 
 character of a single measure, forgetting that the dykes of 
 an institutional government once being broken through, the 
 whole country may soon be flooded by an irresistible tide of 
 arbitrary power. We have a parallel in the criminal trial, in 
 which the question how we arrive at the truth is of equal im- 
 portance with the object of arriving at truth. Nullum bonum 
 nisi bene. 
 
 On the other hand, all endeavors to throw more and more 
 unarticulated power into the hands of the primary masses, 
 to deprive a country more and more of a gradually evolv- 
 ing character ; in one word, to introduce an ever-increasing, 
 direct, unmodified popular power, amount to an abandonment 
 of self-government, and an approach to imperatorial sover- 
 eignty, whether there be actually a Caesar or not to popu- 
 lar absolutism, whether the absolutism remain for any length 
 of time in the hands of a sweeping majority, subject, of 
 course, to a skilful leader, as in Athens after the Peloponne- 
 sian war, or whether it rapidly pass over into the hands of a 
 broadly named Caesar. Imperatorial sovereignty may be at a 
 certain period more plausible than the sovereignty founded 
 upon divine right, but they are both equally hostile to self- 
 government, and the only means to resist the inroads of power 
 is, under the guidance of Providence and a liberty-wedded 
 people, the same means which in so many cases have with- 
 stood the inroads of the barbarians, namely, the institution 
 the self-sustaining and organic systems of laws.
 
 AND SELF-GOVERNMENT. 389 
 
 CHAPTER XXXIV. 
 
 CENTRALIZATION. INFLUENCE OF CAPITAL CITIES. 
 
 WE have seen in how great a degree French centralism hii.s 
 produced an incapacity for self-rule, according to one of the 
 most distinguished statesmen of France herself. This central- 
 ism, in conjunction with imperatorial sovereignty, has pro- 
 duced some peculiar effects upon a nation so intelligent, 
 ardent, and wedded to system as the French are. Before I 
 conclude this treatise, therefore, I beg leave to offer a few 
 remarks, which naturally suggest themselves, in connection 
 with centralism and imperatorial sovereignty ; both so promi- 
 nent at this moment in France. 
 
 Centralism has given to Paris an importance which no capi- 
 tal possesses in any other country. The French themselves 
 often say Paris is France ; foreigners always say so ; and to 
 them as well as to those French people who desire to enjoy, 
 at one round, as much as possible of all that French civiliza- 
 tion produces, this is, doubtless, very agreeable and instructive. 
 Paris is brilliant, as centralism frequently is ; Paris naturally 
 flatters the vanity of the French ; Paris stands with many 
 people for France, because they see nothing of France but 
 Paris. Centralization appears most imposing in Paris in the 
 buildings, in demonstrations, in rapidity of execution, and in 
 an aesthetical point of view. Upon a close examination of 
 history, however, we shall find that it has been not only a 
 natural effect of centralism, but an object of all absolute rulers 
 over intelligent races, to beautify the capital and raise its 
 activity to the highest point. The effect is remarkable. The 
 government of King Jerome, of Westphalia now again prince 
 of France was one of the most ruinous that has ever existed, 
 and yet long after the downfall of that ephemeral kingdom,
 
 ON CIVIL LIBERTY 
 
 every disapproval of it was answered by a reference to the 
 embellishment of Cassel, the capital. 1 
 
 1 There are psychological processes which indicate suspicious intentions the 
 adoption of a new and scientifically sounding term for an old and common 
 offence, as Repudiation for declining to pay what is due ; and of mystifying, high- 
 sounding abstractions in statesmanship. The latter is carried to a degree, in the 
 following address of Napoleon, which is rare even in France. Louis XIV., ac- 
 cording to the present emperor of the French, the great representative of French 
 unity and glory, when he had ruined France by the building of Versailles, warned, 
 on his death-bed, his successor to beware of wars and of building. There are so 
 many points of French politics tersely put in the speech of Napoleon III., when 
 in September of 1857 he opened the Louvre, that its record may be considered a 
 historical document. We give it therefore entire. 
 
 The ceremony of opening the Louvre was simple but imposing. The minis- 
 ters, marshals and generals, the senators and great functionaries, assembled in the 
 hall of the Louvre. The emperor and empress arrived at two o'clock with a 
 vast retinue. The business began by the presentation of an address to the em- 
 peror from M. Fould, briefly describing the origin and completion of a work 
 which, begun in 1852 and finished in 1857, unites the Louvre and the Tuileries. 
 The emperor next distributed the legion of honor to the professional men who 
 have distinguished themselves during the erection of the building ; making some 
 commanders, some simple knights. Having distributed all the honors, the em- 
 peror delivered the following address: 
 
 " Gentlemen I congratulate myself, with you, on the completion of the 
 Louvre, i congratulate myself especially upon the causes which have rendered 
 it possible. In fact, it is order, restored stability, and the ever-increasing pros- 
 perity of the country, which have enabled me to complete this national work. I 
 call it so because the governments which have succeeded each other have made 
 it a point to do something towards the completion of the royal dwelling com- 
 menced by Francis I. and embellished by Henry II. 
 
 " Whence this perseverance, and even this popularity, in the building of a 
 palace ? It is because the character of a people is reflected in its institutions as 
 in its customs, in the events that excite its enthusiasm as well as in the monu- 
 ments which become the object of its chief interest. Now France, monarchical 
 for so many centuries, which always beheld in the central power the representa- 
 tive of her grandeur and of her nationality, wished that the dwelling of the sov- 
 ereign should be worthy of the country ; and the best means of responding to that 
 sentiment was to adorn that dwelling with the different masterpieces of human 
 intelligence. 
 
 " In the middle ages, the king dwelt in a fortress, bristling with defensive 
 works; but soon the progress of civilization superseded battlements, and the 
 produce of letters, of the arts and sciences, took the place of weapons of war. 
 Thus the history of monuments has also its philosophy as well as the history of 
 events. 
 
 " In like manner as it is remarkable that at the time of the first revolution, the
 
 AND SELF-GOVERNMENT. 39! 
 
 Capital cities and residences of kings, and even of petty 
 princes, have in this respect the same effect which single large 
 fortunes or single busy places have on the minds of the super- 
 ficial, in point of political economy. They are palpable, and 
 strike the mind, yet they prove nothing of themselves. There 
 is not a war, however ruinous, that does not produce gigantic 
 gains for some bankers, contractors, and able speculators. 
 They are often pointed out to prove that a certain war has not 
 been fatal to general prosperity. There have never existed 
 greater fortunes than those of some princely Roman senators, 
 with their latifundia, in the very worst periods of the Roman 
 empire, amidst universal ruin, and when the country was fast 
 declining to that state in which the tillers of the soil aban- 
 doned their farms, because unable to pay the taxes, and in 
 which Italy, with the utmost exertion of the government, was 
 not able to raise an army against invading hordes. 
 
 Whenever we shall have executed our railway to the Pacific, 
 nothing of it will be seen at one moment and by the physical 
 eye, that differs from the rails of any other road, and the 
 vulgar will be struck far more by a palace at Versailles, or a 
 
 committee of public welfare should have continued, without being aware of it, 
 the work of Louis XL, of Richelieu, of Louis XIV., giving the last blow to the 
 feudal system, and carrying out the system of unity and centralization, the con- 
 stant aim of monarchy in like manner is there not a great lesson to learn in 
 beholding the idea of Henry IV., of Louis XIII., of Louis XIV., of Louis XV., 
 of Louis XVI., of Napoleon, as regards the Louvre, adopted by the ephemeral 
 power of 1848 ? One of the first acts, in fact, of the provisional government, was 
 to decree the completion of the palace of our kings. So true is it that a nation 
 draws from its antecedents, as an individual derives from his education, ideas 
 which the passions of a moment do not succeed in destroying. When a moral 
 impulse is the consequence of the social condition of a country, it is handed 
 down through centuries, and through different forms of government, until the 
 object in view is attained. 
 
 " Thus the completion of the Louvre, towards which I thank you for your co- 
 operation, given with so much zeal and skill, is not the caprice of a moment, but 
 is the realization of a plan conceived for the glory and kept alive by the instinct 
 of the country for more than three hundred years." 
 
 In the evening some hundreds of persons engaged in the work workingmen, 
 artists, men of letters, journalists were entertained at dinner by the minister of 
 state in a gallery of the Louvre. Of course the speaking was ultra-loyal.
 
 392 
 
 ON CIVIL LIBERTY 
 
 column of Trajan ; unless, indeed, a pointing hand were hewn 
 in granite, at San Francisco, with the words, To the Atlantic, 
 and another at some Atlantic city, with the words, To the 
 Pacific ; and even then the grandeur of the road would not be 
 perceived by the physical eye. 1 
 
 We live in an age which has justly been called the age of 
 large cities. 2 Populous cities are indispensable to civilization, 
 and even to liberty, though I own that one of the problems 
 we have yet to solve is, how to unite in large cities the highest 
 degree of individual liberty and order. 
 
 But absorbing cities, cities on which monarchs are allowed 
 to lavish millions of the national wealth, always belong to a 
 low state of general national life, often to effete empires. The 
 vast cities of Asia, Byzantium, imperial Rome, and many other 
 cities prove it. On the other hand, it is an unfortunate state 
 of things in which one city rules supreme, either by an over- 
 whelming population, as Naples, or by concentration, as Paris. 
 Constant changes of governments seem almost inevitable, 
 whether they are produced by the people, as in the case of 
 Paris, or by foreigners, as was formerly the case in Naples. 
 
 A comparison between Paris and London, in this respect, is 
 instructive. London, far more populous, has far less influence 
 than Paris ; and London, incomparably richer, is far less bril- 
 liant than Paris. Monarchical absolutism and centralism 
 strike the eye and strive to do so ; liberty is brilliant indeed, 
 but it is brilliant in history, and must be studied in her insti- 
 tutions. 3 
 
 1 No one will charge the author, he trusts, with political iconoclasm, that has 
 read his chapter on monuments in his Political Ethics. 
 
 3 The Age of Great Cities, or Modern Society viewed in its Relation to Intelli- 
 gence, Morals and Religion, by Robert Vaughn, D.D., London, 1843. 
 
 3 This manifests itself in all spheres. Paris leads in fashion, art, science^ 
 language, etc. England has her Oxford and Cambridge. 
 
 The title of Walker's Critical Pronouncing Dictionary has these words : " Like- 
 wise Rules to be observed by the Natives of Scotland, Ireland and London, for 
 avoiding their respective Peculiarities," as indicating part of the contents. This 
 is strikingly English. The pronunciation and " peculiarities" of the Parisians,
 
 AND SELF-GOVERNMENT. 393 
 
 Great as the influence of Paris has been ever since the reign 
 of the Valois, it has steadily increased, and those who strove 
 for liberty were by no means behind the others in their wor- 
 ship of the capital. This singular idolatry was actually ac- 
 knowledged by several resolutions of the representatives of 
 the people, during the late republic. 
 
 The intense influence of Paris, together with the wide-spread 
 system of government, every single thread of which centres 
 in Paris, is such that, in 1848, the republic was literally tele- 
 graphed to the departments, and adopted without any resist- 
 ance from any quarter, civil or military, which cannot be 
 explained by the often-avowed horror of the French at shed- 
 ding French blood, since blood was readily shed to elevate 
 Louis Napoleon. The same causes made it possible for the 
 republic, so readily and unanimously adopted, to be with equal 
 readiness changed by eight millions of votes into a monarchy. 
 
 It has already been admitted that centralism, by the very 
 fact that it concentrates great power, can produce many strik- 
 ing results which it is not in the power of governments on a 
 different principle to exhibit. These effects please and often 
 popularize a government ; but there is another fact to be taken 
 into consideration. Symmetry is one of the elements of 
 humanity ; systematizing is one of man's constant actions. It 
 captivates and becomes dangerous, if other elements and 
 activities equally important are neglected, or if it is carried 
 into spheres in which it ought not to prevail. The regu- 
 larity and consistent symmetry, together with the principle 
 of unity, which pervade the whole French government, charm 
 many a beholder, and afford pleasure not unlike that which 
 many persons derive from looking at a plan of a mathematic- 
 ally regular city, or upon gardens architectonically trimmed. 
 
 even as they change from time to time, are the very standard of French pro- 
 nunciation. 
 
 Similar remarks may be made regarding the courts. The court of Versailles 
 dictated in every sphere at the time when Horace Walpole, the whig, wrote that 
 the English court was not fashionable, and was considered little better than a 
 number of Germans kept there for some useful practical end.
 
 ON CIVIL LIBERTY 
 
 But freedom is life, and wherever we find life it is marked, in- 
 deed, by agreement of principles and harmony of development, 
 but also by variety of form and phenomenon, and by a subor- 
 dinate exactness of symmetry. The centralist, it might be 
 said, mistakes lineal and angular exactness, formal symmetry, 
 and mathematical proportions, for harmonious evolution and 
 profuse vitality. He prefers an angular garden of the times 
 of Louis XIV. to an umbrageous grove. 
 
 Centralism, and the desire to bring everything under the 
 influence of government, or to effect as far as possible every- 
 thing by government, has fearfully increased from the moment 
 that the imperatorial absolutism was declared : * while, at the 
 same time, a degree of man-worship has developed itself, which 
 makes people at a distance almost stand aghast. The same 
 hyperbolical, and, in many cases, blasphemous flattery, which 
 reminded the observer, in the times of Napoleon I., of imperial 
 Rome, has been repeated since. No one who has attentively 
 followed the events of our times stands in need of instances ; 
 they were offered by hundreds, 2 and of a character that would 
 
 1 According to the latest news, even the dead are under the control of govern- 
 ment, not in the sense of Sydney Smith, by paying taxes, but no one can any 
 longer be buried in Paris except by a chartered company, standing under the 
 close inspection of the police department. 
 
 Churchmen and laymen, as is well known, vie with each other on such occa- 
 sions. The blasphemous flattery offered by some dignitaries of the church to 
 Napoleon I. was revolting. We have seen the same when there seemed to be a 
 question who could bid highest in burning incense to the present new Caesar. 
 The Lord's Prayer was travestied. The following " proclamation" is taken from 
 the " Concorde de Seine et Oise," of October, 1852, for the very reason that it 
 is not one of the worst : 
 
 " Town of Sevres. Proclamation of the Empire. 
 
 " Inhabitants Paris, the heart of France, acclaimed on the loth of May for its 
 emperor him whose divine mission is every day revealed in such a striking and 
 dazzling manner. At this moment it is the whole of France electrified which 
 salutes her savior, the elect of God, by this new title, which clothes him with 
 sovereign power : ' God wills it,' is repeated with one voice ' vox populi vox 
 Dei.' It is the marriage of France with the envoy of God, which is contracted 
 in the face of the universe, under the auspices of all the constituted bodies, and 
 of all the people. That union is sanctified by all the ministers of religion, and
 
 AND SELF-GOVERNMENT. 395 
 
 make the most inveterate former tory-worship of the crowned 
 person appear as an innocent blundering ; but we cannot pass 
 over the fact that an infatuated yet large part of a nation have 
 for the first time in history, so far as we know, called ideas 
 after a man of action. " Napoleonic ideas" has become a 
 favorite expression. Not only newspapers use this term a 
 late one condemned free-trade because " free-trade is no Napo- 
 leonic idea" but men whom we have been accustomed to 
 look upon with respect ' have fallen into this infatuation. All 
 of us have heard of Christian ethics, Christian ideas and sen- 
 timents, but we have never heard of Carlovingian, Frederician, 
 Julian, Alexandrian, Gregorian or Lutheran ideas. It is a sub- 
 mission to a name, an individual and an individual, too, be 
 it observed, who distinguished himself as a man of action, 
 which seems to indicate a singular want of self-reliance and 
 self-respect. 
 
 Centralized governments can effect certain brilliant acts, 
 
 by all the princes of the church. These addresses, these petitions, and these 
 speeches, which are at this moment exchanging between the chief of the state 
 and France, are the documents connected with that holy union ; every one 
 wishes to sign them, as at the church he would sign the marriage-deed at which 
 he is present. Inhabitants of Sevres, as the interpreter of your sentiments, I 
 have prepared the deed which makes you take part in this great national move- 
 ment. Two books are opened at the Mairie to receive your signatures : one of 
 them will be offered in your presence to him whom I from this day designate 
 under the title of emperor. Let us hope that he will deign to accede to the 
 supplications which I shall address to him in your name, to return to the palace 
 of St. Cloud through our territory, by the gate of honor which we possess. The 
 other book, which I shall present for the signature of the prince, will remain in 
 your archives as a happy souvenir of this memorable epoch. Let all the popu- 
 lation, without distinction, come, therefore, and sign this document; it sets forth 
 that which is in your heart and in your will." 
 
 This document is accompanied by a formal proclamation, appropriately signed 
 " Manager, mayor." 
 
 Plain dealing, however, obliges us to remember, along with such extravagances 
 of foreigners, the repulsive flattery in which some individuals indulged when 
 Kossuth was among us. Nor must we wholly forget the language of certain daily 
 journals at the time of General Jackson's administration. But these were erratic 
 acts of individuals, and, however disgusting, were not officially received by 
 government. 
 
 Mr. Chevalier.
 
 396 
 
 ON CIVIL LIBERTY 
 
 but they are on this account seriously liable to fall into a 
 method of carrying on public affairs which, in the language 
 of stage managers, is significantly called starring, and which 
 has the serious inconvenience of leading popular attention 
 from solid actions to that which dazzles, from wholesome 
 reality to mere brilliant ideas. 
 
 The elevation of Napoleon III. may be referred in a measure 
 to this error. Huzzaing crowds are never substantial indica- 
 tions of any opinion, whether the crowds are voluntary or 
 subpoenaed. " Where are my enemies ?" said Charles II. when 
 he re-entered London and passed through the crowd of his 
 subjects. He had enough. Prince de Ligne tells us that, 
 when Catharine travelled through Crimea, distant populations 
 were carried to the roadside of the imperial traveller, to wait 
 on her, in costumes delivered to them by the government, and 
 to personate the inhabitants of show villages which had been 
 erected in the background. These sham villages are typical. 
 
 Still, we can believe that many persons rushed to see the 
 present emperor when he travelled through France, before he 
 made himself emperor, because they really believed that which 
 had been so often repeated that Louis Napoleon " had saved 
 society and civilization." Now, this is exactly an idea which 
 belongs to the order that has been indicated. 
 
 It is in the first place founded upon the belief that if civili- 
 zation perishes in France it is necessarily lost for the entire 
 world. It would certainly produce a very serious shock ; but 
 the French idea of one leading nation is an anachronism. It 
 belongs to ancient times ; the French easily fall into this error, 
 because Paris really leads France. Civilization, however, 
 would not be wholly lost even for France, should Paris be 
 destroyed ; or, if it were so, what must we think of the whole 
 country ? 
 
 Secondly, those who assert that Napoleon III. saved society 
 mean, it must be supposed, that had he not taken the reins of 
 absolute power the socialists would have destroyed property, 
 industry, and individuality. 
 
 The fear which the socialists have inspired must have been
 
 AND SELF-GOVERNMENT. 
 
 397 
 
 very great, and doubtless the power in every individual of 
 doing mischief is immense, compared to that of doing good. 
 Even an insect can cause a leak to a man-of-war ; but to say 
 that a single man such a man, and by such means has been 
 the savior of society, is at once so monstrous an exaggeration, 
 and such an avowal of inability to act, and want of self-reli- 
 ance, that this hyperbole, if it be not altogether an error, 
 would have led to no such results with any nation less accus- 
 tomed to centralism, absolutism, and an absorbing govern- 
 ment. These were necessary to make a nation so rapidly, 
 and apparently with so much good-humor, bend to all the 
 exorbitant and insulting demands of absolutism, to which, 
 unfortunately, at this moment the French nation seems to bow 
 with a peculiar grace.
 
 398 ON CIVIL LIBERTY 
 
 CHAPTER XXXV. 
 
 VOX POPULI VOX DEI. 
 
 THE maxim Vox Populi Vox Dei is so closely connected 
 with the subjects which we have been examining, and it is so 
 often quoted on grave political occasions, that it appears to 
 me proper to conclude this work with an inquiry into the 
 validity of this stately saying. Its poetic boldness and epi- 
 grammatic finish, its Latin and lapidary formulation, and its 
 apparent connection of a patriotic love of the people with 
 religious fervor, give it an air of authority and almost of sacred- 
 ness. Yet history, as well as our own times, shows us that 
 everything depends upon the question who are " the people," 
 and that even if we have fairly ascertained the legitimate sense 
 of this great yet abused term, we frequently find that their 
 voice is anything rather than the voice of God. 
 
 If the term people is used for a clamoring crowd, which is 
 not even a constituted part of an organic whole, we would be 
 still more fatally misled by taking the clamor for the voice of 
 the deity. We shall arrive, then, at this conclusion, that in no 
 case can we use the maxim as a test, for, even if we call the 
 people's voice the voice of God in those cases in which the 
 people demand that which is right, we must first know that 
 they do so before we could call it the voice of God. It is no 
 guiding authority ; it can sanction nothing. 
 
 " The chief priests, and the rulers, and the people," cried 
 out all at once, " Crucify him, crucify him I" 1 Were then "the 
 rulers and the people" not the populus ? But their voice was 
 assuredly not the vox Dei in this case. If populus means the 
 
 St. Luke, xxiii. 13, 21.
 
 AND SELF-GOVERNMENT. 399 
 
 constituted people speaking through the organs and in the 
 forms of law, the case of Socrates arises at once in our mind. 
 It was the people of Athens, speaking by their constituted 
 authorities, that bade him drink the hemlock ; yet it would be 
 blasphemy to say that it was the voice of God that spoke in 
 this case through the mouth of the Athenians. Was it the 
 voice of the people, and, through it, the voice of God, which 
 demanded the sway of the guillotine in the first French revo- 
 lution? Or was it the voice of God which made itself heard 
 in 1848, when all punishment of death for political offences 
 was abolished in France ? Or is it the voice of God which 
 through "the elect one of the people" demanded the re-estab- 
 lishment of capital punishment for high political offences ? 
 Or is it the voice of God that used so indefinite a term in law 
 as that of political offences ? 
 
 There are, indeed, periods in history in which, centuries 
 after, it would seem as if an impulse from on high had been 
 given to whole masses, or to the leading minds of leading 
 classes, in order to bring about some comprehensive changes. 
 That remarkable age of maritime discovery which has influ- 
 enced the whole succeeding history of civilization and the 
 entire progress of our kind, would seem at first glance, and to 
 many, even after a careful study of all its elements, to have 
 received its motion and action from a breath not of human 
 breathing. No person, however, living at that period would 
 have been authorized to call the wide-spread love of maritime 
 adventure the voice of God, merely because it was widely 
 diffused. Impulsive movements of greater extent and inten- 
 sity have been movements of error, passion, and crime. It 
 must be observed that the thorough historian often acts in 
 these cases as the natural philosopher who finds connection, 
 causes and effects, where former ages thought they recog- 
 nized direct and detached manifestations or interpositions of a 
 superior power, and not the greater attribute of variety under 
 eternal laws and unchanging principles. 
 
 When the whole of Europe was animated by one united 
 longing to conquer the Holy Land, it appeared undoubtedly to
 
 ON CIVIL LIBERTY 
 
 the crusaders that the voice of the people was the voice of 
 God. It seemed, indeed, as if an afflatus numinis breathed 
 over the European lands. Those, however, who now believe 
 that the crusades were a great injury to Europe and there 
 are such do not perceive the voice of God in this vast move- 
 ment. They will perhaps maintain that it was not the people 
 who felt this surprising impulse, but the chivalry, who by their 
 unceasing petty feuds had developed a martial restlessness 
 which began to lack food, and thus engaged in distant enter- 
 prises, stimulated by the highly sacerdotal character which 
 pervaded that age. To find out, then, whether it was the vox 
 populi, would first require to find out whether it was the vox 
 Dei, and, consequently, we are no better off with the maxim 
 than without it. 1 
 
 I am under the impression that the famous maxim first came 
 into use in the middle ages, at a contested episcopal election, 2 
 
 1 Sir Wm. Hamilton begins the third paragraph, page 770, of The Works of 
 Thomas Reid on the Universality of the Philosophy of Common Sense, in this 
 way: 
 
 " I. Hesiod thus terminates his Works and Days: 
 
 fofirif ira/Mrav anoTdvTOi rjv nva TroAAo? 
 Aaol QjifuQavai. Gedf vv rif tori xal aoTrj. 
 
 " The Word proclaimed by the concordant voice 
 Of mankind fails not ; for in Man speaks God." 
 
 " Hence the adage? Vox Populi, vox Dei." 
 
 It is well the learned sage added the query, for, historically at least, the V. P. 
 V. D. certainly does not come from Hesiod. 
 
 * For many years I was under the impression that I had found this fact when 
 studying the times of Abelard ; but I must confess that all my attempts to recover 
 it, when I came to write on this subject, have been fruitless. Sanderson, whom 
 Mr. Hallam calls the most distinguished English casuist, treats of the maxim in 
 his work De Conscientia. I copy from the London Notes and Queries, Nov. 19, 
 1853, the following passage, which was elicited by the preceding portion of this 
 note: 
 
 " The earliest known instances of the use of the saying are, by William of 
 Malmesbury, who, speaking of Odo yielding his consent to be Archbishop of 
 Canterbury, A.D. 920, says, Recogitans illud Proverbium, ' Vox Populi, vox Dei;' 
 and by Walter Reynolds, Archbishop of Canterbury, who, as we learn from
 
 AND SELF-GOVERNMENT. 
 
 401 
 
 when the people, by apparent acclamation, having elected one 
 person, another a'spirant believed he had a better right to the 
 episcopate on different grounds or a different popular acclama- 
 tion. That the maxim has a decidedly medieval character no 
 one familiar with that age will doubt. The middle ages are, 
 indeed, characterized by the fact that all Europe was parcelled 
 out, not in states, but under a political system of graduated and 
 encapsulated allegiance ; but where this system failed to reach 
 a sphere with its many ramifications, the same age bore a con- 
 clamatory character, especially in the earliest times. When a 
 king was elected it was by conclamation. The earliest bishops 
 of Rome were elected or confirmed by conclamation of the 
 Roman people. Elections by conclamation always indicate a 
 rude or deficiently organized state of things ; and it is the 
 same whether this want of organization be the effect of primi- 
 tive rudeness or of relapse. Now the maxim we are consider- 
 ing has a strongly conclamatory character, and to apply it to 
 our modern affairs is degrading rather than elevating them. 
 
 How shall we ascertain, in modern times, whether anything 
 be the voice of the people ? and next, whether that voice be 
 the voice of God, so that it may command respect ? For, un- 
 less we can do this, the whole maxim amounts to no more than 
 a poetic sentence expressing the opinion of an individual, but 
 no rule, no canon. 
 
 Is it unanimity that indicates the voice of the people? 
 Unanimity in this case can mean only a very large majority 
 But even unanimity itself is far from indicating the voice of 
 God. Unanimity is commanding only when it is the result of 
 digested and organic public opinion, and even then, we know 
 perfectly well that it may be erroneous and consequently not 
 the voice of God, but simply the best opinion at which erring 
 and sinful men at the time are able to arrive. 
 
 Walsingham, took it as his text for the sermon which he preached when Edward 
 III. was called to the throne from which the people had pulled down Edward II 
 The reader is farther referred to Mr. G. Cornewall Lewis's Essay on the Influence 
 of Authority in Matters of Opinion, (pp. 172, 173, and the accompanying notes,) 
 for some interesting remarks upon it." 
 
 26
 
 402 
 
 ON CIVIL LIBERTY 
 
 Mr. Say informs us that when the first cotton manufactures 
 were introduced into France, petitions from all the incorpo- 
 rated large towns, from merchants and silk-weavers, were sent 
 to Paris, clamoring in vehement terms against the " ungodly 
 calico prints." Rouen, now the busiest of all the French cot- 
 ton manufacturing places, was among the foremost, and the 
 petition of the united three corporations of Amiens ended 
 thus : " To conclude, it is enough for the eternal prohibition 
 of the use of printed calicoes, that the whole kingdom is chilled 
 with horror at the news of their proposed toleration. Vox 
 populi vox Dei." This might well be considered as sufficient 
 to prevent every reflecting man from using the maxim. We 
 now know that the cotton tissue has become one of the great- 
 
 o 
 
 est blessings of our race, giving comfort, health, and respect- 
 ability to entire masses of men formerly doomed to tatters, 
 filth, and its fearful concomitants, typhus and vice, and we 
 know too that cotton manufacture is one of the most lucrative 
 branches of French industry. 
 
 Unanimity of itself proves nothing worth being proved for 
 our purpose. In considering unanimity, the first subject that 
 presents itself to us is that remarkable phenomenon called 
 Fashion a phenomenon wellnigh calculated to baffle the most 
 searching mind, and which has never received the attention it 
 deserves at the hands of the philosopher, in every point of view, 
 whether psychological, moral, economical, or political. Unas- 
 sisted by any public power, 1 by the leading minds of the age, 
 by religion, literature, or any concerted action, it nevertheless 
 rules with unbending authority, often in spite of health, com- 
 fort, and taste, and it exacts tributes such as no sultan or legis- 
 lature can levy. While it often spreads ruin among producers 
 and consumers, it is always sure to reach the most absolute 
 czar and subject his taste. Though the head may wear a 
 crown, Fashion puts her shears to its hair, if she has a mind 
 to do so. Far more powerful than international law, which 
 
 * It may, however, be mentioned, as a historical fact, that even fashion has 
 been shrewdly drawn within the sphere of public action and influence, by the 
 Emperor Napoleon III., through his graceful empress.
 
 AND SELF-GOVERNMENT. 
 
 only rules between nations, she brings innumerable nations 
 into one fold, and that frequently the fold of acknowledged 
 folly. How can we explain this stupendous phenomenon ? It 
 is not necessary to do so here. The fact, however, must be 
 acknowledged. It is the most remarkable instance of una- 
 nimity, but will any one say that Fashion is a vox Dei ? The 
 very question would be irreverent were it not candidly made 
 in a philosophical spirit. 
 
 Nor is the dominion of fashion restricted to dress and fur- 
 niture, nor to the palate and minor intercourse. Bitter as the 
 remark may sound, it is nevertheless true that there are coun- 
 tries void of institutions, where a periodical on political fashions 
 might be published, with the same variety of matter as the 
 Petit Courrier des Dames. 
 
 There was a fearful unanimity all over Europe in the san- 
 guinary and protracted period of witch-trials, joined in by 
 churchmen and laymen, Protestant and Catholic, Teuton, Celt, 
 and Sclavonic, learned and illiterate. If the fallacious and 
 in some respects absurd " Quod ab omnibus, semper, ubique," 
 ever seemed to find an application, it was in the witch-trial 
 from the earliest ages of history, and in all countries down to 
 the time when very gradually it ceased to be ab omnibus, 
 semper, ubique. But was Sprenger's sad Malleus Maleficarum 
 on that account the voice of God? 1 What fearful fanaticisms 
 
 1 It has been calculated that several millions of human beings have been sacri- 
 ficed by witch-trials in modern times. [!] An article in the Westminster Review, 
 January, 1859, shows that the belief in witches is yet causing occasional disorder 
 and crime in England. Indeed, if the famous Quod omnibus, etc., could ever 
 be applied to any subject, it is to this. It has existed and still exists in all the 
 corners of the earth, and with tribes wholly insulated. There has been always 
 whipping in the armies, until Always ceased ; there was always slavery until it 
 ceased ; a multitude of gods was always worshipped ; ghosts were always be- 
 lieved in ; oracles were always believed in ; to take interest from the borrower 
 was always declared a crime; it was always believed that the earth is flat or 
 that the sun moves ; it was always believed that Jews poisoned the wells, or that 
 some general distemper whose causes could not be explained arose from poi- 
 soned wells ; people always believed that governments must answer for famines ; 
 gold was always believed to have some mysterious power, physical as well as 
 psychological ; the stars were always believed to influence the character of indi-
 
 404 
 
 ON CIVIL LIBERTY 
 
 have not swept over whole countries with deplorable una- 
 nimity! The Romans were unanimous enough when they 
 slaughtered the worshippers of that God whose authority is 
 invoked to dignify the voice of men in the fallacious maxim. 
 If the voice of the people were the voice of God, the voice 
 of the people ought not only to be unchangeable, but there 
 ought to be one people only. Two nations frequently clamor 
 for war, and both, under the motto Vox populi vox Dei, draw 
 the sword against each other. 
 
 A remarkable degree of unanimity prevails in all those 
 periods of excited commercial speculation, such as the Mis- 
 sissippi scheme in France, the South Sea scheme in England, 
 the railway mania we have seen in the same country, or the 
 commercial madness in our land some fifteen years ago. 
 
 If we carefully view the subject of unanimity, we shall find 
 that in the cases in which vast action takes place by impelled 
 masses and it is in these cases that the maxim is invoked 
 error is as frequently the basis as truth. It is panic, fanati- 
 cism, revenge, lust of gain, and hatred of races that produce 
 most of the sudden and comprehensive impulses. Truth travels 
 
 viduals; kings were always believed to have a peculiar healing power; it was 
 always believed that wealth consists in money, and that therefore as one country 
 gets rich others must needs get poorer, or that in the same degree as one man 
 increases his wealth so he deprives others of it ; it was always believed that the 
 security of the state requires the masses to be ground down ; it was always be- 
 lieved that the eastern continent was all the land of the earth, and the suspicion 
 that there might be another continent was even declared heretical ; it was always 
 believed that great cleanliness was not conducive to the health of children; it 
 was always believed that indicted persons ought to be tortured, if they would 
 not confess otherwise ; it was always believed that persons accused of treason or 
 witchcraft ought not, on account of the " heinousness of their crimes," to have 
 that protection which was granted to other indicted prisoners until the Always 
 and Everywhere ceased. These errors, most of which have caused commotions, 
 risings, and bloodshed, were certainly the opinion of the people ; they were the 
 opinion of our whole race, but assuredly not the vox Dei. 
 
 Wherever a Semper et ubique exists, such as it is, and if not artificially pro- 
 duced, there must be some adequate reason for it, but it need not be a good one, 
 or founded in truth. When the semper et ubique is urged, in order to prove a 
 thing, it has already ceased to be semper, etc. On the other hand, the maxim 
 ought indeed to prevail unless there is good reason for the contrary opinion.
 
 AND SELF-GOVERNMENT. 
 
 405 
 
 slowly. Indeed, all essential progress is typified in the twelve 
 humble men that followed Christ. The voice of God was not 
 then the voice of the people. What the ancients said of the 
 avenging gods, that they are shod with wool, 1 is true of great 
 ideas in history. They approach softly. Great truths always 
 dwell a long time with small minorities, and the real voice of 
 God is often that which rises above the masses, not that which 
 follows them. 
 
 But the difficulty of fixing the meaning of this saying is not 
 restricted to that of ascertaining what is the voice of God. It 
 is equally difficult to find out what is the voice of the people. 
 If by the voice of the people be meant, as was stated before, 
 the organically evolved opinion of a people, we do not stand 
 in need of the saying. We know we ought to obey the laws of 
 the land. If by the voice of the people be meant the result 
 of universal suffrage without institutions, and especially in a 
 large country with a powerful executive, not permitting even 
 preparatory discussion, it is an empty phrase ; it is deception, 
 or it may be the effect of vehement yet transitory excitement, 
 or of a political fashion. The same is true when the clamor- 
 ing expression of many is taken for the voice of the whole 
 people. 2 
 
 In politics, as in other spheres, it is never the loudest who 
 are the wisest, though they are those who are heard and whom 
 flatterers pretend to treat as the people and as the utterers of 
 the voice of God. Governments frequently rule nations as 
 some of the French theatres are ruled. Paid applauders, 
 called claqueurs, force many a piece through a long series of 
 performances ; and it is these very governments of claqueurs 
 that resort most frequently to the Vox populi vox Dei. Yet 
 Mademoiselle Mars, one of the most distinguished French 
 actresses that have ever played, was in the habit of saying, 
 How much better we would play if we cared less for applause ! 
 
 1 Dii laneos habent pedes. 
 
 The doctrine Vox Populi Vox Dei, is capable of development. In Novem- 
 ber, 1857, some female, addressing a crowd in the city of New York, said : The 
 voice of the working-men is the voice of God.
 
 406 ON CIVIL LIBERTY 
 
 Another instance, showing that no dependence can be placed 
 upon the maxim, is that of proverbs. They are doubtless the 
 voice of the people, and many of them contain much wisdom > 
 but there are also many in favor of our worst passions and 
 meanest dispositions. 
 
 The following rhymes are given by Trench in his Lessons 
 in Proverbs, as " of an old poet :" 
 
 " The people's voice the voice of God we call ; 
 And what are Proverbs but the people's voice, 
 Coined first and current made by public choice ? 
 Then sure they must have weight and truth withal." l 
 
 A very large class of proverbs is directed against peasants 
 and the laboring classes ; against women, lawyers, physicians 
 indeed, against all the staple topics of former satire. 
 
 Whoever wishes to give great importance to a general move- 
 ment, or sincerely believes it to be truly noble, calls it the 
 voice of God. Pope Pius IX., in his proclamation of the 3Oth 
 of March, 1848, says, in speaking of the general and enthusi- 
 astic movement of the Italians for Italy and Independence : 
 " Woe to him who does not discern the Vox Dei in this blast," 
 etc. It cannot be supposed that the pope now considers that 
 blast to have been the Vox Dei. 
 
 Sometimes the maxim is doubtless used in good faith, as 
 the French at times use, without reserve, that favorite expres- 
 sion of theirs : The instinct of the masses ; but generally, I 
 think, Vox populi vox Dei is used either hypocritically or 
 when people have misgivings that all may not be right, pretty 
 much in the same manner as persons say that an argument is 
 unanswerable, when they have a strong foreboding that it may 
 be found very answerable. 
 
 1 Which might lead to this syllogism : 
 Vox Populi Vox Dei. 
 Proverbs are the voice of the people, 
 Hence proverbs are the voice of God ; 
 There are many wicked proverbs, 
 Ergo, etc. etc.
 
 AND SELF-GOVERNMENT. 
 
 407 
 
 Vox populi vox Dei has never been used in France so 
 frequently as after the second of December, yet there are 
 unquestionably thousands in that country who would find 
 their religious convictions much bewildered, if they were 
 obliged to believe that it was the voice of God which spoke 
 through ballot boxes under the management of the most 
 centralized executive in existence ; and that the voice of the 
 Deity requires a thousand intrigues among men for its utter- 
 ance. 
 
 The doctrine Vox populi vox Dei is essentially unrepub- 
 lican, as the doctrine that the people may do what they list 
 under the constitution, above the constitution, and against the 
 constitution, is an open avowal of disbelief in self-govern- 
 ment. 
 
 The true friend of freedom does not wish to be insulted by 
 the supposition that he believes each human individual an 
 erring man, and that nevertheless the united clamor of erring 
 men has a character of divinity about it; nor does he desire to 
 be told that the voice of the people, though legitimately and 
 institutionally proclaimed and justly commanding respect and 
 obedience, is divine on that account He knows that the ma- 
 jority may err, and that he has the right and often the duty 
 to use his whole energy to convince them of their error, and 
 lawfully to bring about a different set of laws. The true and 
 stanch republican wants liberty, but no deification either of 
 himself or others ; he wants a firmly built self-government 
 and noble institutions, but no absolutism of any sort none 
 to practise on others, and none to be practised on himself. He 
 is too proud for the Vox populi vox Dei. He wants no divine 
 right of the people, for he knows very well that it means 
 nothing but the despotic power of insinuating leaders. He 
 wants the real rule of the people, that is, the institutionally 
 organized country, which distinguishes it from the mere mob. 
 For a mob is an unorganic multitude, with a general impulse 
 of action. 1 Woe to the country in which political hypocrisy 
 
 The subject of Mobs has been enlarged upon in the Political Ethics.
 
 40 8 ON CIVIL LIBERTY 
 
 first calls the people almighty, then teaches that the voice of 
 the people is divine, then pretends to take a mere clamor for 
 the true voice of the people, and lastly gets up the desired 
 clamor. The consequences are fearful, and invariably unfitting 
 for liberty. 
 
 Whatever meaning men may choose, then, to give to Vox 
 populi vox Dei, in other spheres, or, if applied to the long 
 tenor of the history of a people, in active politics and in the 
 province of practical liberty, it either implies political levity, 
 which is one of the most mordant corrosives of liberty, or 
 else it is a political heresy, as much so as Vox regis vox Dei 
 would be. If it be meant to convey the idea that the people 
 can do no wrong, it is as grievous an untruth as would be con- 
 veyed by the maxim, the king can do no wrong, if it really 
 were meant to be taken literally. 
 
 However indistinct the meaning of the maxim may be, the 
 idea intended to be conveyed, and the imposing character of 
 the saying, have, nevertheless, contributed to produce in some 
 countries a general inability to remain in the opposition that 
 necessary element of civil liberty. A degree of shame seems 
 there to be attached to a person that does not swim with the 
 broad stream. No matter what flagrant contradictions may 
 take place, or however sudden the changes may be, there 
 seems to exist in every one a feeling of discomfort until he 
 has joined the general current. To differ from the dominant 
 party or the ruling majority appears almost like daring to 
 contend with a deity, or a mysterious yet irrevocable destiny. 
 To dissent is deemed to be malcontent; it seems more than 
 rebellious, it seems traitorous ; and this feeling becomes ulti- 
 mately so general that it seizes the dissenting individuals 
 themselves. They become ashamed, and mingle with the rest. 
 Individuality is destroyed, manly character degenerates, and 
 the salutary effect of parties is forfeited. He that clings to his 
 conviction is put in ban as unnational, and as an enemy to the 
 people. Then arises a man of personal popularity. He ruins 
 the institutions; he bears down everything before him; yet he 
 receives the popular acclaim, and, the voice of the people
 
 AND SELF-GOVERNMENT. 409 
 
 being the voice of God, it is deemed equally unnational and 
 unpatriotic to oppose him. 1 
 
 1 The Paris journal, Le Pays, informed the public, at the time the present em- 
 pire was established, that it had been raised to the dignity of an official paper to 
 the imperial government. The announcement is made in that proclamatory and 
 sententious style so much relished by the French, and in one of the paragraphs, 
 standing by itself, it offers, with a naivet6 which surpasses anything the writer 
 can remember, this comforting assurance : 
 
 " In approaching power more closely, we shall not cease to have opinions." 
 
 The facts that it is the "journal of the empire," that the whole article is short, 
 that every sentence seems to be well weighed by the editor, a writer of note, 
 and that the declaration was made on a very important occasion, give to the 
 whole a character which entitles us to take it as something more than a passing 
 newspaper sentence. 
 
 When the maxim Vox populi vox Dei prevails, and governments change in 
 rapid succession, it is a necessary result that there are hosts of turncoats. The 
 French published in 1826, or thereabouts, a bitter satire on this herd of poli- 
 ticians, consisting of a work called Dictionnaire des Girouettes literally trans- 
 lated, Dictionary of Weathercocks ; but Anglicized, Dictionary of Turncoats. 
 The names which headed the biographies in the book were succeeded by a 
 number of symbolical weathercocks equal to the number of political somersets 
 of which the respective persons could boast. There was a fearful row of hiero- 
 glyphical vanes after some names. But in reading this droll and bitter account 
 relating to a foreign nation, let us not forget St. Luke, vi. 41.
 
 APPENDIX. 
 
 411
 
 APPENDIX 1. 
 
 A PAPER ON ELECTIONS, ELECTION STATISTICS, AND GENERAL 
 VOTES OF YES OR NO. 
 
 CONSCIENTIOUS and well-informed men may possibly differ in 
 opinion as to the question whether Cromwell was at any time the 
 freely accepted ruler of the English people ; whether he was gladly 
 supported by the people at large and readily acquiesced in by a 
 small minority ; whether he imposed himself upon the country by 
 the army and allayed opposition by the wisdom of his statesman- 
 ship ; or whether he chiefly ruled by armed fanaticism. But it 
 may be asserted without hesitation, that there is neither English- 
 man nor American, substantially acquainted with elections, whose 
 judgment on this subject could be influenced in any degree, one 
 way or the other, were he informed that Cromwell had received 
 an overwhelming majority of votes all over England confirming 
 him in his absolutism, after he had passed his famous ordinance of 
 1655, by which he divided the British territory into twelve districts, 
 each presided over by a major-general with absolute power over 
 the inhabitants, all existing laws to the contrary notwithstanding. 
 There is not an American or Englishman, I think, who believes 
 that such a confirmatory vote could have added to his right, or that, 
 had such an event taken place, it could have kept Richard Crom- 
 well on the protector's throne, or retarded the return of Charles 
 the Second, a single day. And the larger the majority for Crom- 
 well should have been, the more we would now consider it as a 
 proof of the activity exerted by the major-generals, both in press- 
 ing and compressing, but no one of us would connect it in any way 
 with a presumed popularity of Cromwell, or consider it as an index 
 of the opinion which the people at large entertained of his repeated 
 making and unmaking of parliaments. 
 
 A real or pretended result of such ex post facto votes may have 
 a certain proclamatory value ; it may be convenient to point to it 
 
 413
 
 414 
 
 ON CIVIL LIBERTY 
 
 and decline all farther discussion ; "The People's Elect" may be 
 a welcome formula for ribboned orators, expectant poets, or time- 
 serving editors ; but there is no intrinsic value in it. Votes of this 
 sort have no meaning for the historian, at least so far as the subject 
 voted on is concerned, and they have a melancholy meaning for 
 the contemporary patriot. There seems to be a Nemesis eagerly 
 watching these votes, and each time proving, by events succeeding 
 shortly after, how hollow they were at the time. 
 
 An election, 1 which takes place to pass judgment on a series of 
 acts of a person, or to decide on the adoption or rejection of a 
 fundamental law, can have no value whatever, if the following 
 conditions are not fulfilled : 
 
 i. The question must have been fairly before the people for a 
 period sufficiently long to discuss the matter thoroughly, and under 
 circumstances to allow a free discussion. Neither the police re- 
 strictions of government, nor the riotous procedures of mobs, nor 
 the tyranny of associations ought to prevent the formation of a 
 well-sifted and duly modified average public opinion. The liberty 
 of the press, therefore, is a conditio sine qua non. If this be not 
 the case, a mere general opinion of the moment, a panic on the 
 one hand, or a maddened gratitude, for real or imaginary benefits, 
 of a multitude excited for the day or the period, may hastily and 
 unrighteously settle the fate of generations to come, and passion, 
 fear, or vain glory may decide thatwhich ought to be settled by the 
 largest and freest exchange of opinions and the broadest reciprocal 
 modification of interests. It requires time for a great subject to 
 present itself in all the aspects in which it ought to be viewed and 
 examined, and for a great public opinion to form itself the more 
 time, the vaster the subject. All the laws regulating the formation 
 of opinion in the individual apply with greater force to the forma- 
 tion of public opinion. 
 
 It is especially necessary that the army be in abeyance, as it 
 were, with reference to all subjects and movements appertaining 
 to the question at issue. The English law requires the removal 
 of the garrison from every place where a common election for 
 parliament is going on. Much more necessary is the total neu- 
 trality of the army in an election of the sort of which we now treat. 
 
 1 There is no other term in our language, although it is obvious that these pro- 
 cesses cannot be properly called elections. Votings would be more correct.
 
 AND SELF-GOVERNMENT. 
 
 415 
 
 2. The election must be carried on by well-organized election 
 institutions, extending over small districts, because in that case 
 alone can a really general voting be secured. 
 
 3. All elections must be superintended by election judges and 
 officers independent of the executive or any other organized or 
 unorganized power of government. The indecency as well as the 
 absurdity and immorality of government recommending what is to 
 be voted ought never to be permitted. 
 
 4. The election returns ought to be made so that they are not 
 subject to any falsification. They must not be fingered by the 
 government officers. This is especially important if the country 
 labors under a stringent centralism in which every civil officer 
 avowedly acknowledges, and is, according to command, bound to 
 acknowledge, no principle or law above the direct command of his 
 immediate superior ; in which the host of executive, administrative, 
 police and semi-military officers form a compact body receiving its 
 impulse of action exclusively from one centre ; in which publicity 
 is no pervading element of acts relating to the public interest ; and 
 in which no habits have yet been formed nor customs settled con- 
 cerning the whole comprehensive election business. 
 
 5. He, or that power, which passes under judgment, ought to be 
 in a position that, should the judgment turn against him, he can be 
 believed to abide by the judgment. If not, the whole is nothing 
 but a farce. 
 
 6. There must be really two things to choose between. If this 
 is not the case, the whole procedure amounts to no more than what 
 we familiarly call " Hobson's choice," on a gigantic scale. 
 
 If there be any reader who should object to this rule that, since 
 we speak of elections, it is evident that there must be two things 
 at least to select from, and that therefore this rule borders on the 
 ridiculous, I would only say that history shows people have not 
 always adopted it. There may be something ridiculous some- 
 where, but it is not in the rule. It would be ridiculous to lay 
 down the rule that, if people invite others to dinner, there ought 
 to be something to eat, only so long as invitations to empty tables 
 are assumed not actually to have taken place. 
 
 7. The power claiming the apparent judgment ought not to have 
 committed a criminal act, and then, as the law expresses it, insist 
 on deriving benefit from its own wrong. Nor ought he, who pre-
 
 416 ON CIVIL LIBERTY 
 
 tends to present himself for judgment, stand in the position of a 
 trustee, disputing the validity of the power by which nevertheless 
 he has acted, and under which he has accepted benefits. This is a 
 common rule in all law, because it is common sense, and it is for 
 the same reason a sound rule in politics. 1 
 
 In addition to these rules, I may remind the reader of a funda- 
 mental truth concerning all elections and votes a truth which is 
 simply prescribed by common sense, and yet has often been set 
 aside. A majority having voted for a subject is of no earthly value, 
 unless the subject be of such a character that there can be, at the 
 time, a public opinion about it. If there were, in a company of 
 men, different opinions as to the time of the day, we cannot solve 
 the difficulty by putting the question : " All who are in favor of its 
 being now six o'clock will say Aye ; those who are of the contrary 
 opinion will say No." a No majority of ever so vast a country can 
 decide for me the chloroform question, or whether Captain Erics- 
 son's steam generator be or be not practical. And no majority, no 
 matter how overwhelming, can be worth anything if there be not, 
 in addition to a proper apparatus of evolving public opinion, of 
 which we have spoken already, also one by which the true majority 
 can be ascertained. It is an utter and constantly recurring error 
 into which those that are unacquainted with the nature and the 
 economy of liberty fall, to believe that what liberty requires is the 
 ascertainment of incoherent votes on every question sprung upon 
 society separately and incoherently. A French paper recently said 
 that under certain circumstances the emperor Napoleon the Third 
 would put the question of war to the universal suffrage of France. 
 Of course I do not believe in the possibility of such an act, but I 
 have mentioned the statement as an illustration. How can the 
 Frencn people at large decide on a question of war or peace, if 
 
 1 This has been well pointed out in the case of Louis Napoleon, by the Hon. 
 A. P. Butler, United States senator for South Carolina. 
 
 * In the time of the late French so-called republic, it occurred in the little com- 
 mune Saint-Andr6 (department of Nord) that in a new church one of three 
 altars remained without a patron saint. There were three candidates : St. Joseph, 
 SL Roch, and St. Cecilia. The priest believed that the question had best be left 
 to the people. All voted, even women and children of discretion. St. Cecilia 
 carried the election by a majority of seventeen votes. The old Icelanders some- 
 times decided by vote whether Christ or the old gods should be worshipped.
 
 AND SELF-GOVERNMENT. 417 
 
 France cannot debate the matter, cannot reflect on it? and what 
 can a majority of votes on so grave a question mean, when the whole 
 management of the vote, from first to last, is in the hands of that 
 strongly concentrated government which puts the question ? 
 
 I return to the seven requisites which I have pointed out. 
 
 If any one of these conditions be omitted, the whole election or 
 voting is vitiated, and can in no way be depended upon. It will 
 go with every experienced and truthful citizen, and pass with every 
 serious historian, for nothing more than, possibly, for skilfully 
 arranged deceptions of the unwary and very inexperienced. It is 
 a question, indeed, whether these conditions can be frequently ful- 
 filled, and whether it be possible in the nature of things to fulfil 
 them at all, or any of them, in uninstitutional countries in large 
 countries enmeshed like a huge being by the close net-work of a 
 bureaucratic mandarinism. They must, then, be resorted to as 
 rarely as possible. In strictly organized police governments they 
 have no value, except for the very purpose of deceiving, or of giv- 
 ing an apparently more firmly-based fulcrum for the lever of the 
 power already existing. 
 
 Every one of my readers will agree with the necessity of the 
 condition which has been stated as the first. There is the greatest 
 difference between an accidental or momentary general opinion, 
 and an organically-produced, well-settled public opinion the 
 same difference which exists between a "decree of acclamation," 
 as those decrees in the first French revolution were called, which 
 were proposed and forthwith adopted by a burst of feeling or a 
 clamor of passions, and an extensive law which has first been dis- 
 cussed and rediscussed, called for and assailed in papers, pamphlets, 
 meetings, and institutions, and then, after long and patient debate, 
 passed through the entire sifting and purposely retarding, repeti- 
 tionary, and revisionary parliamentary process. Real public opinion 
 on public matters of a truly free people under an institutional gov- 
 ernment is generally the wisest master to which the freeman can 
 bow; general opinion is worth nothing as a political truth. It 
 may be correct ; it may be vicious, as a thousand rumors show, 
 and public rumor is general opinion. This subject of public and 
 merely general opinion has been largely discussed in the Political 
 Ethics. 
 
 When Cromwell had dissolved parliament, and even dissolved 
 
 27
 
 4I g ON CIVIL LIBERTY 
 
 the famous council of state, in spite of Bradshaw's opposition, we 
 are informed that addresses of gratulation and thanks reached him 
 from all parts of England, just as they were crowded upon L. N. 
 Bonaparte after the second of December, 1851. We cannot judge 
 whether they expressed the opinion of the majority; for in politics, 
 as in common life, it is the noisy that are heard and make them- 
 selves observed, while the majority and more substantial people are 
 silent and overlooked ; but, for argument's sake, we will grant that 
 those addresses to Cromwell expressed the opinions, the views, the 
 feelings of the majority of the nation at the moment. Even in 
 this case they expressed nothing more than the existing general 
 feeling, not the public opinion of England, as successive events 
 very soon proved. 
 
 To seize upon loud and demonstrative general opinion and feel- 
 ing of a part of the people, while compressing the public opinion 
 of the whole, is a frequent means of successful tyranny. It was 
 the way the first French convention frequently managed things, and 
 Danton knew it well. He acknowledged it. 
 
 As to the second and subsequent conditions which have been 
 enumerated, the following observations may prove of interest. 
 Numerous and extensive inquiries, referring to the United States 
 as well as to Europe, and some of which I propose to give to the 
 reader, have proved to me certain instructive facts relating to the 
 statistics of popular elections. I do not treat in this paper of the 
 voting in assemblies of trustees, of representatives or boards. 
 
 I must also remark that I shall always use the term election for ' 
 direct elections, in which the voter votes directly upon the ques- 
 tion at issue, and not for a person who will have the ultimate right 
 of the direct vote; either for a person or on a measure. The 
 election of our presidents was intended to be a double election, 
 and in form it continues to be such ; for we elect electors. But it 
 is well known that the election has long since become virtually a 
 direct one, so far as the individual votes express the desire of the 
 voters, because the persons voted for as electors declare beforehand 
 for whom they shall vote in case they are made electors, and 
 after being elected electors they do not become members of a de- 
 liberative body in which the question of the presidential election is 
 discussed.' 
 
 1 This knowledge of the vote which an elector will give does of course not
 
 AND SELF- G O VERNMENT. 
 
 419 
 
 Where the double election is introduced as an active principle, 
 it deprives elections of much, and often of all, interest, and is fre- 
 quently resorted to for this very purpose, by governments which 
 do not feel sufficiently strong to refuse the claims of the people to 
 a share in the government, yet desire to defeat the reality of such 
 a share. 
 
 The following, then, are the positions which experience seems 
 fully to bear out : 
 
 The more exclusive the privilege of voting is, the smaller is 
 the ratio of qualified voters who abstain from voting; and the 
 largest number of abstinents occurs where universal suffrage is 
 freely left to itself, and not interfered with by the executive. 
 
 The smaller the number of qualified voters, the smaller is also 
 the ratio of abstinents. 
 
 So soon as the number of qualified voters exceeds five or six 
 hundred, the number of abstinents will be at least twenty-five per 
 centum. 
 
 The larger the number of qualified voters, voting upon the same 
 question or persons, and under one and the same electoral system, 
 the larger is also the ratio of abstinents. 
 
 The larger the area over which one and the same election or 
 voting extends, the larger is the proportion of abstainers. 
 
 affect the result. Each elector represents a majority and a minority, but his vote 
 can only be cast for one candidate. Nevertheless, that which is called the popu- 
 lar vote indicates a proportion between the presidential candidates very different 
 from that which appears from the official votes of the electors. For instance, 
 the popular vote at the last presidential election stood : 
 
 For Pierce 1,504,471 
 
 " Scott 1,283,174 
 
 " Hale 148,851 
 
 and the votes of the electors stood 
 
 For Pierce 254 
 
 " Scott 42 
 
 So that the popular vote stood : 
 
 Pierce to Scott as 132 to loo. 
 But the votes of the electors : 
 
 Pierce to Scott as 605 to loo. 
 
 Such men as Benton, McDuffie, Calhoun, Huger, Pickens, of N. Carolina, 
 have recorded their opinion in favor of giving the election of the president to 
 the people.
 
 42O 
 
 ON CIVIL LIBERTY 
 
 When there are three fairly supported candidates, the total num- 
 ber of votes polled is larger than when there are but two candidates, 
 all other things being equal. 
 
 The whole number of polled votes, compared to the number of 
 qualified voters, does not necessarily indicate the interest a com- 
 munity may take in a measure or person. Whenever people feel 
 perfectly sure of the issue, there are many who abstain because 
 their votes will not defeat the opponent ; and many others abstain, 
 because their candidate will be elected at any rate. 
 
 If the number of qualified voters (voting exactly upon the same 
 question or person) exceeds several thousands, one-half of it is 
 generally a fair number for the actual voters ; two-thirds show an 
 animated state of things, and three-fourths are evidence of great 
 excitement. It will be observed that the words : Voting exactly 
 upon the same question or person are a necessary qualification of 
 these positions. Although an election all over England may turn 
 upon free trade or protection, yet, if it be a parliamentary election, 
 so that these questions appear only represented in the respective 
 candidates, it is clear that this would not be an election extending 
 over the area of England, in the sense in which the term is taken 
 here, or in which we take it when we speak of our presidential 
 election. 
 
 Voting upon men generally draws out more votes than voting 
 upon measures themselves. 
 
 Popular votes upon measures to be expressed by yes or no are 
 wholly fallacious, unless this vote be the last act of a long and 
 organic process ; for instance, if a new constitution has been pre- 
 pared by a variety of successive acts, and is ultimately laid before 
 the people with the question, Will you, or will you not, have it? 
 
 Popular votes in a country with an ample bureaucracy of a cen- 
 tralized government, on questions concerning measures or persons 
 in which the government takes a deep interest, and by elections 
 the primary arrangements of which are under the direction of the 
 government, that is, under the executive, must always be received 
 with great suspicion. It is a fact well worthy of remembrance, 
 that the French people have never voted no, when a question 
 similar to that which was settled, as it is called, by the election of 
 December, 1851, was placed before them. In the year 1793, in 
 the years III., VIII., and XIII., similar appeals were made, and the
 
 AND SELF-GOVERNMENT, 
 
 421 
 
 answer was always yes, by majorities even greater than that on 
 which Louis Napoleon Bonaparte rests his absolutism. When a 
 senatus consultum raised Napoleon the First to the imperial dignity, 
 and the people were appealed to, there were in the city of Paris 
 70 noes and 120,947 ayes, and in all France 2500 noes against 
 3,572.329 ayes. A vote of yes or no becomes especially unmean- 
 ing when the executive seizes the power by a military conspiracy, 
 and then pretends to ask the people whether they approve of the 
 act or not. 
 
 From the best authorities on the Athenian government, for in- 
 stance Boeckh's Political Economy of Athens, and Tittmann's Polit- 
 ical Constitutions of Greece, under the head of Ostracism, we see 
 that the common vote, polled by the Athenians, was about 5000 
 (Thucydides, viii. 72) out of from 20,000 to 25,000 qualified voters. 
 Six thousand votes were considered the largest amount. They 
 were required, therefore, for extraordinary cases, such as ostracism, 
 or for anything that was against established law, or related to indi- 
 viduals only. Six thousand Athenian votes thus practically cor- 
 responded to our two-thirds of votes requisite for some peculiar 
 cases purposely removed beyond the pale of a simple majority, 
 that is at least one more than one-half of the voters. Here, then, 
 we have one-fourth of qualified voters, usually voting, although 
 the voting took place in one and the same city by voters the great 
 majority of whom lived in the city. 
 
 Some writers have doubted whether six thousand votes upon the 
 whole were necessary for ostracism and other peculiar cases, or 
 six thousand votes in favor of the measure. I have no doubt that 
 the first was the case. Plutarch distinctly says that one of the 
 persons proposed was always ostracised, provided six thousand 
 votes had been cast. 1 (Aristides, i. 7.) The same passage seems 
 to prove that if six thousand votes, altogether, had been cast, he 
 who had the plurality of votes was banished ; for there were 
 
 1 [SchSmann, Gr. Alterth., i. 398, considers that 6000 was the number neces- 
 sary to be cast against any one person, following in this the corrected Schol. on 
 Aristoph. Eq. 852, (855.) Plutarch, not a first-rate authority, is a clear witness 
 on the other side. He says that the archons counted the mass of votes, and if in 
 all there were not 6000, declared that nothing had been done. This seems on 
 the whole most probable. It is not clear that a plurality out of 6000 decided the 
 istracism of one who had been voted upon.]
 
 422 
 
 ON CIVIL LIBERTY 
 
 frequently several persons proposed for ostracism, or citizens knew 
 that they were prominent, and therefore liable to fall within the 
 ostracophory, and tried to prove that they did not possess the 
 feared influence. Ostracism was a purely political institution, re- 
 sorted to by democratic absolutism to clip prominences and keep 
 the hedge on a level. It was no punishment, and until Hyper- 
 bolus, a low fellow, was ostracised, it added to the reputation of 
 a citizen. 
 
 That there were many abstainers from voting in Athens, we 
 know from the fact that on the one hand the lexiarchi sent their 
 toxots before them to mark with red-powdered cords the white 
 garments of those who tarried, so that the lexiarchi, six in number 
 with thirty assistants, might deprive them of the tickets by means 
 of which they could draw pay. In this, then, the Athenians re- 
 sembled the early inhabitants of New England, who punished 
 abstaining from voting or neglecting to send a written vote. 1 
 
 On the other hand, we know that every Athenian of the age of 
 twenty received at first one, then three oboli for attending a popu- 
 lar assembly. This reward was called ecclesiasticon. 
 
 Why there should have been at Athens so many more abstainers 
 than generally in modern times, may be explained, probably, on the 
 ground that many citizens were absent as soldiers, that many lived 
 in the country, and that Athens was a direct, untempered de- 
 mocracy. Where the democratic absolutism visibly appears every 
 day in the market, people get tired of it. Besides, the reason 
 which frequently induces so many of our best people to abstain 
 from voting, the unwillingness to leave business, must have oper- 
 ated very strongly in Athens, when voting was so frequent and 
 common. Let us imagine Boston or New York as an unmitigated 
 democratic city-state, calling ten times a year for the meeting of 
 the citizens ; does any one believe that the most constant voters 
 would come from the workshops and the ship-wharves rather than 
 from the tippling-shops and filthy lanes of vice? 
 
 I have stated already that I have directed my inquiries to elec- 
 tion statistics for many years, and over a very large space. The 
 reader will admit that I can give a few instances only. 
 
 In the year 1834, there were in France no more than 171,015 
 
 1 See the Laws of New Plymouth, published by Authority, Boston, 1836, pf 
 41 and 128.
 
 AND SELF-GOVERNMENT. 423 
 
 electors; yet 129,211 only were polled at the different electoral 
 colleges, that is only 75 out of 100 qualified voters availed them- 
 selves of their privilege. So there were in 1837 in the same coun- 
 try 198,836 qualified voters, and 151,720 votes were polled, which 
 makes 76 of 100. 
 
 It will be remembered how small a number of citizens compared 
 to the whole population were entitled to vote. The number of 
 qualified voters at each electoral college was very restricted, and 
 the voters formed a privileged class, compared to the other 
 citizens. 
 
 The January number of the Edinburgh Review of 1852 contains 
 a list of sixty-four English election districts, with the numbers of 
 registered or qualified voters, and of the actually polled votes in 
 each,- at the last general election. The districts whose qualified 
 voters amount to less than one thousand have been separated by 
 me from those which possess more than one thousand. The aver- 
 age number of voters of the first class was 500, and 25 per centum 
 on an average abstained from voting. The average number of 
 qualified voters of the other class was between 2000 and 3000, and 
 of them 42 per centum abstained. So that, if there be about 500 
 voters, only 75 in a hundred go to the poll; if there be about 
 2500, only 58 in a hundred do so. 
 
 This is the more striking if it be considered that one thousand 
 entitled voters is after all a very small number compared to those 
 to which we are accustomed, and that far the greater part of the 
 elections given in the mentioned table are town elections, or elec- 
 tions with the most easily accessible polls. 
 
 After the chief part of this paper had been written, a very 
 striking fact corroborated the results at which I had arrived. 
 The Edinburgh Review for October, 1852, contains an article on 
 Representative Reform, in which there is "A Table showing the 
 Number of Counties and Boroughs in England, Wales, and Scot- 
 land, in which Contested Elections have taken place in the year 
 1852." Where an election afterwards contested takes place, it 
 will be allowed that generally there must be great excitement. All 
 voters are brought up over whom the candidates or their agents 
 have any influence. Yet it appears from this table "that the 
 registered voters in all the contested places reached 507,192, while 
 those who recorded their votes did not exceed 312,289, or abp'U
 
 424 
 
 ON CIVIL LIBERTY 
 
 60 per cent of the whole." This is very remarkable; for out of 
 1 75 places or counties whose elections were contested, 46 only 
 numbered 3000 qualified voters or more. 
 
 The whole election to which all these statistics refer was that 
 between the adherents to the administration of Earl Derby, and 
 those who considered it an incumbrance to the country. The con- 
 test was between Free Trade and Protection, and, I suppose, the 
 English would plainly call it an excited election. 
 
 I pass over to instances not less striking, belonging to our own 
 country. 
 
 According to detailed official documents, giving the number of 
 qualified voters in every township in Massachusetts, and the num- 
 ber of votes actually polled during the election of the governor of 
 that state in 1851, an election of unusual excitement, there were 
 182,542 persons entitled to vote, and 131,187 votes actually re- 
 ceived. This gives less than three out of four qualified voters, or 
 less than 75 in a hundred. If we consider that Massachusetts is 
 no extensive country ; that it is more densely peopled than France, 
 having 127.40 inhabitants to the square mile, while France has 
 only about 125 ; that the roads are good and numerous ; that the 
 people are well trained in the whole election business ; and that, 
 as it has been stated, the excitement was very great, it furnishes us 
 with a striking piece of evidence that the electoral barometer will 
 hardly ever rise above 75 in a hundred. 1 
 
 There cannot be a more deeply interesting election than that 
 which took place in the year 1851 in South Carolina, in which the 
 
 1 In Letter VIII. of Silas Steadfast (believed to have been George S. Hillard) 
 en the proposed change of the constitution of Massachusetts, it is said : " In 
 point of fact, no governor of Massachusetts was ever chosen by a majority of all 
 the existing votes" 
 
 In November, 1853, when great excitement about the new constitution existed 
 in Massachusetts, the vote for governor (who was voted for at the same time) 
 stood thus : 
 
 Wh'g 66,759 
 
 Freesoil Democrat 35>779 
 
 National Democrat 5>47O 
 
 Freesoil 29,897 
 
 Scattering . . . , . . . . 224 
 
 138,129 
 which resembles closely the vote of 1851.
 
 A XD SELF- G O VERNMENT. 
 
 425 
 
 palpable question was, shall or shall not the state secede from 
 the Union? The political existence of the state formed the issue. 
 On that occasion 42,755 votes were polled, which, taking one- 
 fourth of the white population as the number of qualified voters, 
 would show that about two-thirds only of those who had a right 
 to vote actually did vote, or that 66 out of a hundred went to the 
 poll. 
 
 Connecticut, a small and densely peopled state, sent, at the very 
 excited election of 1852, about 75 or 76 out of each hundred voters 
 to the poll. The calculation has been made from the official elec- 
 tion returns, and taking one-fourth of the population as entitled to 
 vote, which I have found to be the average number, where univer- 
 sal suffrage exists. 
 
 These instances might be greatly multiplied from statistical ma- 
 terials collected by me. I may only add the proportion of ab- 
 stainers from our presidential elections since 1828. I have estimated 
 the number of qualified voters by calculating, for the election year, 
 the white population, according to the annual increments given by 
 Mr. Kennedy, the first superintendent of the United States Census 
 for 1850, and dividing that number by four. 1 I have called the 
 
 1 In dividing by four I reduce the number of qualified voters in the United 
 States too much, as will appear from the following table, abstracted from the 
 American Census of 1850, and kindly furnished me by Mr. De Bow, at present 
 superintendent of the census : 
 
 States. 
 
 Aggregate 
 population. 
 
 Total males 20 years 
 of age and over. 
 
 Ratio to the 
 whole population. 
 
 Massachusetts 
 
 QQ4..SI4. 
 
 280,623 
 
 2.C.4. 
 
 Rhode Island 
 
 14.7 54. i 
 
 4.O $6l 
 
 367 
 
 Connecticut 
 
 -J7O 7Q2 
 
 IO4.8^i; 
 
 J C-J 
 
 Pennsylvania 
 
 2.3II.786 
 
 572. 284. 
 
 4.O4. 
 
 Ohio 
 
 I 080 32Q 
 
 ATI COI 
 
 4 18 
 
 
 
 
 
 This gives an average ratio of 3.784. But this table shows the proportion of 
 white males of twenty years and upwards, while a person acquires the right of 
 voting with his twenty-first year only. It will be, therefore, pretty correct, if I 
 take one-fourth of the whole white population. In several states colored persons 
 go to the polls. If they were counted, it would reduce the proportion of actual 
 voters to the number of qualified voters ; but I am willing to take one-fourth 
 only.
 
 426 
 
 ON CIVIL LIBERTY 
 
 real voters in the table votants, and the qualified voters simply 
 voters.* 
 
 Vparc 
 
 White 
 
 Number of 
 
 Proportion of 
 
 
 population. 
 
 votes cast. 
 
 votants to voters. 
 
 1828 
 
 10,537,378 
 
 1,160,418 
 
 0.44 
 
 1832 
 
 11,169,616 
 
 1,290,468 
 
 0.46 
 
 1836 
 
 12,117,968 
 
 1,501,298 
 
 0.50 
 
 1840 
 
 14,189,895 
 
 2,402,659 
 
 0.67 
 
 1844 
 
 15,469,287 
 
 2,702,546 
 
 0.69 
 
 1848 
 
 17,154,55! 
 
 2,874,712 
 
 0.67 
 
 1852 
 
 20,027,899 
 
 2,936,896 
 
 0.58 
 
 It is necessary to take into consideration that in the whole south 
 of the United States voting is a right of a privileged class, and that 
 the proportion of abstainers is probably much smaller than it would 
 be otherwise. 
 
 Against this calculation, however, so uniform in England, here, 
 and in France in former times, we have the vote of seven millions 
 and a half for Louis Bonaparte in 1852, when France was asked 
 whether she approved of his breaking through oath and pledge, 
 and of his proffered despotism, annihilating not only her constitu- 
 tion, which indeed was more than a frail one, but all the progress 
 she had made in representative government, all her liberties, and 
 all her civil dignity, and submitting her fortunes and all to a ruler 
 who, never having been a soldier, tells civilized France that the 
 history of armies is the history of nations, that responsible min- 
 isters are nothing but incumbrances, and that France desires a 
 government which receives its whole impulse from one man.' 
 
 The statement which the government of the president of France 
 
 1 I am aware that, apparently, Votare has not been used in Low Latin for 
 voting. Du Cange says that Votum was used in the middle ages for suffrage, 
 but Votare for Vovere, Spondere. As it is, however, no uncommon case in the 
 English language to have a noun and an adjective which is not derived directly 
 from the former but from an intermediate though " missing" verb, which would 
 be derived from the noun, did it exist, I feel sure the reader will permit me to 
 use the term Votant, in a language in which brevity is often considered to cover 
 logical and etymological sins. 
 
 See the preamble to the constitution proclaimed by Louis Napoleon.
 
 AND SELF-GOVERNMENT. 427 
 
 officially published regarding the election which surrendered every- 
 thing to the unchecked sway of the despot was thus : 
 
 Voted Yes 7,439,216 
 
 Voted No . . . . . 640,737 
 
 Annulled votes ..... 36,820 
 
 Did not vote at all . . . . 37 2 >599 
 
 8,489,372 
 
 Whatever may be thought of the suspiciously small number of 
 noes, I do not believe that there is a man living who knows any- 
 thing of elections, and who is ready to accept the given number 
 of abstinents as a correct statement. According to the official 
 number, between four and five persons only in one hundred 
 abstained from voting, or were prevented by illness, absence from 
 home, old age, and the like, from doing so a number utterly in- 
 credible, and which, it must be believed, would have been allowed 
 to appear much larger had the officials who managed the business 
 been acquainted with the usual number of abstinents. The minister 
 of state, Mr. Persigny, stated himself, in a circular letter to the 
 prefects at a later period, that there were about eight millions of 
 voters in France. This agrees pretty well with the common rule 
 of taking about one-fourth of the whole population as the number 
 of qualified voters where universal suffrage exists. There must then 
 have been a great deal of manipulation within that number. This 
 is further proved when we consider that, according to the official 
 reports of the commissioners whom the chief of the French state 
 sent into the departments to see who of the political prisoners might 
 be pardoned, many thousands were actually in prison at the time of 
 the general election. Colonel Espinasse reports that in the depart- 
 ments of the Lot and Garonne, and the Eastern Pyrenees, there 
 were 30,000 affiliated socialists, and in the department of the 
 Herault 60,000. In three departments alone 90,000 disaffected 
 persons. If they voted, they must have been forced by the police 
 to vote for the coup d'etat : if they did not vote, what becomes of 
 the given number of abstinents ? But there is another fact which 
 shows the falsification of the statement, either by actually falsify- 
 ing the numbers, or by forcing people to give the desired vote, or 
 by both. 
 
 Algeria is not so directly under the influence of the police, nor
 
 428 ON CIVIL LIBERTY 
 
 could the statement concerning that colony be so easily falsified. 
 Accordingly we have the following: Out of 68,000 voters (the 
 army included) 50,000 abstained; 5735 voted for L. N. Bonaparte, 
 and 6527 against him. Eighteen thousand only seem to have 
 voted out of 68,000, not even 29 in 100. 
 
 I think this will sufficiently show how little reliance can be placed 
 upon such a vote in a centralized country, and how futile it is to 
 found any right or pretension upon it. Votes, without liberty of 
 the press, have no meaning ; votes, without liberty of the press, and 
 with a vast standing army, itself possessing the right to vote, and 
 considering itself above all law, have a sinister meaning; votes, 
 without an unshackled press, with such an army, and with a compact 
 body of officials, whose number, with those directly depending upon 
 them, or upon government contracts, amounts to nearly a million, 
 have no meaning, whether he who appeals to the people says that 
 he leaves "the fate of France in the hands of the people," or not. 
 
 This paper was written, with the exception which I have men- 
 tioned, after the vote on the coup d'etat had been given. Since 
 then, the plebiscitum, making Louis Napoleon emperor, has been 
 added. 
 
 The vote of the people on the question : Shall, or shall not, 
 Louis Napoleon Bonaparte assume the imperial crown ? is officially 
 stated to have been thus : 
 
 The number of electors inscribed in the de- 
 partments is . . . . . . 9,843,076 
 
 The number of the land and naval forces . 360,352 
 
 Total of voters ..... 10,203,428 
 This number is thus distributed : 
 
 Having voted yes 7,824,189 
 
 Having voted no ..... 253,115 
 
 Votes void on some account or other . . 63,326 
 
 Abstinents 2,062,798 
 
 Total 10,203,428 
 
 This shows a very different result from the vote on the coup 
 d'etat. It gives twenty-five abstinents in a hundred ; but there are 
 other points not easily understood. Of thirty-one persons, one 
 only voted no. This is a state of harmony to which people of the
 
 AND SELF-GOVERNMENT. 429 
 
 Anglican race, with all their calmer temper, we venture to say, 
 have never yet attained. It is equally inexplicable how, of a popu- 
 lation which, in 1851, amounted to 35,781,628, there can be, in 
 the year 1852, as many as 10,203,428 authorized to vote, or males 
 above twenty-one years old. The fourth part of 35,781,628 is 
 only 8,945,407; and, if a fourth part is correct, there would be 
 1,258,021 unaccounted for. Nor can we forget, here, the immense 
 number of persons who, according to official reports, are at any 
 given moment in the prisons of France. These, too, must be 
 deducted. 
 
 I add, in conclusion, the statement of a Paris paper, which gives 
 a different account, so far as that city is concerned. 
 
 In Paris, the number of abstinents were : 
 
 In 1848, for the presidential election . .0.25 
 In 1851, for the ratification of the coup d'etat, 
 and the election of the president for ten 
 years . . . . . . .0.20 
 
 In 1852, for the imperial crown . . . 0.14 
 
 Only about one-half as many abstained from voting, when the 
 empire was to be re-established, as abstained in the excited times 
 of the republic, when there were several candidates. 1 
 
 I do not believe that direct money-bribery exists in France to 
 any great extent. Universal suffrage, it would seem, would pre- 
 clude the possibility. But indirect bribery, by promises of promo- 
 tion, or allowing shares in profitable undertakings, and, above all, 
 intimidation, positive or indirect, I believe to have existed in the 
 
 1 On the loth of December, 1848, when the first French president, for four 
 years, was voted for : 
 
 There were polled 73 2 7>345 
 
 Of which : For Louis Napoleon .... 5,434,226 
 
 For General Cavaignac ...... 1,448,107 
 
 " Ledru Rollin ....... 376,119 
 
 " Lamartine 17.910 
 
 " Changarnier ....... 47Oo 
 
 Lost Votes 12,600 
 
 France contained, in the year 1846, 35,400,486 inhabitants; consequently, in 
 1848 there were about 9,000,000 of authorized voters; and 7,327,345 having 
 voted, about 80 in loo went to the poll, according to this statement. Yet it 
 must be supposed that the eagerness to go to the ballot-box was, in that year, 
 much greater than after the coup d'etat.
 
 430 
 
 ON CIVIL LIBERTY AND SELF-GOVERNMENT. 
 
 largest possible extent. We may certainly assume that every 
 government officer, or person connected in some way with govern- 
 ment, is worth his four or five votes at least which he will direct 
 as he in turn is directed to do by his superiors, or he loses his 
 place. 1 Then, we must take into account the influence of the 
 priests in rural communities, or of the bishops in general. They 
 openly exerted themselves, by word and letter, in favor of the present 
 emperor. The influence of the prefects and sub-prefects on all 
 occasions of election is uniform and perfectly well known, generally 
 quite public, and the annoyance to which a man exposes himself 
 by voting a ballot not agreeing with that which has been furnished 
 by the government, is so great that no independence exists at 
 French elections, except, in a limited degree, sometimes in Paris 
 itself, on account of its dense and large population, although the 
 influence of the court and government is there also the greatest on 
 ordinary occasions. 
 
 1 The reader cannot fail to remember here the constitution proposed by Mad. 
 de Stael for France, after the Restoration, and which was to consist of two 
 paragraphs only, namely, of one declaring all Frenchmen to be government 
 officers, and of another, providing that every government officer should have 
 a salary.
 
 APPENDIX II. 
 
 A PAPER ON THE ABUSE OF THE PARDONING POWER. 
 
 THIS paper was originally a report. I had been appointed by a 
 meeting of the Friends of Prison Discipline, without being present, 
 the chairman of a committee, which was requested to report to 
 the next meeting. on "The Pardoning Privilege and its Abuse." 
 The following was the result of this appointment. The legislature 
 of the State of New York did me the honor of publishing it as a 
 document ; but it was printed so incorrectly, the subject is of such 
 vital interest to a people who desire to live under the supremacy of 
 the law, and the abuse continues in many parts of our country to 
 so alarming an extent, that I do not hesitate here to reproduce the 
 paper. 
 
 The pardoning privilege consists in the authority partially or 
 wholly to remit the penalty which, in the due and regular course 
 of justice, has been inflicted for some offence. A pardon is always 
 an act of frustrating that common justice which has been estab- 
 lished by law as the best means of protection ; a nullification of 
 legal justice. It is the only power in modern politics, in which 
 the supremacy of the law is acknowledged as the primary condition 
 of liberty, that can be compared in any degree to the veto of the 
 ancient tribune. 1 It is an irregular power, depending upon irre- 
 sponsible individual will. We ought, therefore, clearly to be con- 
 
 1 An inaccuracy of terms has in the case of the veto power created much con- 
 fusion. The ancient tribune had the privilege of vetoing, and, a so-called vetoing 
 power being ascribed to the chief magistrate of modern constitutional states, 
 people are apt to confound the two, and attack or defend them on common 
 grounds. Yet the two differ materially. The Roman tribune [could prevent the 
 passage of a law and of a decree of the senate by his intercession or veto, and 
 he could by his auxilium, as the magistrate originally of the plebs, obstruct acts 
 of magistrates judged by him to be adverse to the interests of the plebs, (and 
 afterwards of the populus,) even to the extent of arresting them. This last was 
 
 431
 
 432 ON CIVIL LIBERTY 
 
 vinced of its necessity; and if this can be proved, we ought to 
 inquire whether so extraordinary a power must not be guarded by 
 proper limitations, especially if it should be found that it is liable 
 to be seriously and even alarmingly abused. 
 
 In order to understand more fully the whole subject, it will not 
 be amiss if we endeavor to obtain a view of the origin of this 
 power, and to see why it is that everywhere we find it as an at- 
 tribute of the chief executive power ; whether this fact must 
 be attributed to any inherent characteristics, or to incidental 
 circumstances. 
 
 When all government is yet mixed up with the family relations, 
 and the individual views of the ruler alone prevail, he pardons, as 
 a matter of course, whenever he sees proper and feels impelled so 
 to do ; but developed despotism over extensive states takes a dif- 
 ferent view. Fear of insecurity and suspicion of disobedience to 
 the commands of the despot often lead the ruler to fence himself in 
 with a strict prohibition of applications for pardon. That which a 
 wise people does for virtuous purposes by a constitution, namely, 
 the establishing, in calm times, of rules of action for impassioned 
 periods, distrusting their own power of resisting undue impulses, 
 and thus limiting their power, the despot does from fear of his own 
 weakness, and therefore limits his own absolute power that he may 
 not be entrapped into granting a pardon for disobedience. Chardin 1 
 
 their original power, in aid of which their inviolability was of importance.] But 
 the modern veto has nothing to do with the law once passed ; it amounts to no- 
 thing more than the withholding of one necessary ingredient to pass a bill into a 
 law. In governments where the crown has the concurrent or sole initiative, 
 either house, whose consent is necessary in order to make a law, may be said to 
 have the veto power against the crown with the same propriety with which we 
 call the power, in our president, of withholding his approval a vetoing power. 
 The president can never interrupt the operation of a law once made a law. In 
 the case of pardoning, however, the power actually amounts to a tribunitial veto. 
 There the executive, or whoever may possess the pardoning privilege, actually 
 stops the ordinary operation of the law. A man has been laboriously tried and 
 sentenced according to the course minutely laid down by the law, and another 
 power steps in, not according to a pi escribed course or process of law, but by a 
 pure privilege left to his own individual judgment, and says: I prohibit; and 
 the due and regular course of law is interrupted accordingly. This is vetoing 
 power in its fullest sense. See on the Veto, in chap. xvii. pp. 200, 201, 202, of 
 this work. 
 
 1 Voyage en Perse, London, 1686-1715.
 
 AND SELF-GOVERNMENT. 
 
 433 
 
 tells us that in his time it was, in Persia, highly penal to sue for 
 pardon for one's self or for another person ; the same was a capi- 
 tal offence under the Roman emperors at least under the tyrants 
 among them, who form the great majority of the fearful list. Still 
 it is clear that the last and highest power, the real sovereign (not 
 only the supreme) power, must include the power of pardoning. 
 As in Athens the assembled people had the right of remitting 
 penalties, 1 so does the civil law acknowledge the privilege in the 
 emperor who was supposed to be the sovereign, and acknowledged 
 as the source of all law. Christianity confirmed these views. The 
 mercy of the Deity is one of its chief dogmas; mercy, therefore, 
 came also to be considered as one of the choicest attributes of the 
 ruler, who on the one hand was held to be the vicegerent of God, 
 and on the other, the sovereign source of law and justice ; nor can 
 it be denied that, in times when laws were yet in a very disordered 
 state, the attribute of mercy in the ruler, and the right of pardon- 
 ing flowing from it, was of great importance, and, upon the whole, 
 probably beneficial to the people. The fact that the pardon- 
 ing power necessarily originated with the sovereign power, and 
 that the rulers were considered the sovereigns, is the reason why, 
 when jurists came to treat of the subject, they invariably presented 
 it as an attribute indelibly inhering in the crown. The monarch 
 alone was considered the indisputable dispenser of pardon ; and 
 this again is the historical reason why we have always granted the 
 pardoning privilege to the chief executive, because he stands, if 
 any one visibly does, in the place of the monarch of other nations, 
 forgetting that the monarch had the pardoning power not because 
 he is the chief executive, but because he was considered the sover- 
 eign the self-sufficient power from which all other- powers flow ; 
 while with us the governor or president has but a delegated power 
 and limited sphere of action, which by no means implies that we 
 must necessarily or naturally delegate, along with the executive 
 power, also the pardoning authority. 
 
 Although the pardoning power has always existed, and has 
 been abandoned by ultra-despotism for the sake of despotism itself, 
 yet the abuse to which it easily leads, and the apparent incon- 
 gruity which it involves, have induced many men of deep reflec- 
 tion, in ancient as well as in modern times, to raise their voices 
 
 1 Demosthenes against Timocrates. 
 28
 
 434 ON CIVIL LIBERTY 
 
 against it : of whom we may mention Plato and Cicero ' among 
 the ancients, and Pastoret, 2 Servin, Filangieri, and the benevolent 
 Beccaria among the moderns. The latter, the pioneer of penal 
 reform, and one of the benefactors of mankind, has the following 
 remarkable passage : 3 
 
 "As punishments become more mild, clemency and pardon are 
 less necessary. Happy the nation in which they will be considered 
 as dangerous ! Clemency, which has often been deemed a suffi- 
 cient substitute for every other virtue in sovereigns, should be 
 excluded in a perfect legislation where punishments are mild, and 
 the proceedings in criminal cases regular and expeditious. This 
 truth may seem cruel to those who live in countries where, from the 
 absurdity of the laws and the severity of punishments, pardons and 
 the clemency of the prince are necessary. It is, indeed, one of the 
 noblest prerogatives of the throne ; but at the same time a tacit 
 disapprobation of the laws. Clemency is a virtue which belongs 
 to the legislator, and not to the executor of the laws ; a virtue 
 which ought to shine in the code, and not in private judgment. 
 To show mankind that crimes are sometimes pardoned, and that 
 punishment is not a necessary consequence, is to nourish the flat- 
 tering hope of impunity, and is the cause of their considering every 
 punishment inflicted as an act of injustice and oppression. The 
 prince, in pardoning, gives up the public security in favor of an 
 individual, and by ill-judged benevolence proclaims a public act 
 of impunity. Let, then, the legislator be tender, indulgent, and 
 humane." 
 
 Among the truths of this passage there are some errors, the ex- 
 hibition of which will at once lead us to the consideration whether 
 the pardoning power, having already been admitted as an ex- 
 traordinary and super-legal one, be necessary at all in a well and 
 liberally constituted government, or ought to be suffered in a com- 
 munity which acknowledges the sovereignty of the law. Beccaria 
 says that clemency should be excluded in a perfect legislation, and 
 that pardon is a tacit disapprobation of the law. This is erro- 
 neous. No legislation can ever be perfect in the sense in which it 
 is taken here, namely, operating in all cases, in the same manner 
 toward exactly the same end, for which the legislator has enacted 
 
 1 Cicero in Verrem 7. * Des Lois P6nales. 
 
 Crimes and Punishments, chap. 46, on Pardons; English Translation, 1807.
 
 AND SELF- G O VERNMENT. 
 
 435 
 
 the law ; because the practical cases to which the laws apply are 
 complex, and often involve conflicting laws; because the legislator, 
 though he were the wisest, is but a mortal with a finite mind, who 
 cannot foresee every combination of cases ; because the changes of 
 society, things, and relations necessarily change the effect produced 
 by the same laws ; and because the law-maker cannot otherwise 
 than cast the rules of action, which he prescribes, in human lan- 
 guage, which of itself is ever but an imperfect approximation to 
 that which is to be expressed. 
 
 Laws cannot, in the very nature of things, be made abstract 
 mathematical rules ; and so long as we live on this earth, where 
 we do not see " face to face," where mind cannot commune with 
 mind except through signs which have their inherent imperfections, 
 cases must frequently occur in which the strict and formal applica- 
 tion of the law operates against essential justice, so that we shall 
 actually come to the conclusion that, in a country in which the 
 sovereignty of the laws is justly acknowledged, we stand in need 
 of a conciliatory power to protect ourselves against a tyranny of 
 the law, which would resemble the bed of Procrustes, and would 
 sometimes sacrifice essential justice as a bleeding victim at the 
 shrine of unconditional and inexorable law itself. It is to these 
 cases, among others, that the adage of the jurists themselves ap- 
 plies : Summum jus, summa injuria. We take it then for granted 
 on all hands, that, justice being the great end of all civil govern- 
 ment, and law the means to obtain it, the pardoning power is neces- 
 sary in order to protect the citizen against the latter, whenever, 
 in the peculiar combination of circumstances, it militates with the 
 true end of the state, that is, with justice itself. But it is equally 
 true that the supremacy of the law requires that the extraordinary 
 power of pardoning be wielded in the spirit of justice, and not 
 according to individual bias, personal weakness, arbitrary view, or 
 interested consideration ; a truth which is the more important in 
 our country, because the same principles which make us bow before 
 the law as our supreme earthly ruler, also bring the magistrate so 
 near to the level of the citizen that he who is invested with the par- 
 doning power is exposed to a variety of influences, individual and 
 political, which have a powerful, and often, as practice shows, an 
 irresistible effect, although there is no inherent connection between 
 them and the cases to which the pardon is applied influences, 
 therefore, which in this respect are arbitrary or accidental. All
 
 436 
 
 ON CIVIL LIBERTY 
 
 arbitrariness, however, is odious to sterling freedom in general, and 
 the arbitrary use of the pardoning power and its frequency pro- 
 duce the most disastrous consequences in particular. 
 
 It unsettles the general and firm reliance on the law, an abiding 
 confidence in its supremacy, and a loyal love of justice. 
 
 It destroys the certainty of punishment, which is one of the most 
 important and efficacious elements in the whole punitory scheme ; 
 and it increases the hope of impunity, already great, in the crimi- 
 nally disposed, according to the nature of man and the necessary 
 deficiency even of the best contrived penal systems. 
 
 It endangers the community, since it is perfectly true what the 
 prince of poets, in his great wisdom, has said : 
 
 Mercy is not itself, that oft looks so ; 
 Pardon is still the nurse of second woe. 
 
 It interferes most effectually with the wise objects of reform 
 which our penitentiary systems aim at ; for all men, practically ac- 
 quainted with their operation, are agreed that reform never fairly 
 begins in a convict before he has calmly made up his mind to sub- 
 mit to the punishment, and so long as a hope of pardon leads his 
 thoughts from the prison-cell to the anticipated enjoyment of 
 undue enlargement a phenomenon easy to be accounted for upon 
 psychological grounds. 
 
 It induces large numbers of well-disposed persons, male and 
 female, from a superficial feeling of pity, to meddle with cases of 
 which they have no detailed knowledge, and with a subject the 
 grave importance of which has never presented itself to their 
 minds. At times it induces persons to seek for pardons on frivo- 
 lous grounds, and leads communities to trifle with law, justice, and 
 government. 1 
 
 It largely attracts to the community, in which the pardoning 
 power is known to be abused, criminals from foreign parts where 
 such an abuse does not exist ; it imports crime. 
 
 It makes every sentence, not pardoned, an unjust one ; for, in 
 
 1 At the beginning of 1858 it appeared from certain documents published in 
 California, that a petition to the governor, numerously signed by citizens of Mon- 
 terey, to pardon one Jose Anastasia, under the sentence of death, claimed the 
 pardon on the ground that Jose was the only fiddler in Monterey that understood 
 properly to play for dancing.
 
 AND SELF-GOVERNMENT. 437 
 
 matters of state, every act should be founded on right and equal 
 justice. 1 No one, therefore, has the right, whatever his power may 
 be, to extend a favor to one without extending it to all equally 
 situated, and, consequently, equally entitled to the favor. The 
 doctrine of Dr. Paley, of ." assigning capital punishment to many 
 kinds of offences, but inflicting it only upon a few examples of each 
 kind," which he actually calls one of the "two methods of admin- 
 istering penal justice" amounts to revolting monstrosity if prac- 
 tically viewed, and to an absurdity in a philosophical and scientific 
 point of view. 
 
 It adds, with the very commonly annexed condition of expatria- 
 tion, the flagrant abuse of saddling, in an inhuman, unchristian, 
 and unstatesmanlike manner, neighboring communities with crime, 
 to which the people whose sacred and bounden duty it was to 
 punish it were too weak and negligent to mete out its proper 
 reward. 3 
 
 And it places an arbitrary power in the hands of a single indi- 
 vidual, or several individuals, in states where all arbitrary power is 
 disclaimed, and allows them by one irresponsible act to defeat the 
 ends of toilsome, costly, and well-devised justice and legislation, 
 putting the very objects of civil government to naught. 
 
 We do not theorize on this subject. All the disastrous effects 
 of the abuse of the pardoning power, whether inherent in the 
 power itself, when unlimited by proper restrictions, or arising out 
 of a state of things peculiar to ourselves, have shown themselves 
 among us in an alarming degree, and are in many parts of the 
 country on the increase. 
 
 For the proof of this evil state of things we appeal to every one 
 in our whole country who has made penal matters the subject of 
 
 1 Lord Mansfield is reported justly to have remarked to George III., who 
 wished to save the Rev. Dr. Dodd from the gallows, to which he had been sen- 
 tenced for forgery : " If Dr. Dodd does not suffer the just sentence of the law, 
 the Perreaus may be said to have been murdered." Holliday's Life of Lord 
 Mansfield, London, 1797, p. 149. The Perreaus were apothecaries of very 
 high standing, but had been hanged for forgery, in spite of the most weighty 
 petitions. 
 
 2 This unhallowed abuse has been raised into a law by Sir George Grey's 
 Expatriation Law, passed in 1847, according to which convicts who behave 
 well shall be pardoned after the lapse of two-thirds of the imprisonment to 
 which they had been originally sentenced, provided they will leave the country.
 
 43 8 ON CIVIL LIBERTY 
 
 earnest inquiry ; we appeal to the fact that, for a long series of 
 years, the official reports of persons connected with prisons and 
 penitentiaries, and of legislative committees, have teemed with 
 complaints of the mischievous effects of the pardoning power; we 
 appeal to the daily papers, near and far, and to recent occurrences 
 in one of our most prominent states, where pardons have been 
 granted to blood-stained criminals of the most dangerous, perse- 
 vering, and resolute sort, without even the least indication of their 
 reform, after a short time of imprisonment, which had already 
 been substituted for capital punishment ; we appeal to the statistics, 
 whenever they have been collected, from official documents, on 
 this melancholy subject ; and, lastly, we appeal to the presentments 
 of grand juries in several states of our Union, in which the fre- 
 quency of pardons under some governors has been called by the 
 severe yet merited name of nuisance. 
 
 So long ago as the year 1832, Messrs, de Beaumont and de 
 Tocqueville showed, in their work on the penitentiary system in 
 the United States, 1 by documents and statistical tables, the fright- 
 ful abuse of the pardoning power in the United States in general, 
 and the additional abuse, naturally resulting from the circum- 
 stances, that pardon is more liberally extended to those convicts 
 who are sentenced to a long period of imprisonment, or for life, 
 than to less criminal persons. We refer especially to the 2d part 
 of the i6th note of the appendix, page 232 of the translation. We 
 are aware that in some, perhaps in many, states of the Union, the 
 pardoning power has been used more sparingly since that time ; 
 but it will be observed that there is no security against a return to 
 the former state of things ; nor is the effect of pardoning, when it 
 is rare, yet abused in a few glaring cases, which attract universal 
 notice, less injurious ; for instance, when the member of a wealthy 
 or distinguished family is pardoned, although guilty of a well- 
 proven heinous crime, or when men are pardoned on political 
 grounds, although they have committed infamous and revolting 
 offences. Such cases have a peculiar tendency to loosen the neces- 
 sary bonds of a law-abiding and law-relying community, which 
 has nothing else, and is proud of having nothing else, to rely upon 
 than the law. 
 
 Many years ago Mr. M. Carey said, in his Thoughts on Peniten- 
 
 1 Translated, with many additions, by Francis Lieber, Philadelphia, 1833.
 
 AND SELF-GOVERNMENT. 
 
 439 
 
 tiaries and Prisons : "The New York committee ascertained that 
 there are men who make a regular trade of procuring pardons for 
 convicts, by which they support themselves. They exert them- 
 selves to obtain signatures to recommendations to the executive 
 authority to extend pardon to those by whom they are employed. 
 And in this iniquitous traffic they are generally successful, through 
 the facility with which respectable citizens lend their names, with- 
 out any knowledge of the merits or demerits of the parties. Few 
 men have the moral courage necessary to refuse their signatures 
 when applied to by persons apparently decent and respectable, and 
 few governors have the fortitude to refuse." 
 
 To this statement we have now to add the still more appalling 
 fact, which we would pass over in silence if our duty permitted it, 
 that but a short time ago the governor of a large state a state 
 amongst the foremost in prison discipline was openly and widely 
 accused of having taken money for his pardons. We have it not 
 in our power to say whether this be true or not ; but it is obvious 
 that a state of things which allows suspicions and charges so de- 
 grading and so ruinous to a healthy condition of public opinion, 
 ought not to be suffered. 1 It shows that leaving the pardoning 
 privilege, uncontrolled in any way, to a single individual, is con- 
 trary to a substantial government of law, and hostile to a sound 
 commonwealth. 3 
 
 A very interesting paper, relating to the subject of pardon, was 
 furnished in the year 1846 by the secretary of state of Massa- 
 chusetts, and published by the house of representatives of that 
 commonwealth. The paper is, of itself, of much interest to every 
 
 1 While these sheets are passing through the press, the papers report that the 
 governor of a large state has pardoned thirty criminals, among whom were some 
 of the worst character, at one stroke, on leaving the gubernatorial chair. What 
 a legacy to the people ! Lord Brougham said that the only aim of counsel for 
 the prisoner was to get him clear, no matter what the consequences might be. 
 If all the lawyers acted on this saying, and all the executives as the mentioned 
 governor, Justice might as well shut up her halls, and the people save the ex- 
 penses which they incur for the administration of justice. It is paying too dear 
 for a farce, which is not even entertaining. 
 
 3 In some of the worst governments, as those of Charles II., James II., and 
 Louis XV., pardons were sold, but not by the pardoning ruler. It was the mis- 
 tresses and courtiers who carried on the infamous traffic, though the monarchs 
 knew about it.
 
 440 
 
 ON CIVIL LIBERTY 
 
 penologist ; but, when we consider that Massachusetts justly ranks 
 amongst the best governed states of our Union, its value is much 
 enhanced ; for we may fairly suppose that the abuse of the pardon- 
 ing power exists in many of the other states in no less a degree. 
 In many, indeed, we actually know it to exist in a far greater and 
 more appalling degree. 
 
 From this document, 1 we have arrived at the following results : 
 
 There were imprisoned in the state of Massachusetts, from the 
 year 1807, inclusive, to the month of February, 1847, m tne state 
 prisons, convicted, 3850. 
 
 Of these were pardoned, before the term of imprisonment ex- 
 pired, 460. So that of the whole were pardoned 12 per cent., or 
 every eighth convict. 
 
 The average time of remaining in prison (of these 460,) com- 
 pared to the time of their original sentence, amounted to 65 per 
 cent. In other words, they remained in prison but two-thirds of 
 the time of imprisonment imposed upon them by the law of the 
 state. 
 
 Of the 460 pardoned convicts, there had been originally sen- 
 tenced to the imprisonment of ten years, or more, the number of 
 49. And the time which these convicts had actually remained in 
 prison, compared to the terms of their original conviction, amounts 
 to 60 per cent. ; so that a criminal sentenced to ten years, or more, 
 had a better chance of having his imprisonment shortened, than 
 those sentenced to a period less than ten years, in the proportion 
 of about six to seven in other words, while the less guilty was 
 suffering a week's imprisonment, the prisoners of the darkest dye 
 suffered six days only. 
 
 There were committed for life, by commutation of sentence, and 
 still further pardoned at a later period, from 1815 to 1844 inclusive, 
 seventy-five. The average time they actually remained in prison 
 was a fraction over seven years. So that, if we take twenty-five 
 years as the average time of a sentence of imprisonment for life, 
 we find that they remained in prison but little over one-fourth of 
 the time which had been allotted to them, in consequence of a first 
 pardon, (twenty-five per cent.,) or the executive substituted seven 
 years' imprisonment for death decreed by law. There were alto- 
 gether, committed for life by commutation of sentence, fifteen. 
 
 1 House of Representatives, of Massachusetts, 1846, No. 63.
 
 AND SELF-GOVERNMENT. 
 
 441 
 
 And, as we have seen that five of these were farther pardoned, we 
 find that one-third of the whole were pardoned (thirty-three per 
 cent.) It does not appear how many criminals were sentenced to 
 death, and what proportion thereof had their sentences commuted 
 to imprisonment for life. 
 
 The abuse of pardoning in the state of Massachusetts has, how- 
 ever, much decreased during the latter part of the period through 
 which the mentioned report extends; for, according to a table 
 published in the able and instructive third report of the New 
 York Prison Association, 1847, page 41 of the report of the Prison 
 Discipline Committee, we find that from 1835 to 1846 there was 
 pardoned in Massachusetts one convict of 1,804; while our state- 
 ment shows that in the period from 1807 to 1846 every eighth 
 convict was pardoned. 
 
 We beg leave to copy the chief result of the table just men- 
 tioned. 1 
 
 1 While the work was passing through the press, a document, published by the 
 Massachusetts convention to amend the state constitution, reached the writer. 
 It contains "A List of Pardons, Commutations and Remissions of Sentence, 
 granted to Convicts by the Executive of the Commonwealth for the ten years 
 including 1843 and 1852." Unfortunately, this important paper, which contains 
 the names of the persons, sentences, number of years sentenced, number of years 
 remitted, and the crimes, does not give any classifications, summings-up, or com- 
 parisons with the number of sentences and unremitted punishments. It only ex- 
 hibits the following recapitulation for 10 years from 1843 to 
 
 Full Pardons ......... 36 
 
 Remissions . ..... . . .319 
 
 Restorations ......... 103 
 
 Commutations ... ..... 35 
 
 Total .......... 483 
 
 This paper will doubtless be made the basis of very instructive statistical cal- 
 culations, and it is greatly to be desired that other states would follow. As it is, 
 I am incapable of giving at this moment any other information. It would require 
 other documents, which I have not about me. My remarks are not intended to 
 reflect on the gentleman who has drawn up the paper ; for it appears that the 
 convention ordered the paper on the 1 8th of June, and on July 5th it was handed 
 in. There was then no time to collect the materials for comparisons such as I 
 have alluded to. What is now most important to know is the sum total of what 
 sentences for what crimes were chiefly remitted or pardoned ; for what reasons, 
 what proportion pardons, &c., bear to unremitted sentences; for what crimes and
 
 442 ON CIVIL LIBERTY 
 
 Table showing the pardons in the following prisons in one or several 
 years from 1835 to 1846. 
 
 Vermont, one convict pardoned of 5.87 convicts. 
 
 Maine, " " 20.74 
 
 New Hampshire, " 4-5 6 
 
 Connecticut, " " 3 6 -5 " 
 
 Massachusetts, " " 18.04 
 
 Virginia, " " 33-31 
 
 Maryland, " 41.00 
 
 Sing Sing, " " 21.25 
 
 Auburn, " " 17-83 
 
 Eastern Penitentiary, " " 20.37 " 
 
 Western Penitentiary, " " 6.43 " 
 
 Mississippi, " " 10.81 " 
 
 Kentucky, " " 8.50 " 
 
 District of Columbia, " " 87.00 " 
 
 Ohio, " " 11.31 
 
 Rhode Island, " " 18.00 
 
 If we take the above list as a fair representation of the whole 
 United States, we shall find that one convict of 26.33 ^ s pardoned. 
 But we fear that this would not be very correct ; nor must it be 
 believed that any average number fairly represents the average mis- 
 chief vt the abuse of pardoning. Although there be but very few 
 convicts pardoned in a given community, yet incalculable mischief 
 may be done by arbitrarily or wickedly pardoning a few prominent 
 and deeply-stained criminals, as the average temperature of a place 
 may turn out very fair at the end of a year, while, nevertheless, 
 a few blasting night-frosts may have ruined the whole crop. 
 
 It ought to be kept in mind that, in all calculations of prob- 
 ability, averages must be taken with peculiar caution in all cycles 
 of facts in which an exceptionally high or low state of things pro- 
 duces effects of its own, differing not only in degree but also in 
 kind from the effects which result from the more ordinary state of 
 things. In these cases averages indicate very partial truth only, or 
 
 what duration these sentences were inflicted ; of what countries the pardoned, 
 &c., convicts were ; and what proportion the pardoned, &c., short sentences bear 
 to pardoned, &c., long sentences or death.
 
 AND SELF- G O VERNMENT. 
 
 443 
 
 cannot be taken as an index of the desired truth at all. The effects 
 of these maxima or minima are not distributive, and being effects 
 of a distinct class there are no facts in the opposite direction to 
 counteract them. This applies to moral as well as physical aver- 
 ages, and before we apply ourselves to averages at all we must dis- 
 tinctly know whether the elements we are going to use stand in the 
 proper connection with the nature of the result at which we desire 
 to arrive. 1 
 
 The abuse then exists, and exists in an alarming degree. How 
 is it to be remedied ? 
 
 In trying to answer this question, we would preface that we are 
 well aware that, unfortunately, the pardoning power is in almost 
 all states of our confederacy determined by their constitutions, 
 and cannot be changed without a change of these fundamental 
 instruments. The object of the present paper, however, is not to 
 propose any political measure. We shall treat the subject as a 
 scientific one, and an open question, irrespective of what can or 
 may be done in the different states in conformity with existing 
 fundamental laws. It is necessary, before all, to know what is the 
 most desirable object to be obtained. After this has been done, it 
 will be proper for every one concerned to adopt that practical 
 course which best meets his own peculiar circumstances, and to 
 settle how near his own means allow him to approach the desirable 
 end. 
 
 Many vague things have been asserted of the pardoning power 
 by writers otherwise distinguished for soundness of thought, because 
 
 1 A few examples may illustrate the truth too often forgotten : No farmer can 
 determine the fitness of a given climate for the culture of a certain plant from 
 the mean heat of the summer or the mean cold of the winter ; for the mean heat 
 does not indicate whether the weather is uniform or violently changeable ; the 
 mean interest at which money may have been obtainable in the course of the 
 year does not indicate the truth, unless we know that it has not been peculiarly 
 low at some periods and extraordinarily high at others ; the general criminality 
 of a community cannot be calculated from the percentage of crime, unless we 
 know that there has not been a peculiarly disturbing cause : for instance, one 
 man who has murdered half a dozen of people in a comparatively small com- 
 munity; and the mischief produced by pardons cannot be calculated by the 
 average percentage alone, if we do not know that among these pardons there 
 were not some peculiarly arbitrary or peculiarly hostile to the ends of justice. A 
 wholesale pardon may be warranted by the truest principles, and a single 
 arbitrary pardon may shock the whole community.
 
 444 ON CIVIL LIBERTY 
 
 they were unable to rid themselves of certain undefined views and 
 feelings concerning princes and crowns. Some have maintained 
 that the pardoning privilege can be justified only in the monarchy, 
 because the monarch combines the character of the legislator and 
 executive, while Montesquieu wishes to restrict the right to the 
 constitutional monarch alone, because he does not himself perform 
 the judicial functions. All these opinions appear to us unsubstan- 
 tial. There is nothing mysterious, nothing transcendental in the 
 pardoning power. The simple question for us is, Why ought it to 
 exist ? If it ought to exist, who ought to be vested with it ? 
 What are its abuses, and how may we protect ourselves against 
 them? 
 
 We have already seen that doubtless the pardoning power ought 
 to exist : 
 
 That there is no inherent necessity that it ought to exist in the 
 executive, or in the executive alone : 
 
 That a wide-spread abuse of the pardoning power exists, and 
 has existed at various periods : 
 
 That the abuse of the pardoning power produces calamitous 
 effects : 
 
 That the executive in our country is so situated that, in the 
 ordinary course of things, it cannot be expected of him that he will 
 resist the abuse : 
 
 And that the chief abuse of the pardoning power consists in the 
 substitution of an arbitrary use of power or of subjective views 
 and individual feelings, for high, broad justice, and the unwaver- 
 ing operation of the law, which ought to be freed from all arbitra- 
 riness. 
 
 We know, moreover, that all our constitutions, as well as the 
 laws of England, actually restrict the pardoning power in some 
 cases ; for instance, regarding impeachments, or fines to be paid to 
 private parties ; and in most of our states the executive is not in- 
 vested with the right of pardoning treason, which can only be done 
 by the legislature. 1 In others, again, the governor has no authority 
 
 1 The Constitution of the late French Republic of 1848 has this provision: 
 
 " Art. 55. He (the president of the republic) shall possess the right of pardon, 
 
 but he shall not have the power to exercise the right until after he has taken 
 
 the advice of the council of state. Amnesties shall only be granted by an 
 
 express law. The president of the republic, the ministers, as well as all other
 
 A ND SELF- G O VERNMENT. 
 
 445 
 
 to pardon capital punishment before the end of the session of that 
 legislature which first meets after the sentence of death has been 
 pronounced ; and in other states he has only the power of respiting 
 the capitally condemned criminal until the meeting of the legisla- 
 ture. It is obvious that no specific reason has induced our legisla- 
 tors to give the pardoning power to the executive. It was rather 
 left where they happened to find it, or they placed it by analogy, 
 and not in consideration of any intrinsic reasons. 1 
 
 If it be true that pardon ought to be granted only in cases in 
 which essential justice demands it against the law, or for very spe- 
 cific and peculiar reasons for instance, if a convict, sentenced to 
 a short imprisonment, is so feeble in health, that, no proper hos- 
 pital existing, the incidental consequences of imprisonment would 
 be infinitely severer than the law intended the punishment to be, a 
 
 persons condemned by the high court of justice, can only be pardoned by the 
 national assembly." 
 
 I do not consider it desirable that the pardoning power be given or imposed 
 upon a political body already existing for other purposes, as in this case to the 
 council of state ; but I have cited this provision to show that the French at that 
 time did not consider the limitation of the pardoning power in the executive 
 unfavorable to popular liberty. 
 
 1 A remarkable proof of this fact seems to have been afforded by the late con- 
 stituent assembly of the state of New York ; for, so far as we are aware, there 
 was no debate on the question whether the pardoning power ought to be left 
 uncontrolled in the hands of the executive. We can very well imagine that, 
 after a discussion of this subject, a majority might have decided, erroneously in 
 our opinion, that the pardoning privilege ought to remain where it was ; but we 
 cannot imagine that a large number of men could have possibly been from the 
 beginning so unanimous upon so important a subject, that not even a discussion 
 was elicited, had the pardoning been made a subject of any reflection at all. 
 This is impossible in the nature of things. Men will differ in opinion upon 
 almost any point, and would certainly have differed upon so weighty and delicate 
 a subject, had their minds been directed to it. 
 
 2 We certainly think that ill health, threatening disastrous consequences, should 
 form a ground of release in cases of comparatively short sentences, if no good 
 prison hospital exists. But, even where no hospital exists (which is undoubtedly 
 a great deficiency), much caution must be exercised. An experienced and highly 
 respectable prison physician in Massachusetts stated in his report, some years 
 ago, that pardons on account of deficient health had a tendency to increase sick- 
 ness in the prison, because many prisoners will seriously and perseveringly injure 
 their health in the hope of obtaining thereby a pardon. A prison ought to have 
 a hospital, and if, in spite of a good hospital, the consciousness of being impris-
 
 446 
 
 ON CIVIL LIBERTY 
 
 (and is not this also a case of essential justice against the law ?) 
 or because strong suspicions of innocence have arisen after the 
 trial, it is equally clear that pardon ought to be granted after due 
 investigation only, and that this investigation ought to be insured 
 by law. 
 
 The pardoning power might be transferred from the executive to 
 the legislature, or to an assembly of judges. We are emphatically 
 averse to either measure. The legislature is composed of members 
 elected to represent a variety of interests and views, all of which 
 ought to have a proportionate weight in the formation of laws ; but 
 neither the reasons why nor the objects for which legislators are 
 elected have any connection with deciding upon a question of par- 
 don. If the decision were left at once to the whole assembly, it 
 would be impossible to give that degree of attentive examination 
 to the details of each case which its nature requires, and a party 
 feeling would frequently warp a decision which could be justified 
 only on the ground of the highest and of essential justice. If the 
 case were first given to a committee (as we may imagine a standing 
 committee of pardon), and the legislature were regularly to follow 
 the decision of the committee, the latter step is useless ; if the 
 legislature, however, were not to follow implicitly this decision, we 
 have the incongruities just indicated. As to the forming a board 
 of pardon of judges alone, we think the case would be equally 
 incongruous. The business of the judge, his duty, and his habit 
 of thinking, are strictly to apply the law. He is a valuable magis- 
 trate only so long as he is a faithful organ of the established law ; 
 but, in the case of pardon, the object is neither to make nor to 
 apply a law, but to defeat its operation in a given and peculiar 
 case. 
 
 oned has of itself any bad consequences for the imprisoned patient, it must be 
 taken as one of the many incidental but unavoidable consequences of all impris- 
 onment. There are more serious consequences than this, which we are, never- 
 theless, unable to separate from punishment. Punishment ought always to be 
 individual, and to strike no one but the evil-doer : yet there is hardly ever an 
 individual punished whose sentence does not at the same time entail moral or 
 physical suffering upon others. Men are decreed to constitute societies, with 
 concatenated weal and woe, and human judges cannot punish without indirectly 
 inflicting suffering upon those who are unconnected with the crime, but con- 
 nected with the criminal. If we were absolutely to follow out the first prin- 
 ciple, that the offender alone should suffer, we could not punish a single convict.
 
 AND SELF-GOVERNMENT. 447 
 
 In order to constitute a proper authority, to which the pardon- 
 ing privilege can be safely intrusted, we ought to organize it so that 
 the following points are well secured : 
 
 That a careful investigation of each case take place before par- 
 don be granted : 
 
 That the authority be sufficiently strong to resist importunity : 
 
 That it contain a sufficient amount of knowledge of the law, its 
 bearing, and object: 
 
 That it enjoy the full confidence of the community. 
 
 These great objects, it is believed, can be obtained by a board 
 of pardon, consisting of a proper number of members say nine 
 (in the republic of Geneva it consists of this number), with one or 
 two judges among them, to be appointed by the legislature, with a 
 periodical partial renovation (one-third leaving every three years), 
 and with these farther provisions : 
 
 That the board sit at certain portions of the year say twice : 
 
 That certain and distinct grounds must be stated in every peti- 
 tion for pardon ; and that, without them, all petitions, ever so re- 
 spectably and numerously signed, be not received : 
 
 That pardon can be granted by the governor only when duly 
 recommended by the board ; and must be granted if the board 
 recommend it a second time, after the governor has returned the 
 recommendation with his reasons against it : 
 
 That no pardon be recommended without advertising in the 
 county where the convict has lived previous to his imprisonment, 
 and where he has committed his crime, that the board have in view 
 to recommend him to pardon, and without giving proper time to 
 act upon the advertisement : 
 
 That no pardon be granted without informing, likewise, the 
 warden of the prison, or prisons, in which the subject of the in- 
 tended pardon is, or has been, incarcerated, of the intention of 
 the board : 
 
 That no pardon be granted without previous inquiry of the court 
 which has sentenced the convict : 
 
 And that the reasons of the pardon, when granted, be published. 
 
 Without some such guarantees, the pardoning power will always 
 be abused. The advertising of the intention of pardoning will 
 not be mistaken for an extra-constitutional and illegal call upon 
 the county to exercise functions which do not belong to it, and 
 ought not to belong to it, as, in reality, the governor of Ohio
 
 448 ON CIVIL LIBERTY 
 
 (years ago) respited the execution of a criminal guilty of an atro- 
 cious murder, informing, at the same time, the people of the 
 county whence the criminal came, that he was desirous of knowing 
 whether they wished the criminal pardoned or not. 1 
 
 Nor must it be believed that, while we recommend to inform the 
 warden of a prisoner that his pardon is contemplated, we are de- 
 sirous of countenancing a system of pardon founded upon the good 
 conduct of the convicts in the prison. We consider such a measure 
 inadmissible, for many reasons. It has been tried in France, on a 
 large scale ; and the effect was so bad that its own author obtained 
 its abolition, confessing his error. 2 What we desire is, that proper 
 information be obtained before a convict be pardoned, and that no 
 imp sition take place. It frequently happens that a pardon is 
 obtained by persons unacquainted with the culprit, and a dangerous 
 and infamous man is returned to a community which had the 
 deepest interest in seeing the law take its uninterrupted course. 
 
 We think it proper that the executive, thus controlled on the 
 one hand, and protected against importunities on the other, form 
 a party to the pardon, because the actual release must go through 
 his hands. 
 
 We doubt not that, if a board of pardoning were established, in 
 a short time a series of fair principles and rules, somewhat like the 
 rules of equity, would be settled by practice, and the pardoning 
 would be far less exposed to arbitrary action. 
 
 Totally distinct, however, from the pardoning ought to be kept 
 the restitution of a convict, when innocence has been proved after 
 conviction. It is a barbarous error to confound acknowledgment 
 of wrong committed by society against an individual with the par- 
 doning of a guilty person. Nothing can be pardoned where 
 nothing is to be pardoned, or where the only pardoner is the con- 
 vict. He is entitled to indemnity, and the process ought even to 
 be called by a different name and differently to be provided for. 
 Not long ago a person sentenced for forgery in England to trans- 
 portation for a very long period or for life, we forget which, was 
 pardoned after several years' endurance of the sentence, because 
 his innocence had been made patent. Some English papers justly 
 
 1 National Gazette, Philadelphia, October 10, 1833. 
 
 2 De la Ville de Mirmont, Observations sur les Maisons Centrales de D6ten- 
 tion de Paris, 1833, p. 55, and sequ.
 
 AND SELF-GOVERNMENT. 
 
 449 
 
 remarked how incongruous a pardon is in such cases, where, in 
 fact, the question is how a great and ruinous wrong committed by 
 society against an individual may be repaired in some degree at 
 least, and as far as it lies in human power. This is an important 
 subject of its own, deserving the most serious attention of all 
 civilized states, but does not fall within the province proper of 
 pardoning. 
 
 FRANCIS LIEBER. 
 
 I append to this paper, besides the additional notes which the 
 reader has seen, the following three items : 
 
 The official reports of the attorney-general of Massachusetts 
 show that : 
 
 In 1850, prosecutions of crime cost in that state $66,589 36 
 
 1851, " " " 71,078 18 
 
 1852, " " " 63,900 68 
 
 To this must be added the cost of the courts, detective police, 
 rewards, penitentiaries, prison support. 
 
 When we speak of the cost of crime in general, we must not 
 only take into account the above items, but also the waste of prop- 
 erty by criminals, and the loss of labor, for criminals by profession 
 do not work, therefore do not produce. 
 
 The following extract of a speech by Lord Palmerston, secretary 
 for the home department, June i, 1853, in the commons, is very 
 remarkable. C'est tout comme chez nous. I do not mean our 
 Quakers act thus, but women inconsiderately get up petitions, and 
 are joined by busy religionists. Lord Palmerston said : 
 
 " That would be a very great evil, were any change of the law to 
 bring it about. But let us see how the thing would work. Even 
 now, in cases of disputed rights of property, although it is gen- 
 erally matter of great scruple of conscience to depose to statements 
 which are not consistent with truth, yet we frequently see evidence 
 brought before courts of law not founded in fact. But in matters 
 regarding life and liberty, I am sorry to say that benevolent indi- 
 viduals have very little conscience at all. ('Hear/' and laughter.') 
 You may depend upon it that I have had too much experience of 
 the truth of what I have stated. I get applications signed by great 
 numbers of most respectable persons in favor of individuals with 
 regard to whose guilt there can be no possible doubt, or any doubt 
 
 29
 
 450 
 
 ON CIVIL LIBERTY AND SELF-GOVERNMENT. 
 
 that they have committed the most atrocious crimes. That is a 
 matter of every-day occurrence. Not long ago, a member of the 
 Society of Friends actually tried to bribe a witness to absent him- 
 self from the trial of a prisoner, in order to screen the man from 
 punishment, of whose guilt no human being could doubt. If you 
 had these second trials, you would have these pious frauds as fre- 
 quently committed." 
 
 Lastly, I would put here a short newspaper paragraph very 
 simple yet very fearful. 
 
 " In the course of an editorial article, intended to show that it 
 is the certainty, and not the severity, of punishment which is needed 
 for the suppression of crime, the Pittsburg Commercial makes the 
 following statement : x 
 
 "'In fifteen years, during which the annals of crime in this 
 county have been stained by more than fifty murders, a single in- 
 stance of hanging has been affirmed by the executive as the measure 
 of extreme penalty due; and there justice was cheated of her 
 victim by suicide !' " 
 
 National Intelligencer, Washington, July 12, 1853.
 
 APPENDIX III. 
 
 A PAPER ON SUBJECTS CONNECTED WITH THE INQUISITORIAL 
 TRIAL AND THE LAWS OF EVIDENCE. 
 
 FEW things, in my opinion, show more distinctly the early Eng- 
 lish character than the fact that, without vindictiveness or cruelty 
 in the national character, the penal law inflicted death with a fear- 
 ful disregard of human life, while at the same time the penal trial 
 was carried on with great regard for individual rights and for the 
 mode of ascertaining the truth. The English were from early times 
 a peculiarly jural nation. 
 
 Those people who have the inquisitorial trial, on the other hand, 
 were in some instances far less sanguinary in their punishments, 
 but perfectly regardless of the trial, or, rather, the trial seemed to 
 have been established chiefly for the prosecuting party. It aimed 
 at knowing the truth ; the means to arrive at it were little cared 
 about. The rights of the prosecuted person appeared in a shadowy, 
 undefined way. And all this continues to exist in many countries. 
 
 I do not speak here of the worst countries only. I do not mean 
 to advert to the Austrian trial, as it was before the late revolutions. 
 I refer, for instance, to the German penal trial ; and mean by it 
 the penal trial of the countries in which the common German law 
 prevails, as well as those where, as in Prussia, a trial by statute law 
 is introduced. The late revolutions have changed some items. 
 The main ideas, however, remain, in many cases, the same. 
 
 Now, when a person accustomed to a regular and well-guarded 
 penal trial reads such works as Feuerbach's Criminal Cases, or any 
 detailed description of a penal trial, the laxity and incongruity of 
 the procedure strike us among other things with reference to the 
 following points: 
 
 i. The inquiring judge, that is, the judge who has been detailed, 
 to use a military term, to lead the whole inquiry, and who has been 
 day after day with the prisoner, and only one witness, viz. the 
 secretary, and whose whole skill has been exerted to bring the pris- 
 
 45*
 
 452 ON CIVIL LIBERTY 
 
 oner to confession, or to establish the crime, is also frequently the 
 first sentencing judge, and always very powerfully influences the 
 sentence. If there is a separate sentencing judge, all the "acts," 
 that is, all that has been written down, is handed over to him, and 
 from them he frames his sentence, upon which the other judges, if 
 there are any, vote in plenary session. As a matter of course, they 
 cannot know much about the subject, and must be guided by the 
 report the sentencing judge makes. 
 
 2. The inquiring judge is, in many cases, what we would con- 
 sider wholly unrestricted. He takes hearsay evidence, and all sorts 
 of evidence, if he thinks proper. He is unrestricted as to time, 
 and an accused person may be kept for years under trial. He is 
 allowed to resort to all kinds of tricks, in order to work upon the 
 imagination of the prisoner; for instance, calling him up at mid- 
 night, examining him and suddenly showing a skull to him. Every 
 worthy and puerile motive to speak the truth and confess the 
 offence is resorted to. 
 
 3. There is no regular indictment, nor does the accused know in 
 his examinations what is charged against him ; at least the law does 
 not demand that he shall know it. 
 
 4. The prisoner is constantly urged to confess \ the whole trial 
 assumes the act charged against the prisoner, and treats him accord- 
 ingly. Indeed it may be said that, although not avowedly, yet 
 virtually, the inquisitorial trial assumes in a very great degree the 
 character of an accusation which the accused has to disprove, not 
 one which the accuser is bound to prove. In some countries and 
 in certain cases this is positively the case. Even the French penal 
 trial is by no means wholly free from this serious fault. 
 
 5. There is no physical torture resorted to in order "to bring 
 out" the truth, since the positive abolition of the torture, but the 
 moral torture which is applied is immense, and the judge is author- 
 ized by law to punish with lashes or other physical means every 
 contradiction or lie proved from the convict's own statements. 
 That this can easily lead to all sorts of abuses is obvious. 
 
 6. There is no cross-examination of witnesses, and no stringent 
 law to compel witnesses in favor of the prisoner to appear before 
 the court. 
 
 7. Court and police frightfully mingle in their functions, in the 
 first stages of the trial. 
 
 8. There is a most sorrowful defence, cautious, fearful of offend-
 
 AND SELF-GOVERNMENT. 453 
 
 ing the judges upon whom the promotion of the defensor depends, 
 and empowered to procure that certain points be further cleared up 
 only through the court, which is the prosecuting party. Besides, 
 the defence only begins when the whole investigation by the court 
 is at an end, that is to say, all the "acts" are handed over to the 
 defensor. He studies them and writes the defence, which is given 
 along with the "acts" to the sentencing judge. 
 
 No wonder that the Germans universally called for a total change 
 of such a trial, and, as I stated before, some very important changes 
 have taken place. 
 
 The chief incongruity in this inquisitorial trial, however, is that 
 it admits of half proofs, two of which amount to a whole proof, 
 with other logical flagrancies, as well as the legal flagrancy of " de- 
 ficient proof," according to which a lighter punishment, but still a 
 punishment, is inflicted. 
 
 It is hardly conceivable how an intelligent nation, advanced in 
 the sciences, can have continued a logical absurdity of such crying 
 character until the most recent times, and can continue it, in some 
 parts of the country, to this day. It is reversing the order of 
 things, and substituting evidence, the means of arriving at the fact, 
 which is the thing to determine the punishment, for the criminal 
 fact. 
 
 The principle from which we start in penal law is, that crime 
 ought to be followed by evil, as a consequence of the crime. If 
 crimes punished themselves, we should not want judges ; if judges 
 were omniscient, we should not want trials. The object of the 
 trial is to prove that a crime has been committed, and that it has 
 been committed by the indicted person. This is called establish- 
 ing the fact, which means proving it reproducing it, as it were, 
 before the eyes of the judge ; in one word, convincing him of the 
 truth of the charge, or fact ; and it is the fact alone that can be 
 punishable. But the idea of a fact does not admit of degrees. 
 There may, indeed, be every possible degree of belief in a judge, 
 from the first suspicion, from surmise, doubt, and belief, to the 
 fullest conviction ; but, if he metes out his punishments accordingly, 
 he does not punish for facts done by others, but according to the 
 degree of belief in himself. He substitutes his own subjective be- 
 lief for the objective fact. Now, there cannot be half facts, or 
 three-fourths of facts. A man may, indeed, buy poison, to commit 
 murder; he may add to this, the mixing of the poison with a soup;
 
 454 
 
 ON CIVIL LIBERTY 
 
 he may add to this, the carrying of the soup to the sick-room ; and 
 he may add to this again, the presenting of the soup to a patient, 
 who finally consumes it ; but all these successive acts are not parts 
 of facts. Wherever the evil-minded man stopped, it was a fact ; 
 and, if it is punished, it is not punished as part of a crime, but 
 the inchoate crime is a whole penal fact, and, as such, punished. 
 Again, though four persons may, as witnesses, establish a fact, a 
 truth, each witness does not prove, on that account, a fourth of the 
 truth, which, like the fact, is one and indivisible. If they prove a 
 chain which ultimately establishes a fact, they still prove but one 
 fact, and each one proves for himself a whole truth, which, in con- 
 nection with the other truths, establishes the ultimate truth. 
 
 If four not very creditable witnesses establish one fact, when 
 I would not have believed either of them singly, because, in the 
 assumed case, they corroborate one another, when no connivance 
 can have taken place, they are in this case good witnesses, each 
 one for himself, and not four witnesses, each one worth a fourth of 
 a good witness. A thousand liars cannot, as liars, establish a truth, 
 but they may testify under circumstances which deprive them of 
 the character of liars, and thus be in the case good witnesses. 
 
 It is true, indeed, that man, conscious of his fallibility, and re- 
 solved severely to punish certain crimes, has laid down the rule 
 that, to prove certain crimes in such a manner that the law shall 
 consider them as proved, an amount of testimony shall be neces- 
 sary which is not required for lighter offences. But this is only as 
 a safeguard, so as to prevent, as far as in us lies, the unjust infliction 
 of severe punishment. It has nothing to do with parts of truths, 
 or parts of facts. It has nothing to do with logic. In barbarous 
 times, however, it was actually conceived that logic itself is of 
 a sliding character, as it were. The Ripuarian laws demanded 
 seventy-two compurgators to absolve an incendiary, or murderer 
 (Leg. JRipuar., cap. vi., vii., and xi.). Here, the first error was to 
 consider the accused as tainted, who must clear himself, and not 
 as an accused person, upon whom the deed must be proved. The 
 second error was that the number of compurgators must rise to clear 
 the tainted person, according to the taint (which, as yet, is nothing 
 but accusation). The Koran prescribes, in certain cases, a number 
 of oaths as though each oath, even of a person unworthy of belief, 
 contained some truth, which, by repetition, could be accumulated, 
 and ultimately form a whole truth. Not quite dissimilar is what
 
 AND SELF-GOVERNMENT. 455 
 
 we read in Gregory of Tours. When the chastity of a certain 
 queen of France was suspected, three hundred knights swore, with- 
 out hesitation, that the infant prince was truly begotten by her de- 
 ceased husband. As if the oath of three hundred knights could 
 have any weight, when none of them could know the fact. But, if 
 people once fall into the error of demanding the proof of the 
 negative to establish innocence, instead of demanding the proof 
 positive of the charge, they must necessarily fall into all sorts 
 of errors. The ecclesiastical law required, in a similar manner, or 
 still requires, seventy witnesses to prove incontinency on a car- 
 dinal; and in Spain, as Chancellor Livingston tells us, it required 
 more witnesses to convict a nobleman than a commoner. This 
 is pretty much the same logic which, as Captain Wilkes tells us, 
 induces the Fijians to put more powder into the gun if they fire at 
 a large man. 
 
 On the other hand, the idea of punishing according to the de- 
 gree of conviction in the judge, namely, lightly if light suspicion 
 only has been existing, more severely if belief has been created, 
 and so on, would not have been wholly inconsistent in ancient 
 times, when men had not yet succeeded in strictly separating the 
 moral law from the law of nature, and when the punishment was 
 considered as a sort of extinction of guilt a neutralizing agent. 
 This is a theory which actually some modern criminalists of promi- 
 nence have endeavored to revive. According to them, the fact, not 
 the deed, is punished society has to wipe off the criminal fact 
 which has occurred, and the punishment is like the minus put 
 against the plus. But Aristotle already said, even the gods cannot 
 make undone what has been done. The punishment would resem- 
 ble the penitence which in early times kings had to undergo for 
 great national calamities. If this unphilosophical view were true, 
 it would be difficult to show why the criminal, who has committed 
 the deed, is the one selected to re-establish the equilibrium or for 
 the atonement. But the common sense of mankind has been in 
 this case, as in a thousand others, sounder than theories of unprac- 
 tical thinkers. 
 
 The judge who punishes half, because the evidence has sufficed to 
 create half a conviction only, commits the same logical fault which 
 a navigator would commit who has seen but dimly something that 
 may be a rock, and would go but half out of the way of the danger.
 
 456 
 
 ON CIVIL LIBERTY 
 
 I say he commits the same logical fault, although the effects would 
 be the reverse. 
 
 Punishment, which is the intentional infliction of some suffer- 
 ance as deserved sufferance (in which it differs from the infliction 
 of pain by the surgeon), requires the establishment of the deed, 
 and this is absolute. The various degrees of belief in the deed are 
 only in the judge, not in the deed. The deed must determine 
 the different degrees of infliction of pain or privation ; all else is 
 illogical. 
 
 If the reader has thought that I have dwelt too long on this 
 topic, he must remember that millions are to this day subject to 
 such legal logic as has been described. 
 
 It will be hardly necessary to refer in this place to the fact, that 
 although the ascertainment of truth is the main object of the trial, 
 it is not on that account allowed to resort to all and every means 
 which may bring about this end. Sound sense and a due regard 
 to the rights of individuals lead men to the conviction that a fixed 
 law of evidence is necessary, and to prescribe rules according to 
 which courts shall believe facts to be established, discarding all 
 those means which may expose the accused to cruelty, which may 
 be easily abused, which in turn may deceive, and whose effects in 
 general would be worse than the good obtained. Truth, estab- 
 lished according to those rules, is called legal truth. There can be 
 but one truth, that is the conviction agreeing with fact, but truth 
 may be established by various means, or by means agreeing with 
 prescribed rules. There may be one witness who testifies that he 
 has seen a man doing that, which, before the court can punish it, 
 requires two witnesses. The judge may be thoroughly convinced 
 that the witness speaks the truth ; yet the truth would not be legally 
 established it would not be a legal truth. This, too, may appear 
 unworthy of mention ; but only to those who do not know how 
 vehemently all persons hostile to liberty declaim against the dead 
 letter of the law, the hollow formalism of the Anglican trial, and 
 how anxious they are to substitute the subjective opinion of the 
 judge for the positive and well-defined law. I may put it down 
 here as a fact of historical interest that even so late as my early 
 days I heard a criminalist of some distinction regret the abolition 
 of " the question," i.e. the torture, and I speak gravely when I say 
 that, as times go, I should not be surprised if the re-establishmenl
 
 AND SELF-GOVERNMENT. 
 
 457 
 
 of the torture should once more be called for in some countries. 
 Indeed, has the torture not been used ? Mr. Gladstone's pamphlet 
 on Neapolitan affairs tells us strange things. 1 
 
 1 It would seem that the torture actually continues to exist in some parts of 
 Europe. The following is taken from the London Spectator, of December 22d, 
 1849, which gives as its authority the well-known Allgemeine Zeitung, published 
 at Augsburg, and, consequently, not far from Switzerland. 
 
 " A strange circumstance, says the Allgemeine Zeitung, has just taken place 
 at Herisau, the capital of Inner Appenzell, in Switzerland, showing how much, 
 in these countries of old liberties, civilization is behindhand in some matters. A 
 young girl of nineteen, some months back, assassinated her rival. Her lover 
 was arrested with her, and, as she accused him of the crime, both were put to 
 the torture. The girl yielded to the pain, and confessed her crime ; the young 
 man held firm in his denial : the former was condemned to death, and on the 
 7th of this month was decapitated with the sword, in the market-place of 
 Herisau. This fact is itself a startling one, but the details are just as strange. 
 For two hours the woman was able to struggle against four individuals charged 
 with the execution. After the first hour the strength of the woman was still so 
 great that the men were obliged to desist ; the authorities were then consulted, 
 but they declared that justice ought to follow its course. The struggle then re- 
 commenced, with greater intensity, and despair seemed to have redoubled the 
 woman's force. At the end of another hour she was at last bound by the hair to 
 a stake, and the sword of the executioner then carried the sentence into effect." 
 
 The author has touched upon the fact that, in our country, the abolition of 
 trial by jury has been proposed, in the note appended to page 233. The topic 
 is one of vital importance to our entire system of government and political 
 existence. It is for this reason that he does not hesitate to direct the earnest 
 student of law, and of government, to a German work of high merit Mr. Mit- 
 termaier's Legislation and Practice, with Reference to the Penal Trial, accord- 
 ing to their Recent Development; Erlangen, 1856. The author had not become 
 acquainted with this important work when the page referred to was printing ; 
 but the testimony given by the great criminalist, of the satisfactory results de- 
 rived from trial by jury, even in countries where it has been recently established, 
 has induced the author to append this note here, rather than leave his readers 
 unacquainted with evidence of such weight in favor of so great an institution, 
 considered by almost all friends of liberty as one of the substantial acquisitions 
 obtained by our progressive race.
 
 APPENDIX IV. 
 
 MAGNA CHARTA OF KING J< 'HN, 
 
 FIFTEENTH DAY OF JUNE, IN THE SEVENTEENTH YEAR OF THE 
 KING'S REIGN, A.D. 1215. 
 
 JOHN, by the grace of God king of England, lord of Ireland, 
 duke of Normandy and Aquitain, and earl of Anjou : to the arch- 
 bishops, bishops, abbots, earls, barons, justiciaries of the forests, 
 sheriffs, governors, officers, and to all bailiffs and other of his faith- 
 ful subjects, greeting. Know ye, that we, in the presence of God, 
 and for the health of our soul, and of the souls of our ancestors 
 and heirs, and to the honor of God and the exaltation of holy 
 church, and amendment of our kingdom, by advice of our venera- 
 ble fathers, Stephen, archbishop of Canterbury, primate of all 
 England and cardinal of the holy Roman church ; Henry, arch- 
 bishop of Dublin, William, bishop of London, Peter, of Winchester, 
 Jocelin, of Bath and Glastonbury, Hugh, of Lincoln, Walter, of 
 Worcester, William, of Coventry, Benedict, of Rochester, bishops ; 
 and master Pandulph, the pope's subdeacon and ancient servant, 
 brother Aymerick, master of the temple in England, and the noble 
 persons, William Marescall, earl of Pembroke, William, earl of 
 Salisbury, William, earl of Warren, William, earl of Arundel, Alan 
 de Galoway, constable of Scotland, Warin Fitz Gerald, Peter Fitz 
 Herbert, and Hubert de Burghe, senechal of Poictou, Hugo de 
 Nevill, Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip 
 de Albine, Robert de Roppele, John Marescall, John Fitz Hugh, 
 and others our liegemen ; have, in the first place, granted to God, 
 and by this our present charter confirmed for us and our heirs 
 forever : 
 
 I. That the church of England shall be free, and enjoy her whole 
 rights and liberties inviolable. And we will have them so to be 
 observed ; which appears from hence that the freedom of elections, 
 458
 
 ON CIVIL LIBERTY AND SELF-GOVERNMENT. 459 
 
 which was reckoned most necessary for the church of England, of 
 our own free will and pleasure we have granted and confirmed by 
 our charter, and obtained the confirmation of from Pope Innocent 
 the Third, before the discord between us and our barons: which 
 charter we shall observe, and do will it to be faithfully observed by 
 our heirs forever. 
 
 II. We have also granted to all the freemen of our kingdom, for 
 us and our heirs forever, all the underwritten liberties, to have and 
 to hold to them and their heirs, of us and our heirs. 
 
 III. If any of our earls, or barons, or others who hold of us in 
 chief, by military service, shall die, and at the time of his death his 
 heir shall be of full age, and owe a relief, he shall have his inherit- 
 ance by the ancient relief; that is to say, the heir or heirs of an 
 earl, for a whole earl's barony, by a hundred pounds; the heir or 
 heirs of a baron, for a whole barony, by a hundred pounds; the 
 heir or heirs of a knight, for a whole knight's fee, by a hundred 
 shillings at most ; and he that oweth less shall give less, according 
 to the ancient custom of fees. 
 
 IV. But if the heir of any such shall be under age, and shall be 
 in ward, when he comes of age he shall have his inheritance with- 
 out relief or without fine. 
 
 V. The warden of the land of such heir, who shall be under age, 
 shall take of the land of such heir only reasonable issues, reason- 
 able customs, and reasonable services ; and that without destruction 
 or waste of the men or things ; and if we shall commit the guardian- 
 ship of those lands to the sheriff, or any other who is answerable to 
 us for the issues of the land, and if he shall make destruction and 
 waste upon the ward lands, we will compel him to give satisfaction, 
 and the land shall be committed to two lawful and discreet tenants 
 of that fee, who shall be answerable for the issues to us, or to him 
 whom we shall assign. And if we shall give or sell the wardship 
 of any such lands to any one, and he makes destruction or waste 
 upon them, he shall lose the wardship, which shall be committed 
 to two lawful and discreet tenants of that fee, who shall in like 
 manner be answerable to us, as hath been said. 
 
 VI. But the warden, so long as he shall have the wardship of 
 the land, shall keep up and maintain the houses, parks, warrens, 
 ponds, mills and other things pertaining to the land, out of the 
 issues of the same land ; and shall restore to the heir, when he 
 comes of full age, his whole land stocked with ploughs and car-
 
 460 
 
 ON CIVIL LIBERTY 
 
 riages, according as the time of wainage shall require, and the 
 issues of the land can reasonably bear. 
 
 VII. Heirs shall be married without disparagement, so as that 
 before matrimony shall be contracted those who are nearest to the 
 heir in blood shall be made acquainted with it. 
 
 VIII. A widow, after the death of her husband, shall forthwith, 
 and without any difficulty, have her marriage and her inheritance ; 
 nor shall she give anything for her dower or her marriage, or her 
 inheritance, which her husband and she held at the day of his death ; 
 and she may remain in the capital messuage or mansion house of 
 her husband, forty days after his death, within which term her dower 
 shall be assigned. 
 
 IX. No widow shall be distrained to marry herself, so long as she 
 has a mind to live without a husband. But yet she shall give 
 security that she will not marry without our assent, if she holds of 
 us, or without the consent of the lord of whom she holds, if she 
 holds of another. 
 
 X. Neither we nor our bailiffs shall seize any land or rent for 
 any debt, so long as there shall be chattels of the debtor's upon 
 the premises, sufficient to pay the debt. Nor shall the sureties of 
 the debtor be distrained, so long as the principal debtor is sufficient 
 for the payment of the debt. 
 
 XL And if the principal debtor fail in the payment of the debt, 
 not having wherewithal to discharge it, then the sureties shall 
 answer the debt ; and if they will, they shall have the lands and 
 rents of the debtor, until they shall be satisfied for the debt which 
 they paid him ; unless the principal debtor can show himself ac- 
 quitted thereof, against the said sureties. 
 
 XII. If any one have borrowed anything of the Jews, more or 
 less, and dies before the debt be satisfied, there shall be no interest 
 paid for that debt, so long as the heir is under age, of whomsoever 
 he may hold. And if the debt falls into our hands, we will take 
 only the chattel mentioned in the charter or instrument. 
 
 XIII. And if any one shall die indebted to the Jews, his wife 
 shall have her dower, and pay nothing of that debt ; and if the 
 deceased left children under age, they shall have necessaries pro- 
 vided for them according to the tenement (or real estate) of the 
 deceased ; and out of the residue the debt shall be paid ; saving, 
 however, the service of the lords. In like manner let it be with 
 debts due to other persons than the Jews.
 
 AND SELF-GOVERNMENT. 461 
 
 XIV. No scutage or aid shall be imposed in our kingdom, unless 
 by the common council of our kingdom, except to redeem our per- 
 son, and make our eldest son a knight, and once to marry our 
 eldest daughter ; and for this there shall only be paid a reasonable 
 aid. 
 
 XV. In like manner it shall be concerning the aids of the city 
 of London ; and the city of London shall have all its ancient 
 liberties and free customs, as well by land as by water. 
 
 XVI. Furthermore, we will and grant that all other cities, and 
 boroughs, and towns, and ports, shall have all their liberties and 
 free customs ; and shall have the common council of the kingdom, 
 concerning the assessment of their aids, except in the three cases 
 aforesaid. 
 
 XVII. And for the assessing of scutages we shall cause to be 
 summoned the archbishops, bishops, abbots, earls, and great bamns 
 of the realm, singly by our letters. 
 
 XVIII. And furthermore we shall cause to be summoned in 
 general by our sheriffs and bailiffs, all others who hold of us in 
 chief, at a certain day, that is to say, forty days before the meeting, 
 at least, to a certain place ; and in all letters of such summons we 
 will declare the cause of the summons. 
 
 XIX. And summons being thus made, the business shall proceed 
 on the day appointed, according to the advice of such as shall be 
 present, although all that were summoned come not. 
 
 XX. We will not for the future grant to any one, that he may 
 take aid from his own free tenants, unless to redeem his body, and 
 to make his eldest son a knight and once to marry his eldest 
 daughter ; and for this there shall only be paid a reasonable aid. 
 
 XXI. No man shall be distrained to perform more service for a 
 knight's fee, or other free tenement, than is due from thence. 
 
 XXII. Common pleas shall not follow our court, but shall be 
 holden in some certain place. Tryals upon the writs of novel dis- 
 seisin, and of mort d'ancestor, and of darreine presentment, shall 
 be taken but in their proper counties, and after this manner : We, 
 or if we should be out of the realm, our chief justiciary, shall send 
 two justiciaries through every county four times a year ; who with 
 the four knights chosen out of every shire by the people, shall hold 
 the said assizes in the county, on the day and at the place appointed. 
 
 XXIII. And if any matters cannot be determined on the day 
 appointed to hold the assizes in each county, so many of the
 
 462 
 
 ON CIVIL LIBERTY 
 
 knights and freeholders as have been at the assizes aforesaid shall 
 be appointed to decide them, as is necessary, according as there is 
 more or less business. 
 
 XXIV. A freeman shall not be amerced for a small fault, but 
 according to the degree of the fault ; and for a great crime in pro- 
 portion to the heinousness of it ; saving to him his contenement, 
 and after the same manner a merchant, saving to him his mer- 
 chandise. 
 
 XXV. And a villain shall be amerced after .the same manner, 
 saving to him his wainage, if he falls under our mercy ; and none 
 of the aforesaid amerciaments shall be assessed but by the oath of 
 honest men of the neighborhood. 
 
 XXVI. Earls and barons shall not be amerced but by their peers, 
 and according to the quality of the offence. 
 
 XXVII. No ecclesiastical person shall be amerced, but accord- 
 ing to the proportion aforesaid, and not according to the value of 
 his ecclesiastical benefice. 
 
 XXVIII. Neither a town or any person, shall be distrained to 
 make bridges over rivers, unless that anciently and of right they 
 are bound to do it. 
 
 XXIX. No sheriff, constable, coroners, or other our bailiffs, 
 shall hold pleas of the crown. 
 
 XXX. All counties, hundreds, wapentakes and trethings shall 
 stand at the old ferm, without any increase, except in our demesne 
 lands. 
 
 XXXI. If any one that holds of us a lay fee dies, and the sheriff 
 or our bailiff show our letters patents of summons concerning the 
 debt due to us from the deceased, it shall be lawful for the sheriff 
 or our bailiff to attach and register the chattels of the deceased 
 found upon his lay fee, to the value of the debt, by the view of 
 lawful men, so as nothing be removed until our whole debt be 
 paid ; and the rest shall be left to the executors to fulfil the will of 
 the deceased ; and if there be nothing due from him to us, all the 
 chattels shall remain to the deceased, saving to his wife an 1 chil- 
 dren their reasonable shares. 
 
 XXXII. If any freeman dies intestate, his chattels shall be dis- 
 tributed by the hands of his nearest relations and friends, by the 
 view of the church, saving to every one his debts which the de- 
 ceased owed. 
 
 XXXIII. No constable or bailiff of ours shall take corn or other
 
 AND SELF-GOVERNMENT. 463 
 
 chattels of any man, unless he presently gives him money for it, 
 or hath respite of payment from the seller. 
 
 XXXIV. No constable shall distrain any knight to give money 
 for castle guard, if he himself shall do it in his own person, or by 
 another able man, in case he shall be hindered by any reasonable 
 cause. 
 
 XXXV. And if we shall lead him, or if we shall send him into 
 the army, he shall be free from castle guard for the time he shall 
 be in the army by our command. 
 
 XXXVI. No sheriff or bailiff of ours, or any other, shall take 
 horses or carts of any for carriage. 
 
 XXXVII. Neither shall we, or our officers, or others, take any 
 man's timber for our castles, or other uses, unless by the consent 
 of the owner of the timber. 
 
 XXXVIII. We will retain the lands of those that are convicted 
 of felony but one year and a day, and then they shall be delivered 
 to the lord of the fee. 
 
 XXXIX. All wears for the time to come shall be demolished in 
 the rivers of Thames and Medway, and throughout all England, 
 except upon the sea-coast. 
 
 XL. The writ which is called praecipe shall not for the future be 
 granted to any one of any tenement whereby a free man may lose 
 his cause. 
 
 XLI. There shall be one measure of wine and one of ale through 
 our whole realm, and one measure of corn, that is to say, the 
 London quarter ; and one breadth of dyed cloth and russets and 
 haberjects, that is to say, two ells within the list ; and the weights 
 shall be as the measures. 
 
 XLII. From henceforward nothing shall be given or taken for 
 a writ of inquisition, from him that desires an inquisition of life or 
 limb, but shall be granted gratis, and not denied. 
 
 XLIII. If any one holds of us by fee farm, or socage, or bur- 
 gage, and holds lands of another by military service, we will not 
 have the wardship of the heir or land, which belongs to another 
 man's fee, by reason of what he holds of us by fee farm, socage, 
 or burgage ; nor will we have the wardship of the fee farm, soc- 
 age, or burgage, unless the fee farm is bound to perform military 
 service. 
 
 XLIV. We will not have the wardship of an heir, nor of any 
 and -which he holds of another by military service, by reason of
 
 464 
 
 ON CIVIL LIBERTY 
 
 any petit-serjeanty he holds of us, as by the service of giving us 
 arrows, daggers, or the like. 
 
 XLV. No bailiff for the future shall put any man to his law, 
 upon his single accusation, without credible witnesses produced to 
 prove it. 
 
 XLVI. No freeman shall be taken, or imprisoned, or disseised, 
 or outlawed, or banished, or any ways destroyed ; nor will we pass 
 upon him, or commit him to prison, unless by the legal judgment 
 of his peers, or unless by the law of the land. 
 
 XLVII. We will sell to no man, we will deny no man, or defer 
 right or justice. 
 
 XLVIII. All merchants shall have safe and secure conduct to go 
 out of and to come into England, and to stay there, and to pass, 
 as well by land as by water, to buy and sell by the ancient and 
 allowed customs, without any evil toll, except in time of war, or 
 when they shall be of any nation in war with us. 
 
 XLIX. And if there shall be found any such in our land in the 
 beginning of a war, they shall be attached, without damage to 
 their bodies or goods, until it may be known unto us, or our chief 
 justiciary, how our merchants be treated in the nation at war with 
 us ; and if ours be safe there, theirs shall be safe in our lands. 
 
 L. It shall be lawful for the time to come, for any one to go out 
 of our kingdom, and return safely and securely by land or by water, 
 saving his allegiance to us ; unless in time of war, by short space, 
 for the benefit of the kingdom, except prisoners and outlaws, 
 according to the law of the land, and people in war with us, and 
 merchants who shall be in such condition as is above mentioned. 
 
 LI. If any man holds of any escheat, as of the honor of Wal- 
 lingford, Nottingham, Bologne, Lancaster, or of other escheats 
 which are in our hands, and are baronies, and dies, his heir shall 
 not give any other relief, or perform any other service to us than 
 he would to the baron, if the barony were in possession of the 
 baron ; we will hold it after the same manner the baron held it. 
 
 LII. Those men who dwell without the forest, from henceforth 
 shall not come before our justiciaries of the forest upon summons, 
 but such as are impleaded or are pledges for any that were attached 
 for something concerning the forest. 
 
 LIII. We_will not make any justiciaries, constables, bailiffs or 
 sheriffs, but what are knowing in the laws of the realm, and are 
 disposed duly to observe it.
 
 AND SELF-GOVERNMENT. 465 
 
 LIV. All barons who are founders of abbies, and have charters 
 of the kings of England for the advowson, or are entitled to it by 
 ancient tenure, may have the custody of them, when void, as they 
 ought to have. 
 
 LV. All woods that have been taken into the forests, in our own 
 time, shall forthwith be laid out again, and the like shall be done 
 with the rivers that have been taken or fenced in by us, during our 
 reign. 
 
 LVI. All evil customs concerning forests, warrens, and foresters, 
 warreners, sheriffs and their officers, rivers and their keepers, shall 
 forthwith be inquired into in each county, by twelve knights of the 
 same shire, chosen by the most creditable persons in the same 
 county, and upon oath ; and within forty days after the said in- 
 quest be utterly abolished, so as never to be restored. 
 
 LVII. We will immediately give up all hostages and engage- 
 ments, delivered unto us by our English subjects as securities for 
 their keeping the peace, and yielding us faithful service. 
 
 LVIII. We will entirely remove from our bailiwicks the relations 
 of Gerard de Athyes, so as that for the future they shall have no bail- 
 iwick in England. We will also remove Engelard de Cygony, 
 Andrew, Peter, and Gyon de Canceles, Gyon de Cygony, Geoffrey 
 de Martyn and his brothers, Philip Mark and his brothers, and his 
 nephew Geoffrey, and their whole retinue. 
 
 LIX. And as soon as peace is restored, we will send out of the 
 kingdom all foreign soldiers, crossbowmen and stipendiaries, who 
 are come with horses and arms, to the injury of our people. 
 
 LX. If any one hath been dispossessed or deprived by us with- 
 out the legal judgment of his peers, of his lands, castles, liberties 
 or right, we will forthwith restore them to him ; and if any dispute 
 arises upon this head, let the matter be decided by the five and 
 twenty barons hereafter mentioned, for the preservation of the 
 peace. 
 
 LXI. As for all those things of which any person has without 
 the legal judgment of his peers been dispossessed or deprived, 
 either by king Henry, our father, or our brother, king Richard, 
 and which we have in our hands, or are possessed by others, and 
 we are bound to warrant and make good, we shall have a respite 
 till the term usually allowed the Croises ; excepting those things 
 about which there is a suit depending, or whereof an inquest hath 
 been made by our order, before we undertook the crusade. But 
 
 30
 
 466 ON CIVIL LIBERTY 
 
 when we return from our pilgrimage, or if we do not perform it, we 
 will immediately cause full justice to be administered therein. 
 
 LXII. The same respite we shall have for disafforesting the 
 forests, which Henry, our father, or our brother, Richard, have af- 
 forested; and for the wardship of lands which are in another's fee, 
 in the same manner as we have hitherto enjoyed these wardships, 
 by reason of a fee held of us by knight's service, and for the ab- 
 bies founded in any other fee than our own, in which the lord of 
 the fee claims a right ; and when we return from our pilgrimage, 
 or if we should not perform it, we will immediately do full justice 
 to all the complainants in this behalf. 
 
 LXIII. No man shall be taken or imprisoned upon the appeal of 
 a woman, for the death of any other man than her husband. 
 
 LXIV. All unjust and illegal fines, and all amerciaments, im- 
 posed unjustly and contrary to the law of the land, shall be en- 
 tirely forgiven, or else left to the decision of the five and twenty 
 barons hereafter mentioned for the preservation of the peace, or of 
 the major part of them, together with the foresaid Stephen, arch- 
 bishop of Canterbury, if he can be present, and others whom he 
 shall think fit to take along with him ; and if he cannot be present, 
 the business shall nevertheless go on without him ; but so that if 
 one or more of the five and twenty barons aforesaid be plaintiffs in 
 the same cause, they shall be set aside as to what concerns this par- 
 ticular affair, and others be chosen in their room out of the said 
 five and twenty, and sworn by the rest to decide that matter. 
 
 LXV. If we have disseised or dispossessed the Welsh of any 
 lands, liberties, or other things, without the legal judgment of 
 their peers, they shall be immediately restored to them. And if 
 any dispute arises upon this head, the matter shall be determined 
 in the Marches, by the judgment of their peers ; for tenements in 
 England, according to the law of England; for tenements in 
 Wales, according to the law of Wales ; for tenements in the 
 Marches, according to the law of the Marches ; the same shall the 
 Welsh do to us and our subjects. 
 
 LXVI. As for all those things of which any Welshman hath, 
 without the legal judgment of his peers, been disseised or de- 
 prived, by king Henry, our father, or our brother, king Richard, 
 and which we either have in our hands, or others are possessed of, 
 and we are obliged to warrant it, we shall have a respite till the 
 time generally allowed the Croisaders; excepting those things,
 
 AND SELF-GOVERNMENT. 467 
 
 about which a suit is pending, or whereof an inquest has been made 
 by our order, before we undertook the crusade. But when we re- 
 turn, or if we stay at home, and do not perform our pilgrimage, 
 we will immediately do them full justice, according to the laws of 
 the Welsh, and of the parts aforementioned. 
 
 LXVII. We will without delay dismiss the son of Lewelin, 
 and all the Welsh hostages, and release them from the engagements 
 they entered into with us for the preservation of the peace. 
 
 LXVIII. We shall treat with Alexander, king of Scots, con- 
 cerning the restoring of his sisters, and hostages, and rights and 
 liberties, in the same form and manner as we shall do to the rest 
 of our barons of England ; unless by the engagements which his 
 father William, late king of Scots, hath entered into with us, it 
 ought to be otherwise ; and this shall be left to the determination 
 of his peers in our court. 
 
 LXIX. All the aforesaid customs and liberties which we have 
 granted to be holden in our kingdom, as much as it belongs to us 
 towards our people, all our subjects, as well clergy as laity, shall 
 observe, as far as they are concerned, towards their dependents. 
 
 LXX. And whereas, for the honor of God and the amendment 
 of our kingdom, and for quieting the discord that has arisen be- 
 tween us and our barons, we have granted all the things aforesaid ; 
 willing to render them firm and lasting, we do give and grant our 
 subjects the following security, namely : that the barons may choose 
 five and twenty barons of the kingdom, whom they shall think con- 
 venient, who shall take care with all their might to hold and ob- 
 serve, and cause to be observed, the peace and liberties we have 
 granted them, and by this our present charter confirmed. So as 
 that if we, our justiciary, our bailiffs, or any of our officers, shall 
 in any case fail in the performance of them towards any person, or 
 shall break through any of these articles of peace and security, 
 and the offence is notified to four barons, chosen out of the five and 
 twenty aforementioned, the said four barons shall repair to us, or 
 to our justiciary, if we are out of the realm, and laying open the 
 grievance, shall petition to have it redressed without delay ; and if 
 it is not redressed by us, or, if we should chance to be out of the 
 realm, if it is not redressed by our justiciary within forty days, 
 reckoning from the time it has been notified to us, or to our justi- 
 ciary, if we should be out of the realm, the four barons aforesaid 
 shall lay the cause before the rest of the five and twenty barons, and
 
 ON CIVIL LIBERTY 
 
 the said five and twenty barons, together with the community of 
 the whole kingdom, shall distrain and distress us in all the ways 
 possible ; namely, by seising our castles, lands, possessions, and in 
 any other manner they can, till the grievance is redressed to their 
 pleasure, saving harmless our own person, and the persons of our 
 queen and children ; and when it is redressed, they shall obey us as 
 before. 
 
 LXXI. And any person whatsoever in the kingdom may swear 
 that he will obey the orders of the five and twenty barons afore- 
 said, in the execution of the premises, and that he will distress us 
 jointly with them, to the utmost of his power ; and we give public 
 and free liberty to any one that will swear to them, and never shall 
 hinder any person from taking the same oath. 
 
 LXXII. As for all those of our subjects, who will not of their 
 own accord swear to join the five and twenty barons in distreining 
 and distressing us, we will issue our order to make them take the 
 same oath as aforesaid. 
 
 LXXIII. And if any one of the five and twenty barons dies, or 
 goes out of the kingdom, or is hindered any other way from put- 
 ting the things aforesaid in execution, the rest of the said five and 
 twenty barons may choose another in his room, at their discretion, 
 who shall be sworn in like manner as the rest. 
 
 LXXIV. In all things that are committed to the charge of these 
 five and twenty barons, if, when they are all assembled together, 
 they should happen to disagree about any matter, or some of 
 them summoned will not, or cannot come, whatever is agreed upon 
 or enjoyned by the major part of those who are present shall be 
 reputed as firm and valid as if all the five and twenty had given 
 their consent ; and the foresaid five and twenty shall swear that 
 all the premises they shall faithfully observe, and cause with all 
 their power to be observed. 
 
 LXXV. And we will not, by ourselves or others, procure anything 
 whereby any of these concessions and liberties be revoked or less- 
 ened ; and if any such thing be obtained, let it be null and void ; 
 neither shall we ever make use of it, either by ourselves or any 
 other. 
 
 LXXVI. And all the ill-will, anger and malice that hath arisen 
 between us and our subjects of the clergy and laity, from the first 
 breaking out of the dissension between us, we do fully remit and 
 forgive. Moreover, all trespasses occasioned by the said dissen-
 
 AND SELF-GOVERNMENT. 469 
 
 sions, from Easter, in the sixteenth year of our reign, till the resto- 
 ration of peace and tranquillity, we hereby entirely remit to all, 
 clergy as well as laity, and as far as in us lies, do fully forgive. 
 
 LXXVII. We have moreover granted them our letters patents 
 testimonial of Stephen, lord-archbishop of Canterbury, of Henry, 
 lord-archbishop of Dublin, and the bishops aforesaid, as also of 
 master Pandulph, for the security and concessions aforesaid. 
 
 LXXVIII. Wherefore we will, and firmly enjoin, that the 
 church of England be free, and that all men in our kingdom have 
 and hold all the aforesaid liberties, rights and concessions, truly 
 and peaceably, freely and quietly, fully and wholly, to themselves 
 and their heirs, of us and our heirs, in all things and places forever, 
 as is aforesaid. 
 
 LXXIX. It is also sworn, as well on our part as upon the part 
 of the barons, that all the things aforesaid shall faithfully and sin- 
 cerely be observed. 
 
 Given under our hand, in the presence of the witnesses above 
 named, and many others, in the meadow called Runningmede, be- 
 tween Windelsore and Staines, the iyth day of June, in the i;th 
 year of our reign. 
 
 [The Great Charter has been repeatedly amended and confirmed. 
 I take the liberty of copying the following, down to the end of page 
 477, from Mr. Creasy's Text-Book of the Constitution. 1 ] 
 
 1 The Text-Book of the Constitution, Magna Charta, The Petition of Right 
 and the Bill of Rights, with Historical Comments and Remarks on the Present 
 Political Emergencies, by E. S. Creasy, M.A., Barrister-at-Law, Professor of 
 History in University College, London, &c. London, 1848. A small work of 
 63 pages, excellent in its kind. 
 
 Since the first edition of the Civil Liberty was issued, Mr. Creasy has published 
 The Rise and Progress of the English Constitution, London, 1853; the third 
 edition of which was republished, in 1856, in New York, I2ino, 350 pages. It is 
 the best book for the student to commence the study of the British Constitution? 
 and preparatory for Hallam's Constitutional History of England. Throughout 
 the present work it must have appeared that a knowledge of the English Consti- 
 tution and of its history is indispensable for a correct understanding of our own, 
 and I recommend the work of Mr. Creasy, in this point of view, to every young 
 American student.
 
 ON CIVTL LIBERTY 
 
 MAGNA CHARTA, 
 THE GREAT CHARTER, 
 
 (TRANSLATED AS IN THE STATUTES AT LARGE,) 
 
 MADE IN THE NINTH YEAR OF KING HENRY THE THIRD, AND CON- 
 FIRMED BY KING EDWARD THE FIRST, IN THE FIVE AND TWEN- 
 TIETH YEAR OF HIS REIGN. 
 
 Edward, by the grace of God king of England, lord of Ireland, 
 and duke of Guyan : to all archbishops, bishops, &c. We have 
 seen the great charter of the lord Henry, sometimes king of Eng- 
 land, our father, of the liberties of England, in these words : 
 
 " Henry, by the grace of God king of England, lord of Ireland, 
 duke of Normandy and Guyan, and earl of Anjou : to all arch- 
 bishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, and 
 officers, and to all bailiffs and other our faithful subjects, which shall 
 see this present charter, greeting : Know ye, that we, unto the 
 honor of almighty God, and for the salvation of the souls of our 
 progenitors and successors, kings of England, to the advancement 
 of holy church and amendment of our realm, of our mere and free 
 will, have given and granted to all archbishops, bishops, abbots, 
 priors, earls, barons, and to all freemen of this our realm, these 
 liberties following, to be kept in our kingdom of England forever." 
 
 CHAPTER I. 
 A Confirmation of Liberties. 
 
 11 First, we have granted to God, and by this our present charter 
 have confirmed for us and our heirs forever, that the church of 
 England shall be free, and shall have all her whole rights and liber- 
 ties inviolable. We have granted, also, and given to all the free- 
 men of our realm, for us and our heirs forever, these liberties 
 underwritten, to have and to hold to them and their heirs, of us 
 and our heirs forever." 
 
 CHAPTER II. 
 
 The Relief of the King's Tenant of full Age. 
 [Same as 2d chapter of John's Charter.]
 
 AND SELF-GOVERNMENT. 
 
 471 
 
 CHAPTER III. 
 
 The Wardship of the Heir within Age. The Heir a Knight. 
 [Similar to 3d chapter of John's Charter.] 
 
 CHAPTER IV. 
 
 No waste shall be made by a Guardian in waste lands. 
 [Same as 4th chapter of John's Charter.] 
 
 CHAPTER V. 
 Guardians shall maintain the Inheritance of Wards* Of 
 
 Bishoprics, &c. 
 
 [Similar to 5th chapter of John's Charter, with addition -of like 
 provisions against the waste of ecclesiastical possessions while in 
 the king's hand during a vacancy in the see, &c.] 
 
 CHAPTER VI. 
 
 Heirs shall be Married without Disparagement. 
 [Similar to 6th chapter of John's Charter.] 
 
 CHAPTER VII. 
 A Widow shall have her Marriage, Inheritance, and Quarantine. 
 
 The King's Widow, &c. 
 [Similar (with additions) to the yth and 8th chapters of John's 
 
 Charter.] 
 
 CHAPTER VIII. 
 
 How Sureties shall be charged to the King. 
 [Same as pth chapter of John's Charter.] 
 
 CHAPTER IX. 
 
 The Liberties of London and other Cities and Towns confirmed. 
 [Same as i3th chapter of John's Charter.] 
 
 CHAPTER X. 
 
 None shall distrain for more Service than is due. 
 [Same as i6th chapter of John's Charter.] 
 
 CHAPTER XL 
 
 Common Pleas shall not follow the King's Court. 
 [Same as iyth chapter of John's Charter.]
 
 472 
 
 ON CIVIL LIBERTY 
 
 CHAPTERS XII. & XIII. 
 When and before whom Assizes shall be taken. Adjournment 
 
 for Difficulty, Assizes of Darrein Presentment. 
 [Analogous to i8th and i9th chapters of John's Charter.] 
 
 CHAPTER XIV. 
 
 How Men of all sorts shall be amerced, and by whom. 
 [Same as 20th and 2ist chapters of John's Charter.] 
 
 CHAPTERS XV. & XVI. 
 Making and defending of Bridges and Banks, 
 [Similar to 23d chapter of John's Charter.] 
 
 CHAPTER XVII. 
 
 Holding Pleas of the Crown. 
 
 [Same as 24th chapter of John's Charter.] 
 
 CHAPTER XVIII. 
 
 The King's Debtor dying, the King shall be first paid. 
 [Same as 26th chapter of John's Charter.] 
 
 CHAPTERS XIX., XX., & XXI. 
 Purveyors for a Castle. Doing of Castle-ward. Taking of 
 
 Horses, Carts, and Woods. 
 [Same as 28th, 29th, 3oth, and 3ist chapters of John's Charter.] 
 
 CHAPTER XXII. 
 
 How long Felons' Lands shall be holden by the King. 
 [Same as 32d chapter of John's Charter.] 
 
 CHAPTER XXIII. 
 
 In what places Wears shall be put down. 
 [Same as 33d chapter of John's Charter.] 
 
 CHAPTER XXIV. 
 
 In what case a Pracipe in Capite is grantable. 
 [Same as i4th chapter of John's Charter.]
 
 AND SELF-GOVERNMENT. 473 
 
 CHAPTER XXV. 
 
 There shall be but one Measure through the Realm. 
 [Same as 35th chapter of John's Charter.] 
 
 CHAPTER XXVI. 
 
 Inquisition of Life and Member. 
 
 [Same as 38th chapter of John's Charter.] 
 
 CHAPTER XXVII. 
 Tenure of the King in Socage, and of another by Knighfs Service. 
 
 Petit Serjeanty. 
 [Same as 37th chapter of John's Charter.] 
 
 CHAPTER XXVIII. 
 
 Wager of Law shall not be without witness. 
 [Same as 38th chapter of John's Charter.] 
 
 CHAPTER XXIX. 
 
 None shall be condemned without Trial. Justice shall not be sold 
 
 or deferred.' 1 
 
 " No freeman shall be taken, or imprisoned, or be disseised of 
 his freehold, or liberties, or free customs, or be outlawed or exiled, 
 or any otherwise destroyed ; nor will we pass upon him, nor con- 
 demn him, but by lawful judgment of his peers, or by the law of the 
 land. We will sell to no man, we will not deny or defer to any 
 man, either justice or right." 
 
 CHAPTER XXX. 
 
 Merchant Strangers coming into this Realm shall be well used. 
 [Same as 4ist chapter of John's Charter.] 
 
 CHAPTER XXXI. 
 
 Tenure of a Barony coming into the King s hands by Escheat. 
 [Same as 43d chapter of John's Charter.] 
 
 1 See 39th and 4Oth chapters of John's Charter.
 
 474 
 
 ON CIVIL LIBERTY 
 
 CHAPTER XXXII. 
 
 Lands shall not be Aliened to the Prejudice of the Lord*s Service 
 \i. e. Lord of the Fee'}. 
 
 CHAPTER XXXIII. 
 
 Patrons of Abbeys shall have the custody of them in time of Vaca- 
 tion. 
 [Same as 46th chapter of John's Charter.] 
 
 CHAPTER XXXIV. 
 
 In what cases only a Woman shall have an Appeal of Death. 
 [Same as 5ist chapter of John's Charter.] 
 
 CHAPTER XXXV. 
 
 At what time shall be kept a County Court, a Sheriff's Term, and 
 
 a Leet. 
 
 CHAPTER XXXVI. 
 
 No Land shall be given in Mortmain. 
 
 " It shall not be lawful from henceforth to any to give his lands 
 to any religious house, and to take the same land again to hold of 
 the same house. Nor shall it be lawful to any house of religion to 
 take the lands of any, and to lease the same to him of whom he 
 received it : if any from henceforth give his lands to any religious 
 house, and thereupon be convict, the gift shall be utterly void, and 
 the land shall accrue to the lord of the fee." 
 
 CHAPTER XXXVI. 
 A Subsidy in respect of this Charter and the Charter of the Forest 
 
 granted to the King. 
 
 " Escuage from henceforth shall be taken like as it was wont to 
 be in the time of king Henry, our grandfather ; reserving to all 
 archbishops, bishops, abbots, priors, templars, hospitalers, earls, 
 barons, and all persons, as well spiritual as temporal, all their free 
 liberties and free customs, which they have had in time past. And 
 all these customs and liberties aforesaid, which we have granted to 
 be holden within this our realm, as much as appertaineth to us and 
 our heirs, we shall observe. And all men of this our realm, as
 
 AND SELF-GOVERNMENT. 
 
 475 
 
 well spiritual as temporal (as much as in them is), shall observe 
 the same against all persons in like wise. And for this our gift 
 and grant of these liberties, and of others contained in our charter 
 of liberties of our forest, the archbishops, bishops, abbots, priors, 
 earls, barons, knights, freeholders, and other our subjects, have 
 given unto us the fifteenth part of all their moveables. And we 
 have granted unto them, for us and our heirs, that neither we nor 
 our heirs shall procure or do anything whereby the liberties in this 
 charter contained shall be infringed or broken. And if anything 
 be procured by any person contrary to the premises, it shall be had 
 of no force nor effect. These being witnesses : Lord B., archbishop 
 of Canterbury, E., bishop of London, I., bishop of Bath, P., of 
 Winchester, H., of Lincoln, R., of Salisbury, W., of Rochester, 
 W.. of Worcester, J., of Ely, H., of Hereford, R., of Chichester, 
 W., of Exeter, bishops; the abbot of St. Edmonds, the abbot of 
 St. Albans, the abbot of Bello, the abbot of St. Augustine's in 
 Canterbury, the abbot of Evesham, the abbot of Westminster, the 
 abbot of Bourgh St. Peter, the abbot of Reding, the abbot of 
 Abindon, the abbot of Malmsbury, the abbot of Winchcomb, the 
 abbot of Hyde, the abbot of Certesy, the abbot of Sherburn, the 
 abbot of Cerne, the abbot of Abbotebir, the abbot of Middleton, 
 the abbot of Seleby, the abbot of Cirencester ; H. de Burgh, jus- 
 tice, H., earl of Chester and Lincoln, W., earl of Salisbury, W., 
 earl of Warren, G. de Clare, earl of Gloucester and Hereford, W. 
 de Ferrars, earl of Derby, W. de Mandeville, earl of Essex, H. de 
 Bygod, earl of Norfolk, W., earl of Albemarle, H., earl of Here- 
 ford, J., constable of Chester, R. de Ros, R. Fitzwalter, R. de 
 Vyponte, W. de Bruer, R. de Muntefichet, P. Fitzherbert, W. de 
 Aubenie, J. Gresly, F. de Breus, J. de Monemue, J. Fitzallen, H. 
 de Mortimer, W. de Beauchamp, W. de St. John, P. de Mauly, 
 Brian de Lisle, Thomas de Multon, R. de Argenteyn, G. de Nevil, 
 W. Mauduit, J. de Balun, and others." 
 
 We, ratifying and approving these gifts and grants aforesaid, 
 confirm and make strong all the same for us and our heirs per- 
 petually ; and by the tenor of these presents do renew the same, 
 willing and granting for us and our heirs that this charter, and all 
 and singular its articles, forever shall be stedfastly, firmly and in- 
 violably observed. Although some articles in the same charter 
 contained yet hitherto peradventure have not been kept, we will 
 and, by authority royal, command from henceforth firmly they be
 
 476 ON CIVIL LIBERTY 
 
 observed. In witness whereof, we have caused these our letters 
 patent to be made. T. Edward, our son, at Westminster, the 
 twelfth day of October, in the twenty-fifth year of our reign. 
 
 Magna Charta, in this form, has been solemnly confirmed by our 
 kings and parliaments upwards of thirty times ; but in the twenty- 
 fifth year of Edward I. much more than a simple confirmation of 
 it was obtained for England. As has already been mentioned, the 
 original charter of John forbade the levying of escuage, save by 
 consent of the great council of the land ; and although those im- 
 portant provisions were not repeated in Henry's charter, it is cer- 
 tain that they were respected. Henry's barons frequently refused 
 him the subsidies which his prodigality was always demanding. 
 Neither he nor any of his ministers seems ever to have claimed for 
 the crown the prerogative of taxing the landholders at discretion ; 
 but the sovereign's right of levying money from his towns and 
 cities, under the name of tallages or prises, was constantly exer- 
 cised during Henry III.'s reign, and during the earlier portion of 
 his son's. But, by the statute of Edward I. intituled Confirmatio 
 Chartarum, all private property was secured from royal spoliation, 
 and placed under the safeguard of the great council of all the 
 realm. The material portions of that statute are as follows : 
 
 CONFIRMATIO CHARTARUM. 
 
 ANNO VICESIMO QUINTO EDV. I. 
 
 CAP. V. 
 
 And for so much as divers people of our realm are in fear that 
 the aids and tasks which they have given to us beforetime, towards 
 our wars and other business, of their own grant and good will 
 (howsoever they were made), might turn to a bondage to them and 
 their heirs, because they might be at another time found in the 
 rolls, and likewise for the prises taken throughout the realm, in our 
 name, by our ministers, we have granted for us and our heirs that 
 we shall not draw such aids, tasks, nor prises, into a custom for 
 anything that hath been done heretofore, be it by roll or any other 
 precedent that may be founden.
 
 AND SELF-GOVERNMENT. 477 
 
 CAP. VI. 
 
 Moreover, we have granted for us and our heirs, as well to arch- 
 bishops, bishops, abbots, priors, and other folk of holy church, as 
 also to earls, barons, and to all the commonalty of the land, that 
 for no business from thenceforth we shall take such manner of 'aids , 
 tasks, nor frtses, but by the common assent of all 1 the realm, and for 
 the common profit thereof, saving the ancient aids and prises due 
 and accustomed. 
 
 1 " Par commun assent de tut le roiaume." The version in our statute-book 
 omits the important word "All."
 
 APPENDIX V. 
 
 THE PETITION OF RIGHT. 1 
 
 To the King's Most Excellent Majestic. 
 
 HUMBLY shew unto our Sovereign Lord the King, the Lords 
 Spiritual and Temporal, and Commons in Parliament assembled, 
 that whereas it is declared and enacted by a Statute, made in the 
 tyme of the Raigne of King Edward the first, commonly called 
 " Statutum de Tallagio non concedendo," that no Tallage or Aide 
 should be laid or levied, by the King or his heires, in this Realme; 
 without the good-will and assent of the Arch Bishopps, Bishopps, 
 Earles, Barons, Knights, Burgesses and other the freemen of the 
 cominalty of this realme ; And by Authority of Parliament houlden 
 in the five and twentieth yere of the Raigne of King Edward the 
 third, it is declared and enacted, that from thenceforth noe person 
 should be compelled to make any loanes to the King against his 
 will, because such loanes were against reason, and the franchise of 
 the land; and by other lawes of this realme it is provided, that 
 none should be charged by any charge or imposition, called a 
 Benevolence, nor by such like charge, by which the Statuts before 
 mentioned, and other the good lawes and statuts of this Realme, 
 your Subjects have inherited this freedom, that they should not be 
 compelled to contribute to any Tax, Tallage, Aide, or other like 
 charge, not sett by common consent in Parliament. 
 
 Yet nevertheless of late, divers commissions, directed to sundrie 
 commissioners in severall Counties, with instructions, have been 
 issued, by means whereof your People have bene in divers places 
 assembled, and required to lend certaine sommes of money unto 
 your Majestic, and many of them upon their refusall soe to doe, 
 have had an oath administered unto them, not warrantable by the 
 
 1 Tliis petition was drawn up by Sir Edward Coke. Coke, 207, edit, of 1697. 
 478
 
 ON CIVIL LIBERTY AND SELF-GOVERNMENT. 
 
 479 
 
 Lawes or Statuts of this Realme, and have been constrained to be- 
 come bound to make appearance, and give attendance before your 
 Privie Councell, and in other places; and others of them have 
 beene therefore imprisoned, confined, and sundrie other waves mo- 
 lested and disquieted : And divers other charges have bene laid 
 and leavied upon your People in severall Counties, by Lord Lieu- 
 tenants, Deputie-Lieutenants, Commissioners for musters, Justices 
 of peace and others, by commaunde or direction from your Majes- 
 tic, or your Privie-Councell, against the lawes and free customes of 
 the real me. 
 
 And whereas alsoe by the Statute called "The greate Charter of 
 the Liberties of England," it is declared and enacted, that noe 
 freeman may be taken or imprisoned, or be disseised of his freehold 
 or liberties, or his free customes, or be outlawed or exiled, or in 
 any manner destroyed, but by the lawfull judgment of his Peeres, 
 or by the lawe of the land. 
 
 And in the eight and twentieth yere of the reigne of King Ed- 
 ward the third, it was declared and ennacted by Authoritie of Par- 
 liament, that no man, of what estate or condition that he be, should 
 be putt out of his lands or tenements, nor taken nor imprisoned, 
 nor disherited, nor putt to death, without being brought to answer 
 by due process of lawe. 
 
 Nevertheless against the tenour of the said Statutes, and other 
 the good lawes and Statuts of your Realme, to that end provided, 
 divers of your subjects have of late bene imprisoned without any 
 cause showed ; and when for their deliverance they were brought 
 before your Justices, by your Majestie's Writ of Habeas Corpus, 
 there to undergoe and receive, as the Court should order, and their 
 Keepers commaunded to certify the causes of their detayner ; noe 
 cause was certified, but that they were detayned by your Majestie's 
 special commaund, signified by the Lords of your Privie Councell, 
 and yet were returned back to severall prisons, without being 
 charged with any thynge to which they might make answeare ac- 
 cording to the lawe. 
 
 And whereas of late, great companies of souldiers and marriners 
 have bene dispersed into divers Counties of the Realme, and the 
 inhabitants against their wills have been compelled to receive them 
 into their houses, and there to suffer them to sojorne, against the 
 lawes and customes of this realme, and to the great grievance and 
 vexation of the People.
 
 480 ON CIVIL LIBERTY 
 
 And whereas alsoe, by authority of Parliament, in the 25th yere 
 of the raigne of King Edward III., it is declared and enacted that 
 noe man should be forejudged of life or lymbe, against the forme 
 of the great Charter, and the lawe of the land, and by the said 
 great Charter, and other the Laws and Statuts of this your 
 Realme, no man ought to be adjudged to death, but by the lawes 
 established in this your realme, either by the customes of the same 
 realme, or by Acts of Parliament ; And whereas noe offender, of 
 what kind soever, is exempted from the proceedings to be used, 
 and the punishments to be inflicted by the lawes and statutes of 
 this your realme; nevertheless of late time, divers commissions 
 under your Majestie's Greate Scale have issued forth, by which 
 certaine persons have been assigned and appointed commissioners, 
 with power and authoritie to proceed within the land, according 
 to the justice of martiall lawe, against such souldiers and marri- 
 ners, or other dissolute persons joining with them, as should com- 
 mit any murder, robbery, felonie, meeting, or other outrage or 
 misdemeanour, whatsoever; and by such summarie course and 
 order as is agreeable to martiall lawe, and as is used in armies in 
 tyme of war, to proceed to the tryal and condemnation of such 
 offenders, and them to cause to be executed and putt to death, ac- 
 cording to the lawe martiall. 
 
 By pretext whereof, some of your Majestie's Subjects have bene 
 by some of the said commissioners put to death, when and where, 
 if lawes and statuts of the land they had deserved death, by the 
 same lawes and statuts alsoe they might, and by noe other ought, to 
 have been judged and executed. 
 
 And alsoe sundrie grievous offenders, by colour thereof clayminge 
 an exemption, have escaped the punishments due to them by the 
 lawes and statuts of this your realm, by reason that divers of your 
 officers and ministers of justice have unjustly refused or forborne to 
 proceed against such offenders, according to the same lawes and 
 statuts, upon pretence that the said offenders were punishable only 
 by martiall lawe, and by authority of such commissions as afore- 
 said ; which commissions, and all others of like nature, are wholely 
 and directlie contrary to the said lawes and statuts of this your realme. 
 
 They doe therefore humbly pray your most excellent Majestic, 
 That no man hereafter be compelled to make or yielde any guifte, 
 loane, benevolence, tax, or such like charge, without common con- 
 sent by Act of Parliament ; and that none be called to make an-
 
 AND SELF-GOVERNMENT. 481 
 
 sweare, or take such oath, or to give attendance, or be confyned, or 
 otherwise molested or disquieted concerning the same, or for refusal 
 thereof: And that noe freeman, in any such manner as is before 
 mentioned, be imprisoned or detayned : And that your Majestic 
 would be pleased to remove the said souldiers and marriners, and 
 that your People may not be soe burthened in the tyme to come : 
 And that the aforesaid commissions for proceedinge by martiall 
 lawe, may be revoaked and annulled : and that hereafter, noe com- 
 missions of like nature may issue forth to any person or persons 
 whatsoever, to be executed as aforesaid, least by colour of them, 
 any of your Majestic' s subjects be destroyed, or putt to death, con- 
 trary to the lawes and franchise of the land. 
 
 All which they do most humbly pray of your most excellent Ma- 
 jestic, as their Rights and Liberties, according to the lawes and 
 statuts of this Realme : And that your Majestic would also vouch- 
 safe to declare, that the awardes, doeings, and proceedings, to the 
 prejudice of your People, in any of the premises, shall not be 
 drawn hereafter into consequence or example : And that your 
 Majestic would be alsoe graciously pleased, for the further comfort 
 and safetie of your people, to declare your royal will and pleasure, 
 That in the things aforesaid all your officers and ministers shall 
 serve you, according to the lawes and statuts of this realme, as 
 they tender the honour of your Majestic, and the prosperity of this 
 Kingdom. 
 
 The King s Answer to the Petition of Right. 
 
 The King willeth that Right be done, according to the laws and 
 customs of the realme ; and that the Statutes be put in due exe- 
 cution, that his subjects may have no cause to complain of any 
 wrong or oppressions, contrary to their just Rights and Liberties, 
 to the preservation whereof he holds himself in conscience as well 
 obliged, as of his prerogative. 
 
 Petition of both Houses to the King, on the Jth day of June, 1628, 
 wherein a more full and satisfactory answer to the above Petition 
 is prayed for. 
 
 May it please your most excellent Majestic, the Lords Spiritual 
 and Temporal, and Commons in Parliament assembled, taking in 
 consideration that the good intelligence between your Majestic and
 
 482 ON CIVIL LIBERTY AND SELF-GOVERNMENT. 
 
 your People, doth much depend upon your Majestie's answer upon 
 their Petition of Right, formerly presented ; with unanimous con- 
 sent do now become most humble suitors unto your Majestic, that 
 you would be pleased to give a clear and satisfactory answer there- 
 unto in full Parliament. 
 
 To which Petition the King replied : 
 
 The answer I have already given you was made with so good 
 deliberation, and approved by the judgments of so many wise men, 
 that I could not have imagined but that it would have given you full 
 satisfaction : But to avoid all ambiguous interpretations, and to 
 show you there is no doubleness in my meaning, I am willing to 
 pleasure you as well in words as in substance : Read your petition, 
 and you shall have an answer that I am sure will please you. 
 
 Here the petition was read, and the following answer was re- 
 turned : " Soit Droit fait comme il est desire." C. R. 
 
 Then said his Majesty : 
 
 This I am sure is full, yet no more than I granted you in my 
 first answer, for the meaning of that, was to confirm your liberties, 
 knowing according to your own protestations, that you neither mean 
 nor can hurt my prerogative. And I assure you, my maxim is, 
 that the People's liberties strengthen the King's Prerogative, and 
 the King's Prerogative is to defend the People's Liberties. 
 
 You see how ready I have shown myself to satisfy your demand, 
 so that I have done my part ; wherefore if this parliament have not 
 a happy conclusion, the sin is yours, I am free from it. 
 
 [The above is the Answer of the King in Parliament, and his 
 Speech on that occasion, June 7th, 1628.]
 
 APPENDIX VI. 
 
 AN ACT FOR THE BETTER SECURING THE LIBERTY OF 
 THE SUBJECT, AND FOR PREVENTION OF IMPRISON- 
 MENTS BEYOND THE SEAS, COMMONLY CALLED "THE 
 HABEAS CORPUS ACT." 1 
 
 31 CH. II., Ch. 2, MAY, 1679. 
 
 WHEREAS great delays have' been used by sheriffs, gaolers and 
 other officers, to whose custody any of the king's subjects have been 
 committed, for criminal or supposed criminal matters, in making 
 returns of writs of habeas corpus, to them directed, by standing out 
 on alias or pluries habeas corpus, and sometimes more, and by other 
 shifts to avoid their yielding obedience to such writs, contrary to 
 their duty and the known laws of the land, whereby many of the 
 king's subjects have been, and hereafter may be, long detained in 
 prison, in such cases where by law they are bailable, to their great 
 charge and vexation : 
 
 II. For the prevention whereof, and the more speedy relief of 
 all persons imprisoned for any such criminal or supposed criminal 
 matters ; (2) Be it enacted, by the kings most excellent majesty, by 
 and with the advice and consent of the lords spiritual and temporal, 
 and commons in this present parliament assembled, and by the au- 
 thority thereof, That whensoever any person or persons shall bring 
 any habeas corpus directed unto any sheriff or sheriffs, gaoler, min- 
 ister, or other person whatsoever, for any person in his or their 
 custody, and the said writ shall be served upon the said officer, or 
 left at the gaol or prison with any of the under-officers, under- 
 keepers, or deputy of the said officers or keepers, that the said 
 officer or officers, his or their under-officers, under-keepers or 
 deputies, shall within three days after the service thereof, as afore- 
 
 1 Copied from the Statutes at Large, by Danby Pickering, Esq., edit. 1763, 
 vol. 8, p. 432. 
 
 483
 
 4 8 4 
 
 ON CIVIL LIBERTY 
 
 said (unless the commitment aforesaid were for treason or felony 
 plainly and especially expressed in the warrant of commitment), 
 upon payment or tender of the charges of bringing the said prisoner, 
 to be ascertained by the judge or court that awarded the same, and 
 endorsed upon the said writ, not exceeding 12 pence per mile, and 
 upon security given by his own bond to pay the charges of carry- 
 ing back the prisoner, if he shall be remanded by the court or judge 
 to which he shall be brought, according to the true intent of this 
 present act, and that he will not make any escape by the way, make 
 return of such writ ; (3) and bring, or cause to be brought, the 
 body of the party so committed or restrained, unto or before the 
 lord chancellor, or lord keeper of the great seal of England, for 
 the time being, or the judges or barons of the said court, from 
 whence the said writ shall issue, or unto and before such other per- 
 son or persons before whom the said writ is made returnable, ac- 
 cording to the command thereof; (4) and shall then likewise certify 
 the true causes of his detainer or imprisonment, unless the commit- 
 ment of the said party be in any place beyond the distance of 
 twenty miles from the place or places where such court or person is, 
 or shall be residing ; and if beyond the distance of 20 miles, and 
 not above 100 miles, then within the space of ten days, and if 
 beyond the distance of 100 miles, then within the space of 20 days 
 after such delivery aforesaid, and not longer. 
 
 III. And to the intent that no sheriff, gaoler or other officer may 
 pretend ignorance of the import of any such writ; (2) Be it en- 
 acted by the authority aforesaid, that all such writs shall be marked 
 in this manner: "Per statutum, tricesimo primo Caroli secundi 
 Regis," and shall be signed by the person that awards the same; 
 
 (3) and if any person or persons shall be or stand committed or 
 detained as aforesaid, for any crime, unless for felony or treason, 
 plainly expressed in the warrant of commitment, in the vacation 
 time and out of term it shall and may be lawful to and for the per- 
 son or persons so committed or detained (other than persons con- 
 vict or in execution by legal process), or any one in his or their 
 behalf, to appeal or complain to the lord chancellor or lord keeper, 
 or any one of his majesty's justices, either of the one bench or of 
 the other, or the barons of the exchequer of the degree of the coif; 
 
 (4) and the said lord chancellor, lord keeper, justices or barons, or 
 any of them, upon view of the copy or copies of the warrant or 
 warrants of commitment and detainer, or otherwise upon oath made
 
 AND SELF-GOVERNMENT. 485 
 
 that such copy or copies were denied to be given by such person 
 or persons in whose custody the prisoner or prisoners is or are de- 
 tained, are hereby authorized and required, upon request made in 
 writing by such person or persons, or any on his, her, or their be- 
 half, attested and subscribed by two witnesses who were present at 
 the delivery of the same, to award and grant an habeas corpus, 
 under the seal of such court whereof he shall then be one of the 
 judges, (5) to be directed to the officer or officers in whose custody 
 the party so committed or detained shall be, returnable immediate 
 before the said lord chancellor or lord keeper, or such justice, 
 baron, or any other justice or baron of the degree of the coif, of 
 any of the said courts; (6) and upon service thereof as aforesaid, 
 the officer or officers, his or their under-officer or under-officers, 
 under-keeper or under-keepers, or their deputy, in whose custody 
 the party is so committed or detained, shall within the time respect- 
 ively before limited, bring such prisoner or prisoners before the 
 said lord chancellor, or lord keeper, or such justices, barons, or 
 one of them, before whom the said writ is made returnable, .and in 
 case of his absence, before any other of them, with the return of 
 such writ and the true causes of the commitment or detainer ; (7) 
 and thereupon, within two days after the party shall be brought 
 before them, the said lord chancellor or lord keeper, or such justice 
 or baron before whom the prisoner shall be brought as aforesaid, 
 shall discharge the said prisoner from his imprisonment, taking his 
 or their recognizance, with one or more surety or sureties, in any 
 sum according to their discretions, having regard to the quality of 
 the prisoner and the nature of the offence, for his or their appear- 
 ance in the court of king's bench the term following, or at the 
 next assizes, sessions, or general gaol delivery, of or for such county, 
 city or place where the commitment was, or where the offence was 
 committed, or in such other court where the said offence is properly 
 cognizable, as the case shall require, and then shall certify the said 
 writ with the return thereof, and the said recognizance or recog- 
 nizances into the said court where such appearance is to be made ; 
 (8) unless it shall appear to the said lord chancellor, or lord keeper, 
 or justice or justices, or baron or barons, that the party so com- 
 mitted is detained upon a legal process, order or warrant, out of 
 some court that hath jurisdiction of criminal matters, or by some 
 warrant signed and sealed with the hand and seal of any of the 
 said justices or barons, or some justice or justices of the peace, for
 
 4 S6 ON CIVIL LIBERTY 
 
 such matters or offences for the which by the law the prisoner is 
 not bailable. 
 
 IV. Provided always, and be it enacted, That if any person 
 shall have wilfully neglected, by the space of two whole terms after 
 \ is imprisonment, to pray a habeas corpus for his enlargement, such 
 person so wilfully neglecting shall not have any habeas corpus to 
 be granted in vacation time, in pursuance of this act. 
 
 V. And be it further enacted, by the authority aforesaid, That 
 if any officer or officers, his or their under-officer or under-officers, 
 under-keeper or under-keepers, or deputy, shall neglect or refuse 
 to make the returns aforesaid, or to bring the body or bodies of the 
 prisoner or prisoners according to the command of the said writ, 
 within the respective times aforesaid, or upon demand made by the 
 prisoner or person in his behalf, shall refuse to deliver, or within 
 the space of six hours after demand, shall not deliver to the person 
 so demanding, a true copy of the warrant or warrants of commit- 
 ment and detainer of such prisoner, which he and they are hereby 
 required to deliver accordingly ; all and every the head gaolers 
 and keepers of such person, and such other person in whose custody 
 the prisoner shall be detained, shall for the first offence forfeit to 
 the prisoner or party grieved the sum of ^100 ; (2) and for the 
 second offence the sum of ^200, and shall and is hereby made in- 
 capable to hold or execute his said office ; (3) the said penalties 
 to be recovered by the prisoner or party grieved, his executors and 
 administrators, against such offender, his executors or adminis- 
 trators, by any action of debt, suit, bill, plaint or information, in 
 any of the king's courts at Westminster, wherein no essoin, protec- 
 tion, privilege, injunction, wager of law, or stay of prosecution by 
 " Non vult ulterius prosequi," or otherwise, shall be admitted or 
 allowed, or any more than one imparlance ; (4) and any recovery 
 or judgment at the suit of any party grieved, shall be a sufficient 
 conviction for the first offence ; and any after recovery or judgment 
 at the suit of a party grieved, for any offence after the first judg- 
 ment, shall be a sufficient conviction to bring the officers or person 
 within the said penalty for the second offence. 
 
 VI. And for the prevention of unjust vexation by reiterated 
 commitments for the same offence ; (2) Be it enacted, by the au 
 thority aforesaid, That no person or persons, which shall be deliv- 
 ered or set at large upon any habeas corpus, shall at any time here- 
 after be again imprisoned or committed for the same offence, by
 
 AND SELF-GOVERNMENT. 487 
 
 any person or persons whatsoever, other than by the legal order 
 and process of such court wherein he or they shall be bound by 
 recognizance to appear, or other court having jurisdiction of the 
 cause; (3) and if any other person or persons shall knowingly, 
 contrary to this act, recommit or imprison, or knowingly procure or 
 cause to be recommitted or imprisoned, for the same offence or 
 pretended offence, any person or persons delivered or set at large 
 as aforesaid, or be 'knowingly aiding or assisting therein, then he 
 or they shall forfeit to the prisoner or party grieved, the sum 
 of 500 ; any colorable pretence or variation in the warrant or 
 warrants of commitment notwithstanding, to be recovered as 
 aforesaid. 
 
 VII. Provided always, and be it further enacted, That if any 
 person or persons shall be committed for high treason or felony, 
 plainly and specially expressed in the warrant of commitment, upon 
 his prayer or petition in open court, the first week of the term, or 
 first day of the sessions of oyer and terminer or general gaol de- 
 livery, to be brought to his trial, shall not be indicted some time in 
 the next term, sessions of oyer and terminer or general gaol de- 
 livery, after such commitment ; it shall and may be lawful to and 
 for the judges of the court of king's bench, and justices of oyer and 
 terminer or general gaol delivery, and they are hereby required, 
 upon motion to them made in open court the last day of the term, 
 sessions or gaol delivery, either by the prisoner or any one in his 
 behalf, to set at liberty the prisoner upon bail, unless it appear to 
 the judges and justices, upon oath made, that the witnesses for the 
 king could not be produced the same term, sessions or general gaol 
 delivery ; (2) and if any person or persons committed as aforesaid, 
 upon his prayer or petition in open court the first week of the term 
 or the first day of the sessions of oyer and terminer and general 
 gaol delivery, to be brought to his trial, shall not be indicted and 
 tried the second term, sessions of oyer and terminer or general gaol 
 delivery, after his commitment, or upon his trial shall be acquitted, 
 he shall be discharged from his imprisonment. 
 
 VIII. Provided always, That nothing in this act shall extend 
 to discharge out of prison any person charged in debt, or other 
 action, or with process in any civil cause, but that after he shall be 
 discharged of his imprisonment for such his criminal offence, he 
 shall be kept in custody according to the law for such other suit. 
 
 IX. Provided always, and be it further enacted by the authority
 
 ON CIVIL LIBERTY 
 
 aforesaid, That if any person or persons, subjects of this realm, 
 shall be committed to any prison, or in custody of any officer or 
 officers whatsoever, for any criminal or supposed criminal matter, 
 that the said person shall not be removed from the said prison and 
 custody, into the custody of any other officer or officers; (2) unless 
 it be by habeas corpus or some other legal writ ; or where the pris- 
 oner is delivered to the constable or other inferior officer, to carry 
 such prisoner to some common gaol ; (3) or where any person is 
 sent by order of any judge of assize, or justice of the peace, to any 
 common workhouse or house of correction ; (4) or where the pris- 
 oner is removed from one place or prison to another within the 
 same county, in order to his or her trial or discharge in due course 
 of law ; (5) or in case of sudden fire or infection, or other neces- 
 sity j (6) and if any person or persons shall, after such commitment 
 aforesaid, make out and sign or countersign any warrant or war- 
 rants for such removal aforesaid, contrary to this act ; as well he 
 that makes or signs or countersigns such warrant or warrants, as 
 the officer or officers that obey or execute the same, shall suffer and 
 incur the pains and forfeitures in this act before mentioned, both 
 for the first and second offence respectively, to be recovered in 
 manner aforesaid by the party grieved. 
 
 X. Provided also, and be it further enacted by the authority 
 aforesaid, That it shall and may be lawful to and for any prisoner 
 and prisoners as aforesaid, to move and obtain his or their habeas 
 corpus, as well out of the high court of chancery or court of ex- 
 chequer as out of the courts of king's bench or common pleas, or 
 either of them ; (2) and if the said lord chancellor or lord keeper, 
 or any judge or judges, baron or barons, for the time being, of the 
 degree of the coif, of any of the courts aforesaid, in the vacation 
 time, upon view of the copy or copies of the warrant or warrants 
 of commitment or detainer, upon oath made that such copy or 
 copies were denied as aforesaid, shall deny any writ of habeas 
 corpus, by this act required to be granted, being moved for as 
 aforesaid, they shall severally forfeit to the prisoner or party 
 grieved, the sum of ^500, to be recovered in manner aforesaid. 
 
 XI. And be it declared and enacted by the authority aforesaid, 
 That an habeas corpus, according to the true intent and meaning 
 of this act, may be directed and run into any county Palatine, the 
 Cinque Ports^ or other privileged places within the kingdom of 
 England, dominion of Wales, or town of Berwick upon Tweed,
 
 AND SELF-GOVERNMENT. 
 
 489 
 
 and the islands of Jersey or Guernsey ; any law or usage to the 
 contrary notwithstanding. 
 
 XII. And for preventing illegal imprisonments in prisons beyond 
 the seas ; (2) Be it further enacted by the authority aforesaid, That 
 no subject of this realm, that now is or hereafter shall be an inhab- 
 itant or resiant of this kingdom of England, dominion of Wales, or 
 town of Berwick upon Tweed, shall or may be sent prisoner into 
 Scotland, Ireland, Jersey, Guernsey, Tangier, or into parts, garri- 
 sons, islands, or places, beyond the seas, which are or at any time 
 hereafter shall be within or without the dominions of his majesty, 
 his heirs or successors ; (3) and that every such imprisonment is 
 hereby enacted and adjudged to be illegal ; (4) and that if any of 
 the said subjects now is or hereafter shall be so imprisoned, every 
 such person and persons so imprisoned, shall and may for every 
 such imprisonment maintain, by virtue of this act, an action$>r ac- 
 tions of false imprisonment, in any of his majesty's courts of record, 
 against the person or persons by whom he or she shall be so com- 
 mitted, detained, imprisoned, sent prisoner or transported, contrary 
 to the true meaning of this act, and against all or any person or 
 persons that shall frame, contrive, write, seal or countersign any 
 warrant or writing for such commitment, detainer, imprisonment, 
 or transportation, or shall be advising, aiding, or assisting in the 
 same, or any of them; (5) and the plaintiff in every such action 
 shall have judgment to recover his treble costs, besides damages, 
 which damages so to be given shall not be less than ^500 ; (6) in 
 which action no delay, stay or stop of proceeding by rule, order or 
 command, nor no injunction, protection or privilege whatsoever, 
 nor any other than one imparlance, shall be allowed, excepting 
 such rule of the court wherein such action shall depend, made in 
 open court, as shall be thought in justice necessary for special 
 cause to be expressed in said rule ; (7) and the person or persons 
 who shall knowingly frame, contrive, write, seal or countersign any 
 warrant for such commitment, detainer, or transportation, or shall 
 so commit, detain, imprison, or transport any person or persons, 
 contrary to this act, or be any ways advising, aiding or assisting 
 therein, being lawfully convicted thereof, shall be disabled from 
 thenceforth to bear any office of trust or profit within the said 
 realm of England, dominion of Wales, or town of Berwick upon 
 Tweed, or any of the islands, territories or dominions thereunto 
 belonging ; (8) and shall incur and sustain the pains, penalties and
 
 490 ON CIVIL LIBERTY 
 
 forfeitures limited, ordained and provided in and by the statute 
 of provision and praemunire, made in the sixteenth year of king 
 Richard the Second ; (9) and be incapable of any pardon from the 
 king, his heirs or successors, of the said forfeitures, losses or 
 disabilities, or any of them. 
 
 XIII. Provided always, That nothing in this act shall extend 
 to give benefit to any person who shall by contract in writing agree 
 with any merchant or owner of any plantation, or other person 
 whatsoever, to be transported to any parts beyond the seas, and 
 receive earnest upon such agreement, although that afterwards 
 such person shall renounce such contract. 
 
 XIV. Provided always, and be it enacted, That if any person 
 or persons lawfully convicted of any felony, shall in open court 
 pray to be transported beyond the seas, and the court shall think 
 fit to^eave him or them in prison for that purpose, such person or 
 persons may be transported into any parts beyond the seas ; this 
 act, or anything herein contained, to the contrary notwithstanding. 
 
 XV. Provided also, and be it enacted, That nothing herein 
 contained shall be deemed, construed or taken to extend to the im- 
 prisonment of any person before the first day of June, one thousand 
 six hundred and seventy-nine, or to anything advised, procured or 
 otherwise done relating to such imprisonment ; anything herein 
 contained to the contrary notwithstanding. 
 
 XVI. Provided also, That if any person or persons at any time 
 resiant in this realm, shall have committed any capital offence in 
 Scotland or in Ireland, or in any of the islands or foreign planta- 
 tions of the king, his heirs or successors, where he or she ought to 
 be tried for such offence, such person or persons may be sent to 
 such place, there to receive such trial in such manner as the same 
 might have been used before the making of this act ; anything 
 herein contained to the contrary notwithstanding. 
 
 XVII. Provided also, and be it enacted, That no person or 
 persons shall be sued, impleaded, molested or troubled for any 
 offence against this act, unless the party offending be sued or im- 
 pleaded for the same within two years at the most, after such time 
 wherein the offence shall be committed, in case the party grieved 
 shall not be then in prison; and if he shall be in prison, then 
 within the space of two years after the decease of the person im- 
 prisoned, or his or her delivery out of prison, which shall first 
 happen.
 
 AND SELF-GOVERNMENT. 
 
 491 
 
 XVIII. And to the intent no person may avoid his trial at the 
 assizes or general gaol delivery, by procuring his removal before 
 the assizes, at such time as he cannot be brought back to receive 
 his trial there ; (2) Be it enacted, that after the assizes proclaimed 
 for that county where the prisoner is detained, no person shall be 
 removed from the common gaol upon any habeas corpus granted 
 in pursuance of this act, but upon any such habeas corpus shall be 
 broright before the judge of assize in open court, who is thereupon 
 to do what to justice shall appertain. 
 
 XIX. Provided nevertheless, That after the assizes are ended, 
 any person or persons detained may have his or her habeas corpus 
 according to the direction and intention of this act. 
 
 XX. And be it also enacted by the authority aforesaid, That if 
 any information, suit or action shall be brought or exhibited against 
 any person or persons for any offence committed or to be com- 
 mitted against the form of this law, it shall be lawful for such de- 
 fendants to plead the general issue, that they are not guilty or that 
 they owe nothing, and to give such special matter in evidence to 
 the jury that shall try the same, which matter being pleaded had 
 been good and sufficient matter in law to have discharged the said 
 defendant or defendants against the said information, suit or action, 
 and the same matter shall be then as available to him or them, to 
 all intents and purposes, as if he or they had sufficiently pleaded, 
 set forth or alleged the same matter in bar, or discharge of such 
 information, suit or action. 
 
 XXI. And because many times persons charged with petty trea- 
 son or felony, or accessories thereunto, are committed upon sus- 
 picion only, whereupon they are bailable or not, according as the 
 circumstances making out that suspicion are more or less weighty, 
 which are best known to the justices of the peace that committed 
 the persons, and have the examination before them, or to other 
 justices of the peace in the county ; (2) Be it therefore enacted, 
 That where any person shall appear to be committed by any judge 
 or justice of the peace, and charged as accessory before the fact to 
 any petty treason or felony, or upon suspicion thereof, or with 
 suspicion of petty treason or felony, which petty treason or felony 
 shall be plainly and specially expressed in the warrant of commit- 
 ment, that such person shall not be removed or bailed by virtue of 
 this act, or in any other manner than they might have been before 
 the making of this act.
 
 APPENDIX VII. 
 
 BILL OF RIGHTS, PASSED I WILLIAM AND MARY, SESS. 
 2, CH. 2, 1689. 
 
 AN ACT FOR DECLARING THE RIGHTS AND LIBERTIES OF THE SUBJECT, AND 
 SETTLING THE SUCCESSION OF THE CROWN. 
 
 I W. & M., 1689. 
 
 WHEREAS the lords spiritual and temporal, and commons assem- 
 bled at Westminster, lawfully, fully and freely representing all the 
 estates of the people of this realm, did, upon the thirteenth day of 
 February, in the year of our Lord one thousand six hundred and 
 eighty-eight, present unto their majesties then called and known 
 by the name and style of William and Mary, prince and princess 
 of Orange, being present in their proper persons, a certain declara- 
 tion in writing, made by the said lords and commons, in the words 
 following, viz : 
 
 Whereas the late king James the Second, by the assistance of 
 divers evil counsellors, judges and ministers employed by him, did 
 endeavor to subvert and extirpate the protestant religion, and the 
 laws and liberties of this kingdom 
 
 1. By assuming and exercising a power of dispensing with and 
 suspending the laws, and the execution of laws, without consent of 
 parliament. 
 
 2. By committing and prosecuting divers worthy prelates, for 
 humbly petitioning to be excused from concurring to the said 
 assumed power. 
 
 3. By issuing and causing to be executed a commission under 
 the great seal for erecting a court called the court of commissioners 
 for ecclesiastical causes. 
 
 4. By levying money for and to the use of the crown, by pre- 
 tence of prerogative, for other time and in other manner than the 
 same was granted by parliament. 
 
 5. By raising and keeping a standing army within this kingdom 
 492
 
 ON CIVIL LIBERTY AND SELF-GOVERNMENT. 
 
 493 
 
 in time of peace, without consent of parliament, and quartering 
 soldiers contrary to law. 
 
 6. By causing several good subjects, being protestants, to be 
 disarmed, at the same time when papists were both armed and 
 employed, contrary to law. f 
 
 7. By violating the freedom of election of members to serve in 
 parliament. 
 
 8. By prosecutions in the court of king's bench, for matters and 
 causes cognizable only in parliament ; and by divers other arbitrary 
 and illegal courses. 
 
 9. And whereas of late years, partial, corrupt and unqualified 
 persons have been returned and served on juries in trials, and par- 
 ticularly divers jurors in trials for high treason, which were not 
 freeholders. 
 
 10. And excessive bail hath been required of persons committed 
 in criminal cases, to elude the benefit of the laws made for the 
 liberty of the subjects. 
 
 11. And excessive fines haVe been imposed, and illegal and cruel 
 punishments inflicted. 
 
 12. And several grants and promises made of fines and forfeit- 
 ures, before any conviction or judgment against the persons upon 
 whom the same were to be levied. 
 
 All which are utterly and directly contrary to the known laws 
 and statutes, and freedom of this realm. 
 
 And whereas the said late king James the Second having abdi- 
 cated the government, and the throne being thereby vacant, his 
 highness the prince of Orange (whom it hath pleased almighty 
 God to make the glorious instrument of delivering the kingdom 
 from popery and arbitrary power) did (by the advice of the lords 
 spiritual and temporal, and divers principal persons of the com- 
 mons) cause letters to be written to the lords spiritual and tem- 
 poral, being protestants, and other letters to the several counties, 
 cities, universities, boroughs, and cinque-ports, for the choosing of 
 such persons to represent them as were of right to be sent to par- 
 liament, to meet and sit at Westminster, upon the two and twen- 
 tieth day of January, in this year one thousand six hundred eighty 
 and eight, in order to such an establishment, as that their religion, 
 laws and liberties might not again be in danger of being subverted ; 
 upon which letters, elections have been accordingly made; 
 
 And thereupon the said lords spiritual and temporal, and com-
 
 ON CIVIL LIBERTY 
 
 mons, pursuant to their respective letters and elections, being now 
 assembled in a full and free representative of this nation, taking 
 into their most serious consideration the best means for attaining 
 the ends aforesaid, do, in the first place (as their ancestors in like 
 case have usually done), for the vindicating and asserting their 
 ancient rights and liberties, declare 
 
 1. That the pretended power of suspending of laws, or the ex- 
 ecution of laws, by regal authority, without consent of parliament, 
 is illegal. 
 
 2. That the pretended power of dispensing with laws, or the 
 execution of laws, by regal authority, as it hath been assumed and 
 exercised of late, is illegal. 
 
 3. That the commission for erecting the late court of commis- 
 sioners for ecclesiastical causes, and all other commissions and 
 courts of like nature, are illegal and pernicious. 
 
 4. That levying money for or to the use of the crown, by pre- 
 tence of prerogative, without grant of parliament, for longer time 
 or in other manner than the same is 6*r shall be granted, is illegal. 
 
 5. That it is the right of the subjects to petition the king, and 
 all commitments and prosecutions for such petitioning are illegal. 
 
 6. That the raising or keeping a standing army within the king- 
 dom in time of peace, unless it be with consent of parliament, is 
 against law. 
 
 7. That the subjects which are protestants may have arms for 
 their defence suitable to their conditions, and as allowed by law. 
 
 8. That election of members of parliament ought to be free. 
 
 9. That the freedom of speech, and debates or proceedings in 
 parliament, ought not to be impeached or questioned in any court 
 or place out of parliament. 
 
 10. That excessive bail ought not to be required, nor excessive 
 fines imposed ; nor cruel and unusual punishments inflicted. 
 
 11. That jurors ought to be duly impanelled and returned, and 
 jurors which pass upon men in trials for high treason, ought to be 
 freeholders. 
 
 12. That all grants and promises of fines and forfeitures of par- 
 ticular persons before conviction, are illegal and void. 
 
 13. And that for redress of all grievances, and for the amending, 
 strengthening and preserving of the laws, parliaments ought to be 
 held frequently. 
 
 And they do claim, demand and insist upon all and singular the
 
 AND SELF-GOVERNMENT. 
 
 495 
 
 premises, as their undoubted rights and liberties; and that no 
 declarations, judgments, doings or proceedings, to the prejudice 
 of the people in any of the said premises, ought in any wise to 
 be drawn hereafter into consequence or example. 
 
 To which demand of their rights they are particularly en- 
 couraged by the declaration of his highness the prince of Orange, 
 as being the only means for obtaining a full redress and remedy 
 therein. 
 
 Having therefore an entire confidence, That his said highness 
 the prince of Orange will perfect the deliverance so far advanced 
 by him, and will still preserve them from the violation of their 
 rights, which they have here asserted, and from all other attempts 
 upon their religion, rights and liberties : 
 
 II. The said lords spiritual and temporal, and commons, assem- 
 bled at Westminster, do resolve, That William and Mary, prince 
 and princess of Orange, be, and be declared, king and queen of 
 England, France and Ireland, and the dominions thereunto belong- 
 ing, to hold the crown and royal dignity of the said kingdoms and 
 dominions to them, the said prince and princess, during their lives, 
 and the life of the survivor of them ; and that the sole and full ex- 
 ercise of the regal power be only in, and executed by, the said 
 prince of Orange, in the names of the said prince and princess, 
 during their joint lives ; and after their deceases, the said crown 
 and royal dignity of the said kingdoms and dominions to be to the 
 heirs of the body of the said princess ; and for default of such 
 issue, to the princess Anne of Denmark, and the heirs of her body; 
 and for default of such issue, to the heirs of the body of the said 
 prince of Orange. And the lords spiritual and temporal, and 
 commons, do pray the said prince and princess to accept the same 
 accordingly. 
 
 III. And that the oaths hereafter mentioned be taken by all 
 persons of whom the oaths of allegiance and supremacy might be 
 required by law, instead of them ; and that the said oaths of alle- 
 giance and supremacy be abrogated. 
 
 I, A. B., do sincerely promise and swear, That I will be faithful 
 and bear true allegiance to their majesties, king William and queen 
 Mary : 
 
 So help me God. 
 
 I, A. B., do swear, That I do from my heart abhor, detest and
 
 496 
 
 ON CIVIL LIBERTY 
 
 abjure, as impious and heretical, that damnable doctrine and posi- 
 tion, That princes excommunicated or deprived by the pope, or any 
 authority of the see of Rome, may be deposed or murdered by 
 their subjects, or any other whatsoever. And I do declare, That 
 no foreign prince, person, prelate, state or potentate hath, or ought 
 to have, any jurisdiction, power, superiority, pre-eminence or au- 
 thority, ecclesiastical or spiritual, within this realm : 
 
 So help me God. 
 
 IV. Upon which their said majesties did accept the crown and 
 royal dignity of the kingdoms of England, France and Ireland, 
 and the dominions thereunto belonging, according to the resolu- 
 tion and desire of the said lords and commons contained in the 
 said declaration. 
 
 V. And thereupon their majesties were pleased, That the said 
 lords spiritual and temporal, and commons, being the two houses 
 of parliament, should continue to sit, and with their majesties' 
 royal concurrence make effectual provision for the settlement of the 
 religion, laws and liberties of this kingdom, so that the same for 
 the future might not be in danger again of being subverted ; to 
 which the said lords spiritual and temporal, and commons, did 
 agree and proceed to act accordingly. 
 
 VI. Now in pursuance of the premises, the said lords spiritual 
 and temporal, and commons, in parliament assembled, for the rati- 
 fying, confirming and establishing the said declaration, and the 
 articles, clauses, matters and things therein contained, by the force 
 of a law made in due form by authority of parliament, do pray 
 that it may be declared and enacted, That all and singular the 
 rights and liberties asserted and claimed in the said^declaration, 
 are the true, ancient and indubitable rights and liberties of the 
 people of this kingdom, and so shall be esteemed, allowed, ad- 
 judged, deemed and taken to be, and that all and every the par- 
 ticulars aforesaid shall be firmly and strictly holden and observed, 
 as they are expressed in the said declaration ; and all officers and 
 ministers whatsoever shall serve their majesties and their successors 
 according to the same in all times to come. 
 
 Sections VII., VIII., IX., X., are irrelevant. 
 
 XI. All which their majesties are contented and pleased shall 
 be declared, enacted and established by authority of this present 
 parliament, and shall stand, remain and be the law of this realm
 
 AND SELF-GOVERNMENT. 
 
 497 
 
 forever ; and the same are by their said majesties, by and with the 
 advice and consent of the lords spiritual and temporal, and com- 
 mons, in parliament assembled, and by the authority of the same, 
 declared, enacted and established accordingly. 
 
 XII. And be it further declared and enacted by the authority 
 aforesaid, That from and after this present session of parliament 
 no dispensation by non obstante of or to any statute, or any part 
 thereof, shall be allowed, but that the same shall be held void and 
 of no effect, except a dispensation be allowed of in such statute, 
 and except in such cases as shall be specially provided for by one 
 or more bill or bills to be passed during this present session of 
 parliament. 
 
 Section XIIL irrelevant.
 
 APPENDIX VIII. 
 
 A DECLARATION BY THE REPRESENTATIVES OF THE 
 UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED. 
 
 WHEN, in the course of human events, it becomes necessary for 
 one people to dissolve the political bands which have connected 
 them with another, and to assume, among the powers of the earth, 
 the separate and equal station to which the laws of nature and of 
 nature's God entitle them, a accent respect to the opinions of man- 
 kind requires that they should declare the causes which impel them 
 to the separation. 
 
 We hold these truths to be self-evident, that all men are created 
 equal ; that they are endowed by their Creator with certain un- 
 alienable rights ; that among these, are life, liberty, and the pursuit 
 of happiness. That, to secure these rights, governments are insti- 
 tuted among men, deriving their just powers from the consent of 
 the governed ; that, whenever any form of government becomes 
 destructive of these ends, it is the right of the people to alter or 
 to abolish it, and to institute a new government, laying its founda- 
 tion on such principles, and organizing its powers in such form as 
 to them shall seem most likely to effect their safety and happiness. 
 Prudence, indeed, will dictate that governments long established 
 should not be changed for light and transient causes ; and, accord- 
 ingly, all experience hath shown that mankind are more disposed 
 to suffer, while evils are sufferable, than to right themselves by 
 abolishing the forms to which they are accustomed. But, when a 
 long train of abuses and usurpations, pursuing invariably the same 
 object, evinces a design to reduce them under absolute despotism, 
 it is their right, it is their duty, to throw off such government, and 
 to provide new guards for their future security. Such has been 
 the patient sufferance of these colonies, and such is now the neces- 
 sity which constrains them to alter their former systems of gov- 
 ernment. The history of the present king of Great Britain is a 
 history of repeated injuries and usurpations, all having, in direct 
 498
 
 ON CIVIL LIBERTY AND SELF-GOVERNMENT. 
 
 499 
 
 object, the establishment of an absolute tyranny over these States. 
 To prove this, let facts be submitted to a candid world : 
 
 He has refused his assent to laws the most wholesome and neces- 
 sary for the public good. 
 
 He has forbidden his governors to pass laws of immediate and 
 pressing importance, unless suspended in their operation till his 
 assent should be obtained ; and, when so suspended, he has utterly 
 neglected to attend to them. 
 
 He has refused to pass other laws for the accommodation of 
 large districts of people, unless those people would relinquish the 
 right of representation in the legislature ; a right inestimable to 
 them, and formidable to tyrants only. 
 
 He has called together legislative bodies at places unusual, 
 uncomfortable, and distant from the repository of their public 
 records, for the sole purpose of fatiguing them into compliance 
 with his measures. 
 
 He has dissolved representative houses repeatedly, for opposing, 
 with manly firmness, his invasions on the rights of the people. 
 
 He has refused, for a long time after such dissolutions, to cause 
 others to be elected ; whereby the legislative powers, incapable of 
 annihilation, have returned to the people at large for their exercise ; 
 the state remaining, in the meantime, exposed to all the danger of 
 invasion from without, and convulsions within. 
 
 He has endeavored to prevent the population of these States ; 
 for that purpose, obstructing the laws for the naturalization of 
 foreigners; refusing to pass others to encourage their migration 
 hither, and raising the conditions of new appropriations of lands. 
 
 He has obstructed the administration of justice, by refusing his 
 assent to laws for establishing judiciary powers. 
 
 He has made judges dependent on his will alone, for the tenure 
 of their offices, and the amount and payment of their salaries. 
 
 He has erected a multitude of new offices, and sent hither swarms 
 of officers to harass our people and eat out their substance. 
 
 He has kept among us, in times of peace, standing armies, with- 
 out the consent of our legislature. 
 
 He has affected to render the military independent of, and 
 superior to, the civil power. 
 
 He has combined, with others, to subject us to a jurisdiction 
 foreign to our constitution, and unacknowledged by our laws ; 
 giving his assent to their acts of pretended legislation :
 
 e 00 ON CIVIL LIBERTY 
 
 For quartering large bodies of armed troops among us : 
 
 For protecting them, by a mock trial, from punishment for 
 any murders which they should commit on the inhabitants of these 
 States : 
 
 For cutting off our trade with all parts of the world : 
 
 For imposing taxes on us without our consent : 
 
 For depriving us, in many cases, of the benefits of trial by jury : 
 
 For transporting us beyond the seas to be tried for pretended 
 offences : 
 
 For abolishing the free system of English laws in a neighboring 
 province, establishing therein an arbitrary government, and en- 
 larging its boundaries, so as to render it at once an example and 
 fit instrument for introducing the same absolute rule into these 
 colonies : 
 
 For taking away our charters, abolishing our most valuable laws, 
 and altering, fundamentally, the powers of our governments : 
 
 For suspending our own legislatures, and declaring themselves 
 invested with power to legislate for us in all cases whatsoever. 
 
 He has abdicated government here, by declaring us out of his 
 protection, and waging war against us. 
 
 He has plundered our seas, ravaged our coasts, burnt our towns, 
 and destroyed the lives of our people. 
 
 He is, at this time, transporting large armies of foreign merce- 
 naries to complete the works of death, desolation, and tyranny, 
 already begun, with circumstances of cruelty and perfidy scarcely 
 paralleled in the most barbarous ages, and totally unworthy the 
 head of a civilized nation. 
 
 He has constrained our fellow-citizens, taken captive on the 
 high seas, to bear arms against their country, to become the exe- 
 cutioners of their friends and brethren, or to fall themselves by 
 their hands>. 
 
 He has excited domestic insurrection amongst us, and has en- 
 deavored to bring on the inhabitants of our frontiers, the merciless 
 Indian savages, whose known rule of warfare is an undistinguished 
 destruction of all ages, sexes, and conditions. 
 
 In every stage of these oppressions, we have petitioned for re- 
 dress in the most humble terms ; our repeated petitions have been 
 answered only by repeated injury. A prince, whose character is 
 thus marked by every act which may define a tyrant, is unfit to be 
 the ruler of a free people.
 
 AND SELF-GOVERNMENT. 501 
 
 Nor have we been wanting in attention to our British brethren. 
 We have warned them from time to time, of attempts made by 
 their legislature to extend an unwarrantable jurisdiction over us. 
 We have reminded them of the circumstances of our emigration 
 and settlement here. We have appealed to their native justice 
 and magnanimity, and we have conjured them, by the ties of our 
 common kindred, to disavow these usurpations, which would in- 
 evitably interrupt our connections and correspondence. They, 
 too, have been deaf to the voice of justice and consanguinity. We 
 must, therefore, acquiesce in the necessity which denounces our 
 separation, and hold them, as we hold the rest of mankind, enemies 
 in war, in peace, friends. 
 
 We, therefore, the representatives of the United States of Amer- 
 ica, in General Congress assembled, appealing to the Supreme 
 Judge of the world for the rectitude of our intentions, do in the 
 name, and by the authority of the good people of these colonies, 
 solemnly publish and declare, That these United Colonies are, and 
 of right ought to be, free and independent States ; that they are 
 absolved from all allegiance to the British crown, and that all 
 political connection between them and the state of Great Britain, 
 is, and ought to be, totally dissolved ; and that, as free and inde- 
 pendent States, they have full power to levy war, conclude peace, 
 contract alliances, establish commerce, and to do all other acts and 
 things which independent states may of right do. And, for the 
 support of this declaration, with a firm reliance on the protection 
 of Divine Providence, we mutually pledge to each other our lives, 
 our fortunes, and our sacred honor. 
 
 The foregoing declaration was, by order of Congress, engrossed 
 and signed by the following members. 
 
 JOHN HANCOCK. 
 
 NEW HAMPSHIRE. RHODE ISLAND. 
 
 Josiah Bartlett, Stephen Hopkins, 
 
 William Whipple, William Ellery. 
 
 Matthew Thornton. 
 
 MASSACHUSETTS BAY. CONNECTICUT. 
 
 Samuel Adams, R g er Sherman, 
 
 John Adams, Samuel Huntmgton, 
 
 Robert Treat Paine, William Williams, 
 
 Elbridge Gerry. Oliver Wolcott.
 
 502 
 
 ON CIVIL LIBERTY AND SELF-GOVERNMENT. 
 
 NEW YORK. 
 
 William Floyd, 
 Philip Livingston, 
 Francis Lewis, 
 Lewis Morris. 
 
 NEW JERSEY. 
 
 Richard Stockton, 
 John Witherspoon, 
 Francis Hopkinson, 
 John Hart, 
 Abraham Clark. 
 
 PENNSYLVANIA. 
 
 Robert Morris, 
 Benjamin Rush, 
 Benjamin Franklin, 
 John Morton, 
 George CJymer, 
 James Smith, 
 George Taylor, 
 James Wilson, 
 George Ross. 
 
 DELAWARE. 
 
 Caesar Rodney, 
 George Read, 
 Thomas M'Kean. 
 
 MARYLAND. 
 
 Samuel Chase, 
 William Paca, 
 Thomas Stone, 
 Charles Carroll, of Carollton. 
 
 VIRGINIA. 
 George Wythe, 
 Richard Henry Lee, 
 Thomas Jefferson, 
 Benjamin Harrison, 
 Thomas Nelson, Jun., 
 Francis Lightfoot Lee, 
 Carter Braxton. 
 
 NORTH CAROLINA. 
 
 William Hooper, 
 Joseph Hewes, 
 John Penn. 
 
 SOUTH CAROLINA. 
 
 Edward Rutledge, 
 Thomas Hay ward, Jun., 
 Thomas Lynch, Jun., 
 Arthur Middleton. 
 
 GEORGIA. 
 
 Button Gwinnett, 
 Lyman Hall, 
 George Walton. 
 
 Resolved, That copies of the Declaration be sent to the several 
 assemblies, conventions, and committees, or councils of safety ; and 
 to the several commanding officers of the continental troops ; that 
 it be proclaimed in each of the United States, and at the head of 
 the army.
 
 APPENDIX IX. 
 
 ARTICLES OF CONFEDERATION AND PERPETUAL UNION 
 BETWEEN THE STATES. 
 
 To all to whom these presents shall come, we, the undersigned 
 Delegates of the States affixed to our names, send greeting : Whereas 
 the Delegates of the United States of America in congress assem- 
 bled, did, on the i5th day of November, in the year of our Lord 
 1777, and in the second year of the Independence of America, 
 agree to certain articles of confederation and perpetual union be- 
 tween the States of New Hampshire, Massachusetts Bay, Rhode 
 Island and Providence Plantations, Connecticut, New York, New 
 Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Caro- 
 lina, South Carolina, and Georgia, in the words following, viz : 
 
 Articles of Confederation and Perpetual Union between the States 
 of New Hampshire, Massachusetts Bay, Rhode Island and Provi- 
 dence Plantations, Connecticut, New York, New Jersey, Pennsyl- 
 vania, Delaware, Maryland, Virginia, North Carolina, South 
 Carolina, and Georgia. 
 
 ARTICLE I. 
 
 The style of this confederacy shall be "The United States of 
 America." 
 
 ARTICLE II. 
 
 Each state retains its sovereignty, freedom, and independence, 
 and every power, jurisdiction, and right, which is not by this con- 
 federation expressly delegated to the United States, in congress 
 assembled. 
 
 ARTICLE III. 
 
 The said states hereby severally enter into a firm league of 
 friendship with each other, for their common defence, the security 
 of their liberties, and their mutual and general welfare; binding 
 themselves to assist each other against all force offered to, or
 
 504 
 
 ON CIVIL LIBERTY 
 
 attacks made upon them, or any of them, on account of religion, 
 sovereignty, trade, or any other pretence whatever. 
 
 ARTICLE IV. 
 
 The better to secure and perpetuate mutual friendship and inter- 
 course among the people of the different states in this Union, the 
 free inhabitants of each of these states (paupers, vagabonds, and 
 fugitives from justice excepted) shall be entitled to all privileges 
 and immunities of free citizens in the several states ; and the people 
 of each state shall have free ingress and regress to and from any 
 other state, and shall enjoy therein all the privileges of trade and 
 commerce, subject to the same duties, impositions, and restrictions, 
 as the inhabitants thereof respectively, provided that such restric- 
 tion shall not extend so far as to prevent the removal of property 
 imported into any state, to any other state of which the owner is 
 an inhabitant ; provided, also, that no imposition, duties, or re- 
 striction, shall be laid by any state on the property of the United 
 States, or either of them. 
 
 If any person guilty of, or charged with, treason, felony, or 
 other high misdemeanor in any state shall flee from justice, and be 
 found in any of the United States, he shall, upon demand of the 
 governor, or executive power, of the state from which he fled, be 
 delivered up and removed to the state having jurisdiction of his 
 offence. 
 
 Full faith and credit shall be given in each of these states to the 
 records, acts, and judicial proceedings, of the courts and magis- 
 trates of every other state. 
 
 ARTICLE V. 
 
 For the more convenient management of the general interests of 
 the United States, delegates shall be annually appointed in such 
 manner as the legislature of each state shall direct, to meet in con- 
 gress on the first Monday in November in every year, with a power 
 reserved to each state to recall its delegates, or any of them at 
 any time within the year, and to send others in their stead for the 
 remainder of the year. 
 
 No state shall be represented in congress by less than two, nor 
 by more than seven members ; and no person shall be capable of 
 being a delegate for more than three years in any term of six 
 years ; nor shall any person, being a delegate, be capable of hold-
 
 AND SELF-GOVERNMENT. 
 
 505 
 
 ing any office under the United States, for which he, or another 
 for his benefit, receives any salary, fees, or emolument of any kind. 
 
 Each state shall maintain its- own delegates in any meeting of 
 the states, and while they act as members of the committee of the 
 states. 
 
 In determining questions in the United States, in congress 
 assembled, each state shall have one vote. 
 
 Freedom of speech or debate in congress shall not be impeached 
 or questioned in any court or place out of congress, and the mem- 
 bers of congress shall be protected in their persons from arrests 
 and imprisonments during the time of their going to and from, and 
 attendance on congress, except for treason, felony, or breach of 
 the peace. 
 
 ARTICLE VI. 
 
 No state, without the consent of the United States in congress 
 assembled, shall send any embassy to, or receive any embassy 
 from, or enter into any conference, agreement, alliance, or treaty, 
 with any king, prince, or state ; nor shall any person holding any 
 office of profit or trust under the United States, or any of them, 
 accept of any present, emolument, office, or title, of any kind what- 
 ever, from any king, prince, or foreign state ; nor shall the United 
 States in congress assembled, or any of them, grant any title of 
 nobility. 
 
 No two or more states shall enter into any treaty, confederation, 
 or alliance, whatever between them, without the consent of the 
 United States in congress assembled, specifying accurately the 
 purposes for which the same is to be entered into, and how long it 
 shall continue. 
 
 No state shall lay any imposts, or duties, which may interfere 
 with any stipulations in treaties entered into by the United States 
 in congress assembled, with any king, prince, or state, in pur- 
 suance of any treaties already proposed by congress to the courts 
 of France or Spain. 
 
 No vessels of war shall be kept up in time of peace by any state, 
 except such number only as shall be deemed necessary by the 
 United States in congress assembled for the defence of such state, 
 or its trade; nor shall any body of forces be kept up by any state 
 in time of peace, except such number only as in the judgment of 
 the United States in congress assembled shall be deemed requisite
 
 506 ON CIVIL LIBERTY 
 
 to garrison the forts necessary for the defence of such state ; but 
 every state shall always keep up a well-regulated and disciplined 
 militia, sufficiently armed and accoutred, and shall provide, and 
 have constantly ready for use in public stores, a due number of 
 field-pieces and tents, and a proper quantity of arms, ammunition, 
 and camp equipage. 
 
 No state shall engage in any war without the consent of the 
 United States in congress assembled, unless such state be actually 
 invaded by enemies, or shall have received certain advice of a 
 resolution being formed by some nation of Indians to invade such 
 state, and the danger is so imminent as not to admit of a delay till 
 the United States in congress assembled can be consulted ; nor 
 shall any state grant commissions to any ships or vessels of war, 
 nor letters of marque or reprisal, except it be after a declaration 
 of war by the United States in congress assembled, and then only 
 against the kingdom, or state, and the subjects thereof, against 
 which war has been so declared, and under such regulations as 
 shall be established by the United States in congress assembled, 
 unless such state be infested by pirates, in which case vessels of war 
 may be fitted out for that occasion, and kept so long as the danger 
 shall continue, or until the United States in congress assembled 
 shall determine otherwise. 
 
 ARTICLE VII. 
 
 When land forces are raised by any state for the common de- 
 fence, all officers of, or under the rank of colonel shall be appointed 
 by the legislature of each state respectively, by whom such forces 
 shall be raised, or in such manner as such state shall direct, and 
 all vacancies shall be filled up by the state which first made the 
 appointment. 
 
 ARTICLE VIII. 
 
 All charges of war, and all other expenses that shall be incurred 
 for the common defence or general welfare, and allowed by the 
 United States in congress assembled, shall be defrayed out of a 
 common treasury, which shall be supplied by the several states, in 
 proportion to the value of all land within each state granted to, or 
 surveyed for any person, as such land, and the buildings and im- 
 provements thereon, shall be estimated according to such mode as 
 the United States in congress assembled shall from time to time
 
 AND SELF-GOVERNMENT, 507 
 
 direct and appoint. The taxes for paying that proportion shall 
 be laid and levied by the authority and direction of the legislatures 
 of the several states within the time agreed upon by the United 
 States in congress assembled. 
 
 ARTICLE IX. 
 
 The United States in congress assembled shall have the sole and 
 exclusive right and power of determining on peace and war, ex- 
 cept in the cases mentioned in the 6th article ; of sending and re- 
 ceiving ambassadors; entering into treaties and alliances, provided 
 that no treaty of commerce shall be made whereby the legislative 
 power of the respective states shall be restrained from imposing 
 such imposts and duties on foreigners as their own people are sub- 
 jected to, or from prohibiting the exportation or importation of 
 any species of goods or commodities whatsoever ; of establishing 
 rules for deciding in all cases what captures on land or water shall 
 be legal, and in what manner prizes taken by land or naval forces 
 in the service of the United States shall be divided or appro- 
 priated ; of granting letters of marque and reprisal in times of 
 peace ; appointing courts for the trial of piracies and felonies com- 
 mitted on the high seas, and establishing courts for receiving and 
 determining finally appeals in all eases of captures, provided that 
 no member of congress shall be appointed a judge of any of the 
 said courts. 
 
 The United States in congress assembled shall also be the last 
 resort on appeal in all disputes and differences now subsisting, or 
 that hereafter may arise, between two or more states, concerning 
 boundary, jurisdiction, or any other cause whatever which au- 
 thority shall always be exercised in the manner following : When- 
 ever the legislative or executive authority, or lawful agent, of any 
 state in controversy with another shall present a petition to con- 
 gress, stating the matter in question and praying for a hearing, 
 notice thereof shall be given, by order of congress, to the legisla- 
 tive or executive authority of the other state in controversy, and 
 a day assigned for the appearance of the parties by their lawful 
 agents, who shall then be directed to appoint, by joint consent, 
 commissioners or judges to constitute a court for hearing and de- 
 termining the matter in question ; but, if they cannot agree, con- 
 gress shall name three persons out of each of the United States, 
 and from the list of such persons each party shall alternately
 
 508 
 
 ON CIVIL LIBERTY 
 
 strike out one (the petitioners beginning,) until the number shall 
 be reduced to thirteen ; and from that number not less than seven, 
 nor more than nine names, as congress shall direct, shall in the 
 presence of congress be drawn out by lot, and the persons whose 
 names shall be so drawn, or any five of them, shall be commis- 
 sioners or judges, to hear and finally determine the controversy, so 
 always as a major part of the judges who shall hear the cause shall 
 agree in the determination ; and if either party shall neglect to 
 attend at the day appointed, without showing reasons which con- 
 gress shall judge sufficient, or being present shall refuse to strike, 
 the congress shall proceed to nominate three persons out of each 
 state, and the secretary of congress shall strike in behalf of such 
 party absent or refusing ; and the judgment and the sentence of 
 the court, to be appointed in the manner before prescribed, shall be 
 final and conclusive ; and if any of the parties shall refuse to sub- 
 mit to the authority of such court, or to appear or defend their 
 claim or cause, the court shall, nevertheless, proceed to pronounce 
 sentence or judgment, which shall in like manner be final and de- 
 cisive the judgment, or sentence, and other proceedings being in 
 either case transmitted to congress, and lodged among the acts of 
 congress for the security of the parties concerned ; provided that 
 every commissioner, before he -sits in judgment, shall take an oath 
 to be administered by one of the judges of the supreme or supe- 
 rior court of the state where the cause shall be tried, "well and 
 truly to hear and determine the matter in question according to 
 the best of his judgment, without favor, affection, or hope of 
 reward;" provided, also, that no state shall be deprived of terri- 
 tory for the benefit of the United States. 
 
 All controversies concerning the private right of soil claimed 
 under different grants of two or more states, whose jurisdictions, 
 as they may respect such lands, and the states which passed such 
 grants are adjusted, the said grants or either of them being at the 
 same time claimed to have originated antecedent to such settlement 
 of jurisdiction, shall, on the petition of either party to the Congress 
 of the United States, be finally determined as near as may be in 
 the same manner as is before prescribed for deciding disputes 
 respecting territorial jurisdiction between different states. 
 
 The United States in congress assembled shall also have the 
 sole and exclusive right and power of regulating the alloy and value 
 of coin struck by their own authority, or by that of the respective
 
 AND SELF-GOVERNMENT. 
 
 509 
 
 states fixing the standard of weights and measures throughout 
 the United States regulating the trade and managing all affairs 
 with the Indians, not members of any of the states, provided that 
 the legislative right of any state within its own limits be not in- 
 fringed or violated establishing or regulating post-offices from one 
 state to another, throughout all the United States, and exacting 
 such postage on the papers passing through the same as may be 
 requisite to defray the expenses of the said office appointing all 
 officers of the land forces, in the service of the United States, ex- 
 cepting regimental officers appointing all the officers of the naval 
 forces, and commissioning all officers whatever in the service of the 
 United States making rules for the government and regulation of 
 the said land and naval forces, and directing their operations. 
 
 The United States, in congress assembled, shall have authority 
 to appoint a committee, to sit in the recess of congress, to be de- 
 nominated "A Committee of the States," and to consist of one 
 delegate from each state ; and to appoint such other committees 
 and civil officers as may be necessary for managing the general 
 affairs of the United States under their direction to appoint one 
 of their number to preside, provided that no person be allowed to 
 serve in the office of president more than one year in any term of 
 three years ; to ascertain the necessary sums of money to be raised 
 for the service of the United States, and to appropriate and apply 
 the same for defraying the public expenses to borrow money, or 
 emit bills on the credit of the United States, transmitting every 
 half year to the respective states an account of the sums of money 
 so borrowed or emitted to build and equip a navy to agree upon 
 the number of land forces, and to make requisitions from each state 
 for its quota, in proportion to the number of white inhabitants in 
 such state ; which requisition shall be binding, and thereupon the 
 legislature of each state shall appoint the regimental officers, raise 
 the men, and clothe, arm, and equip them in a soldier-like man- 
 ner, at the expense of the United States ; and the officers and men 
 so clothed, armed, and equipped shall march to the place appointed, 
 and within the time agreed on by the United States in congress 
 assembled : But if the United States, in congress assembled, shall, 
 on consideration of circumstances, judge proper that any state 
 should not raise men, or should raise a smaller number than its 
 quota, and that any other state should raise a greater number of 
 men than the quota thereof, such extra number shall be raised,
 
 5io 
 
 ON CIVIL LIBERTY 
 
 officered, clothed, armed, and equipped in the same manner as the 
 quota of such state, unless the legislature of such state shall judge 
 that such extra number cannot be safely spared out of the same, in 
 which case they shall raise, officer, clothe, arm, and equip as many 
 of such extra number as they judge can be safely spared. And the 
 officers and men so clothed, armed, and equipped, shall march to 
 the place appointed, and within the time agreed on by the United 
 States in congress assembled. 
 
 The United States in congress assembled, shall never engage in a 
 war, nor grant letters of marque and reprisal in time of peace, nor 
 enter into any treaties or alliances, nor coin money, nor regulate the 
 value thereof, nor ascertain the sums and expenses necessary for the 
 defence and welfare of the United States, or any of them, nor emit 
 bills, nor borrow money on the credit of the United States, nor ap- 
 propriate money, nor agree upon the number of vessels of war, to be 
 built or purchased, or the number of land or sea forces to be raised, 
 nor appoint a commander-in-chief of the army or navy, unless nine 
 states assent to the same ; nor shall a question on any other point, 
 except for adjourning from day to day, be determined, unless by the 
 votes of a majority of the United State's in congress assembled. 
 
 The congress of the United States shall have power to adjourn 
 to any time within the year, and to any place within the United 
 States, so that no period of adjournment be for a longer duration 
 than the space of six months, and shall publish the journal of their 
 proceedings monthly, except such parts thereof relating to treaties, 
 alliances, or military operations, as in their judgment require se- 
 crecy ; and the yeas and nays of the delegates of each state .on any 
 question shall be entered on the journal, when it is desired by any 
 delegate ; and the delegates of a tate, or any of them, at his or 
 their request, shall be furnished with a transcript of the said jour- 
 nal, except such parts as are above excepted, to lay before the 
 legislatures of the several states. 
 
 ARTICLE X. 
 
 The committee of the states, or any nine of them, shall be au- 
 thorized to execute, in the recess of congress, such of the powers 
 of congress as the United States in congress assembled, by the 
 consent of nine states, shall, from time to time, think expedient to 
 vest them with ; provided that no power be delegated to the said
 
 AND SELF-GOVERNMENT. 511 
 
 committee, for the exercise of which, by the articles of confedera- 
 tion, the voice of nine states, in the congress of the United States 
 assembled, is requisite. 
 
 ARTICLE XL 
 
 Canada acceding to this confederation, and joining in the meas- 
 ures of the United States, shall be admitted into, and entitled to 
 all the advantages of this union : but no other colony shall be ad- 
 mitted into the same, unless such admission be agreed to by nine 
 states. 
 
 ARTICLE XII. 
 
 All bills of credit emitted, moneys borrowed, and debts con- 
 tracted by, or under the authority of congress, before the assem- 
 bling of the United States, in pursuance of the present confedera- 
 tion, shall be deemed and considered as a charge against the United 
 States, for payment and satisfaction whereof the said United States, 
 and the public faith are hereby solemnly pledged. 
 
 ARTICLE XIII. 
 
 Every state shall abide by the determinations of the United 
 States in congress assembled, on all questions which by this con- 
 federation is submitted to them. And the articles of this confed- 
 eration shall be inviolably observed by every state, and the union 
 shall be perpetual ; nor shall any alteration at any time hereafter 
 be made in any of them ; unless such alteration be agreed to in a 
 congress of the United States, and be afterwards confirmed by the 
 legislature of every state. 
 
 And whereas, it hath pleased the Great Governor of the World 
 to incline the hearts of the legislatures we respectively represent 
 in congress, to approve of, and to authorize us to ratify the said 
 articles of confederation and perpetual union : Know Ye, that we 
 the undersigned delegates, by virtue of the power and authority 
 to us given for that purpose, do by these presents, in the name and 
 in behalf of our respective constituents, fully and entirely ratify 
 and confirm each and every of the said articles of confederation 
 and perpetual union, and all and singular the matters and things 
 therein contained : And we do further solemnly plight and engage 
 the faith of our respective constituents, that they shall abide by the
 
 512 
 
 ON CIVIL LIBERTY. 
 
 determinations of the United States in congress assembled, on all 
 questions, which by the said confederation are submitted to them. 
 And that the articles thereof shall be inviolably observed by the 
 states we respectively represent, and that the union shall be per- 
 petual. In witness whereof we have hereunto set our hands in 
 congress. Done at Philadelphia in the state of Pennsylvania, the 
 ninth day of July in the year of our Lord 1778, and in the third 
 year of the Independence of America. 
 
 On the part and behalf of the state of New Hampshire : 
 
 Josiah Bartlett, John Wentworth, Jun., 
 
 Aug. 8, 1778. 
 
 On the part and behalf of the state of Massachusetts Bay : 
 
 John Hancock, Francis Dana, 
 
 Samuel Adams, James Lovell, 
 
 Elbridge Gerry, Samuel Holten. 
 
 On the part and behalf of the state of Rhode Island and Provi- 
 dence Plantations : 
 
 William Ellery, John Collins. 
 
 Henry Marchant, 
 
 On the part and behalf of the state of Connecticut : 
 
 Roger Sherman, Titus Hosmer, 
 
 Samuel Huntington, Andrew Adams. 
 
 Oliver Wolcott, 
 
 On the part and behalf of the state of New York 
 
 Jas. Duane, William Duer, 
 
 Fras. Lewis, Gouvr. Morris. 
 
 On the part and behalf of the state of New Jersey, November 
 26, 1778 : 
 
 Jno. Witherspoon, Nathl. Scudder. 
 
 On the part and behalf of the state of Pennsylvania : 
 
 Robt. Morris, William Clingan, 
 
 Daniel Roberdeau, Joseph Reed, 
 
 Jona. Bayard Smith, 22d July, 1778.
 
 AND SELF-GOVERNMENT. 513 
 
 On the part and behalf of the state of Delaware : 
 
 Tho. M'Kean, Feb. 12, 1779. Nicholas Van Dyke. 
 John Dickinson, May 5, 1779. 
 
 On the part and behalf of the state of Maryland : 
 
 John Hanson, Daniel Carroll, 
 
 March i, 1781. March i, 1781. 
 
 On the part and behalf of the state of Virginia : 
 
 Richard Henry Lee, Jno. Harvie, 
 
 John Banister, Francis Lightfoot Lee. 
 
 Thomas Adams, 
 
 On the part and behalf of the state of North Carolina : 
 
 John Penn, Corns. Harnett, 
 
 July 21, 1778. Jno. Williams. 
 
 On the part and behalf of the state of South Carolina : 
 
 Henry Laurens, Richd. Hutson, 
 
 William Henry Drayton, Thos. Hayward, Jun. 
 
 Jno. Mathews, 
 
 On the part and behalf of the state of Georgia : 
 
 Jno. Walton, Edwd. Telfair, 
 
 24th July, 1778. Edwd. Langworthy. 
 
 33
 
 APPENDIX X. 
 
 CONSTITUTION OF THE UNITED STATES OF AMERICA. 
 
 WE, the people of the United States, in order to form a more 
 perfect Union, establish justice, insure domestic tranquillity, pro- 
 vide for the common defence, promote the general welfare, and 
 secure the blessings of liberty to ourselves and our posterity, do 
 ordain and establish this Constitution for the United States of 
 America. 
 
 ARTICLE I. 
 
 SECTION i. All legislative powers herein granted shall be vested 
 in a congress of the United States, which shall consist of a senate 
 and house of representatives. 
 
 SECTION 2. The house of representatives shall be composed of 
 members chosen every second year by the people of the several 
 states, and the electors in each state shall have the qualifications 
 requisite for electors of the most numerous branch of the state 
 legislature. 
 
 No person shall be a representative who shall not have attained 
 to the age of twenty-five years, and been seven years a citizen of 
 the United States, and who shall not, when elected, be an inhabitant 
 of that state in which he shall be chosen. 
 
 Representatives and direct taxes shall be apportioned among 
 the several states which may be included within this Union, accord- 
 ing to their respective numbers, which shall be determined by adding 
 to the whole number of free persons, including those bound to ser- 
 vice for a term of years, and excluding Indians not taxed, three- 
 fifths of all other persons. The actual enumeration shall be made 
 within three years after the first meeting of the congress of the 
 United States, and within every subsequent term of ten years, in 
 such manner as they shall by law direct. The number of repre- 
 sentatives shall not exceed one for every thirty thousand, but each 
 state shall have at least one representative ; and until such enumer- 
 5'4
 
 ON CIVIL LIBERTY AND SELF-GOVERNMENT. 515 
 
 ation shall be made, the state of New Hampshire shall be entitled 
 to choose three, Massachusetts eight, Rhode Island and Providence 
 Plantations one, Connecticut five, New York six, New Jersey four, 
 Pennsylvania eight, Delaware one, Maryland six, Virginia ten, 
 North Carolina five, South Carolina five, and Georgia three. 
 
 When vacancies happen in the representation from any state, the 
 executive authority thereof shall issue writs of election to fill such 
 vacancies. 
 
 The house of representatives shall choose their speaker, and other 
 officers ; and shall have the sole power of impeachment. 
 
 SECTION 3. The senate of the United States shall be composed 
 of two senators from each state, chosen by the legislature thereof, 
 for six years ; and each senator shall have one vote. 
 
 Immediately after they shall be assembled in consequence of the 
 first election, they shall be divided as equally as may be into three 
 classes. The seats of the senators of the first class shall be vacated 
 at the expiration of the second year, of the second class at the ex- 
 piration of the fourth year, and of the third class at the expiration 
 of the sixth year, so that one-third may be chosen every second 
 year ; and if vacancies happen by resignation, or otherwise, during 
 the recess of the legislature of any state, the executive thereof may 
 make temporary appointments until the next meeting of the legis- 
 lature, which shall then fill such vacancies. 
 
 No person shall be a senator who shall not have attained to the 
 age of thirty years, and been nine years a citizen of the United 
 States, and who shall not, when elected, be an inhabitant of that 
 State for which he shall be chosen. 
 
 The Vice-President of the United States shall be president of 
 the senate, but shall have no vote, unless they be equally divided. 
 
 The senate shall choose their other officers, and also a president 
 pro tempore, in the absence of the vice-president, or when he shall 
 exercise the office of President of the United States. 
 
 The senate shall have the sole power to try all impeachments. 
 When sitting for that purpose, they shall be on oath or affirmation. 
 When the President of the United States is tried, the chief justice 
 shall preside; and no person shall be convicted without the concur- 
 rence of two-thirds of the members present. 
 
 Judgment in case of impeachment shall not extend further than 
 to removal from office, and disqualification to hold and enjoy any 
 office of honor, trust or profit, under the United States ; but the
 
 ON CIVIL LIBERTY 
 
 party convicted shall nevertheless be liable and subject to indict- 
 ment, trial, judgment, and punishment according to law. 
 
 SECTION 4. The times, places, and manner of holding elections 
 for senators and representatives shall be prescribed in each state by 
 the legislature thereof ; but the congress may at any time by law 
 make or alter such regulations, except as to the places of choosing 
 senators. 
 
 The congress shall assemble at least once in every year, and such 
 meeting shall be on the first Monday in December, unless they shall 
 by law appoint a different day. 
 
 SECTION 5. Each house shall be the judge of the elections, re- 
 turns and qualifications of its own members, and a majority of each 
 shall constitute a quorum to do business ; but a smaller number 
 may adjourn from day to day, and may be authorized to compel 
 the attendance of absent members, in such manner and under such 
 penalties as each house may provide. 
 
 Each house may determine the rules of its proceedings, punish 
 its members for disorderly behavior, and, with the concurrence of 
 two-thirds, expel a member. 
 
 Each house shall keep a journal of its proceedings, and from 
 time to time publish the same, excepting such parts as may in their 
 judgment require secrecy ; and the yeas and nays of the members 
 of either house, on any question, shall, at the desire of one-fifth of 
 those present, be entered on the journal. 
 
 Neither house, during the session of congress, shall, without 
 the consent of the other, adjourn for more than three days, nor 
 to any other place than that in which the two houses shall be 
 sitting. 
 
 SECTION 6. The senators and representatives shall receive a com- 
 pensation for their services, to be ascertained by law, and paid out 
 of the treasury of the United States. They shall in all cases, except 
 treason, felony, and breach of the peace, be privileged from arrest 
 during their attendance at the session of their respective houses, 
 and in going to and returning from the same ; and for any speech 
 or debate in either house, they shall not be questioned in any other 
 place. 
 
 No senator or representative shall, during the time for which he 
 was elected, be appointed to any civil office under the authority 
 of the United States, which shall have been created, or the 
 emoluments whereof shall have been increased during such time ;
 
 AND SELF-GOVERNMENT. 
 
 517 
 
 and no person holding any office under the United States shall be 
 a member of either house during his continuance in office. 
 
 SECTION 7. All bills for raising revenue shall originate in the 
 house of representatives ; but the senate may propose or concur 
 with amendments as on other bills. 
 
 Every bill which shall have passed the house of representatives 
 and the senate, shall, before it become a law, be presented to the 
 President of the United States. If he approve, he shall sign it ; 
 but if not, he shall return it, with his objections, to that house in 
 which it shall have originated, who shall enter the objections at 
 large on their journal, and proceed to reconsider it. If, after such 
 reconsideration, two-thirds of that house shall agree to pass the 
 bill, it shall be sent, together with the objections, to the other 
 house, by which it shall likewise be reconsidered, and if approved 
 by two-thirds of that house, it shall become a law. But in all 
 such cases the votes of both houses shall be determined by yeas 
 and nays, t and the names of the persons voting for and against the 
 bill shall be entered on the journal of each house respectively. 
 If any bill shall not be returned by the president within ten days 
 (Sundays excepted) after it shall have been presented to him, the 
 same shall be a law, in like manner as if he had signed it, unless 
 the congress by their adjournment prevent its return ; in which 
 case, it shall not be a law. Every order, resolution, or vote, to 
 which the concurrence of the senate and house of representatives 
 may be necessary (except on a question of adjournment), shall be 
 presented to the President of the United States ; and before the 
 same shall take effect, shall be approved by him ; or, being disap- 
 proved by him, shall be repassed by two-thirds of the senate and 
 house of representatives, according to the rules and limitations 
 prescribed in the case of a bill. 
 
 SECTION 8. The congress shall have power 
 
 To lay and collect taxes, duties, imposts, and excises ; to pay the 
 debts and provide for the common defence and general welfare of 
 the United States ; but all duties, imposts, and excises shall be 
 uniform throughout the United States : 
 
 To borrow money on the credit of the United States: 
 
 To regulate commerce with foreign nations, and among the 
 several states, and with the Indian tribes : 
 
 To establish an uniform rule of naturalization, and uniform laws 
 on the subject of bankruptcies throughout the United States :
 
 ON CIVIL LIBERTY 
 
 To coin money, regulate the value thereof, and of foreign coin, 
 and fix the standard of weights and measures : 
 
 To provide for the punishment of counterfeiting the securities 
 and current coin of the United States : 
 
 To establish post-offices and post-roads : 
 
 To promote the progress of science and useful arts, by securing 
 for limited times to authors and inventors the exclusive right to 
 their respective writings and discoveries : 
 
 To constitute tribunals inferior to the supreme court: 
 
 To define and punish piracies and felonies committed on the high 
 seas, and offences against the law of nations : 
 
 To declare war, grant letters of marque and reprisal, and make 
 rules concerning captures on land and water : 
 
 To raise and support armies ; but no appropriation of money to 
 that use shall be for a longer term than two years : 
 
 To provide and maintain a navy : 
 
 To make rules for the government and regulation of the land 
 and naval forces : 
 
 To provide for calling forth the militia to execute the laws of 
 the Union, suppress insurrections, and repel invasions : 
 
 To provide for organizing, arming, and disciplining the militia, 
 and for governing such part of them as may be employed in the 
 service of the United States, reserving to the states respectively 
 the appointment of the officers, and the authority of training the 
 militia according to the discipline prescribed by congress : 
 
 To exercise exclusive legislation, in all cases whatsoever, over 
 such district (not exceeding ten miles square) as may, by ces- 
 sion of particular states and the acceptance of congress, become 
 the seat of the government of the United States, and to exercise 
 like authority over all places purchased by the consent of the 
 legislature of the state in which the same shall be, for the erec- 
 tion of forts, magazines, arsenals, dock-yards, and other needful 
 buildings. And 
 
 To make all laws which shall be necessary and proper for carry- 
 ing into execution the foregoing powers, and all other powers 
 vested by this constitution in the government of the United States, 
 or in any department or officer thereof. 
 
 SECTION 9. The migration or importation of such persons as any 
 of the states now existing shall think proper to admit, shall not be 
 prohibited by the congress prior to the year one thousand eight
 
 AND SELF-GOVERNMENT. 
 
 519 
 
 hundred and eight \ but a tax or duty may be imposed on such 
 importation, not exceeding ten dollars for each person. 
 
 The privilege of the writ of habeas corpus shall not be suspended, 
 unless when in cases of rebellion or invasion the public safety may 
 require it. 
 
 No bill of attainder or ex post facto law shall be passed. 
 
 No capitation or other direct tax shall be laid, unless in pro- 
 portion to the census or enumeration hereinbefore directed to be 
 taken. 
 
 No tax or duty shall be laid on articles exported from any 
 state. 
 
 No preference shall be given, by any regulation of commerce or 
 revenue, to the ports of one state over those of another ; nor shall 
 vessels bound to or from one state be obliged to enter, clear, or pay 
 duties in another. 
 
 No money shall be drawn from the treasury, but in consequence 
 of appropriations made by law ; and a regular statement and ac- 
 count of the receipts and expenditures of all public money shall be 
 published from time to time. 
 
 No title of nobility shall be granted by the United States ; and 
 no person holding any office of profit or trust under them shall, 
 without the consent of the congress, accept of any present, emolu- 
 ment, office, or title of any kind whatever, from any king, prince, 
 or foreign state. 
 
 SECTION 10. No state shall enter into any treaty, alliance or 
 confederation ; grant letters of marque and reprisal ; coin money ; 
 emit bills of credit ; make anything but gold and silver coin a 
 tender in payment of debts; pass any bill of attainder, ex post 
 facto law, or law impairing the obligation of contracts, or grant 
 any title of nobility. 
 
 No state shall, without the consent of the congress, lay any 
 imposts or duties on imports or exports, except what may be 
 absolutely necessary for executing its inspection laws ; and the net 
 produce of all duties and imposts, laid by any state on imports or 
 exports, shall be for the use of the treasury of the United States ; 
 and all such laws shall be subject to the revision and control of the 
 congress. 
 
 No state shall, without the consent of congress, lay any duty of 
 tonnage, keep troops or ships of war in time of peace, enter into 
 any agreement or compact with another state, or with a foreign
 
 ON CIVIL LIBERTY 
 
 power, or engage in war, unless actually invaded, or in such immi- 
 nent danger as will not admit of delay. 
 
 ARTICLE II. 
 
 SECTION i. The executive power shall be vested in a president 
 of the United States of America. He shall hold his office during 
 the term of four years, and, together with the vice-president, chosen 
 for the same term, be elected as follows : 
 
 Each state shall appoint, in such manner as the legislature 
 thereof may direct, a number of electors, equal to the whole 
 number of senators and representatives to which the state may 
 be entitled in the congress ; but no senator or representative, or 
 person holding an office of trust or profit under the United States, 
 shall be appointed an elector. 
 
 [' The electors shall meet in their respective states, and vote by 
 ballot for two persons, of whom one at least shall not be an in- 
 habitant of the same state with themselves. And they shall make 
 a list of all the persons voted for, and of the number of votes for 
 each ; which list they shall sign and certify, and transmit sealed to 
 the seat of the government of the United States, directed to the 
 president of the senate. The president of the senate shall, in the 
 presence of the senate and house of representatives, open all the 
 certificates, and the votes shall then be counted. The person 
 having the greatest number of votes shall be the president, if such 
 number be a majority of the whole number of electors appointed ; 
 and if there be more than one who have such majority, and have 
 an equal number of votes, then the house of representatives shall 
 immediately choose by ballot one of them for president ; and if no 
 person have a majority, then from the five highest on the list the 
 said house shall in like manner choose the president. But in 
 choosing the president, the votes shall be taken by states, the 
 representation from each state having one vote. A quorum for this 
 purpose shall consist of a member or members from two-thirds 
 of the states, and a majority of all the states shall be necessary 
 to a choice. In every case, after the choice of the president, the 
 person having the greatest number of votes of the electors shall be 
 
 1 This clause within brackets has been superseded and annulled by the I2th 
 amendment, on pages 527-28.
 
 AND SELF-GOVERNMENT. 521 
 
 the vice-president. But if there should remain two or more who 
 have equal votes, the senate shall choose from them by ballot the 
 vice-president.] 
 
 The congress may determine the time of choosing the electors, 
 and the day on which they shall give their votes ; which day shall 
 be the same throughout the United States. 
 
 No person except a natural born citizen, or a citizen of the 
 United States at the time of the adoption of this constitution, shall 
 be eligible to the office of president ; neither shall any person be 
 eligible to that office who shall not have attained to the age of 
 thirty-five years, and been fourteen years a resident within the 
 United States. 
 
 In case of the removal of the president from office, or of his 
 death, resignation, or inability to discharge the powers and duties 
 of the said office, the same shall devolve on the vice-president, and 
 the congress may by law provide for the case of removal, death, 
 resignation, or inability, both of the president and vice-president, 
 declaring what officer shall then act as president ; and such officer 
 shall act accordingly, until the disability be removed, or a presi- 
 dent shall be elected. 
 
 The president shall, at stated times, receive for his services a 
 compensation, which shall neither be increased nor diminished 
 during the period for which he shall have been elected ; and he 
 shall not receive within that period any other emolument from the 
 United States, or any of them. 
 
 Before he enter on the execution of his office, he shall take the 
 following oath or affirmation : 
 
 "I do solemnly swear (or affirm) that I will faithfully execute 
 the office of President of the United States, and will, to the best 
 of my ability, preserve, protect, and defend the Constitution of the 
 United States." 
 
 SECTION 2. The president shall be commander-in-chief of the 
 army and navy of the United States, and of the militia of the 
 several states, when called into the actual service of the United 
 States; he may require the opinion, in writing, of the principal 
 officer in each of the executive departments, upon any subject 
 relating to the duties of their respective offices ; and he shall have 
 power to grant reprieves and pardons for offences against the 
 United States, except in cases of impeachment.
 
 522 
 
 ON CIVIL LIBERTY 
 
 He shall have power, by and with the advice and consent of the 
 senate, to make treaties, provided two-thirds of the senators 
 present concur; and he shall nominate, and by and with the advice 
 and consent of the senate, shall appoint ambassadors, other public 
 ministers and consuls, judges of the supreme court, and all other 
 officers of the United States whose appointments are not herein 
 otherwise provided for, and which shall be established by law ; but 
 the congress may by law vest the appointment of such inferior offi- 
 cers, as they think proper, in the president alone, in the courts of 
 law, or in the heads of departments. 
 
 The president shall have power to fill up all vacancies that may 
 happen during the recess of the senate, by granting commissions 
 which shall expire at the end of their next session. 
 
 SECTION 3. He shall from time to time give to the congress 
 information of the state of the Union, and recommend to their 
 consideration such measures as he shall judge necessary and expe- 
 dient ; he may, on extraordinary occasions, convene both houses, 
 or either of them ; and in case of disagreement between them, with 
 respect to the time of adjournment, he may adjourn them to such 
 time as he shall think proper; he shall receive ambassadors and 
 other public ministers ; he shall take care that the laws be faith- 
 fully executed, and shall commission all the officers of the United 
 States. 
 
 SECTION 4. The president, vice-president, and all civil officers 
 of the United States shall be removed from office on impeachment 
 for, and conviction of, treason, bribery, or other high crimes and 
 misdemeanors. 
 
 ARTICLE III. 
 
 SECTION i. The judicial power of the United States shall be 
 vested in one supreme court, and in such inferior courts as the 
 congress may from time to time ordain and establish. The judges, 
 both of the supreme and inferior courts, shall hold their offices 
 during good behavior, and shall, at stated times, receive for their 
 services a compensation, which shall not be diminished during their 
 continuance in office. 
 
 SECTION 2. The judicial power shall extend to all cases, in law 
 and equity, arising under this constitution, the laws of the United 
 States, and treaties made, or which shall be made, under their au- 
 thority; to all cases affecting ambassadors, other public ministers,
 
 AND SELF-GOVERNMENT. 523 
 
 and consuls; to all cases of admiralty and maritime jurisdiction; 
 to controversies, to which the United States shall be a party; to 
 controversies between two or more states; between a state and 
 citizens of another state ; between citizens of different states ; be- 
 tween citizens of the same state claiming lands under grants of 
 different states, and between a state, or the citizens thereof, and 
 foreign states, citizens or subjects. 
 
 In all cases affecting ambassadors, other public ministers and 
 consuls, and those in which a state shall be party, the supreme 
 court shall have original jurisdiction. In all the other cases before 
 mentioned, the supreme court shall have appellate jurisdiction, 
 both as to law and fact, with such exceptions, and under such 
 regulations as the congress shall make. 
 
 The trial of all crimes, except in cases of impeachment, shall be 
 by jury ; and such trial shall be held in the state where the said 
 crimes shall have been committed ; but when not committed within 
 any state, the trial shall be at such place or places as the congress 
 may by law have directed. 
 
 SECTION 3. Treason against the United States shall consist only 
 in levying war against them, or in adhering to their enemies, giving 
 them aid and comfort. No person shall be convicted of treason 
 unless on the testimony of two witnesses to the same overt act, or 
 on confession in open court. 
 
 The congress shall have power to declare the punishment of 
 treason ; but no attainder of treason shall work corruption of 
 blood, or forfeiture except during the life of the person attainted. 
 
 ARTICLE IV. 
 
 SECTION i. Full faith and credit shall be given in each state to 
 the public acts, records, and judicial proceedings of every other 
 state. And the congress may by general laws prescribe the man- 
 ner in which such acts, records, and proceedings shall be proved, 
 and the effect thereof. 
 
 SECTION 2. The citizens of each state shall be entitled to all 
 privileges and immunities of citizens in the several states. 
 
 A person charged in any state with treason, felony, or other 
 crime, who shall flee from justice, and be found in another state, 
 shall, on demand of the executive authority of the state from 
 which he fled, be delivered up, to be removed to the state having 
 jurisdiction of the crime.
 
 524 
 
 ON CIVIL LIBERTY 
 
 No person held to service or labor in one state, under the laws 
 thereof, escaping into another, shall, in consequence of any law or 
 regulation therein, be discharged from such service or labor, but 
 shall be delivered up on claim of the party to whom such service 
 or labor may be due. 
 
 SECTION 3. New states may be admitted by the congress into 
 this Union ; but no new state shall be formed or erected within 
 the jurisdiction of any other state ; nor any state be formed by 
 the junction of two or more states, or parts of states, without the 
 consent of the legislatures of the states concerned, as well as of 
 the congress. 
 
 The congress shall have power to dispose of and make all need- 
 ful rules and regulations respecting the territory or other property 
 belonging to the United States ; and nothing in this constitution 
 shall be so construed as to prejudice any claims of the United 
 States, or of any particular state. 
 
 SECTION 4. The United States shall guarantee to every state in 
 this Union a republican form of government, and shall protect each 
 of them against invasion ; and on application of the legislature, or 
 of the executive (when the legislature cannot be convened), against 
 domestic violence. 
 
 ARTICLE V. 
 
 The congress, whenever two-thirds of both houses shall deem 
 it necessary, shall propose amendments to this constitution ; or, 
 on the application of the legislatures of two- thirds of the several 
 states, shall call a convention for proposing amendments, which, in 
 either case, shall be valid to all intents and purposes, as part of 
 this constitution, when ratified by the legislatures of three-fourths 
 of the several states, or by conventions in three-fourths thereof, as 
 the one or the other mode of ratification may be proposed by the 
 congress ; provided that no amendment which may be made prior 
 to the year one thousand eight hundred and eight, shall in any 
 manner affect the first and fourth clauses in the ninth section of 
 the first article ; and that no state, without its consent, shall be 
 deprived of its equal suffrage in the senate. 
 
 ARTICLE VI. 
 
 All debts contracted and engagements entered into, before the 
 adoption of this constitution, shall be as valid against the United 
 States, under this constitution, as under the Confederation.
 
 AND SELF-GOVERNMENT. 525 
 
 This constitution, and the laws of the United States which shall 
 be made in pursuance thereof; and all treaties made, or which 
 shall be made, under the authority of the United States, shall be 
 the supreme law of the land ; and the judges in every state shall 
 be bound thereby, anything in the constitution or laws of any state 
 to the contrary notwithstanding. 
 
 The senators and representatives before mentioned, and the mem- 
 bers of the several state legislatures, and all executive and judicial 
 officers, both of the United States and of the several states, shall 
 be bound by oath or affirmation to support this constitution ; but 
 no religious test shall ever be required as a qualification to any 
 office or public trust under the United States. 
 
 ARTICLE VII. 
 
 The ratification of the conventions of nine states shall be suffi- 
 cient for the establishment of this constitution between the states 
 so ratifying the same. 
 
 DONE in convention, by the unanimous consent of the states 
 present, the seventeenth day of September, in the year of our Lord 
 one thousand seven hundred and eighty-seven, and of the inde- 
 pendence of the United States of America the twelfth. In witness 
 whereof, we have hereunto subscribed our names. 
 
 GEO. WASHINGTON, 
 
 President and deputy from Virginia. 
 
 [Here follow the names of the signers from the different states. 
 See next page for additions and amendments.]
 
 526 
 
 ON CIVIL LIBERTY 
 
 Articles in addition to, and amendment of, the Constitution of the 
 United States of America, proposed by Congress, and ratified by 
 the Legislatures of the several States , pursuant to the fifth article 
 of the original Constitution. 
 
 ARTICLE I. 
 
 Congress shall make no law respecting an establishment of re- 
 ligion, or prohibiting the free exercise thereof; or abridging the 
 freedom of speech, or of the press ; or the right of the people 
 peaceably to assemble, and to petition the government for a redress 
 of grievances. 
 
 ARTICLE II. 
 
 A well regulated militia, being necessary to the security of a free 
 state, the right of the .people to keep and bear arms shall not be 
 infringed. 
 
 ARTICLE III. 
 
 No soldier shall, in time of peace, be quartered in any house, 
 without the consent of the owner ; nor in time of war, but in a 
 manner to be prescribed by law. 
 
 ARTICLE IV. 
 
 The right of the people to be secure in their persons, houses, 
 papers, and effects, against unreasonable searches and seizures, 
 shall not be violated ; and no warrants shall issue, but upon prob- 
 able cause, supported by oath or affirmation, and particularly 
 describing the place to be searched, and the persons or things to 
 be seized. 
 
 ARTICLE V. 
 
 No person shall be held to answer for a capital, or otherwise in- 
 famous crime, unless on a presentment or indictment of a grand 
 jury, except in cases arising in the land or naval forces, or in the 
 militia, when in actual service in time of war or public danger ; 
 nor shall any person be subject for the same offence to be twice 
 put in jeopardy of life or limb ; nor shall be compelled, in any 
 criminal case, to be a witness against himself; nor be deprived of
 
 AND SELF-GOVERNMENT. 
 
 527 
 
 life, liberty, or property, without due process of law; nor shall 
 private property be taken for public use, without just compensa- 
 tion. 
 
 ARTICLE VI. 
 
 In all criminal prosecutions, the accused shall enjoy the right to 
 a speedy and public trial, by an impartial jury of the state and dis- 
 trict wherein the crime shall have been committed, which district 
 shall have been previously ascertained by law, and to be informed 
 of the nature and cause of the accusation ; to be confronted with 
 the witnesses against him j to have compulsory process for obtain- 
 ing witnesses in his favor, and to have the assistance of counsel 
 for his defence. 
 
 ARTICLE VII. 
 
 In suits at common law, where the value in controversy shall 
 exceed twenty dollars, the right of trial by jury shall be preserved, 
 and no fact tried by a jury shall be otherwise re-examined in any 
 court of . the United States, than according to the rules of the 
 common law. 
 
 ARTICLE VIII. 
 
 Excessive bail shall not be required, nor excessive fines imposed, 
 nor cruel and unusual punishments inflicted. 
 
 ARTICLE IX. 
 
 The enumeration in the constitution of certain rights, shall not 
 be construed to deny or disparage others retained by the people. 
 
 ARTICLE X. 
 
 The powers not delegated to the United States by the constitu- 
 tion, nor prohibited by it to the states, are reserved to the states 
 respectively, or to the people. 
 
 ARTICLE XL 
 
 The judicial power of the United States shall not be construed 
 to extend to any suit in law or equity, commenced or prosecuted 
 against one of the United States by citizens of another state, or 
 by citizens or subjects of any foreign state. 
 
 ARTICLE XII. 
 
 The electors shall meet in their respective states, and vote by 
 ballot for president and vice-president, one of whom, at least, shall
 
 528 
 
 ON CIVIL LIBERTY 
 
 not be an inhabitant of the same state with themselves ; they shall 
 name in their ballots the person voted for as president, and in dis- 
 tinct ballots the person voted for as vice-president ; and they shall 
 make distinct lists of all persons voted for as president, and of all 
 persons voted for as vice-president, and of the number of votes for 
 each, which list they shall sign and certify and transmit sealed 
 to the seat of government of the United States, directed to the 
 president of the senate; the president of the senate shall, in 
 presence of the senate and house of representatives, open all the 
 certificates and the votes shall then be counted ; the person having 
 the greatest number of votes for president, shall be the president, 
 if such number be a majority of the whole number of electors ap- 
 pointed ; and if no person have such majority, then from the per- 
 sons having the highest numbers not exceeding three on the list 
 of those voted for as president, the house of representatives shall 
 choose immediately, by ballot, the president. But in choosing the 
 president, the votes shall be taken by states, the representation 
 from each state having one vote ; a quorum for this purpose shall 
 consist of a member, or members from two-thirds of the states, 
 and a majority of all the states shall be necessary to a choice. 
 And if the house of representatives shall not choose a president 
 whenever the right of choice shall devolve upon them, before the 
 fourth day of March next following, then the vice-president shall 
 act as president, as in the case of the death or other constitutional 
 disability of the president. The person having the greatest num- 
 ber of votes as vice-president, shall be the vice-president, if such 
 number be a majority of the whole number of electors appointed ; 
 and if no person have a majority, then from the two highest num- 
 bers on the list the senate shall choose the vice-president; a 
 quorum for the purpose shall consist of two-thirds of the whole 
 number of senators, and a majority of the whole number shall be 
 necessary to a choice. But no person constitutionally ineligible 
 to the office of president shall be eligible to that of vice-president 
 of the United States. 
 
 ARTICLE XIII. 
 
 SECTION i. Neither slavery nor involuntary servitude, except as 
 a punishment for crime, whereof the party shall have been duly 
 convicted, shall exist within the United States, or any place sub- 
 ject to their jurisdiction.
 
 AND SELF-GOVERNMENT. 529 
 
 SECTION 2. Congress shall have power to enforce this article by 
 appropriate legislation. 
 
 ARTICLE XIV. 
 
 SECTION i. All persons born or naturalized in the United States, 
 and subject to the jurisdiction thereof, are citizens of the United 
 States and of the state wherein they reside. No state shall make 
 or enforce any law which shall abridge the privileges or immunities 
 of citizens of the United States ; nor shall any state deprive any 
 person of life, liberty, or property, without due process of law, nor 
 deny to any person within its jurisdiction the equal protection of 
 the laws. 
 
 SECTION 2. Representatives shall be apportioned among the sev- 
 eral states according to their respective numbers, counting the 
 whole number of persons in each state, excluding Indians not 
 taxed. But when the right to vote at any election for the choice 
 of electors for president and vice-president of the United States, 
 representatives in congress, the executive and judicial officers of a 
 state, or the members of the legislature thereof, is denied to any 
 of the male inhabitants of such state, being twenty-one years of 
 age, and citizens of the United States, or in any way abridged, 
 except for participation in rebellion or other crime, the basis of 
 representation therein shall be reduced in the proportion which the 
 number of such male citizens shall bear to the whole number of 
 male citizens twenty-one years of age in such state. 
 
 SECTION 3. No person shall be a senator or representative in 
 congress, or elector of president and vice-president, or hold any 
 office, civil or military, under the United States, or under any 
 state, who having previously taken an oath as a member of con- 
 gress, or as an officer of the United States, or as a member of any 
 state legislature, or as an executive or judicial officer of any state, 
 to support the Constitution of the United States, shall have en- 
 gaged in insurrection or rebellion against the same, or given aid or 
 comfort to the enemies thereof. But congress may, by a vote of 
 two-thirds of each house, remove such disability. 
 
 SECTION 4. The validity of the public debt of the United States, 
 authorized by law, including debts incurred for payment of pensions 
 and bounties for services in suppressing insurrection or rebellion, 
 shall not be questioned. But neither the United States nor any 
 state shall assume or pay any debt or obligation incurred in aid of 
 
 34
 
 530 
 
 ON CIVIL LIBERTY AND SELF-GOVERNMENT. 
 
 insurrection or rebellion against the United States, or any claim 
 for the loss or emancipation of any slave; but all such debts, 
 obligations, and claims shall be held illegal and void. 
 
 SECTION 5. That congress shall have power to enforce, by appro- 
 priate legislation, the provisions of this article. 
 
 ARTICLE XV. 
 
 SECTION i. The right of citizens of the United States to vote 
 shall not be denied or abridged by the United States or by any 
 state on account of race, color, or previous condition of servitude. 
 
 SECTION 2. The congress shall have power to enforce this article 
 by appropriate legislation.
 
 APPENDIX XL 
 
 THE FRENCH CONSTITUTION, ADOPTED AND PRO- 
 CLAIMED ON THE TWENTY-FOURTH OF JUNE 1793. 
 
 THE FIRST REPUBLICAN CONSTITUTION 
 
 HAD the space permitted it, I would have given all the French 
 constitutions, from the first in the first revolution, to that now 
 called the constitution of the empire. As it is, I must restrict 
 myself to the following selection. 
 
 I have copied the translation of the first republican constitution 
 of France from a work by Mr. Bernard Roelker, of the New 
 York bar, The Constitutions of France, Monarchical and Repub- 
 lican, together with Brief Historical Remarks, relating to their 
 Origin, and the late Orleans Dynasty, Boston, Mass., 1848. 
 
 DECLARATIONS OF THE RIGHTS OF MAN AND OF 
 CITIZENS. 
 
 The French people, convinced that oblivion and contempt of 
 the natural rights of man are the only causes of calamities in the 
 world, has resolved to explain these sacred and inalienable rights 
 in a solemn declaration, that all citizens, by comparing always the 
 acts of the government with the whole social union, may never 
 suffer themselves to be oppressed and dishonored by tyranny ; that 
 the people may always have before its eyes the fundamental pillars 
 of its liberty and welfare, and the authorities the standard of their 
 duties, and the legislator the object of his problem. 
 
 It accordingly makes, in the presence of the Highest Being, the 
 following declaration of the rights of man and of the citizens.
 
 532 ON CIVIL LIBERTY 
 
 1. The object of society is the general welfare. Government is 
 instituted, to insure to man the free use of his natural and inalien- 
 able rights. 
 
 2. These rights are equality, liberty, security, property. 
 
 3. All men are equal by nature and before the law. 
 
 4. Law is the free and solemn proclamation of the general will ; 
 it is the same for all, be it protective or penal ; it can command 
 only what is just and beneficial to society, and prohibit only what 
 is injurious to the same. 
 
 5. All citizens are equally admissible to all public offices. Free 
 nations are in their elections guided by no other considerations 
 than virtues and talents. 
 
 6. Freedom is the power, by which man can do what does not 
 interfere with the rights of another ; its basis is nature ; its stand- 
 ard is justice; its protection is law; its moral boundary is the 
 maxim : Do not unto others what you do not wish they should do 
 unto you. 
 
 7. The right of communicating thoughts and opinions, either 
 through the press, or in any other manner ; the right of assembling 
 peaceably ; the free exercise of religion, cannot be prohibited. 
 
 The necessity publicly to claim these rights, presupposes the 
 actual existence of despotism, or the fresh recollection of the same. 
 
 8. Security rests on the protection given by society to each of 
 its members, for the preservation of his person, his rights and his 
 property. 
 
 9. Law must protect the general and the individual liberty 
 against the oppression of those who govern. 
 
 10. No one can be accused, arrested, or kept in close custody, 
 except in the cases specified by law, and according to the pre- 
 scribed forms ; every citizen who, by virtue of the law, is sum- 
 moned before court or arrested, must immediately obey; every 
 refusal shows him to be guilty. 
 
 11. Every order against a person, in cases and forms not speci- 
 fied by law, is arbitrary and tyrannical ; the person against whom 
 such an order should be executed by force, has the right to resist 
 it by force. 
 
 12. Those who cause, aid in, sign, execute or cause to be ex- 
 ecuted, such arbitrary acts, are culpable, and must be punished. 
 
 13. Since every man is deemed to be innocent, until he be 
 proved guilty, if his condemnation will necessarily lead to arrest,
 
 AND SELF-GOVERNMENT. 533 
 
 every severity, not required for the forthcoming of his person, is 
 strictly prohibited. 
 
 14. Only he who has been first heard or legally summoned, can 
 be condemned and punished, and this only by a law promulgated 
 before the commission of the crime. A law which would punish 
 transgressions, committed before its publication, would be tyranny ; 
 and it would be a crime to give retrospective force to law. 
 
 15. Law shall order punishments only which are unavoidably 
 necessary; the punishments shall be suitable to the crime, and 
 beneficial to society. 
 
 1 6. The right of property is that by which every citizen can en- 
 joy his goods and his income, the fruits of his labor and industry, 
 and dispose of them at pleasure. 
 
 17. No kind of occupation, employment and trade can be pro- 
 hibited to citizens. 
 
 1 8. Every one may dispose of his services and time at pleasure; 
 but he can neither sell himself nor be sold. His person is inalien- 
 able property. The law does not recognize a state of servitude ; 
 an agreement only for services rendered and a compensation for 
 them, can exist between him who labors and him who employs 
 him. 
 
 19. Without his consent, no one can be deprived of the least 
 part of his property, unless it be required by a general and legally 
 specified necessity, and then only on condition of a just and pre- 
 viously fixed indemnity. 
 
 20. No tax can be laid except for the common welfare. All 
 citizens have the right to have a voice in the laying of taxes, to 
 watch over the application of them, and to have an account ren- 
 dered thereof. 
 
 21. The public support of the poor is a sacred obligation. So- 
 ciety takes upon itself the support of needy citizens, either by 
 giving work to them, or by giving subsistence to those who are 
 unable to work. 
 
 22. Instruction is a want for all. Society shall further with all 
 its power the progress of the public welfare, and regulate instruc- 
 tion according to the wants of all citizens. 
 
 23. Social guarantee rests on the activity of all to secure to each 
 one the enjoyment and the preservation of his rights. This guar- 
 antee rests on the sovereignty of the people. 
 
 24. It cannot exist, if the boundaries of public administration
 
 534 
 
 ON CIVIL LIBERTY 
 
 be not definitely specified by law, and unless the responsibility of 
 all public officers be secured. 
 
 25. Sovereignty belongs to the people. It is one and indivisible, 
 imprescriptible and inalienable. 
 
 26. No single part of the people can exercise the power of the 
 whole people ; but every assembled section of the sovereign people 
 enjoys the right to express its will with perfect freedom. 
 
 27. Every individual who would assume the sovereignty shall be 
 at once condemned to death by the free men. 
 
 28. The people have the right to revise, amend, and alter their 
 constitution. One generation cannot bind succeeding generations 
 to its laws. 
 
 29. Every citizen has the right of taking part in the legislation, 
 and of appointing his representatives or agents. 
 
 30. Public functions are in their nature temporary ; they cannot 
 be considered as distinctions, nor as rewards, but as obligations. 
 
 31. The offences of the representatives of the people and of its 
 agents, shall not be unpunished. No one has the right to hold 
 himself more inviolable than the other citizens. 
 
 32. The right of presenting petitions to the public authorities 
 can in no case be interdicted, abolished or limited. 
 
 33. Resistance to oppression is the inference from the other 
 rights of man. 
 
 34. It is oppression of the whole of society, if but one of its 
 members be oppressed. Oppression of every single member exists, 
 when the whole of society is oppressed. 
 
 35. When government violates the rights of the people, insur- 
 rection of the people and of every single part of it, is the most 
 sacred of its rights and the highest of its duties. 
 
 (Signed) COLLOT D'HERBOIS, President. 
 
 DURAND MAILLANE, Ducos, MEAULLE, 
 CHARLES DE LA CROIX, GOSSUIN, P. A. LALOY, 
 
 Secretaries.
 
 AND SELF-GOVERNMENT. 535 
 
 CONSTITUTION 
 
 OF THE TWENTY- FOURTH OF JUNE, 1793. 
 OF THE REPUBLIC. 
 
 1. The French Republic is one and indivisible. 
 
 OF THE DIVISION OF THE PEOPLE. 
 
 2. The French people is, for the purpose of exercising its sover- 
 eignty, divided into primary assemblies according to cantons. 
 
 3. For the purpose of administration and justice, it is divided 
 into departments, districts, and municipalities. 
 
 OF THE RIGHT OF CITIZENSHIP. 
 
 4. very man born and living in France, of twenty-one years 
 of age, and every alien, who has attained the age of twenty-one, 
 and has been domiciled in France one year, and lives from his 
 labor ; 
 
 or has acquired property ; 
 
 or has married a French woman ; 
 
 or has adopted a child ; 
 
 or supports an aged man ; 
 
 and finally every alien whom the legislative body has declared as 
 one well deserving of the human race, are admitted to exercise the 
 rights of a French citizen. 
 
 5. The right of exercising the rights of citizen is lost : 
 
 by being naturalized in a foreign state ; 
 
 by accepting offices of state, or favors which do not proceed 
 
 from a democratic government ; 
 by being sentenced to dishonorable or corporal punishments, 
 
 till reinstated in the former state. 
 
 6. The exercise of the rights of citizen is suspended : 
 
 by being in a state of accusation ; 
 
 by a sentence in contumaciam, so long as this sentence has 
 not been rescinded.
 
 536 ON CIVIL LIBERTY 
 
 OF THE SOVEREIGNTY OF THE PEOPLE. 
 
 7. The sovereign people embraces the whole of French citizens. 
 
 8. It chooses its deputies directly. 
 
 9. It delegates to electors the choice of administrators, public 
 civil judges, penal judges, and judges of cassation. 
 
 10. It deliberates on laws. 
 
 OF THE PRIMARY ASSEMBLIES. 
 
 11. The primary assemblies are formed of the citizens who have 
 resided six months in a canton. 
 
 12. They consist of no less than 200 and no more than 600 
 citizens, called together for the purpose of voting. 
 
 13. They are organized, after a president, secretaries and col- 
 lectors of votes have been appointed. 
 
 14. They exercise their own police. 
 
 15. No one is allowed to appear there with arms. 
 
 1 6. The elections are made either by secret or loud voting, at 
 the pleasure of each voter. 
 
 17. A primary meeting can in no case prescribe more than one 
 manner of voting. 
 
 18. The collectors of votes note down the votes of those citizens 
 who cannot write, and yet prefer to vote secretly. 
 
 19. The votes on laws are given by "Yes," and " No." 
 
 20. The elections of primary assemblies are published in the 
 following manner : 
 
 The united citizens in the primary assembly at , numbering 
 
 votes, vote for, or vote against, by a majority of . 
 
 OF THE NATIONAL REPRESENTATION. 
 
 21. Population is the only basis of national representation. 
 
 22. For every 40,000 individuals, one deputy is chosen. 
 
 23. Every primary assembly which is formed of from 39,000 to 
 41,000 individuals, chooses directly a deputy. 
 
 24. The choice is effected by an absolute majority of votes. 
 
 25. Every assembly makes an abstract of the votes, and sends a 
 commissioner to the appointed central place of general record. 
 
 26. If at the first voting, no absolute majority be effected, a
 
 AND SELF-GOVERNMENT. 537 
 
 second meeting shall be held, and those two citizens who had the 
 most votes, shall be voted for again. 
 
 27. In case of an equal division of votes, the oldest person has 
 the preference, no matter whether he was voted for, or whether he 
 was chosen without it. In case of an equality of age, the casting 
 of lots shall decide. 
 
 28. Every Frenchman, who enjoys the rights of a citizen, is 
 eligible throughout the whole republic. 
 
 29. Every deputy belongs to the whole nation. 
 
 30. In case of non-acceptance, of abdication, or expiration of 
 office, or of the death of a deputy, the primary assembly which had 
 chosen him shall choose a substitute. 
 
 31. A deputy who hands in his resignation, cannot leave his post 
 till his successor shall have been appointed. 
 
 32. The French people assembles every year on the ist of May 
 for election. 
 
 33. It proceeds thereto, whatever the number of citizens [present] 
 may be, who have a right to vote. 
 
 34. Extraordinary primary meetings are held at the demand of 
 one-fifth of the eligible citizens. 
 
 35. The meeting is, in this case, called by the municipal author- 
 ity of the usual place of assembly. 
 
 36. These extraordinary meetings can transact business only when 
 at least more than one-half of the qualified voters are present. 
 
 OF THE ELECTORAL ASSEMBLIES. 
 
 37. The citizens, united in primary assemblies, nominate in pro- 
 portion of 200 citizens, (they may be present or not,) one elector ; 
 two, for from 301 to 400 ; three, for from 501 to 600. 
 
 38. The holding of election meetings, and the manner of elec- 
 tion, are the same as in the primary meetings. 
 
 OF THE LEGISLATIVE BODY. 
 
 39. The legislative body is one, indivisible and continual. 
 
 40. Its session lasts one year. 
 
 41. It assembles on the ist of July. 
 
 42. The national assembly cannot be organized, unless at least 
 one more than one-half of the deputies are present. 
 
 43. The deputies can, at no time, be held answerable, accused
 
 538 
 
 ON CIVIL LIBERTY 
 
 or condemned on account of opinions uttered within the legislative 
 body. 
 
 44. In criminal cases, they may be arrested if caught in the act ; 
 but the warrant of arrest and the warrant of committal can be 
 issued only by the legislative body. 
 
 MODE OF PROCEDURE OF THE LEGISLATIVE BODY. 
 
 45. The sessions of the national assembly are public. 
 
 46. The debates in their sessions shall be printed. 
 
 47. It cannot deliberate, unless it consist of 200 members. 
 
 48. It cannot refuse to members the floor, in the order in which 
 they demand the same. 
 
 49. It decides by a majority of those present. 
 
 50. Fifty members have the right to demand a call by names. 
 
 51. It has the right of censorship on the conduct of the members 
 in its midst. 
 
 52. It exercises the power of police at the place of its sessions, 
 and within the whole extent of its environs. 
 
 OF THE FUNCTIONS OF THE LEGISLATIVE BODY. , 
 
 53. The legislative body proposes laws, and issues decrees. 
 
 54. By the general name of law, are understood the provisions 
 of the legislative body which concern : 
 
 the civil and penal legislation ; 
 
 the general administration of revenues and of the ordinary 
 
 expenditures of the republic ; 
 the national domains ; 
 
 the inscription, alloy, stamp and names of coins; 
 declaration of war ; 
 
 every new general division of the French territory; 
 public instruction ; 
 public demonstrations of honor to the memory of great men. 
 
 55. By the particular name of decrees are understood those 
 enactments of the legislative body, which concern : 
 
 the annual establishment of the land and marine forces ; 
 the permission or refusal of the marching of foreign troops 
 
 through the French territory ; 
 the admission of foreign vessels of war into the ports of the 
 
 republic ;
 
 AND SELF-GOVERNMENT. 539 
 
 the measures for the common peace and safety ; 
 
 the distribution of annual and momentary relief and of 
 public works ; 
 
 the orders for the stamping of coins of every description ; 
 
 the unforeseen and extraordinary expenses ; 
 
 the local and particular orders for an administration, a com- 
 mune, and any kind of public works ; 
 
 the defence of the territory ; 
 
 the ratification of treaties ; 
 
 the nomination and removal of the commander-in-chief of 
 the army ; 
 
 the carrying into effect the responsibility of members of the 
 executive council, and of public officers ; 
 
 the accusation of discovered conspiracies against the com- 
 mon safety of the republic ; 
 
 every alteration in the division of the French territory; 
 
 the national rewards. 
 
 OF THE MAKING OF LAWS. 
 
 56. A notice must precede the introduction of a bill. 
 
 57. Not till after a fortnight from the giving of notice can the 
 debate begin, and the law be temporarily accepted. 
 
 58. The proposed law is printed and sent to all the communes 
 of the republic, under the address of, Proposed law. 
 
 59. If, forty days after the sending in of the proposed law, of 
 the absolute majority of departments, one-tenth of all the primary 
 meetings, legally assembled by the departments, have not protested, 
 the bill is accepted and becomes a law. 
 
 60. If protest be made, the legislative body calls together the 
 primary meetings. 
 
 OF THE SUPERSCRIPTION OF LAWS AND DECREES. 
 
 61. The laws, decrees, sentences, and all public transactions are 
 superscribed : 
 
 In the name of the French people, in the year of the French 
 
 Republic. 
 
 OF THE EXECUTIVE POWER. 
 
 62. There shall be an executive council, consisting of twenty- 
 four members. 
 
 63. The electoral assembly of each department nominates a
 
 540 
 
 ON CIVIL LIBERTY 
 
 candidate. The legislative body chooses from this general list the 
 members of the executive council. 
 
 64. It shall be renewed each half session of every legislature, in 
 the last months of its session. 
 
 65. The executive council has the management and supervision 
 of the general administration. Its activity is limited to the execu- 
 tion of laws and decrees of the legislative body. 
 
 65. It appoints, but not out of its midst, the highest agents of 
 the general administration of the republic. 
 
 67. The legislative body establishes the number of these agents, 
 and their business. 
 
 68. These agents form no council. They are separated one from 
 the other, and have no relation among themselves. They exercise 
 no personal power. 
 
 69. The executive council chooses, but not from its midst, the 
 foreign agents of the republic. 
 
 70. It negotiates treaties. 
 
 71. The members of the executive council are, in case of viola- 
 tion of duties, accused by the legislative body. 
 
 72. The executive council is responsible for the non-execution 
 of the laws and decrees, and the abuses, of which it does not give 
 notice. 
 
 73. It recalls and substitutes the agents at pleasure. 
 
 74. It is obliged, if possible, to inform the judicial authorities 
 regarding them. 
 
 OF THE MUTUAL RELATIONS BETWEEN THE EXECUTIVE COUNCIL, 
 AND THE LEGISLATIVE BODY. 
 
 75. The executive council shall have its seat near the legislative 
 body. It shall have admittance to, and a special seat at the place 
 of session. 
 
 76. It shall every time be heard, when it shall have to give 
 account. 
 
 77. The legislative body shall call it into its midst, in whole or 
 in part, when it is thought necessary. 
 
 OF THE ADMINISTRATIVE AUTHORITIES AND THE MUNICIPALITIES. 
 
 78. There shall be a municipal authority in each commune of 
 the republic ; and in each district an intermediate administration ; 
 and in each department a central administration.
 
 AND SELF-GOVERNMENT. 
 
 541 
 
 79. The municipal officers are chosen by the assemblies of the 
 commune. 
 
 80. The administrators are chosen by the electoral assemblies of 
 the departments and of the district. 
 
 81. The municipalities and the administrative authorities are 
 annually renewed one-half. 
 
 82. The administrative authorities and municipal officers have 
 not a representative character. They can, in no case, limit the 
 resolves of the legislative body, nor the execution of them. 
 
 83. The legislative body assigns the business of the municipal 
 officers and of the administrative authorities, the rules regarding 
 their subordination, and the punishments to which they may be- 
 come liable. 
 
 84. The sessions of the municipalities and of the administrative 
 authorities are held in public. 
 
 OF CIVIL JUSTICE. 
 
 85. The civil and penal code is the same for the whole re- 
 public. 
 
 86. No encroachment can be made upon the right of citizens 
 to have their matters in dispute decided on by arbitrators of their 
 own choice. 
 
 87. The decision of these arbitrators is final, unless the citizens 
 have reserved the right of protesting. 
 
 88. There shall be justices of the peace, chosen by the citizens 
 of the districts, appointed by law. 
 
 89. They shall conciliate and hold court without fees. 
 
 90. Their number and extent of power shall be established by 
 the legislative body. 
 
 91. There shall be public judges of arbitration, who are chosen 
 by electoral assemblies. 
 
 92. Their number and districts are fixed by the legislative body. 
 
 93. They shall decide on matters in controversy, which have 
 not been brought to a final decision by private arbitrators or by 
 the justices of the peace. 
 
 94. They shall deliberate publicly. 
 They shall vote with loud voice. 
 
 They shall decide in the last resort on oral pleadings, or on a 
 simple petition, without legal forms and without cost. 
 They shall assign the reasons of their decisions.
 
 542 
 
 ON CIVIL LIBERTY 
 
 95. The justices of the peace and the public arbitrators are 
 chosen annually. 
 
 OF CRIMINAL JUSTICE. 
 
 96. In criminal cases, no citizen can be put on trial, except a 
 true bill of complaint be found by a jury, or by the legislative 
 body. 
 
 The accused shall have advocates, either chosen by themselves, 
 or appointed officially. 
 
 The proceedings are in public. 
 
 The state of facts and the intention are passed upon by a jury. 
 
 The punishment is executed by a criminal authority. 
 
 97. The criminal judges are chosen annually by the electoral 
 assemblies. 
 
 OF THE COURT OF CASSATION. 
 
 98. There is a court of cassation for the whole republic. 
 
 99. This court takes no cognizance of the state of facts. 
 
 It decides on the violation of matters of form, and on trans- 
 gressions expressed by law. 
 
 100. The members of this court are appointed annually through 
 the electoral assemblies. 
 
 OF THE GENERAL TAXES. 
 
 101. No citizen is excluded from the honorable obligation to 
 contribute towards the public expenses. 
 
 OF THE NATIONAL TREASURY. 
 
 102. The national treasury is the central point of the revenues 
 and expenses of the republic. 
 
 103. It is managed by public accountants, whom the legislative 
 body shall elect. 
 
 104. These agents are supervised by officers of account, whom 
 the legislative body shall elect, but who cannot be taken from their 
 own body : they are responsible for abuses of which they do not 
 give lej,al notice to the courts. 
 
 OF THE RENDITION OF ACCOUNTS. 
 
 105. The accounts of the agents of the national treasury, and 
 those of the administrators of public moneys are taken annually, 
 by responsible commissioners appointed by the executive council.
 
 AND SELF-GOVERNMENT. 543 
 
 1 06. Those persons appointed to revise the accounts are under 
 the supervision of commissioners, who are elected by the legisla- 
 tive body, not out of their own number ; and they are responsible 
 for the frauds and mistakes of accounts, of which they do not 
 give notice. 
 
 The legislative body preserves the accounts. 
 
 OF THE MILITARY FORCES OF THE REPUBLIC. 
 
 107. The general military power of the republic consists of the 
 whole people. 
 
 1 08. The republic supports, also, in times of peace, a paid land 
 and marine force. 
 
 109. All Frenchmen are soldiers ; all shall be exercised in the 
 use of arms. 
 
 no. There is no generalissimo. 
 
 in. The distinction of grade, the military marks of distinction 
 and subordination, exist only in service and in time of its duration. 
 
 112. The general military force is used for the preservation of 
 order and peace in the interior ; it acts only on a written requisi- 
 tion of the constituted authorities. 
 
 113. The general military force against foreign enemies is under 
 the command of the executive council. 
 
 114. No armed body can deliberate. 
 
 OF THE NATIONAL CONVENTION. 
 
 115. If of the absolute majority of departments, the tenth part 
 of their regularly formed primary assemblies demand a revision of 
 the constitution, or an alteration of some of its articles ; the legis- 
 lative body is obliged to call together all primary assemblies of the 
 republic, in order to ascertain whether a national convention shall 
 be called. 
 
 1 1 6. The national convention is formed in like manner as the 
 legislatures, and unites in itself the highest power. 
 
 117. It is occupied, as regards the constitution, only with those 
 subjects which caused its being called together. 
 
 OF THE RELATIONS OF THE FRENCH REPUBLIC TOWARDS FOREIGN 
 
 NATIONS. 
 
 118. The French nation is the friend and natural ally of free 
 nations.
 
 544 
 
 ON CIVIL LIBERTY AND SELF-GOVERMMENT. 
 
 119. It does not interfere with the affairs of government of other 
 nations. It suffers no interference of other nations with its own. 
 
 120. It serves as a place of refuge for all who, on account of 
 liberty, are banished from their native country. 
 
 These it refuses to deliver up to tyrants. 
 
 121. It concludes no peace with an enemy that holds possession 
 of its territory. 
 
 OF THE GUARANTY OF RIGHTS. 
 
 122. The constitution guarantees to all Frenchmen equality, 
 liberty, security, property, the public debt, free exercise of religion, 
 general instruction, public assistance, absolute liberty of the press, 
 the right of petition, the right to hold popular assemblies, and the 
 enjoyment of all the rights of man. 
 
 123. The French republic respects loyalty, courage, age, filial 
 love, misfortune. It places the constitution under the guaranty of 
 all virtues. 
 
 124. The declaration of the rights of man and the constitution 
 shall be engraven on tables, to be placed in the midst of the legis- 
 lative body, and in public places. 
 
 (Signed) COLLOT D'HERBOIS, President. 
 
 DURAND-MAILLANE, Ducos, MEAULLE, 
 
 CHARLES DE LA CROIX, GOSSUIN, P. A. LALOY, 
 
 Secretary
 
 APPENDIX XII. 
 
 FRENCH CHARTER OF LOUIS XVIII. AND THAT ADOPTED 
 IN THE YEAR 1830. 
 
 THE following is the charter of 1830, as I translated it in that 
 year, for a work published in Boston, under the title of " Events in 
 Paris during the 26th, 27th, 28th and 29th of July: translated 
 from the French." 
 
 This charter of August 8, 1830, is in substance the charter of 
 Louis XVIII. with such changes as the chambers adopted in favor 
 of liberty. The new articles, or the amendments of the old ones, 
 are printed in italics, and the old readings or suppressed articles 
 are given in notes : so that the paper exhibits both the charters. 
 
 FRENCH CHARTER OF 1830. 
 
 The whole preamble of the ancient charter was suppressed, as 
 containing the principle of concession and octroi (grant), incom- 
 patible with that of the acknowledgment of national sovereignty. 
 
 The following is the substitution of the preamble : 
 
 DECLARATION OF THE CHAMBER OF DEPUTIES. 
 
 The chamber of deputies, taking into consideration the imperi- 
 ous necessity which results from the events of the 26th, 27th, 28th 
 and 29th of July, and the following days ; and from the situation 
 in which France is placed in consequence of the violation of the 
 constitutional charter : 
 
 Considering, moreover, that by this violation, and the heroic 
 resistance of the citizens of Paris, his majesty Charles X., his royal 
 highness Louis Antoine, dauphin, and all the members of the senior 
 
 35 545
 
 546 ON CIVIL LIBERTY 
 
 branch of the royal house, are leaving, atfthis moment, the French 
 territory 
 
 Declares that the throne is vacant de facto et de jure, and that it 
 is necessary to fill it. 
 
 The chamber of deputies declares secondly, that according to the 
 wish, and for the interest of the French people, the preamble of 
 the constitutional charter is suppressed, as wounding the national 
 dignity in appearing to grant to the French rights which essentially 
 belong to them j and that the following articles of the same char- 
 ter ought to be suppressed or modified in the following manner. 
 
 Louis Philippe, King of the French, to all to whom these pres- 
 ents shall come, greeting : 
 
 We have ordained and ordain, that the constitutional charter of 
 1814, as amended by the two chambers on the 7th August, and 
 adopted by us on the gth, be published anew in the following 
 terms: 
 
 PUBLIC LAW OF THE FRENCH. 
 
 ART. i. Frenchmen are equal before the law, whatever otherwise 
 may be their titles or their rank. 
 
 ART. 2. They contribute in proportion to their fortunes to the 
 charges of the state. 
 
 ART. 3. They are all equally admissible to civil and military em- 
 ployments. 
 
 ART. 4. Their individual liberty is equally guaranteed. No per- 
 son can be either prosecuted or arrested, except in cases provided 
 for by the law, and in the form which it prescribes. 
 
 ART. 5. Each one may profess his religion with equal liberty, 
 and shall receive for his religious worship the same protection. 
 
 ART. 6. The ministers of the catholic, apostolic and Roman 
 religion, professed by the majority of the French, and those of other 
 Christian worship, receive stipends from the public treasury* 
 
 ART. 7. Frenchmen have the right of publishing and causing to 
 be printed their opinions, provided they conform themselves to the 
 laws. 
 
 1 This article 6 is substituted for the articles 6 and 7 of the old charter, which 
 ran thus : 
 
 6. However, the catholic, apostolic and Roman religion, is the religion of the 
 state. 
 
 7. The ministers of the catholic, apostolic and Roman religion, and those of 
 other Christian confessions, alone receive stipends from the public treasury.
 
 AND SELF-GOVERNMENT. 
 
 547 
 
 The censorship can never be re-established. x 
 
 ART. 8. All property is inviolable, without exception of that 
 which is called national, the law making no difference between 
 them. 
 
 ART. 9. The state can exact the sacrifice of property for the good 
 of the public, legally proved, but with a previous indemnity. 
 
 ART. 10. All examination into the opinions and votes given 
 before the restoration is interdicted, and the same oblivion is 
 commanded to be adopted by the tribunals and by the citizens. 
 
 ART. ii. The conscription is abolished. The method of re- 
 cruiting the army for land and sea is to be determined by the law. 
 
 FORMS OF THE KING'S GOVERNMENT. 
 
 ART. 12. The person of the king is inviolable and sacred. His 
 ministers are responsible. To the king alone belongs executive 
 power. 
 
 ART. 13. The king is the supreme head of the state ; commands 
 the forces by sea and by land ; declares war, makes treaties of 
 peace and alliance and of commerce ; he appoints to all offices in 
 public administration, and makes all regulations necessary for the 
 execution of the laws, without ever having power either to suspend 
 the laws themselves, or dispense with their execution. 
 
 Nevertheless, no foreign troops can be admitted into the service of 
 the state without an express law. 3 
 
 ART. 14. The legislative power is to be exercised collectively by 
 the king, the chamber of peers, and the chamber of deputies. 3 
 
 ART. 15. The proposition of the laws belongs to the king, to the 
 chamber of peers, and to the chamber of deputies. 
 
 ' T Article 8 of the old charter : 
 
 The French have the right to publish and to cause to be published their 
 opinions, conforming themselves to the laws, which shall prevent the abuse of 
 this liberty. 
 
 3 Article 14 of the old charter : 
 
 The king is the supreme head of the state, commands the forces by land and 
 sea, declares war, makes treaties of peace, alliance and commerce, appoints to 
 all offices of public administration, and makes rules and orders necessary for the 
 execution of the laws and the safety of the state. 
 
 3 There was in article 15 of the old charter: and the chamber of deputies of 
 the departments. These last three words have been suppressed.
 
 548 
 
 ON CIVIL LIBERTY 
 
 Nevertheless, all the laws of taxes are to be first voted' by the 
 chamber of deputies.* 
 
 ART. 1 6. Every law is to be discussed and freely voted by the 
 majority of each of the two chambers. 
 
 ART. 17. If a proposed law be rejected by one of the three powers, 
 it cannot be brought forward again in the same session." 
 
 ART. 18. The king alone sanctions and promulgates the laws. 
 
 ART. 19. The civil list is to be fixed for the duration of the reign 
 of the legislative assembly after the accession of the king. 
 
 OF THE CHAMBER OF PEERS. 
 
 ART. 20. The chamber of peers is to form an essential portion 
 of the legislative power. 
 
 ART. 21. It is convoked by the king at the same time as the 
 chamber of deputies. The session of one begins and ends at the 
 same time as that of the other. 
 
 ART. 22. Any assembly of the chamber of peers, which should 
 be held at a time which is not that of the session of the chamber 
 of deputies, is illicit, and null of full right, except only the case in 
 which it is assembled as a court of justice, and then it can only exer- 
 cise judicial functions.* 
 
 1 Art. 15 is in the place of art. 16 and 17 of the old charter, which were 
 thus: 
 
 Art. 1 6. The king proposes the law. 
 
 Art. 17. The proposition of the law is carried, at the pleasure of the king, to 
 the chamber of peers or that of the deputies, except the law of taxes, which is 
 to be directed to the chamber of deputies. 
 
 2 Art. 17 is substituted for articles 19, 20 and 21, suppressed as useless, after 
 the preceding provisions. They were the following : 
 
 Art. 19. The chambers have the right to petition the king to propose a law 
 on any subject whatever, and to indicate what seems to them proper the law 
 ought to contain. 
 
 Art. 20. This request may be made by each of the chambers ; but, after having 
 been discussed in secret committee, it is not to be sent to the other chamber, by 
 that which proposes, until after the lapse of ten days. 
 
 Art. 21. If the proposition is adopted by the other chamber, it is to be laid 
 before the king; if it is rejected, it cannot be presented again in the same 
 session. 
 
 3 This is article 26 of the old charter, augmented by this provision, which was 
 not in the former, and the words following have been suppressed : or that it 
 sho'ild be ordained by the king.
 
 AND SELF-GOVERNMENT. 
 
 549 
 
 ART. 23. The nomination of the peers of France belongs to the 
 king. Their number is unlimited ; he can vary their dignities, and 
 name them peers for life, or make them hereditary at his pleasure. 
 
 ART. 24. Peers can enter the chamber at twenty-five years of 
 age, but have only a deliberative voice at the age of thirty years. 
 
 ART. 25. The chamber of peers is to be presided over by the 
 chancellor of France ; and in his absence, by a peer named by the 
 king. 
 
 ART. 26. The princes of blood are to be peers by right of birth. 
 They are to take their seats immediately behind the president. 1 
 
 ART. 27. The sittings of the chamber of peers are public as that 
 of the chamber of deputies. 3 
 
 ART. 28. The chamber of peers takes cognizance of high treason, 
 and of attempts against the security of the state, which is to be 
 defined by the law. 
 
 ART. 29. No peer can be arrested but by the authority of the 
 chamber, or judged but by it in a criminal matter. 
 
 OF THE CHAMBER OF DEPUTIES. 
 
 ART. 30. The chamber of deputies will be composed of deputies 
 elected by the electoral colleges ; the organization of which is to 
 be determined by law. 3 
 
 ART. 31. The deputies are to be elected for five years.* 
 
 ART. 32. No deputy can be admitted into the chamber till he 
 
 1 Art. 30 of the old charter : 
 
 The members of the royal family and the princes of the blood are peers by 
 the right of birth; they sit immediately behind the president; but they have no 
 deliberative voice before their twenty- fifth year. 
 
 Art. 31 was thus : 
 
 The princes cannot take their seat in the chamber, but by order of the king, 
 expressed for each session by a message, under penalty of rendering everything 
 null which has been done in their presence. Suppressed. 
 
 * All deliberations of the chamber of peers are secret. .Art. 32 of the old 
 charter. 
 
 3 Art. 36 was thus : 
 
 Every department shall have the same number of deputies which it has pre- 
 viously had. Suppressed. 
 
 * Art. 37 of the old charter: 
 
 The deputies shall be elected for five years, and in such a way that the cham- 
 ber is renewed each year by a fifth.
 
 550 
 
 ON CIVIL LIBERTY 
 
 has attained the age of thirty years, and if he does not possess the 
 other conditions prescribed by the law. 1 
 
 ART. 33. If, however, there should not be in the department 
 fifty persons of the age specified faying the amount of taxes fixed by 
 law, their number shall be completed from the persons who pay 
 the greatest amount of taxes under the amount fixed by law.* 
 
 ART. 34. No person can be an elector if he is under twenty -five 
 years of age ; and if he does' not possess all the other conditions deter- 
 mined by the law. 3 
 
 ART. 35. The presidents of the electoral colleges are elected by 
 the electors.* 
 
 ART. 36. The half at least of the deputies are to be chosen from 
 those who have their political residence in the departments. 
 
 ART. 37. The president of the chamber of deputies is to be elected 
 by the chamber itself at the opening of each session.* 
 
 ART. 38. The sittings of the chamber are to be public, but the 
 request of five members will be sufficient that it forms itself into a 
 secret committee. 
 
 ART. 39. The chamber divides itself into bureaux (committees) 
 to discuss the projects of laws, which may have been presented from 
 the king. 6 
 
 1 Art. 38 of the old charter : 
 
 No deputy can be admitted into the chamber if he is not forty years old, and 
 if he does not pay direct taxes of 1000 francs. 
 
 a Article 39 of the old charter : 
 
 If, nevertheless, there should not be in the department fifty persons of the indi- 
 cated age, paying at least 1000 francs direct taxes, their number will be com- 
 pleted by those who pay the highest taxes under 1000 francs ; and these may be 
 elected concurrently with the others. 
 
 3 Art. 40 of the old charter : 
 
 The electors who concur in electing the deputy cannot have the right of suf- 
 frage, if they do not pay a direct tax of 300 francs ; and if they are less than thirty 
 years of age. 
 
 < Art. 41 of the old charter: 
 
 The presidents of the electoral colleges shall be nominated by the king, and 
 be, by right, members of the college. 
 
 s Art. 43 of the old charter : 
 
 The president of the chamber of deputies is nominated by the king, from a 
 !ist of five members, presented by the chamber. 
 
 6 In consequence of the initiative, art. 46 and 47 are suppressed, which were 
 thus: 
 
 46. No amendment can be made to a law, if it has not been proposed or con
 
 AND SELF-GOVERNMENT. 55! 
 
 ART. 40. No tax can be established nor imposed, if it has not been 
 consented to by the two chambers, and sanctioned by the king. 
 
 ART. 41. The land and house tax can only be voted for one 
 year. The indirect taxes may be voted for many years. 
 
 ART. 42. The king convokes every year the two chambers, he 
 prorogues them, and may dissolve that of the deputies ; but in this 
 case he must convoke a new one within the period of three months. 
 
 ART. 43. No bodily restraint can be exercised against a member 
 of the chamber during the session, nor for six weeks which precede 
 or follow the session. 
 
 ART. 44. No member of the chamber can be, during the session, 
 prosecuted or arrested in a criminal matter, except taken in the act, 
 till after the chamber has permitted his arrest. 
 
 ART. 45. Every petition to either of the chambers must be made 
 in writing. The law interdicts its being carried in person to the 
 bar. 
 
 OF THE MINISTERS. 
 
 ART. 46. The ministers can be members of the chamber of peers 
 or the chamber of deputies. 
 
 They have, moreover, their entrance into either chamber, and 
 are entitled to be heard when they demand it. 
 
 ART. 47. The chamber of deputies has the right of impeaching 
 the ministers, or of transferring them before the chamber of peers, 
 which alone has the right to judge them. 1 
 
 JUDICIAL REGULATIONS. 
 
 ART. 48. All justice emanates from the king ; it is administered 
 in his name by the judges, whom he nominates, and whom he 
 institutes. 
 
 ART. 49. The judges named by the king are immovable. 
 
 sented to by the king, and if it has not been sent back and discussed by the 
 bureaux. 
 
 47. The chamber of deputies receives all propositions of taxes ; only after 
 these laws have been consented to, they may be carried to the chamber of peers. 
 
 1 Article 56 of the old charter is suppressed ; it ran thus : 
 
 They cannot be accused except for treason or peculation. Particular laws 
 will specify this kind of offences, and will determine how they are to be prose- 
 cuted.
 
 552 
 
 ON CIVIL LIBERTY 
 
 ART. 50. The ordinary courts and tribunals existing are to be 
 maintained, and there is to be no change but by virtue of a law. 
 
 ART. 51. The actual institution of the judges of commerce is 
 preserved. 
 
 ART. 52. The office of justice of peace is equally preserved. 
 The justices of peace, though named by the king, are not im- 
 movable. 
 
 ART. 53. No one can be deprived of his natural judges. 
 
 ART. 54. There cannot, in consequence, be extraordinary com- 
 mittees and tribunals created, under whatever title or denomination 
 this ever might be.* 
 
 ART. 55. The debates will be public in criminal matters, at least 
 when the publicity will not be dangerous to order and decency, and 
 in that case the tribunal is to declare so by a distinct judgment. 
 
 ART. 56. The institution of juries is to be preserved ; the changes 
 which a longer experience may render necessary can only be effected 
 by a law. 
 
 ART. 57. The punishment of confiscation of goods is abolished, 
 and cannot be re-established. 
 
 ART. 58. The king has the right to pardon and to commute the 
 punishment. 
 
 ART. 59. The civil code, and the actual laws existing that are 
 not contrary to the present charter, will remain in full force until 
 they shall be legally abrogated. 
 
 PARTICULAR RIGHTS GUARANTEED BY THE STATE. 
 
 ART. 60. The military in actual service, retired officers and 
 soldiers, widows, officers and soldiers on pension, are to preserve 
 their grades, honors and pensions. 
 
 ART. 61. The public debt is guaranteed. Every sort of engage- 
 ment made by the state with its creditors is to be inviolable. 
 
 ART. 62. The old nobility retake their titles. The new preserve 
 theirs. The king creates nobles at his pleasure ; but he only grants 
 to them rank and honors, without any exemption from the charges 
 and duties of society. 
 
 1 Art. 63 of the old charter : 
 
 In consequence there cannot be created extraordinary committees and tribu- 
 nals. The jurisdictions privotales, if their re-establishment should be found 
 necessary, are not comprised under this denomination.
 
 AND SELF-GOVERNMENT. 553 
 
 ART. '63. The legion of honor is to be maintained. The king 
 shall determine its internal regulations and the decorations. 
 
 ART. 64. The colonies are to be governed by particular laws. 1 
 
 ART. 65. The king and his successors shall swear, at their acces- 
 sion, in presence of the two chambers, to observe faithfully the present 
 constitutional charter. 2 
 
 ART. 66. The present charter, and the rights it consecrates, shall 
 be intrusted to the patriotism and courage of the national guard and 
 all the citizens. 
 
 ART. 67. France resumes her colors. For the future there will be 
 no other cockade than the tri-colored cockade. 3 
 
 ART. 68. All the creations of peers during the reign of Charles 
 X. are declared null and void. 
 
 Article 23 of the charter will undergo a fresh examination during 
 the session of 1831. 
 
 ART. 69. There will be provided successively by separate laws, 
 and that with the shortest possible delay, for the following subjects : 
 
 1. The extension of the trial by jury to offences of the press, 
 and political offences. 
 
 2. The responsibility of ministers and the secondary agents of 
 government. 
 
 3. The re-election of deputies appointed to public functions with 
 salaries. 
 
 4. The annual voting of the army estimates. 
 
 5. The organization of the national guards with the intervention 
 of the national guards in the choice of their officers. 
 
 6. Provisions which insure, in a legal manner, the state of 
 officers of each grade, by land and sea. 
 
 1 Art. 73 of the old charter: 
 
 The colonies will be governed by particular laws and regulations. 
 
 2 Art. 74 of the old charter: 
 
 The king and his successors shall swear at the coronation, to observe faithfully 
 the present constitutional charter. 
 
 3 Arts. 75 and 76 of the old charter are suppressed ; they ran thus : 
 
 75. The deputies of the departments of France who sat in the legislative body, 
 at the last adjournment, will continue to sit in the chamber of deputies, until 
 replaced. 
 
 76. The first renewal of the fifth of the chamber of deputies will take place 
 the latest in the year 1816, according to the order established.
 
 554 
 
 ON CIVIL LIBERTY AND SELF-GOVERNMENT. 
 
 7. Departmental and municipal institutions founded upon an 
 elective system. 
 
 8. Public instruction and the liberty of instruction. 
 
 9. The abolition of the double vote ; the settling of the electoral 
 conditions, and that of eligibility. 
 
 ART. 70. All laws and ordinances, inasmuch as they are contrary 
 to the provisions adopted by the reform of the charter, are from 
 this moment annulled and abrogated. 
 
 We give it in command to our courts and tribunals, administrative 
 bodies, and all others, that they observe and maintain the present 
 constitutional charter, cause it to be observed, followed and main- 
 tained, and in order to render it more known to all, they cause it 
 to be published in all municipalities of the kingdom and every- 
 where, where it will be necessary, and in order that this be firm 
 and stable forever, we have caused our seal to be put to it. 
 
 Done at the Palais-Royal, at Paris, the i4th day of the month 
 of August, in the year 1830. 
 
 Signed LOUIS PHILIPPE. 
 
 By the king : 
 
 The Minister Secretary of the State for the department of the 
 Interior. 
 
 Signed GUIZOT. 
 
 Examined and sealed with the great seal : 
 
 The keeper of the seals, Minister Secretary of the State for the 
 department of Justice. 
 
 Signed DUPONT (de 1'Eure)
 
 APPENDIX XIII. 
 
 CONSTITUTION OF THE FRENCH REPUBLIC. 
 
 ADOPTED NOVEMBER, 1848. 
 
 IN presence of God, and in the name of the French people, the 
 National Assembly proclaims : 
 
 I. France has constituted herself a republic. In adopting that 
 definite form of government, her proposed aim is to advance with 
 greater freedom in the path of civilization and progress, to insure 
 that the burdens and advantages of society shall be more and more 
 equitably apportioned, to augment the comfort of every individual 
 by the gradual reduction of the public expenses and taxes, and by 
 the successive and constant action of her institutions and laws 
 cause the whole body of citizens to attain, without farther commo- 
 tion, a constantly increasing degree of morality, intelligence, and 
 prosperity. 
 
 II. The French republic is democratic, one and indivisible. 
 
 III. It recognizes rights and duties anterior and superior to all 
 positive laws. 
 
 IV. Its principles are Liberty, Equality, Fraternity. 
 
 Its basis is, Family, Labor, Property, and Public Order. 
 
 V. It respects the nationality of foreign states, as it causes its 
 own to be respected. It undertakes no wars with a view of con- 
 quest, and never employs its power against the liberty of any 
 people. 
 
 VI. Reciprocal duties bind the citizens to the republic and the 
 republic to the citizens. 
 
 VII. It is the duty of the citizens to love their country, serve 
 the republic, and defend it at the hazard of their lives ; to partici- 
 pate in the expenses of the state, in proportion to their property ; 
 to secure to themselves, by their labor, the means of existence, 
 and, by prudent forethought, provide resources for the future ; to 
 co-operate for the common welfare by fraternally aiding each other, 
 
 555
 
 556 ON CIVIL LIBERTY 
 
 and in the preservation of general order by observing the moral 
 and written laws which regulate society, families, and individuals. 
 
 VIII. It is the duty of the republic to protect the citizen in his 
 person, his family, his religion, his property, and his labor, and to 
 bring within the reach of all that education which is necessary to 
 every man ; it is also its duty, by fraternal assistance, to provide 
 the means of existence to necessitous citizens, either by procuring 
 employment for them, within the limits of its resources, or by giving 
 relief to those who are unable to work and who have no relatives 
 to help them. 
 
 For the fulfilment of all these duties, and for the guarantee of 
 all these rights, the National Assembly, faithful to the traditions of 
 the great Assemblies by whom the French revolution was inaugu- 
 rated, decrees the constitution of the republic, as following : 
 
 CONSTITUTION. 
 CHAPTER I. ' 
 
 OF SOVEREIGNTY. 
 
 ART. i. The sovereignty exists in the whole body of French 
 citizens. It is inalienable and imprescriptible. No individual, no 
 fraction of the people can arrogate to themselves its exercise. 
 
 CHAPTER II. 
 
 RIGHTS OF CITIZENS GUARANTEED BY THE CONSTITUTION. 
 
 ART. 2. No person can be arrested or detained, except as pre- 
 scribed by law. 
 
 ART. 3. The dwelling of every person inhabiting the French 
 territory is inviolable, and cannot be entered except according to 
 the forms and in the cases provided against by law. 
 
 ART. 4. No one shall be removed from his rightful judges no 
 commissions or extraordinary tribunals can be created under any 
 pretext, or by any denomination whatsoever. 
 
 ART. 5. The penalty of death for political offences is abolished. 
 
 ART. 6. Slavery cannot exist upon any French territory. 
 
 ART. 7. Every one may freely profess his own religion, and shall 
 receive from the state equal protection in the exercise of his wor-
 
 AND SELF-GOVERNMENT. 
 
 557 
 
 ship. The ministers of the religions at present recognized by law, 
 as well as those which may be hereafter recognized, have the right 
 to receive an allowance from the state. 
 
 ART. 8. Citizens have the right of associating together and 
 assembling peaceably and unarmed, in order to petition or manifest 
 their ideas by means of the press or otherwise. The exercise of 
 these rights can only be limited by the rights or the liberty of 
 others, or for the public security. The press cannot in any case be 
 subjected to censorship. 
 
 ART. 9. Education is free. The liberty of teaching is to be ex- 
 ercised according to the capacity and morality determined by con- 
 ditions of the laws, and under the supervision of the state. This 
 superintendence is to be extended to all establishments of education 
 and instruction, without any exception. 
 
 ART. 10. All citizens are equally admissible to all public employ- 
 ments, without other reason of preference than merit, and according 
 to the conditions to be determined by law. All titles of nobility, 
 all distinctions of birth, class or caste, are abolished forever. 
 
 ART. ii. All descriptions of property are inviolable ; neverthe- 
 less, the state may demand the sacrifice of property for reasons of 
 public utility, legally proved, and in consideration of a just and 
 previous indemnity. 
 
 ART. 12. The confiscation of property can never be re-estab- 
 lished. 
 
 ART. 13. The constitution guarantees to citizens the freedom of 
 labor and of industry. Society favors and encourages the develop- 
 ment of labor by gratuitous primary instruction, by professional 
 education, by the equality of rights between the employer and the 
 workman, by institutions for the deposit of savings and those of 
 credit, by agricultural institutions ; by voluntary associations, and 
 the establishment by the state, the departments and the communes, 
 of public works proper for the employment of unoccupied laborers. 
 Society also will give aid to deserted children, to the sick, and to 
 the destitute aged who are without relatives to support them. 
 
 ART. 14. The public debt is guaranteed. Every species of en- 
 gagement made by the state with its creditors is inviolable. 
 
 ART. 15. All taxes are imposed for the common good. Every 
 one is to contribute in proportion to his means and fortune. 
 
 ART. 16. No tax can be levied or collected except by virtue of 
 the law.
 
 ON CIVIL LIBERTY 
 
 ART. 17. Direct taxation is only awarded for one year. Indirect 
 taxes may be awarded for several years. 
 
 CHAPTER III. 
 
 OF PUBLIC POWER. 
 
 ART. 18. All public powers, whatever they may be, emanate from 
 the people. They cannot be delegated by hereditary descent. 
 
 ART. 19. The separation of powers is the first principle of a free 
 government. 
 
 CHAPTER IV. 
 
 OF THE LEGISLATIVE POWER. 
 
 ART. 20. The French people delegate the legislative power to 
 one sole assembly. 
 
 ART. 21. The total number of representatives of the people shall 
 be 750, including the representatives from Algeria and the French 
 colonies. 
 
 ART. 22. This number shall be increased to 900 for assemblies 
 called together to revise the constitution. 
 
 ART. 23. Population is the basis for election. 
 
 ART. 24. Suffrage is direct and universal. The act of voting is 
 by secret ballot. 
 
 ART. 25. All Frenchmen aged twenty-one, and in the enjoyment 
 of their civil and political rights, are electors, without property 
 qualifications of any kind. 
 
 ART. 26. All electors are eligible to be elected without reference 
 to property qualifications or to place of abode, who are twenty-five 
 years of age. 
 
 ART. 27. The electoral law will determine the causes which may 
 deprive a French citizen of the right of electing or being elected. 
 It will designate those citizens who, exercising or after having 
 exercised official functions in a department or territory, cannot be 
 elected there. 
 
 ART. 28. The holding of any remunerating public office is incom- 
 patible with the trust of a representative of the people. No member 
 of the national assembly can be nominated or raised to public 
 offices, receiving salary, the appointment to which is in the gift of 
 the executive, during the continuance of the legislature. Excep- 
 tions to the regulations contained in the two preceding paragraphs 
 are to be settled by the organic electoral law.
 
 AND SELF-GOVERNMENT. 
 
 559 
 
 ART. 29. The conditions of the preceding articles are not appli- 
 cable to assemblies elected for the revision of the constitution. 
 
 ART. 30. The elections for representatives shall be by depart- 
 ments, and by ballot. The electors shall vote at the chief place 
 of their district; nevertheless the district maybe, from local causes, 
 divided into several subdivisions, under the forms and in conformity 
 with the conditions to be determined by the electoral law. 
 
 ART. 31. The national assembly is elected for the period of three 
 years, to be then wholly renewed. Forty-five days at least before 
 the term of the legislature, a law shall be passed to fix the period 
 of the new elections. If no law is passed within the time prescribed 
 by the preceding paragraph, the electors shall have full right to 
 assemble and vote on the thirtieth day preceding the close of the 
 legislature. The new assembly is convoked by full right for the 
 day following that on which the trust of the preceding assembly 
 expires. 
 
 ART. 32. The assembly is permanent ; nevertheless it may ad- 
 journ to any period which it shall determine. During the con- 
 tinuance of the prorogation, a commission, composed of members 
 of committees, and twenty-five representatives appointed by the 
 assembly, by ballot, having an absolute majority, will have the 
 right to convoke the assembly, in cases of emergency. The presi- 
 dent of the republic has also the right to convoke the assembly. 
 The national assembly will determine the place where it shall hold 
 its sessions, and will direct the number and description of the mili- 
 tary forces which shall be appointed for its security, and have them 
 at its order. 
 
 ART. 33. Representatives may be re-elected. 
 
 ART. 34. The members of the national assembly are the repre- 
 sentatives, not of the department which nominates them, but of the 
 whole of France. 
 
 ART. 35. They cannot receive imperative instructions. 
 
 ART. 36. The persons of the representatives of the people are 
 inviolable. They cannot be pursued, accused, nor condemned, at 
 any time, for opinions uttered within the assembly. 
 
 ART. 37. They cannot be arrested for criminal offences, except- 
 ing when taken in the very fact, nor prosecuted, until after permis- 
 sion granted for such purpose by the assembly. In case of an 
 arrest in the very fact, the matter shall immediately be referred to 
 the assembly, which shall authorize or refuse the continuation of
 
 560 ON CIVIL LIBERTY 
 
 the prosecution. The above regulation to apply also to the case 
 of citizens imprisoned at the time of being named representatives. 
 
 ART. 38. Every representative of the- people is to receive a 
 remuneration, which he is not at liberty to renounce. 
 
 ART. 39. The sittings of the assembly are to be public. Never- 
 theless, the assembly may form itself into a secret committee, on the 
 requisition of a number of representatives, as settled by the rules. 
 Each representative has the right of initiating parliamentary meas- 
 ures, which he will do according to the forms determined by the 
 regulations. 
 
 ART. 40. The presence of half the members, and also one over, 
 is necessary to vote on any law. 
 
 ART. 41. No bill (except in cases of urgency) shall be passed 
 till after it has undergone three readings, at intervals of not less 
 than five days between each reading. 
 
 ART. 42. Every proposition, the object of which is to declare 
 the urgency of a measure, must be preceded by an explanation of 
 motives. If the assembly is of opinion to accede to the proposi- 
 tion, it will fix the time when the report upon the necessity of the 
 case shall be represented. On this report, if the assembly admit 
 the urgency of the case, it will declare it, and fix the time of the 
 debate. If it decides against the urgency of the case, the motion 
 will have to go through the usual course. 
 
 CHAPTER V. 
 
 OF THE EXECUTIVE POWER. 
 
 ART. 43. The French people delegates the executive power to a 
 citizen, who shall receive the title of president of the republic. 
 
 ART. 44. The president must be born a Frenchman, thirty years 
 of age at least, and must never have lost the quality of Frenchman. 
 
 ART. 45. The president of the .republic shall be elected for four 
 years, and shall not be eligible for re-election until after an interval 
 of four years. Neither shall the vice-president, nor any of his rela- 
 tions or kindred of the president, to the sixth degree inclusive, be 
 eligible for re-election after him, within the same interval of time. 
 
 ART. 46. The election shall take place on the second Sunday in 
 the month of May. If, in the event of death or resignation, or 
 from any other cause, a president be elected at any other period, 
 his power shall expire on the second Sunday of the month of May,
 
 AND SELF-GOVERNMENT. 561 
 
 in the fourth year following his election. The president shall be 
 elected by secret ballot, and by an absolute majority of votes, by 
 the direct suffrage of all the electors of the French departments and 
 of Algeria. 
 
 ART. 47. The records of the electoral operations shall be trans- 
 mitted immediately to the national assembly, which shall determine 
 without delay upon the validity of the election, and shall proclaim 
 the president of the republic. If no candidate shall have obtained 
 more than one-half of the votes given, and at the least two millions 
 of votes, or if the conditions required by article 44 are not fulfilled, 
 the national assembly shall elect the president of the republic by an 
 absolute majority, and by ballot, from among the five candidates 
 eligible who shall have obtained the greatest number of votes. 
 
 ART. 48. Before entering upon his functions, the president of 
 the republic shall, in the presence of the assembly, take an oath of 
 the tenor following: "In presence of God, and before the French 
 people, represented by the national assembly, I swear to remain 
 faithful to the democratic republic, one and indivisible, and to fulfil 
 all the duties which the constitution imposes upon me." 
 
 ART. 49. He shall have the right of presenting bills through the 
 ministers in the national assembly. He shall watch over and secure 
 the execution of the laws. 
 
 ART. 50. He shall have the disposal of the armed force, without 
 ever being allowed to command it in person. 
 
 ART. 51. He cannot cede any portion of the territory, nor dis- 
 solve or prorogue the national assembly, nor suspend the operation 
 of the constitution and the laws. 
 
 ART. 52. He shall annually present, by a message to the national 
 assembly, an exposition of the general state of the affairs of the 
 republic. 
 
 ART. 53. He shall negotiate and ratify treaties. No treaty 
 shall be definitive until after it has been approved by the national 
 assembly. 
 
 ART. 54. He shall watch over the defence of the state, but he 
 shall not undertake any war without the consent of the national 
 assembly. 
 
 ART. 55. He shall possess the right of pardon ; but he shall 
 not have the power to exercise this right until after he has taken 
 the advice of the council of state. Amnesties shall only be granted 
 by an express law. The president of the republic, the ministers, 
 
 36
 
 562 ON CIVIL LIBERTY 
 
 as well as all other persons condemned by the high court of justice, 
 can only be pardoned by the national assembly. 
 
 ART. 56. The president of the republic shall promulgate the laws 
 in the name of the French people. 
 
 ART. 57. Laws of emergency shall be promulgated three days 
 after, and other laws one month after their passing, counting from 
 the day on which they were passed by the national assembly. 
 
 ART. 58. Previous to the day fixed for the promulgation, the 
 president may, by a message assigning reasons therefor, demand a 
 reconsideration of the law. The assembly shall then reconsider it, 
 its resolution becomes definitive, and shall be transmitted to the 
 president of the republic. In such a case, the promulgation shall 
 be made within the delay allowed to laws of emergency. 
 
 ART. 59. In default of the promulgation of laws by the presi- 
 dent, within the period fixed by the preceding articles, the presi- 
 dent of the assembly shall provide for their due promulgation. 
 
 ART. 60. The credentials of envoys and ambassadors from for- 
 eign powers shall be addressed to the president of the republic. 
 
 ART. 61. He shall preside at all national solemnities. 
 
 ART. 62. He shall be furnished with a residence at the expense 
 of the republic, and shall receive an allowance of six hundred 
 thousand francs per annum. 
 
 ART. 63. He shall reside in the place in which the national as- 
 sembly holds its sessions, and may hot leave the continental terri- 
 tory of the republic without being authorized by law so to do. 
 
 ART. 64. The president of the republic shall have power to 
 appoint and revoke the appointment of the ministers. He shall 
 appoint and revoke, in a council of ministers, the diplomatic agents, 
 commanders-in-chief of the armies of the republic by sea and land, 
 prefects and the chief commandant of the national guards of the 
 Seine, the governors of Algeria and the other colonies, the attorney- 
 general and all other functionaries of superior rank. He shall ap- 
 point and dismiss, at the suggestion of the competent minister, ac- 
 cording to the terms and conditions fixed by law, all other officers 
 and functionaries of the government of secondary rank. 
 
 ART. 65. He shall have the right of suspending, for a period not 
 exceeding three months, the agents of the executive power elected 
 by the people. He shall not be able to dismiss them unless by the 
 advice of the council of the state. The law will determine the 
 case in which agents, having been dismissed, may be declared not
 
 AND SELF-GOVERNMENT. 563 
 
 to be eligible again for the same office. Such a declaration of in- 
 eligibility can only be pronounced by a formal judgment. 
 
 ART. 66. The number of ministers and their several powers, 
 duties and emoluments shall be settled by the legislative power. 
 
 ART. 67. The acts of the president, excepting those by which he 
 appoints or dismisses the ministers of the republic, shall be of no 
 effect, unless countersigned by a minister. 
 
 ART. 68. The president of the republic, the ministers, the agents, 
 and all the other depositaries of public authority, shall be respon- 
 sible, each in so far as he is concerned, for all the acts of the gov- 
 ernment and of the administration. Every measure by which the 
 president of the republic shall dissolve or prorogue the assembly, 
 or interpose any obstacle to the exercise of its public trust, shall be 
 deemed a crime of high treason. By this sole act, the president 
 becomes divested of his functions, and the people are bound not to 
 yield obedience to him ; the executive power is thereby transferred 
 in full authority to the national assembly. The judges of the 
 high court of justice shall immediately assemble, on pain of for- 
 feiture of their offices. They shall call together a jury, in some 
 place to be by them designated, in order to proceed to trial and 
 judgment upon the president and his accomplices ; and they shall 
 themselves appoint a magistrate to be charged with the functions 
 of state attorney. A law shall determine the other cases of re- 
 sponsibility, as well as the forms and conditions of the prosecution 
 of them. 
 
 ART. 69. The ministers shall have admission into the national 
 assembly, and shall be heard whenever they require it, and they 
 may also obtain the assistance of commissioners, who shall have 
 been appointed by a decree of the president of the republic. 
 
 ART. 70. There shall be a vice-president of the republic, to be 
 appointed by the national assembly, from a list of three candidates 
 presented by the president within the month succeeding his elec- 
 tion. The vice-president shall take the same oath as the president. 
 The vice-president shall not be appointed from among the relations 
 or kindred of the president to the sixth degree inclusive. Should 
 the president by any cause be prevented from officiating, the vice- 
 president will represent him for the time being. If the presidency 
 shall become vacant by the death of the president, his dismissal 
 from office, or from other causes, a new election for president shall 
 take place within a month.
 
 564 ON CIVIL LIBERTY 
 
 CHAPTER VI. 
 
 OF THE COUNCIL OF STATE. 
 
 ART. 71. There shall be a council of state, of which the vice- 
 president of the republic shall of right be the president. 
 
 ART. 72. The members of this council shall be appointed for six 
 years by the national assembly. The half of this council shall be 
 renewed in the first two months of each new legislature, by secret 
 ballot, and by an absolute majority. They shall be indefinitely 
 re-eligible. 
 
 ART. 73. Such of the members of the council of state, who shall 
 have been appointed from among the members of the assembly, 
 shall be immediately replaced as representatives of the people. 
 
 ART. 74. The members of the council of state cannot be dis- 
 missed, except by the national assembly and at the suggestion of 
 the president. 
 
 ART. 75. The council of state shall be consulted upon all bills 
 or laws proposed by the government, which, according to law, must 
 be presented for their previous examination ; and also upon parlia- 
 mentary bills which the assembly may send to them for their exami- 
 nation. It shall prepare the rules of public administration, and 
 will alone make those regulations with regard to which the national 
 assembly have given it a special delegation. It shall exercise over 
 the public administrations all the powers of control and of super- 
 intendence which are conferred upon it by law. The law will 
 determine the other powers and duties of the council. 
 
 CHAPTER VII. 
 
 OF THE INTERIOR ADMINISTRATION. 
 
 ART. 76. The division of the territory into departments, arron- 
 dissements, districts and communes shall be maintained. Their 
 present limits shall not be changed, except by law. 
 
 ART. 77. There shall be i. In each department an adminis- 
 tration composed of a prefect, a general council, and a council of 
 prefecture. 2. In each arrondissement, a sub-prefect. 3. In each 
 district, a district-council ; nevertheless, only a single district- 
 council shall be established in any city which is divided into several 
 districts. 4. In each commune, an administration, composed 
 of a mayor, his assistants, and a municipal council.
 
 AND SELF-GOVERNMENT. 565 
 
 ART. 78. A law shall determine the composition and duties of 
 the general councils, the district councils, and the municipal coun- 
 cils, as well as, also, the manner of appointing the mayors and their 
 assistants. 
 
 ART. 79. The general councils and the municipal councils shall 
 be elected by the direct vote of all citizens living in the depart- 
 ment or district : each district shall elect one member of the gen- 
 eral council; a special law shall regulate the forms of election in 
 the department of the Seine, in the city of Paris, and in cities 
 containing a population of more than twenty thousand souls. 
 
 ART. So. The general councils, the district councils, and the 
 municipal councils may be dissolved by the president of the repub- 
 lic, with the advice of the council of state ; the law will fix the 
 period within which a new election shall be held. 
 
 CHAPTER VIII. 
 
 OF THE JUDICIARY POWER. 
 
 ART. 81. Justice shall be awarded, gratuitously, in the name of 
 the French people. The proceedings shall be public, except in 
 cases where publicity may be detrimental either to the public order 
 or public morals, in which case the court shall declare the same by 
 a formal judgment. 
 
 ART. 82. Trial by jury shall be continued in criminal cases. 
 
 ART. 83. The decision upon all political offences, and upon all 
 offences committed by means of the press, appertains exclusively to 
 the jury. The organic laws shall determine the tribunal and powers 
 in relation to offences and defamation against private individuals. 
 
 ART. 84. The jury alone shall decide upon the' question of 
 damages claimed on account of offences by the press. 
 
 ART. 85. The justices of peace and their assistants, the judges of 
 the first instance and of appeal, the members of the court of cassa- 
 tion and of the court of accounts, shall be appointed by the presi- 
 dent of the republic, according to a system, of candidateship on 
 conditions which shall be regulated by the organic laws. 
 
 ART. 86. The magistrates shall be appointed by the president of 
 the republic. 
 
 ART. 87. The judges of the first instance and of appeal, the 
 members of the court of cassation and of the court of accounts 
 shall be appointed for life. They shall not be dismissed or sus-
 
 566 
 
 ON CIVIL LIBERTY 
 
 pended, except after judgment, nor retire with a pension, except 
 for causes and according to proceedings appointed by law. 
 
 ART. 88. The councils of war and of revision of the armies by 
 sea and land, the maritime tribunals, the tribunals of commerce, 
 the prucThommes, and other special tribunals, shall retain their 
 present organization and their present functions, until the law shall 
 decide otherwise. 
 
 ART. 89. Conflicts of privileges and duties between the adminis- 
 trative and the judicial authority shall be regulated by a special 
 tribunal, composed of members of the court of cassation and of 
 counsellors of state, to be appointed, every three years, in equal 
 number, by the respective bodies to which they belong. This 
 tribunal shall be presided over by the minister of justice. 
 
 ART. 90. Appeals for incompetence, or excess of power against 
 the decrees of the court of accounts, shall be carried before the 
 tribunal of conflictive jurisdiction. 
 
 ART. 91. A high court of justice shall decide, without appeal, 
 demur, or recourse of annulment, in all accusations made by the 
 national assembly against the president of the republic or the 
 ministers. It shall likewise, in the same way, try all cases of per- 
 sons accused of crimes, attempts, or plots against the internal and 
 external safety of the state, which the assembly may have sent be- 
 fore it. Except in the case provided for in article 68, it shall not 
 be called together unless by decree of the national assembly, which 
 shall also designate the city in which the court shall hold its sittings. 
 
 ART. 92. The high court shall be composed of five judges and 
 of thirty-six jurymen. Every year, in the first fifteen days of the 
 month of November, the court of cassation shall appoint from 
 among its members, by secret ballot and an absolute majority, the 
 judges of the high court, the number to be five judges and two 
 supplementary judges. The five judges, who are thus called upon 
 to sit, will themselves select their president. The magistrates per- 
 forming the functions of the public ministry shall be designated by 
 the president of the republic, and, in the event of the accusation 
 of the president or his ministers, by the national assembly. The 
 jury, to the number of thirty-six, and four supplementary jurymen, 
 shall be taken from among the members of the general councils of 
 the departments. Representatives of the people shall not be com- 
 petent to form part of these juries. 
 
 ART. 93. When a decree of the national assembly shall have
 
 AND SELF-GOVERNMENT. 567 
 
 ordered the formation of the high court of justice, as also in the 
 cases provided for in the 68th article, on the requisition of the 
 president or of one of the judges, the president of the court of 
 appeal, and in default of that court, the president of the tribunal 
 of the first instance of the chief judiciary court of the department, 
 shall draw lots in public assembly for the name of a member of the 
 general council. 
 
 ART. 94. On the day appointed for the trial, if there are less than 
 sixty jurymen present, the number shall be filled up by supple- 
 mentary jurymen, drawn by lot by the president of the high court 
 of justice, from among the names of the members of the general 
 council of the department in which the court holds its sitting. 
 
 ART. 95. Those jurymen who shall not have given an adequate 
 excuse for absence, shall be condemned to a fine of not less than 
 one thousand francs, and not exceeding ten thousand, and to be 
 deprived of their political rights during five years at the utmost. 
 
 ART. 96. Both the accused and the public accuser shall have the 
 right to challenge, as in ordinary cases. 
 
 ART. 97. The verdict of the jury pronouncing the accused guilty 
 cannot be rendered except by a majority of two-thirds. 
 
 ART. 98. In all cases regarding the responsibility of the minis- 
 ters, the national assembly may, according to the circumstances, 
 send the accused minister to be tried either before the high court 
 of justice or by the ordinary tribunals for civil indemnities (or 
 damages). 
 
 ART. 99. The national assembly and the president of the repub- 
 lic may, in all cases, transmit the examination of the acts of any 
 functionary (except of the president himself) to the council of state, 
 whose report shall be made public. 
 
 ART. 100. The president of the republic can only be brought to 
 trial before the high court of justice. Except as is provided for 
 by article 68, he cannot be tried unless upon accusation brought 
 against him by the national assembly, and for crimes and misde- 
 meanors, which shall be determined by law. 
 
 CHAPTER IX. 
 
 OF THE PUBLIC FORCES. 
 
 ART. 101. The public force is instituted for the purpose of de- 
 fending the state against enemies from without, and to insure,
 
 5 68 ON CIVIL LIBERTY 
 
 internally, the maintenance of order, and the execution of the laws. 
 It is composed of the national guard and of the army by sea an'd 
 by land. 
 
 ART. 102. Every Frenchman, save in exceptions determined by 
 the law, owes to his country his services in the army and in the 
 national guard. The privilege of every citizen to free himself from 
 personal military service shall be regulated by the law of recruit- 
 ment. 
 
 ART. 103. The organization of the national guard, and the con- 
 stitution of the army, shall be regulated by law. 
 
 ART. 104. The public force is essentially obedient. No armed 
 force can deliberate. 
 
 ART. 105. The public force employed to maintain order in the 
 interior can only act upon the requisition of the constituted au- 
 thorities, according to the regulations prescribed by the legislative 
 power. 
 
 ART. 1 06. A law shall determine those cases in which the state 
 of siege shall be declared, and shall regulate the forms and deter- 
 mine the effects of such a measure. 
 
 AKT. 107. No foreign troops can be introduced into the French 
 territory without the previous assent of the national assembly. 
 
 CHAPTER X. 
 
 SPECIAL REGULATIONS. 
 
 ART. 1 08. The legion of honor is maintained; its statutes shall 
 be revised, and made to accord with the constitution. 
 
 ART. 109. The territory of Algeria, and of the colonies, is de- 
 clared to be French territory, and shall be governed by their sepa- 
 rate laws until a special law shall place them under the provisions 
 of the present constitution. 
 
 ART. no. The national assembly confides the trust of this pres- 
 ent constitution, and the rights it consecrates, to the guardianship 
 and patriotism of every Frenchman. 
 
 CHAPTER XI. 
 
 , OF THE REVISION OF THE CONSTITUTION. 
 
 ART. in. Whenever, in the last year of a legislature, the 
 national assembly shall have expressed the wish that the constitu-
 
 AND SELF-GOVERNMENT. 569 
 
 tion should be modified, in whole or in part, this revision shall be 
 entered upon in the following manner : The wish expressed by the 
 assembly shall not be converted into a definitive resolution until 
 after three successive deliberations held upon the subject, at the 
 interval of one month between each deliberation, and the measure 
 shall only be carried by a vote of three-fourths of the assembly. 
 The number of votes must be five hundred at the least. The 
 assembly for revision shall only be appointed for three months. It 
 shall only engage in the special revision for which it has been 
 assembled ; nevertheless, in cases of emergency, it may provide for 
 legislative necessities. 
 
 CHAPTER XII. 
 
 TRANSITORY ARRANGEMENTS. 
 
 ART. 112. The provisions of the codes, laws, and regulations, 
 now in force, and which are not in contradiction with the present 
 constitution, shall remain in force until otherwise provided by law. 
 
 ART. 113. All the authorities constituted by the present laws 
 shall continue in the exercise of their present duties until the 
 promulgation of the organic laws which relate to them. 
 
 ART. 114. The law of judiciary organization will determine the 
 particular mode for the appointment and first composition of the 
 new tribunals. 
 
 ART. 115. After the vote upon the constitution, the constituent 
 national assembly shall proceed to draw up the organic laws, which 
 shall be determined by a special law for that purpose. 
 
 ART. 1 1 6. The first election of a president of the republic shall 
 take place in conformity with the special law passed by the national 
 assembly on the z8th of October, 1848.
 
 APPENDIX XIV. 
 
 THE PRESENT CONSTITUTION OF FRANCE. 
 
 WHEN I wrote the article Constitution for the Encyclopaedia 
 Americana, which was before the French revolution of 1830, I 
 classed constitutions under three general heads: i. Those estab- 
 lished by the sovereign power, real or so called. These were sub- 
 divided into constitutions established by a sovereign people for 
 their own government, as ours are ; and into such as are granted, 
 theoretically at least, by the plenary power of an absolute monarch ; 
 such as the then existing French charter was, a fundamental law 
 called by the French octroyed. 2. Constitutions formed by con- 
 tracts between nations and certain individuals whom they accept as 
 rulers on distinct conditions. 3. Constitutions forming a compact 
 between a number of states. The present constitution of France 
 is not included in either of these classes. Its genesis, as the reader 
 well knows, was that, first, an individual acquired absolute power 
 by a conspiracy or coup d'etat, then caused the people to vote 
 whether they would grant him plenary power to prescribe a consti- 
 tution ; he received the power by above seven millions of votes, and 
 issued the following document, copied from the constitution which 
 Napoleon the First had prescribed at the beginning of this century. 
 If, then, the reader insists upon calling this a constitution we cer- 
 tainly do not call France at present a constitutional country we 
 may call it a constitution per saltum, for it was in former times one 
 of the different ways of electing a pope, or the head of a great 
 society, such as the Templars, to elect one individual with the right 
 of appointing the chief, and this was called electing per saltum, by 
 a leap. I also divided constitutions into cumulative constitutions, 
 such as the constitution of England, or that of ancient Rome, and 
 into enacted (or written) constitutions, such as ours are. The 
 present constitution of France can again be classed neither under 
 the one nor the other head. It may, perhaps, be called decreed, 
 or by any name the reader prefers. It is difficult to find an appro- 
 570
 
 ON CIVIL LIBERTY AND SELF-GOVERNMENT. 571 
 
 priate name for a thing which is the result of a confused mixture of 
 ideas, of absolutism, popular sovereignty, violence, of breaking of 
 oaths and prescribing of others, of coup d'etat, and ratification by 
 those whose work was destroyed by the soldiery, and by the idea 
 of the "incarnation" of popular absolute power in one person. 
 Louis Napoleon has been called the incarnation of a great principle. 
 I do not pretend to find a philosophical name for this product. 
 Probably the whole constitution belongs to the " Napoleonic 
 ideas," of which we read so much at this moment ; or we may call 
 it in future an imperatorial or Caesarean constitution. 
 
 The following, then, is the present French Constitution, as it 
 appeared in the official paper, the Moniteur, of January 15, 1852, 
 preceded by the proclamation of Louis Napoleon. 
 
 LOUIS NAPOLEON, 
 
 PRESIDENT OF THE REPUBLIC. 
 
 In the name of the French People* 
 
 FRENCHMEN ! When, in my proclamation of the 2d of December, 
 I stated to you in all sincerity what were, according to my ideas, 
 the vital conditions of government in France, I had not the preten- 
 sion, so common in our days, of substituting a personal theory for 
 the experience of ages. On the contrary, I sought in the past what 
 were the best examples to follow, what men had given them, and 
 what benefit had resulted therefrom. 
 
 Having done so, I considered it only logical to prefer the pre- 
 cepts of genius to the specious doctrines of men of abstract ideas. 
 I took as model the political institutions which already, at the 
 beginning of the present century, in analogous circumstances, 
 strengthened society when tottering, and raised France to a high 
 degree of prosperity and grandeur. 
 
 I selected as model those institutions which, in place of disap- 
 pearing at the first breath of popular agitations, were overturned 
 only by all Europe being coalesced against us. 
 
 In a word, I said to myself, since France has existed for the last 
 
 1 The reader will find, on a subsequent page, that the whole of this constitu- 
 tion was retained under the empire, with the exception of a few passages, relating 
 to the hereditary part of the empire.
 
 572 
 
 ON CIVIL LIBERTY 
 
 fifty years only in virtue of the administration, military, judicial, 
 religious, and financial organization of the consulate and the em- 
 pire, why should we not adopt likewise the political institutions of 
 that period ? As they were created by the same mind, they ought 
 to bear in themselves the same character of nationality and practical 
 utility. 
 
 In fact, as I stated in my proclamation, our present society, it is 
 essential to declare, is nothing else than France regenerated by the 
 revolution of '89 and organized by the emperor. Nothing remains 
 of the old regime but great reminiscences and great benefits. But 
 all that was then organized was destroyed by the revolution, and all 
 that has been organized since the revolution, and which still exists, 
 was done by Napoleon. 
 
 We have no longer either provinces, or pays d* etat, or parliaments, 
 or intendants, or farmers general, or feudal rights, or privileged 
 classes in exclusive possession of civil and military employments, 
 or different religious jurisdiction. 
 
 In so many things incompatible with itself had the revolution 
 effected a radical reform, but without founding anything definitive. 
 The first consul alone re-established the unity, the various ranks, 
 and the veritable principles of government. They are still in vigor. 
 
 Thus, the administration of France was intrusted to prefects, sub- 
 prefects, and mayors, who substituted unity for the commissions of 
 the directory ; and, on the contrary, the decision of business given 
 to councils from the commune to the department. Thus, the magis- 
 tracy was strengthened by the immovability of the judges, by the 
 various ranks of the tribunals ; justice was rendered more easy by 
 the delimitation of attributions, from the justice of peace to the 
 court of cassation. All that is still existing. 
 
 In the same way our admirable financial system, the bank of 
 France, the establishment of budgets, the court of accounts, the 
 organization of police, and our military regulations, date from the 
 same period. 
 
 For fifty years it is the code Napoldon which had regulated the 
 interests of citizens amongst themselves ; and it is still the con- 
 cordat which regulates the relations between the state and the 
 church. 
 
 In fine, the greatest part of the measures which concern the pro- 
 gress of manufactures, commerce, letters, sciences, and the arts, from 
 the regulations of the Theatre Francaise to those of the Institute
 
 AND SELF-GOVERNMENT. 
 
 573 
 
 from the institution of the prud 'homines to the creation of the legion 
 of honor were fixed by decrees of that time. 
 
 It may then be affirmed that the framework of our social edifice 
 is the work of the emperor, and that it has resisted his fall and 
 three revolutions. 
 
 Why, with the same origin, should not the political institutions 
 have the same chances of success ? 
 
 My conviction was long formed on the point, and it is on that 
 account that I submit to your judgment the principal bases of a 
 constitution, borrowed from that of the year 8. When approved 
 by you, they will become the foundation of our political consti- 
 tution. 
 
 Let us examine what the spirit of them is. 
 
 In our country, monarchical as it has been for eight hundred 
 years, the central power has always gone on augmenting. The 
 royalty destroyed the great vassals ; the revolutions themselves 
 swept away the obstacles which opposed the rapid and uniform 
 exercise of authority. In this country of centralization, public 
 opinion has unceasingly attributed to the head of the government 
 benefits as well as evils. And so, to write at the head of a charter 
 that that chief is irresponsible, is to be against the public feeling 
 is to want to establish a fiction, which has three times vanished at 
 the noise of revolutions. 
 
 The present constitution, on the contrary, declares that the chief 
 whom you have elected is responsible before you ; and that he has 
 always the right to appeal to your judgment, in order that, in 
 solemn circumstances, you may continue to him your confidence, 
 or withdraw it. 
 
 Being responsible, his action ought to be free and unshackled. 
 Thence the obligation of his having ministers who may be the 
 honored and puissant auxiliaries of his thought, but who no longer 
 form a responsible council, composed of mutually responsible mem- 
 bers, a daily obstacle to the particular impulse of the head of the 
 state, the expression of a policy emanating from the chambers, and 
 by that very circumstance exposed to frequent changes, which pre- 
 vent all spirit of unity and all application of a regular system. 
 
 Nevertheless, the higher a man is placed the more independent 
 he is, and the greater confidence the people have placed in him the 
 more he has need of enlightened and conscientious councils. Thence 
 the creation of a council of state, henceforward a veritable council
 
 574 
 
 ON CIVIL LIBERTY 
 
 of the government, first wheel in our organization, a collection of 
 practical men, elaborating bills in special commissions, discussing 
 them with closed doors, without oratorical ostentation in general 
 assembly, and presenting them afterwards for acceptance to the 
 legislative body. 
 
 Thus, the government is free in its movements and enlightened 
 in what it does. 
 
 What is now to be the control exercised by the assemblies ? 
 
 A chamber, which takes the title of legislative body, votes the 
 laws and the taxes. It is elected by universal suffrage, without 
 scrutin de liste. The people, selecting each candidate separately, 
 can more easily appreciate the merits of each. 
 
 The chamber is not to be any longer composed of more than 
 about 260 members. That is a first guaranty of the calm of the 
 deliberations, for only too often the inconsistency and ardor of 
 passions have been seen to increase in assemblies in proportion to 
 their number. 
 
 The report of the sittings, which is intended to inform the na- 
 tion of what is going on, is no longer, as formerly, delivered to the 
 party spirit of each journal ; an official publication, drawn up by 
 the care of the president of the chamber, will be alone permitted. 
 
 The legislative body discusses freely each law, and adopts or 
 rejects it. But it cannot introduce all of a sudden those amend- 
 ments which often disarrange the whole economy of a system and 
 the ensemble of the original project. Still more, it does not possess 
 that parliamentary initiative which was the source of such grave 
 abuses, and which allowed each deputy to substitute himself at every 
 turn for the government, by presenting projects the least carefully 
 studied and inquired into. 
 
 The chamber being no longer in presence of the ministers, and 
 the various bills being supported by speakers belonging to the 
 council of state, time is not lost in vain interpellations and pas- 
 sionate debates, the only object of which was to overturn the minis- 
 ters, in order to place others in their stead. 
 
 Thus, then, the deliberations of the legislative body will be inde- 
 pendent, but the causes of sterile agitations will have been sup- 
 pressed, and proper time and deliberation given to each modification 
 of the law. The representatives of the nation will, in fact, ma- 
 turely perform their serious functions. 
 
 Another assembly takes the name of senate. It will be com-
 
 AND SELF-GOVERNMENT. 575 
 
 posed of the elements which, throughout the whole country, create 
 legitimate influences an illustrious name, fortune, talent, and ser- 
 vices rendered. 
 
 The senate is no longer, like the chamber of peers, the pale re- 
 flection of the chamber of deputies, repeating, at some days' inter- 
 val, the same discussion in another tone. It is the depository of 
 the fundamental compact, and of the liberties compatible with the 
 constitution ; and it is only with respect to the grand principles on 
 which our society is based that it examines all the laws, and pro- 
 poses new ones to the executive power. It intervenes, whether to 
 resolve every grave difficulty which might arise during the absence 
 of the legislative body, or to explain the text of the constitution, 
 or to insure what is necessary for its being acted on. It has the 
 right to annul every arbitrary and illegal act, and, thus enjoying 
 that consideration which belongs to a body exclusively occupied 
 with the examination of great interests, or the application of grand 
 principles, it occupies in the state the independent, salutary and 
 conservative position of the ancient parliaments. 
 
 The senate will not be, like the chamber of peers, transformed 
 into a court of justice ; it will preserve its character of supreme 
 moderator ; for disfavor always reaches political bodies, when the 
 sanctuary of the legislators become a criminal tribunal. The im- 
 partiality of the judge is often called in doubt, and he loses a 
 portion of his prestige in public opinion, which sometimes goes 
 the length of accusing him of being the instrument of passion 
 or of hatred. 
 
 A high court of justice, chosen from amongst the higher magis- 
 trates, having for jurymen members of the councils-general through- 
 out all France, will alone decide in cases of attentats against the 
 head of the state and public safety. 
 
 The emperor used to say to the council of state: "A constitu- 
 tion is the work of time ; and too large a margin cannot be left to 
 ameliorations." Consequently, the present constitution has fixed 
 only what it was impossible to leave uncertain. It has not inclosed 
 within an impassable circle the destinies of a great people ; it has 
 left to change a margin sufficiently wide to allow, in great crises, 
 other means of safety to be employed than the disastrous expedient 
 of revolutions. 
 
 The senate can, in concert with the government, modify all that 
 is not fundamental in the constitution ; but as to the modifications
 
 ON CIVIL LIBERTY 
 
 effected in its primary bases, sanctioned by your suffrages, they 
 cannot become definitive until after they have received your ratifi- 
 cation. 
 
 Thus the people remains always master of its destiny, as nothing 
 fundamental can be effected independently of its will. 
 
 Such are the ideas and principles which you have authorized me 
 to carry into application. May the constitution confer on our 
 country calm and prosperous days ! May it prevent the return of 
 those intestine struggles, in which the victory, however legitimate 
 it may be, is always dearly purchased ! May the sanction, which 
 you have bestowed on my efforts, receive the benediction of heaven ! 
 In that case, peace will be insured at home and abroad, my prayers 
 will be granted, and my mission accomplished ! 
 
 LOUIS NAPOLEON BONAPARTE. 
 
 PALACE OF THE TUILERIES, January 14, 1852. 
 
 Constitution made in virtue of the powers delegated by the French 
 People to Louis Napoleon Bonaparte by the vote of the 2oth and 
 2ist of December ; 
 
 The president of the republic 
 
 Considering that the French people has been called on to pro- 
 nounce its opinion on the following resolution : 
 
 The people wish for the maintenance of the authority of Louis 
 Napoleon Bonaparte, and give him the powers necessary to make a 
 constitution, according to the bases laid down in his proclamation 
 of the 2d December. 
 
 Considering that the bases proposed to the acceptance of the 
 people were : 
 
 1. A responsible chief appointed for ten years. 
 
 2. Ministers dependent on the executive power alone. 
 
 3. A council of state, formed of the most distinguished men, to 
 prepare the laws and support the discussion of them before the 
 legislative body. 
 
 4. A legislative body, to discuss and vote the laws, elected by uni- 
 versal suffrage, without scrutin de liste, which falsifies the election.
 
 A ND SELF- G O VERNMENT. 
 
 577 
 
 5. A second assembly, formed of the most illustrious men of the 
 country, as an equipoising power (pouvoir ponderateur, ) guardian 
 of the fundamental compact and of public liberties. 
 
 Considering that the people have replied affirmatively by seven 
 million five hundred thousand votes, 
 
 Promulgates the constitution, the tenor of which is as follows : 
 
 CHAPTER I. 
 
 ART. i. The constitution admits, confirms, and guarantees the 
 great principles proclaimed in 1789, and which are the bases of the 
 public right of Frenchmen. 
 
 CHAPTER II. 
 
 FORMS OF THE GOVERNMENT OF THE REPUBLIC. 
 
 ART. 2. The government of the French Republic is confided for 
 ten years to Prince Louis Napoleon Bonaparte, the actual president 
 of the republic. 
 
 ART. 3. The president of the republic governs by means of min- 
 isters, of the council of state, of the senate, and of the legislative 
 body. 
 
 ART. 4. The legislative power is exercised collectively by the 
 president of the republic, the senate, and the legislative body. 
 
 CHAPTER III. 
 
 OF THE PRESIDENT OF THE REPUBLIC. 
 
 ART. 5. The president of the republic is responsible to the French 
 people, to whom he has always the right to make an appeal. 
 
 ART. 6. The president of the republic is the chief of the state; 
 he commands the land and sea forces, declares war, makes treaties 
 of peace, alliance, and commerce, appoints to all employs, and 
 makes the regulations and decrees necessary for the execution of 
 the laws. 
 
 ART. 7. Justice is rendered in his name. 
 
 ART. 8. He alone has the initiative of laws. 
 
 ART. 9. He has the right of granting pardon. 
 
 ART. 10. He sanctions and promulgates the laws and thesenatus 
 consultum. 
 
 ART. n. He presents every year to the senate, and to the legis- 
 lative body, by a message, the state of the affairs of the republic. 
 
 37
 
 578 ON CIVIL LIBERTY 
 
 ART. 12. He has the right to declare the state of siege in one 
 or several departments, on condition of referring it to the senate 
 within the shortest possible delay. The consequences of the state 
 of siege are regulated by law. 
 
 ART. 13. The ministers depend only on the chief of the state 
 they are only responsible for the acts of the government as 
 far as they are individually concerned in them ; there is no joint 
 responsibility among them, and they can only be impeached by 
 the senate. 
 
 ART. 14. The ministers, the members of the senate, of the legis- 
 lative body, and of the council of state, the officers of the land and 
 sea forces, the magistrates and public functionaries, take the fol- 
 lowing oath : I swear obedience to the constitution and fidelity to the 
 president. 
 
 ART. 15. A senatus-consultum fixes the sum allowed annually to 
 the president of the republic during the whole continuance of his 
 functions. 
 
 ART. 1 6. If the president of the republic dies before the expira- 
 tion of his term of office, the senate is to convoke the nation, in 
 order to proceed to a fresh election. 
 
 ART. 17. The chief of the state has the right, by a secret act 
 deposited in the archives of the senate, to point out to the people 
 the names of the citizens whom he recommends to the interest of 
 France to the confidence of the people and to their suffrages. 
 
 ART. 18. Until the election of the new president of the republic, 
 the president of the senate governs with the co-operation of the 
 ministers in functions, who -form themselves into a council of 
 government, and deliberate by a majority of votes. 
 
 CHAPTER IV. 
 
 OF THE SENATE. 
 
 ART. 19. The number of senators shall not exceed 150; it is 
 fixed for the first year at 80. 
 
 ART. 20. The senate is composed : i, of cardinals, marshals, and 
 admirals; 2, of citizens whom the president of the republic may 
 think proper to raise to the dignity of senators. 
 
 ART. 21. The senators are appointed for life. 
 
 ART. 22. The functions of senator are gratuitous ; nevertheless, 
 the president of the republic may grant to senators, on account of
 
 AND SELF-GOVERNMENT. 579 
 
 services rendered, or of their position with regard to fortune, a 
 personal donation, which cannot exceed 30,000 francs per annum. 
 
 ART. 23. The president and the vice-presidents of the senate are 
 named by the president of the republic, and chosen from among 
 the senators. They are appointed for one year. The salary of the 
 oresident of the senate is fixed by a decree. 
 
 ART. 24. The president of the republic convokes and prorogues 
 the senate. He fixes the duration of its sessions by a decree. The 
 sittings of the senate are not public. 
 
 ART. 25. The senate is the guardian of the fundamental compact 
 and of public liberties. No law can be promulgated without being 
 submitted to it. 
 
 ART. 26. The senate may oppose the promulgation: 
 
 1. Of laws which may be contrary to, or be an attack on, the 
 constitution, on religion, on morals, on freedom of worship, on in- 
 dividual liberty, on the equality of citizens in the eye of the law, on 
 the inviolability of property, and on the principle of the immova- 
 bility of the magistracy. 
 
 2. Of those which may comprise the defence of the territory. 
 ART. 27. The senate regulates by a senatus-consultum : 
 
 1. The constitution of the colonies and of Algeria. 
 
 2. All that has not been provided for by the constitution, and 
 which is necessary for its march. 
 
 3. The sense of the articles of the constitution which give rise 
 to different interpretations. 
 
 ART. 28. These senatus-consulta will be submitted to the sanc- 
 tion of the president of the republic, and promulgated by him. 
 
 ART. 29. The senate maintains or annuls all the acts which are 
 referred to it as unconstitutional by the government, or denounced 
 for the same cause by the petitions of citizens. 
 
 ART. 30. The senate may, in a report addressed to the president 
 of the republic, lay down the bases of bills of great national interest. 
 
 ART. 31. It may also propose modifications in the constitution. 
 If the proposition is adopted by the executive power, it must be 
 stated by a senatus-consultum. 
 
 ART. 32. Nevertheless, all modifications in the fundamental basis 
 of the constitution, such as they were laid down in the proclama- 
 tion of the 2d December, and adopted 'by the French people, shall 
 be submitted to universal suffrage. 
 
 ART. 33. In case of the dissolution of the legislative body, and
 
 580 
 
 ON CIVIL LIBERTY 
 
 until a new convocation, the senate, on the proposition of the presi- 
 dent of the republic, shall provide by measures of urgency for all 
 that is necessary for the progress of the government. 
 
 CHAPTER V. 
 
 OF THE LEGISLATIVE BODY. 
 
 ART. 34. The election has for its basis the number of the popu- 
 lation. 
 
 ART. 35. There shall be one deputy to the legislative body for 
 every 35,000 electors. 
 
 ART. 36. The deputies are to be elected by universal suffrage, 
 without scrutin de liste. 
 
 ART. 37. They will not receive any payment. 
 
 ART. 38. They are named for six years. 
 
 ART. 39. The legislative body discusses and votes bills and taxes. 
 
 ART. 40. Any amendment adopted by the committee charged to 
 examine a bill shall be sent back without discussion to the council 
 of state by the president of the legislative body. If the amendment 
 is not adopted by the council of state, it cannot be submitted to the 
 discussion of the legislative body. 
 
 ART. 41. The ordinary sessions of the legislative body last three 
 months ; its sittings are public ; but, at the demand of five mem- 
 bers, it may form itself into a secret committee. 
 
 ART. 42. The report of the sittings of the legislative body by 
 the journals, or by any other means of publication, shall only con- 
 sist in the reproduction of the minutes of the sitting, drawn up at 
 its conclusion under the direction of the president of the legislative 
 body. 
 
 ART. 43. The president and vice-presidents of the legislative 
 body are named by the president of the republic for one year ; 
 they are to be chosen from among the deputies. The salary of the 
 president of the legislative body will be fixed by a decree. 
 
 ART. 44. The ministers cannot be members of the legislative 
 body. 
 
 ART. 45. The right of petition can only be exercised as regards 
 the senate. No petition can be addressed to the legislative body. 
 
 ART. 46. The president of the republic convokes, adjourns, pro- 
 rogues, and dissolves the legislative body. In the event of its being 
 dissolved, the president of the republic must convoke a new one 
 within a delay of six months.
 
 AND SELF-GOVERNMENT. 581 
 
 CHAPTER VI. 
 
 OF THE COUNCIL OF STATE. 
 
 ART. 47. The number of councillors of state in ordinary service 
 is from forty to fifty. 
 
 ART. 48. The councillors of state are named by the president of 
 the republic, and may be dismissed by him. 
 
 ART. 49. The council of state is presided over by the president 
 of the republic, and in his absence by the person whom he appoints 
 as vice-president of the council of state. 
 
 ART. 50. The council of state is charged, under the direction of 
 the president of the republic, to draw up bills and the regulations 
 of public administration, and to solve the difficulties which may 
 arise in administrative matters. 
 
 ART. 51. It supports, in the name of the government, the dis- 
 cussion of bills before the senate and legislative body. The coun- 
 cillors of state charged to speak in the name of the government are 
 to be named by the president of the republic. 
 
 ART. 52. The salary of each councillor of state is 25,000 francs. 
 
 ART. 53. The ministers have rank, sitting, and deliberative votes 
 in the council of state. 
 
 CHAPTER VII. 
 
 OF THE HIGH COURT OF JUSTICE. 
 
 ART. 54. A high court of justice shall try, without appeal, or 
 without recourse to cassation, all persons who may be sent before 
 it charged with crime, attentats, or conspiracies against the presi- 
 dent of the republic, and against the internal and external safety 
 of the state. It can only be formed in virtue of a decree of the 
 president of the republic. 
 
 ART. 55. A senatus-consultum will determine the organization 
 of this high court. 
 
 CHAPTER VIII. 
 
 GENERAL AND TRANSITORY CLAUSES. 
 
 ART. 56. The provisions of the codes, laws and regulations, 
 which are not contrary to the present constitution, remain in vigor 
 until they shall have been legally revoked. 
 
 ART. 57. The municipal organization shall be determined by 
 hw. The mayors shall be named by the executive power, and may 
 be chosen from those not belonging to the municipal council.
 
 582 ON CIVIL LIBERTY 
 
 ART. 58. The present constitution will be in vigor from the day 
 on which the great bodies of the state shall have been constituted. 
 The decrees issued by the president of the republic, from the 2d 
 December up to that period, shall have the force of law. 
 
 Given at the Palace of the Tuileries, this i4th day of January, 
 1852. 
 
 LOUIS NAPOLEON. 
 Sealed with the great seal. 
 
 The reader must remember that all the decrees, which were issued 
 after the coup d'etat, and before its "ratification" by the people, 
 were considered as ratified likewise ; for instance, the still existing 
 law by which the government transports members of secret political 
 societies, without trial, and by authority of which many other per- 
 sons deemed dangerous were transported to Cayenne. The same 
 is to be said of the stringent law of the press according to which 
 every paper exists at the will of the government, with regulations 
 which may become utterly ruinous for the editor and publisher. 
 The minute regulations of the coats and trowsers of the senators 
 and members of the legislative corps need not probably be men- 
 tioned here as organic laws; but on March 22d, 1852, appeared 
 the following important decree: 
 
 Louis Napoleon, President of the French Republic : 
 
 Considering article 4 of the constitution, and seeing that at the 
 moment when the senate and legislative body are about to enter on 
 their first session, it is important to regulate their relations with 
 the president of the republic and the council of state, and to 
 establish, according to the constitution, the organic conditions of 
 their works, decrees : 
 
 THIRD DIVISION. OF THE LEGISLATIVE BODY. 
 CHAPTER I. 
 
 MEETING OF THE LEGISLATIVE BODY, FORMATION AND ORGANIZATION OF THE 
 BUREAUS. AND VERIFICATION OF THE POWERS. 
 
 ART. 41. The legislative body is to meet on the day named by 
 the decree of convocation. 
 
 ART. 42. At the opening of the first sitting the president of the
 
 AND SELF-GOVERNMENT. 583 
 
 legislative body, assisted by the four youngest members present, 
 who will fill the functions of secretaries during the session, will 
 proceed to form the assembly into seven bureaus, drawn by lot. 
 
 ART. 43. These seven bureaus, named for the whole of the ses- 
 sion, will each be presided over by the oldest member, the youngest 
 performing the office of secretary. 
 
 ART. 44. They will immediately proceed to the examination 
 of the minutes of the election of the members distributed by the 
 president of the legislative body, appointing one or several of 
 their members to bring up a report thereof in a public sitting. 
 
 ART. 45. The assembly examines these reports: if the election 
 be declared valid, the member when present immediately takes the 
 oath prescribed by article 14 of the constitution; if absent, at his 
 first appearance, after which the president of the legislative body 
 pronounces his admission, and the deputy who has not taken the 
 oath within fifteen days of his election is considered as dismissed. 
 In case of absence the oath may be taken by writing, and in this 
 case must be addressed by the deputy to the president of the legis- 
 lative body, within the delay above mentioned. 
 
 ART. 46. After the verification of the returns, and without wait- 
 ing for the decision on contested or adjourned elections, the presi- 
 dent of the legislative body shall make known to the president of 
 the republic that the legislative body is constituted. 
 
 CHAPTER II. 
 
 PRESENTATION, DISCUSSION, AND VOTE OF BILLS. 
 
 ART. 47. Bills presented by the president of the republic are to 
 be presented and read to the legislative body by councillors of state 
 appointed for that purpose, or transmitted, by order of the presi- 
 dent of the republic, by the minister of state to the president of 
 the legislative body, who causes them to be read at the public 
 sitting. These bills will be printed, distributed, and placed on the 
 order of the day of the bureaus, which will discuss them and name 
 by ballot, and by a simple majority, a committee of seven members 
 to report on them. 
 
 ART. 48. Any amendment arising from the initiative of one or 
 more members, must be handed to the president, and be by him trans- 
 mitted to the committee. No amendment can, however, be received 
 after the report shall have been presented at the public sitting.
 
 5 84 ON CIVIL LIBERTY 
 
 ART. 49. The authors of the amendment have a right to be 
 heard before the committee. 
 
 ART. 50. If the amendment is adopted by the committee, it 
 transmits the tenor of it to the president of the legislative body, 
 who sends it to the council of state, and the report of the com- 
 mittee is suspended until the council of state has pronounced its 
 opinion on it. 
 
 ART. 51. If the opinion of the council of state, transmitted to 
 the committee through the president of the legislative body, is favor- 
 able, or a new wording proposed by the council of state be adopted 
 by the committee, the text of the bill to be discussed in public 
 sitting shall be modified conformably to the new wording adopted. 
 If the opinion, on the contrary, is unfavorable, or if the new wording 
 proposed by the council of state is not adopted by the committee, 
 the amendment will be considered as not having been offered. 
 
 ART. 52. The report of the committee on the bill examined by 
 it shall be read in a public sitting, and printed and distributed at 
 least twenty-four hours before the discussion. 
 
 ART. 53. At the sitting fixed by the order of the day, the dis- 
 cussion shall open on the ensemble of the bill, and afterwards on 
 the different articles or chapters, if it be a law on finance. There 
 is never any occasion to deliberate on the question of deciding if 
 the discussion of the articles is to be passed to, as they are succes- 
 sively put to the vote by the president. The vote takes place by 
 assis et levt, and if the result is doubtful, a ballot is proceeded to. 
 
 ART. 54. If any article is rejected, it is sent back to the com- 
 mittee for examination. Each deputy then, in the form specified 
 in articles 48 and 49 of the present decree, presents such amend- 
 ments as he pleases. Should the committee be of opinion that a 
 new proposition ought to be made, it transmits the tenor of it to 
 the president of the legislative body, who forwards it to the coun- 
 cil of state. The matter is then proceeded on in conformity with 
 articles 51, 52, and 53 of the present decree, and the public vote 
 which then takes place is definitive. 
 
 ART. 55. After the vote on the articles, a public vote on the 
 ensemble of the bill takes place by the absolute majority. The 
 presence of the majority of the deputies is necessary to make the 
 vote valid. Should less than that number be present, the vote 
 must be recommenced. Bills of local interest are voted by assis et 
 leve, unless the ballot be called for by ten members at least.
 
 AND SELF-GOVERNMENT. 585 
 
 ART. 56. The legislative body assigns no reasons for its decisions, 
 which are expressed in the following form : "The legislative body 
 has adopted;" or "The legislative body has'not adopted." 
 
 ART. 57. The minute of the bill adopted by the legislative body 
 is signed by the presidents and secretaries, and deposited in the 
 archives. A copy of the same, similarly signed, is transmitted to 
 the president of the republic. 
 
 CHAPTER III. 
 
 MESSAGES AND PROCLAMATIONS ADDRESSED TO THE LEGISLATIVE BODY BY 
 THE PRESIDENT OF THE REPUBLIC. 
 
 ART. 58. These are brought up and read in open sitting by the 
 ministers or councillors of state named for that purpose. These 
 messages or proclamations cannot be discussed or voted upon unless 
 they contain a proposition to that effect. 
 
 ART. 59. The proclamations of the president of the republic, 
 adjourning, proroguing, or dissolving the legislative body, are to 
 be read in public sitting, all other business being suspended, and 
 the members are immediately afterwards to separate. 
 
 ART. 60. The president of the legislative body announces the 
 opening and closing of each sitting. At the end of each sitting, 
 after having consulted the members, he names the hour of sitting 
 for the following day, and the order of the day, which are posted 
 up in the assembly. This order of the day is immediately for- 
 warded to the minister of state, the president of the legislative 
 body being responsible for all notices and communications being 
 duly forwarded to him. 
 
 ART. 61. No member can speak without having asked and ob- 
 tained leave of the president, and then only from his place. 
 
 ART. 62. The members of the council of state appointed in the 
 name of the government to support the discussion of the laws are 
 not subject to the formality of speaking in their turn, but whenever 
 they require it. 
 
 ART. 63. The member called to order for having interrupted 
 cannot be allowed to speak. If the speaker wanders from the 
 question, the president may call him back to it. The president 
 cannot allow any one to speak on the call to the question. If the 
 speaker twice called to the question in the same speech shall con- 
 tinue to wander from it, the president consults the assembly to 
 ascertain whether the right of speaking shall not be interdicted to
 
 5 86 ON CIVIL LIBERTY 
 
 the speaker for the rest of the sitting on the same question. The 
 decision takes place by assis et leve without debate. 
 
 ART. 64. The president alone calls to order the speaker who 
 may interrupt it. The right to speak is accorded to him who, on 
 being called to order, submits and demands to justify himself; he 
 alone obtains the right to speak. When a speaker has been twice 
 called to order in the same speech, the president, after having 
 allowed him to speak to justify himself, if he demands it, consults 
 the assembly to know if the right of speaking shall not be inter- 
 dicted to the speaker for the rest of the sitting on the same ques- 
 tion. The decision is taken by assis et leve without debate. 
 
 ART. 65. All personalities and all signs of approbation or dis- 
 approbation are interdicted. 
 
 ART. 66. If a member of the legislative body disturbs order, 
 he is called to order by name by the president ; if he persists, the 
 president orders the call to order to be inscribed in the minutes. 
 In case of resistance, the assembly, on the proposition of the presi- 
 dent, pronounces, without debate, exclusion from the house for a 
 period which cannot exceed five days. The placarding of this de- 
 cision in the department in which the member whom it concerns 
 was elected may be ordered. 
 
 ART. 67. If the assembly becomes tumultuous, and if the presi- 
 dent cannot calm it, he puts on his hat. If the disorder continues, 
 he announces that he will suspend the sitting. If calm be not 
 then re-established, he suspends the sitting during an hour, during 
 which the deputies assemble in their respective bureaus. On the 
 expiration of the hour the sitting is resumed ; but, if the tumult 
 recommences, the president breaks up the sitting and postpones it 
 to the next day. 
 
 ART. 68. The demands for the order of the day, for priority, and 
 for an appeal to the standing orders, have the preference over the 
 principal question, and suspend the discussion of it. Orders of 
 the day are never motives. The previous question that is to say, 
 that there is no ground for deliberation is put to the vote before 
 the principal question. It cannot be demanded on propositions 
 made by the president of the republic. 
 
 ART. 69. The demands for secret sittings, authorized by article 
 14 of the constitution, are signed by the members who make them, 
 and placed in the hands of the president, who reads them, causes 
 them to be executed, and mentioned in the minutes.
 
 AND SELF-GOVERNMENT. 587 
 
 ART. 70. When the authorization required by article n of the 
 law of the zd February, 1852, shall be demanded, the president 
 shall only indicate the object of the demand, and immediately 
 refer it to the bureaus, which shall nominate a committee to examine 
 whether there be grounds for authorizing a prosecution. 
 
 CHAPTER IV. 
 
 MINUTES. 
 
 ART. 71. The drawing up of the minutes of the sittings is placed 
 under the high direction of the president of the legislative body, 
 and confided to special clerks nominated by him, and liable to 
 dismissal by him. The minutes contain the names of the members 
 who have spoken, and the resume of their opinions. 
 
 ART. 72. The minutes are signed by the president, read by one 
 of the secretaries at the following sitting, and copied on two regis- 
 ters, signed also by the president. 
 
 ART. 73. The president of the legislative body regulates, by 
 special order, the mode of communicating the minutes to the news- 
 papers, in conformity with article 42 of the constitution. 
 
 ART. 74. Any member may, after having obtained the authori- 
 zation of the assembly, cause to be printed and distributed, at his 
 own cost, the speech he may have delivered. An unauthorized 
 printing and distribution shall be punished by a fine of from 5oof. 
 to 5ooof. against the printers, and of from 5f. to 5oof. against the 
 distributors. 
 
 We read in the Constitutionnel : " It is, as already stated, at the 
 Tuileries, in the Salle des Marechaux, that the sitting of the senate 
 and legislative body on the 2Qth will be held. The prince-presi- 
 dent, surrounded by his aides-de-camp, his orderly officers, his 
 ministers, and the council of state, will be placed on a raised plat- 
 form ; opposite the president of the republic will be, on one side 
 the senate, and on the other the legislative body. The prince- 
 president will deliver a speech. A form of an oath will then be 
 read, and each member of the senate and of the legislative body, 
 on his name being called over, will pronounce from his place the 
 words Je le jure ! The clergy, the magistracy, and the diplomatic 
 body will be represented at this solemnity. A small number of 
 places will be reserved in an upper gallery for persons receiving 
 invitations."
 
 APPENDIX XV. 
 
 REPORT OF THE FRENCH SENATORIAL COMMITTEE ON THE 
 PETITIONS TO CHANGE THE REPUBLIC INTO AN EMPIRE, 
 IN NOVEMBER, 1852,' AND THE SENATUS-CONSULTUM 
 ADOPTED IN CONFORMITY WITH IT. 
 
 MESSIEURS LES SENATEURS : France, attentive and excited, now 
 demands from you a great political act to put an end to her 
 anxieties and to secure her future. 
 
 But this act, however serious it may be, does not meet with any 
 of those capital difficulties which hold in suspense the wisdom of 
 legislators. You know the wishes expressed by the councils gen- 
 eral, the councils of arrondissement, and the addresses of the com- 
 munes of France : wishes for stability in the government of Louis 
 Napoleon, and for return to a political form which has struck the 
 world by the majesty of its power and by the wisdom of its laws. 
 You have heard that immense petition of a whole people rushing 
 on the steps of its liberator, and those enthusiastic cries, which 
 we may almost call a plebiscite by anticipation, proceeding from 
 the hearts of thousands of agriculturists and workmen, manufac- 
 turers and tradesmen. Such manifestations simplify the task of 
 statesmen. There are circumstances in which fatal necessities pre- 
 vent the firmest legislator from acting in accordance with public 
 opinion and with his own reason ; there are others where he 
 requires a long consideration in order to solve questions on which 
 the country has not sufficiently decided. You, gentlemen, are not 
 
 1 This report was read by Mr. Troplong, chairman of the committee. It is 
 universally ascribed to him, and Mr. Troplong is" now president of the senate. 
 Whether this remarkable paper be considered as a political creed or confiteor, or 
 as a piece of attempted logic to connect certain occurrences and account for sur- 
 prising turns, or as a high state paper of singular shallowness in whatever light 
 it may be viewed, it will be allowed on all hands that it fully deserves preserva- 
 tion. 
 
 588
 
 ON CIVIL LIBERTY AND SELF-GOVERNMENT. 589 
 
 exposed either to this constraint or to this embarrassment. The 
 national will presses and supplicates you, and your exalted expe- 
 rience tells you that in yielding to her entreaties you will con- 
 tribute to replace France in the paths which are suitable to her 
 interests, to her grandeur, and to the imperious necessities of her 
 situation. All this is in fact explained by the events which take 
 place before you. 
 
 After great political agitations, it always happens that nations 
 throw themselves with joy into the arms of the strong man whom 
 Providence sends to them. It was the fatigue of civil wars which 
 made a monarch of the conqueror of Actium ; it was the horror 
 of revolutionary excesses, as much as the glory of Marengo, which 
 raised the imperial throne. In the midst of the recent dangers of 
 the country, this strong man showed himself, on the loth of 
 December, 1848, and on the 2d of December, 1851, and France 
 confided to him her standard, which was ready to perish. If she 
 has declared her will to confide it to him forever in this memorable 
 journey, which was only one suite of triumphs, it is because, by his 
 courage and by his prudence, the man has shown himself equal to 
 the task ; it is because, when a nation feels herself tormented by 
 the agitations of a stormy government, a necessary reaction leads 
 it towards him who can best secure order, stability and repose. 
 
 Louis Napoleon, therefore, is in this wonderful situation, that 
 he alone holds in his hands these inestimable gifts. He has in the 
 eyes of France, his immense services, the magic of his popularity, 
 the souvenirs of his race, the imperishable remembrance of order, 
 of organization, and of heroism, which make the hearts of all 
 Frenchman beat. He again revives in the eyes of Europe the 
 greatest name of modern days, no more for the military triumphs 
 for which his history is so rich, but for chaining down the political 
 and social tempests, for endowing France with the conquests of 
 peace, and for strengthening and fertilizing the good relations of 
 states. Both at home and abroad it is to him that is attached a 
 vast future of pacific labor and of civilization. That future must 
 not be delivered to the chance of events and to the surprise of 
 factions. 
 
 That is why France demands the monarchy of the emperor ; that 
 is to say, order in revolution, and rule in democracy. She wished 
 it on the loth December, when the artifices of an inimical consti- 
 tution prevented the people from expressing their opinion. She
 
 590 
 
 ON CIVIL LIBERTY 
 
 wished it again on December 20, when the moderation of a noble 
 character prevented its being demanded. But now the public 
 sentiment overflows like a torrent ; there are moments when en- 
 thusiasm has also the right of solving questions. For some time 
 past visible signs announced what must be the mission of Louis 
 Napoleon, and the foreseeing reason of statesmen put itself in ac- 
 cordance with the popular instinct in order to fix the character of 
 it. After the bitter sarcasm which put the heir to a crown at the 
 head of the republic, it was evident that France, still democratic 
 from her habits, never ceased to be monarchical in her instincts, 
 and that she wished for the re-establishment of the monarchy in 
 the person of the prince who revealed himself to her as the con- 
 ciliator of two ages and of two minds, the line of union of the 
 government and of the people, the monarchical symbol of organ- 
 ized democracy. 
 
 At the end of the last century, the preponderance of the demo- 
 cratic element gave rise to a belief in speculative or ardent minds 
 that France ought to mark the new era into which she had entered 
 by a divorce between her government and the monarchical form. 
 The republic was borrowed from the souvenirs of antiquity. But 
 in France political imitations seldom succeed. Our country, 
 although taxed with frivolity, is invincibly attached to certain 
 national ideas and to certain traditional habits, by which it pre- 
 serves the originality of which it is proud. The republic could 
 not acclimatize itself on the French soil. It perished from its 
 own excesses, and it only went into those excesses because it was 
 not in the instincts of the nation. It was but an interval, brilliant 
 abroad, and terrible at home, between two monarchies. * 
 
 At that period, glory had raised to power one of those men who 
 found dynasties and who traverse ages. It is on that new stem 
 that France saw flourish a monarchy suitable to modern times, and 
 which yielded to no other in its grandeur and in its power. Was 
 it not a great lesson to see a similar fortune reserved, fifty years 
 after, for a second trial of the republican form ? Is it not a striking 
 example of the perseverance of the French mind in things which 
 are like the substance of her political life? Is not the proof com- 
 plete and decisive ? 
 
 It will be the more so, as the imperial monarchy has all the 
 advantages of the republic without its dangers. The other mon- 
 archical regimes (the illustrious services of which we will not
 
 AND SELF-GOVERNMENT. 
 
 591 
 
 depreciate) have been accused of having placed the throne too far 
 from the people, and the republic, boasting of its popular origin, 
 skilfully entrenched itself against them in the masses, who believed 
 themselves to be forgotten and overlooked. But the empire, 
 stronger than the republic on democratic grounds, removes that 
 objection. It was the government the most energetically supported 
 and the most deeply regretted by the people. If is the people 
 who have again found it in their memory to oppose it to the 
 dreams of ideologists and to the attempts of perturbators. On 
 the one hand, it is the only one which can glorify itself in the 
 right recognized by the old monarchy, "that it is to the French 
 nation that it belongs to choose its king;" on the other, it is the 
 only one which has not had quarrels to settle with the people. 
 When it disappeared in 1814, it was not by a struggle of the 
 nation against its government. The chances of an unequal 
 foreign war brought about that violent divorce. But the people 
 have never ceased to see in the empire its emanation and its work; 
 and they placed it in their affections far above the republic an 
 anonymous and tumultuous government, which they remember 
 much more by the violence of its proconsuls than by the victories 
 which were the price of French valor. 
 
 That is why the Napoleonic monarchy absorbed the republic a 
 first time, and must absorb it a second time. The republic is vir- 
 tually in the empire, on account of the contract-like character of 
 the institution, and of the communication and express delegation 
 of power by the people. But the empire is superior to the republic, 
 because it is also the monarchy ; that is to say, the government of 
 all confided to the moderating action of one, with hereditary suc- 
 cession as a condition, and stability as its consequence. Monarchy 
 has the excellent quality of yielding admirably to all the progress 
 of civilization : by turns feudal, absolutist, and mixed ; always old 
 and always modern, it only remains to it to reopen the era of its 
 democratic transformation, which was inaugurated by the emperor. 
 That is what France now wishes ; it is what is asked of you by a 
 country fatigued with Utopian ideas, incredulous with respect to 
 political abstractions, and whose genius, a union of sound sense and 
 poesy, is so constituted that it only believes in power under the 
 figure of a hero or a prince. 
 
 Even if the love of Frenchmen for monarchy be only a preju- 
 dice, it must be respected ; a people can only be governed in
 
 592 
 
 ON CIVIL LIBERTY 
 
 accordance with its ideas. But it must in particular be respected, 
 because it is inspired by the most essential wants and .the most 
 legitimate interests of the country. 
 
 France is a great state which wishes to preserve at home and 
 abroad the force which a vast territory and thirty-five millions of 
 inhabitants give. She is both agricultural and commercial. Not- 
 withstanding the fertility of her soil, she would be poor if manu- 
 factures were not to add immense personal to real capital, and if 
 the tastes for polite enjoyments and moderate luxury did not give 
 to labor an aliment always new. But labor, in order to arrive at 
 the result of its enterprises, should be seconded by so many ad- 
 vances of funds, and such a persevering continuance of efforts, that 
 all success would escape it if it were interrupted or troubled by the 
 storms of disquieting and subversive policy. It demands, there- 
 fore, stability of institutions, as the source of confidence and the 
 mother of credit. 
 
 All these conditions of a regular and prosperous life the mon- 
 archy procures to France ; any other form can only compromise 
 them. 
 
 Monarchy is the government of great states, to which institu- 
 tions made for duration are marvellously suitable, as the most solid 
 foundations are required for a vast edifice. The republic, on the 
 contrary, is only the government of small states, if we except the 
 United States of America, which, by their geographical position, 
 form an exception to all rules, which, besides, are only a federa- 
 tion ; a republic has never been able to establish itself except in 
 small nations, in which the embarrassments of that difficult and 
 complicated form of government are corrected by the small extent 
 of territory and population. 
 
 Ancient Rome, so far from contradicting this rule, fully confirms 
 it. The republic was only in the city and for the city. Beyond it 
 there were only avaricious masters and oppressed subjects. If ever 
 France can be said to have had a sort of neighborhood with the 
 republic, it was in the middle ages, when the republican spirit, ex- 
 tinguished from the time of the Caesars, had become awakened in 
 a part of Europe ; when France was only a chess-board of almost 
 independent provinces ; and when the feudal principalities were in 
 all parts menaced by the communal movement. But since that 
 movement all the interior action of France has removed her from 
 the republican form. She, in particular, separated from it, when
 
 AND SELF-GOVERNMENT. 
 
 593 
 
 she gave herself a united territory and thirty-five millions of inhab- 
 itants living under the same laws, in the same country, and united 
 by an infinite chain of dependent interests, which the same move- 
 ment of circulation causes to terminate in a sole centre. Such a 
 people is not to be shaken, as were the citizens of a single city, 
 even if called Athens or Rome. A country which lives by its 
 labor, and not by the labor of slaves and presents from the state, 
 cannot be occupied with speeches of the forum, with the permanent 
 agitation of comitia, with the anxieties of politics always in ebulli- 
 tion. This fever, to which democratic republics give the name of 
 political life, cannot with impunity be communicated to a nation 
 whose splendor particularly consists in the pacific development of 
 its wealth, and in the regular and intelligent activity of its private 
 interests. 
 
 Our fathers learned these truths in the rude school of public and 
 private misfortunes. They compose all the interior policy of the 
 commencement of this century. 1 Why should incorrigible innova- 
 tors have in these latter times inflicted the too palpable demonstra- 
 tion of them upon us? We 'have seen altars raised to instability 
 and to periodical convulsions the two plagues of the social body ; 
 we have seen laws made to reduce to solemn precepts the febrile 
 and terrible crisis which may ruin a people; we have seen the 
 vessel of the state launched on an unknown sea, without a fixed 
 point to guide itself by, without an anchor to cast out, and no one 
 can say what would have become of the future of France, if 
 Providence, watching over her, had not raised up the man of 
 intrepid heart who extended his hand to her. 
 
 France, with full knowledge of what she is doing, "intends to 
 return to her natural state ; she longs to find again her real posi- 
 tion and to resume her equilibrium. The French people, in its 
 admirable common sense, is not so infatuated with its superior 
 qualities that it is not aware of its weak points. It feels itself variable 
 in its impressions, prompt to be worked on, and easy to be led 
 away. And because it distrusts the rapidity of a first movement, it 
 seeks a fixed point in its institutions, and desires to be retained on 
 a stable and solid basis. The French democracy has sometimes 
 been compared to that of Athens. We have no objection to the 
 
 1 See the speeches delivered in the Tribunal on the return to monarchy in 
 1804. 
 
 38
 
 594 ON CIVIL LIBERTY 
 
 comparison as far as politeness and elegance of mind are concerned, 
 but we in all other respects utterly disclaim the similitude. The 
 Greek democracies were nothing but a perpetual flux and reflux, 
 never accepting the corrective of their levity. They were, besides, 
 idle and grasping, living on the civic oboli and distributions of 
 food. On the other hand, the French democracy, of a more mas- 
 culine and more haughty character, does not look to the state for 
 the care of its well-being; it depends on its own efforts for support, 
 and most joyfully submits to the eternal law of God daily labor. 
 Its speculations comprise the whole world ; it cultivates the earth 
 with its free hands ; it furrows the mighty deep with its vessels ; it 
 multiplies its industrial creations, engenders capital, and renders the 
 future tributary to its able and immense combinations. When a 
 nation thus founds its enterprise on credit and durability, when 
 sometimes not less than half a century is necessary to it to reap the 
 benefit of its operations, it is not the institutions of a day that can 
 give it any hope of their success. It would be senseless" if it did 
 not desire to make the moving sphere of its interests turn round 
 the motionless axis of a monarchy. 
 
 It is true that in France equality is an object of absolute worship, 
 and a monarchy has, as its very first condition, the privileged 
 existence of those grand and rare individualities which God raises 
 above their fellows to form dynasties, and which are less human 
 beings than the personification of a people and the concentrated 
 radiation of a civilization. But equality, such as we conceive it in 
 France, admits without jealousy those providential grandeurs, ren- 
 dered legitimate by state reasons, below which it finds its level. 
 At Rome and Athens equality consisted in rendering each citizen 
 admissible to the supreme authority ; and it is therefore that men 
 considered all equality at an end when Augustus had converted the 
 republic into a monarchy. 1 In France we considered it as saved 
 and confirmed forever, under the reign of the emperor. The rea- 
 son is, that in this country of equality there is nothing that is less 
 supported than the government of one's equals ; because equality 
 is there fully satisfied- in holding everything in its grasp, places, 
 credit, wealth, and renown, and in having a wide and open road 
 before it to arrive at everything except that extreme point of power, 
 
 Tacitus: " Omnes, exu& equalitate, jussa principis adspectare." Annal. 
 i.4-
 
 AND SELF- G O VERNMENT. 
 
 595 
 
 that inaccessible summit, which the care of the public tranquillity 
 has placed high above all private competition. By that the 
 democracy wonderfully agrees with the monarchy, and that union 
 is so much the more solid that common sense unites with the habits 
 of the people in cementing it. 
 
 But should cavilling minds, believing themselves more wise than 
 the whole country, bring forward as an objection to the desire 
 expressed for the hereditary empire, the inconveniences which 
 minorities and bad princes may, at certain intervals, produce in 
 monarchical states, we would reply that all human institutions con- 
 tain within themselves certain defects and weaknesses. The mon- 
 archy has not the privilege of perfection ; it has simply, for France, 
 the merit of an incontestable superiority over the system of per- 
 petual election, which only offers an eternal series of struggles and 
 hazards, and which solves one difficulty only for the purpose of 
 immediately leaving another in suspense. 
 
 Some ancient states, believing that they were improving on the 
 monarchical system, had placed in sovereign and immovable assem- 
 blies that element of stability which dynasties represent. 'But 
 have not such assemblies also had their moments of weakness? 
 Does not their history exhibit melancholy instances of venality or 
 tyranny? Has not their baseness given them insolent and seditious 
 guardians? And in the point of view of moral responsibility, 
 which is one of the great checks on the conscience, there is not 
 the slightest comparison between a man and an assembly. In 
 assemblies, the responsibility of the body effaces that of the indi- 
 viduals ; and as a collective responsibility is very nearly illusory, it 
 comes to pass that that irresponsibility, which sometimes constitutes 
 the force and independence of assemblies, is also the cause of their 
 excesses. In a prince, on the contrary, the responsibility is un- 
 divided and inevitable, and presses with all its weight on the side 
 of duty. In fine, when evil creeps into a sovereign political body, 
 it continues there as a precedent, increases as a tradition, and the 
 thing itself can only be kept up by keeping up the evil. On the 
 contrary, if evil glides to the throne, it causes alarm only by tem- 
 porary and intermittent perils, which are, besides, extenuated by 
 the institutions and the modifications which are more easily effected 
 in the case of a man than in that of an assembly. The feeble 
 Louis XIII. was followed by the grand Louis XIV. ; and, besides,
 
 596 
 
 ON CIVIL LIBERTY 
 
 Louis XIII. is, in the eyes of posterity, covered by his minister, 
 Richelieu. 
 
 The general considerations appear to us to prove sufficiently that 
 the national sentiment which addresses itself to you, gentlemen, as 
 to sage mediators between the people and the prince, is neither a 
 frivolous caprice nor a fleeting infatuation. Behind the fascination 
 of a great name, and above the gratitude which is felt for the acts 
 of a noble and patriotic courage, there are grand thoughts, power- 
 ful interests, and an admirable intuitive perception of the public 
 wants. France, gentlemen, desires to have the life of a great 
 nation, and not that precarious and sickly existence which wastes 
 away the social body. During the last four years, whilst subjected 
 to perilous experiments, she has known how to correct by her good 
 sense the evils of a deplorable situation. But it is necessary that 
 such a situation should be brought to a close. Up to the present 
 time, she had been able to find, in the midst of the tempests which 
 assailed her, only transitory gleams of safety, on which no future 
 prosperity could possibly be based. At present, she is about to 
 enter the port, to found, by means of the fortunate pilot whom she 
 greets with joy, the edifice of her prosperity on the solid ground 
 of monarchy. 
 
 Let us now look to the details of the draft of the senatus-con- 
 sultum. 
 
 Louis Napoleon will take the name of Napoleon III. It is that 
 name which re-echoed in the acclamations of the people ; it is the 
 name which was inscribed on the triumphal arches and trophies. 
 We do not specially select it ; we merely accept it from a natural 
 and spontaneous election. It has, besides, that profound good 
 sense which is always to be met with in the wonderful instincts of 
 the people. It is a homage to Napoleon I., whom the people never 
 forgets ; and it is a pious remembrance for his youthful son, who 
 was constitutionally proclaimed emperor of the French, and whose 
 reign, short as it was, has not been effaced by the obscure existence 
 of the exile. It solves for the future the question of succession, 
 and signifies that the empire will be hereditary after Louis Napo- 
 leon, as it has been for himself. In fine, it connects the political 
 phase to which we owe our safety with the glorious name which 
 was also the safety of past times. 
 
 And yet, by the side of the traditional element, contemporary 
 events preserve their proper value and their peculiar signification.
 
 AND SELF-GOVERNMENT. 
 
 597 
 
 If Louis Napoleon is called on at present to resume the work of 
 his uncle, it is not merely because he is the heir of the emperor, 
 but because he deserves to be so ; it is on account of his devoted- 
 ness to France, and of that spontaneous and personal action which 
 has rescued the country from the horrors of anarchy. It is not 
 sufficient for him to be the heir of the emperor ; he must be again 
 elected, for the third time, by the people. Thus the succession and 
 the election will be in accord to double his force, the modern fact 
 rendering the old one young and vigorous by the puissance of a 
 reiterated consent and a second contract. 
 
 The senatus-consultum next invests Louis Napoleon with the 
 right to adopt an heir, in default of a direct successor. Adoption, 
 which i% a common right in private families, cannot be an excep- 
 tion in dynastic families ; for, when no natural heir exists, it is a 
 principle in public law that the choice of the monarch belongs 
 to the people. But that rule is that of ordinary times, and cannot 
 suit in an absolute manner an order of things which again resumes 
 a new course after a long interruption, and in the midst of the most 
 extraordinary circumstances. 
 
 Louis Napoleon, the depositary of the confidence of the people, 
 charged by it to draw up a constitution, can, on infinitely stronger 
 grounds, receive the mandate to provide for certain eventualities, 
 and to prevent certain crises in which that constitution might 
 perish. The strokes of nature have been often terrible in reign- 
 ing families, and have set at naught the councils of wisdom. The 
 French people will not imagine that it makes too great a sacri- 
 fice of its rights in abandoning itself once more to the prudence 
 of the prince whom it has made the arbiter of its destinies. This 
 provision, besides, is borrowed from the imperial constitution. 
 The empire which revives ought not to be less powerful in its 
 means than was the empire at its commencement. And in order 
 to remain within the letter and the spirit of that precedent, the 
 senatus-consultum proposes to you not to admit of such adoption, 
 except for the male descendants, natural and legitimate, of the 
 brothers of Napoleon I. The right of unlimited adoption would 
 be in manifest contradiction with the popular wish for the re- 
 establishment of the empire, which is the guiding star of our de- 
 liberations. In fact, the empire is inseparable from the name of 
 Bonaparte ; and cannot be conceived without a member of that 
 family with which the new form of the monarchy was stipulated in
 
 ON CIVIL LIBERTY 
 
 France. Everything ought to remain consistent in the work which 
 we are considering. 
 
 But above that combination, solely of a political character, 
 France places a hope which more than anything constitutes her 
 faith in the future ; and that is, that, at no distant period, a wife 
 will take her place on the throne which is about to be raised 
 and will give to the emperor scions worthy of his great name 
 and of this great country. That debt was imposed on the prince 
 on the day when the cries of "Vive 1'Empereur" hailed him on 
 his passage; and he will accept it virtually but necessarily the 
 day when the crown will be placed on his head. For, since the 
 empire is established with a view to the future, it ought to carry 
 with it all the legitimate consequences which preserve tht future 
 from uncertainty and shocks. 
 
 In default of the direct line and of the adoptive line, the case 
 of succession in the collateral line must be provided for. On that 
 point we propose to you a clause, by which the people should 
 confer on Louis Napoleon the right of regulating by an organic 
 decree that order of succession in the Bonaparte family. By that 
 means, our senatus-consultum will remain more perfectly in accord 
 with the popular wish, which in its unlimited confidence has placed 
 in Louis Napoleon's hands the destinies of the country ; it will 
 likewise be more in conformity with the political changes which 
 France has entered into since 2d December. The greatest polit- 
 ical genius of Italy, in the sixteenth century, was accustomed to 
 say, in those rare and solemn moments in which the question is to 
 found a new state, that the will of a single man was indispensable. 
 That is what the nation comprehended so admirably when it 
 remitted to Louis Napoleon the task of drawing up the constitu- 
 tion which governs us. At present, that a capital modification is 
 taking place in one of the very foundations of that constitution, it 
 appears natural and logical to again confer on Louis Napoleon a 
 portion of the constituent power, in order that, in the special 
 point which concerns most intimately the interests of the dynasty 
 of which the nation declares him the head, he may fix on such pro- 
 visions as appear to him best appropriated to the public interest 
 and the interest of the monarch. For his family, as well as for the 
 country, Louis Napoleon is the man of an exceptional situation, 
 and no fear must be entertained of adding to his power, in order 
 that, with the assent of all, he may settle it by the authority of a
 
 AND SELF-GOVERNMENT. 
 
 599 
 
 single person. We, therefore, propose to you, after a conference 
 with the organs of the government, which has led to unanimity 
 of opinion, an article thus worded: "Art. 4. Louis Napoleon 
 Bonaparte regulates, by an organic decree addressed to the senate 
 and deposited in the archives, the order of succession to the throne 
 in the Bonaparte family, in case he should not leave any direct or 
 adopted heir." 
 
 It is not necessary for us to say to you that in this system the 
 formula to be submitted to the French people ought to contain an 
 express mention of that delegation. It will be necessary, accord- 
 ing to the constitution, that the French people be called on to de- 
 clare whether it desires or not to invest Louis Napoleon with the 
 power which we conceive ought to be conferred on him. 
 
 After having thus spoken of the succession to the imperial 
 crown, the senatus-consultum carries the attention to the condition 
 of the family of the emperor. It divides it into two parts: i, the 
 imperial family, properly so called, composed of the persons who 
 may by possibility be called to the throne, and of their descend- 
 ants of both sexes ; and 2, of the other members of the Bonaparte 
 family. 
 
 The situation of the princes and princesses of the imperial 
 family is to be regulated by senatus-consulta ; and they cannot 
 marry without the emperor's consent. Article 6 pronounces for any 
 infraction of this regulation of public interest the penalty of 
 losing all right to the succession, with the proviso, however, that 
 in case of the dissolution of the marriage by the death of the wife, 
 without issue, the right is at once recovered. 
 
 As to the other members of the Bonaparte family, who compose 
 the civil family, it is to the emperor, and not any longer to senatus- 
 consulta, that it appertains to fix by statutes their titles and situ- 
 ation. It is useless to insist on this distinction, as it is explained 
 by the difference which exists between the civil family and that 
 uniting in itself the double character of civil family and political 
 family. 
 
 We have also to request your special attention to the final para- 
 graph of Article 6, which confers on the emperor full and entire 
 authority over all the members of his family. These special 
 powers are called for by the gravest considerations, and belong to 
 the right generally instituted for reigning families. Princes are 
 placed in so elevated a position by public right and national
 
 6oo ON CIVIL LIBERTY 
 
 interest, that they are, in many respects, out of the pale of the 
 common law. The greater their privileges are, the more their 
 duties are immense towards the country. Montesquieu has said : 
 "It is not for the reigning family that the order of succession is 
 established, but because it is for the interest of the state that there 
 should be a reigning family." They belong, therefore, to the state 
 by stricter ties than other citizens, and on account even of their 
 very greatness must be retained in a sort of perpetual ward-dom, 
 under the guardianship of the emperor, the defender of their dig- 
 nity, the appreciator of their actions, and serving to them as father 
 as much as guardian, in order to preserve to the nation this patri- 
 mony in fact. 
 
 If these reasons do not apply in all their extent to the members 
 of the private family, there are others of not less importance, 
 which are drawn from the conjoint responsibility imposed by a name 
 which is the property of the nation, as much as of the persons 
 who have the honor of bearing it. 
 
 Besides, several of these persons have the privilege of being 
 the only ones in the state that the emperor can place by adoption 
 in the rank of the persons who may succeed to the crown. But 
 there is no public privilege which ought not to be paid for by 
 duties specially created to justify its necessity, and to co-operate 
 in the object of its establishment. 
 
 There is another point which it is sufficient for us to remind you 
 of the maintenance of the Salic law in the imperial dynasty. In 
 France, the Salic law is, so to speak, incorporated with the mon- 
 archy, and, although its origin goes back to the remotest periods, 
 it has so completely penetrated into our way of thinking, and is so 
 completely in accord with the rules of French policy, that it is in- 
 separable from all transformations in the monarchical principle. 
 
 Finally, gentlemen, the senatus-consultum provides for the case 
 in which the throne should be vacant : " if ever the nation should 
 be so unfortunate as to experience this affliction," (to use the lan- 
 guage of the celebrated edict of July, 1717,) "it would be for the 
 nation itself to repair it." Article 5 formally recognizes this fun- 
 damental, essential, and inalienable right. At the same time it 
 provides for the means of preparing a choice worthy of the French 
 people, by its prudence and maturity. In consequence, an or- 
 ganic senatus-consultum, proposed to the senate by the ministers 
 formed into a council of government, with the addition of the
 
 AND SELF-GOVERNMENT. 6oi 
 
 president of the senate, the president of the legislative body, and 
 the president of the council of state, shall be submitted to the free 
 acceptance of the people, and will give to France a new emperor. 
 
 Such, gentlemen, are the principal provisions of the senatus- 
 consultum, now submitted to you for consideration, and which will 
 prepare the august contract .of the nation with its chief. Should 
 you adopt it, you will order by a concluding article, in virtue of 
 the constitution, that the people be consulted concerning the re- 
 establishment of the imperial dignity in the person of Louis Napo- 
 leon, with the succession of which we have just explained to you 
 the combinations. But, gentlemen, we may affirm, whilst bending 
 at present before a public will which only asks for an occasion to 
 burst forth afresh, that the empire is accomplished. And that em- 
 pire, the dawn of which has lighted up the path of Louis Napoleon 
 in the departments of the south, rises over France, surrounded 
 by the most auspicious auguries. Everywhere hope revives in 
 men's minds ; every where' capital, restrained by the uncertainty of 
 the future, rushes with ardor into the channels of business ; and 
 everywhere the national sap circulates, and vivifies to produce the 
 most abundant fruits. 
 
 This reign, gentlemen, will not be cradled in the midst of arms 
 and in the camp of insurgent praetorian guards. It is the work of 
 the national feeling, most spontaneously expressed ; it has been 
 produced in our commercial towns, in our ports, in the most peace- 
 ful centres of agriculture and manufactures, and in the midst of 
 the joy of an affectionate people ; it will consequently be the 
 Empire of Peace that is to say, the revolution of "89, without its 
 revolutionary ideas, religion without intolerance, equality without 
 the follies of equality, love for the people without socialist charla- 
 tanism, and national honor without the calamities of war. Ah ! if 
 te great shade of the emperor should cast a glance at this France 
 which he loved so much, it would thrill with joy at beholding the 
 gloomy predictions of St. Helena, at one moment so near being 
 realized, totally disproved. No ; Europe will not be delivered up 
 to disorder and anarchy ! No ; France will not lose the grandeur . 
 of her institutions, and it is the ideas of Napoleon directed towards 
 peace by a generous-minded prince, which will be the safeguard of 
 civilization.
 
 602 ON CIVIL LIBERTY 
 
 SENATUS -CONSULTUM. 
 
 In the month of November, 1852, the senate adopted the follow- 
 ing senatus-consultum : 
 
 SENATUS-CONSULTUM. 
 
 Proposition to modify the Constitution, in conformity with Articles 
 
 31 and 32. 
 
 ART. i. The imperial dignity is re-established. Louis Napoleon 
 Bonaparte is emperor, under the name of Napoleon III. 
 
 ART. 2. The imperial dignity is hereditary in the direct and 
 legitimate issue of Louis Napoleon Bonaparte, from male to male 
 in the order of primogeniture, and with perpetual exclusion of 
 women and their descendants. 
 
 ART. 3. Louis Napoleon Bonaparte, in default of a male child, 
 may adopt the children and legitimate descendants in the male line 
 of the brothers of Napoleon I. 
 
 The forms of adoption shall be regulated by a senatus-consul- 
 tum. 
 
 If, after the adoption, male children of Louis Napoleon shall 
 be born, his adoptive sons cannot succeed him, except after his 
 own legitimate descendants. 
 
 The successors of Louis Napoleon, and their descendants, cannot 
 adopt. 
 
 ART. 4. Louis Napoleon regulates, by an organic decree ad- 
 dressed to the senate and deposited in its archives, the order of 
 succession on the throne in the Bonaparte family, in case he should 
 not leave any direct legitimate or adopted heir. 
 
 ART. 5. In default of any legitimate or adoptive heir of Louis 
 Napoleon Bonaparte, and of successors in collateral line who may 
 derive their right from the organic decree above mentioned, a 
 senatus-consultum, proposed to the senate by the ministers, formed 
 into a council of government, with the addition of the actual 
 presidents of the senate, the legislative corps, and of the council 
 of state, and submitted for adoption to the people, appoints the 
 emperor, and regulates in his family the hereditary order from 
 male to male, to the perpetual exclusion of women and their 
 descendants.
 
 AND SELF-GOVERNMENT. 603 
 
 Until the election of the new emperor shall be consummated, 
 the affairs of the state are governed by the actual ministers, who 
 shall form themselves into a council of government and deliberate 
 by a majority of votes. 
 
 ART. 6. The members of the family of Louis Napoleon eventu- 
 ally called to succeed him, and their descendants of both sexes, 
 form a part of the imperial family. A senatus-consultum regu- 
 lates their position. They cannot marry without the authorization 
 of the emperor. Their marriage without this authorization de- 
 prives of the right of inheritance as well him who contracts the 
 marriage as his descendants. 
 
 Nevertheless, if there are no children of such a marriage, and 
 the wife dies, the prince having contracted such a marriage re- 
 covers his right of inheritance. 
 
 Louis Napoleon fixes the titles and the condition of the other 
 members of his family. 
 
 The emperor has plenary authority over all the members of his 
 family. He regulates their duties and their obligations by statutes 
 which have the force of laws. 
 
 ART. 7. The constitution of the i5th of January, 1852, is main- 
 tained in all those dispositions which are not contrary to the 
 present senatus-consultum ; it cannot be modified except in the 
 forms and by the means there prescribed. 
 
 ART. 8. The following proposition shall be presented for the 
 acceptation of the people in the forms determined by the decrees 
 of the ad and 4th of December, 1851 : 
 
 "The people wills the re-establishment of the imperial dignity in 
 the person of Louis Napoleon Bonaparte, with inheritance in direct 
 legitimate or adoptive descendants, and gives him the right to 
 regulate the order of succession to the throne in the Bonaparte 
 family in the manner described in the senatus-consultum of the yth 
 of November, 1852." 
 
 The senate adopted this senatus-consultum by eighty-six votes 
 of eighty-seven senators. 
 
 More than eight millions of people voted yes, according to the 
 official publications. 
 
 "All Frenchmen of the age of twenty-one, in possession of their 
 civil and political rights," were called upon to vote by a decree of 
 some length, of November 7th, 1852. 
 
 The paper on elections, the first of this Appendix, contains the
 
 604 ON CIVIL LIBERTY AND SELF-GOVERNMENT. 
 
 details of this and other votes, as well as the view of the author 
 regarding them. 
 
 In addition to the papers here given, it ought to be remembered 
 that the senate can decree organic laws, and thus a senatus-con- 
 sultum has been passed, according to which the legislative corps 
 (already so denuded of power and influence) is deprived of the 
 right to vote on the single items of the budget. It must adopt or 
 reject the budgets of each ministry as a whole. This means, of 
 course, that it must adopt the whole for government would neces- 
 sarily be brought to a stop if the entire budget of a ministry were 
 rejected ; and the executive government would simply order again 
 the soldiery to clear the legislative hall, assume the dictatorial 
 power, and make the people rectify the coup.
 
 APPENDIX XVI. 
 
 LETTER OF THE FRENCH MINISTER OF THE INTERIOR, 
 MR. DE MORNY, ADDRESSED TO THE PREFECTS OF 
 THE DEPARMENTS IN THE YEAR 1852. 
 
 THE minister of the interior addressed the following circular to 
 the prefects of the departments : 
 
 "MONSIEUR LE PREFET: You will shortly have to proceed to 
 the elections of the legislative body. It is a grave operation, 
 which will be either a corollary or a contradiction of the vote of 
 the 2oth December, according to the employment which you make 
 of your legitimate influence. Bear well in mind that universal 
 suffrage is a new and unknown element, easy for a glorious name 
 to make the conquest of, unique in history, representing in the 
 eyes of the populations authority and power, but very difficult to 
 fix on secondary individualities ; consequently, it is not by follow- 
 ing former errors that you will succeed. I desire to inform you 
 of the views of the head of the state. You perceive that the 
 constitution has aimed at avoiding all the theatrical and dramatc 
 part of the assemblies, by interdicting the publication of the 
 speeches delivered ; in that way the members of those assemblies, 
 not being occupied with the effect which their words in the tribune 
 are to produce, will think more of carrying on seriously the affairs 
 of their country. The electoral law will pronounce on the in- 
 compatibilities. The situation of public functionaries in a political 
 assembly is always a very delicate matter, as in voting with the 
 government they lower their proper character, and in voting 
 against it they weaken the principle of authority. The exclusion 
 of functionaries, and the suppression of all indemnity, must neces- 
 sarily limit, in a country where fortunes are so divided as in ours, 
 the number of men who will be willing and able to ^fulfil such 
 duties. Nevertheless, as the government is firmly decided never 
 
 605
 
 606 ON CIVIL LIBERTY 
 
 to make use of corruption, direct or indirect, and to respect the 
 conscience f every man, the best means of preserving to the 
 legislative body the confidence of the populations is to call to it 
 men perfectly independent by their situation and character. When 
 a man has made his fortune by labor, manufactures, or agriculture, 
 i he has been occupied in improving the position of his work- 
 men, if he has rendered himself popular by a noble use of his 
 property, he is preferable to what is conventionally called a polit- 
 ical man, for he will bring to the preparation of the laws a practical 
 mind, and will second the government in its work of pacification 
 and re-edification. As soon as you shall have intimated to me, 
 in the conditions indicated above, the candidates who shall appear 
 to you to have the most chance of obtaining a majority of votes, 
 the government will not hesitate to recommend them openly to the 
 choice of the electors. Hitherto, it has been the custom in France 
 to form electoral committees and meetings of delegates. That 
 system was very useful when the vote took place au scrutin de Hste. 
 The scrutin de liste created such confusion, and such a necessity 
 for coming to an understanding, that the action of a committee 
 was indispensable ; but now these kind of meetings would be 
 attended with no advantage, since the election will only bear on 
 one name; it would only have the inconvenience of creating 
 premature bonds, and appearances of acquired rights which would 
 only embarrass the people, and deprive them of all liberty. You 
 will, therefore, dissuade the partisans of the government from 
 organizing electoral committees. Formerly, when the suffrage was 
 restricted, when the electoral influence was divided among a few 
 families, the abuse of this influence was most shameful. A few 
 crosses, little merited, and a few places, could always secure the 
 success of an election in a small college. It was very natural that 
 this abuse should cause great dissatisfaction, and that the govern- 
 ment should be called on to abstain from any ostensible inter- 
 ference. Its action and its preferences were then occult, and for 
 that very reason compromised its dignity and its authority. But 
 by what favors could the government be now supposed capable of 
 influencing the immense body of the electors? By places? The 
 whole government of France has not establishments vast enough 
 to contain the population of one canton. By money? Without 
 speaking of the honorable susceptibilities of the electors, the whole
 
 AND SELF-GOVERNMENT. 607 
 
 public treasury would not be sufficient for such a purpose. You 
 will remember to what the result of the efforts of the government 
 was reduced on the loth December, 1848, in favor of the candidate 
 to the presidency who was then in power. With universal suffrage 
 there is but one powerful spring, which no human hand can restrain 
 or turn from the current in which it is directed, and that is public 
 opinion ; that imperceptible and indefinable sentiment which aban- 
 dons or accompanies governments, without their being able to 
 account for it, but which is rarely wrong in doing so ; nothing 
 escapes it, nothing is indifferent to it ; it appreciates not only acts, 
 but divines tendencies ; it forgets nothing, it pardons nothing, be- 
 cause it has, and can have, but one moving power the self-interest 
 of each ; it is alive to all, from the great policy which emanates 
 from the chief of the state to the most trivial proceedings of the 
 local authorities, and the political opinion of a department depends 
 more than is generally believed on the spirit and conduct of its 
 administration. For a long time past the local administrations 
 have been subordinate to parliamentary exigencies ; they occupied 
 themselves more in pleasing some influential men in Paris than, 
 in satisfying the legitimate interests of the communes and the 
 people. These days are happily, it may be said, at an end. Make 
 all functionaries thoroughly understand that they must carefully 
 occupy themselves with the interests of all, and that he who must 
 be treated with the greatest zeal and kindness is the humblest and 
 the weakest. The best of policies is that of kindness to persons, 
 and facility for interests and that functionaries shall not suppose 
 themselves created for purposes of objection, embarrassment, and 
 delay, when they are so for the sake of dispatch and regularity. 
 If I attach so much importance to these details, it is because I 
 have remarked that inferior agents often believe that they increase 
 their importance by difficulties and embarrassments. They do ' 
 not know what maledictions and unpopularity they bring down 
 on the central government. This administrative spirit must be 
 inflexibly modified ; that depends on you ; enter firmly on that 
 path. Be assured that then, instead of seeing enemies in the 
 government and local administration, the people will only con- 
 sider them a support and help. And when afterwards you, in the 
 name of this loyal and paternal government, recommend a candi- 
 date to the choice of the electors, they will listen to your voice and
 
 608 ON CIVIL LIBERTY AND SELF-GOVERNMENT. 
 
 follow your counsel. All the old accusations of oppositions will 
 fall before this new and simple line of policy, and people in 
 France will end by understanding that order, labor, and security 
 can only be established in a durable manner in a country under a 
 government listened to and respected. 
 
 "Accept, &c. 
 
 "A. DE MORNY."
 
 INDEX. 
 
 ABERDEEN, Lord, on the importance of 
 the people moving before govern- 
 ment, 126. 
 
 Absent persons, penally tried, 71. 
 
 Absolute democracy, no connection 
 with liberty, 214. 
 
 Absolute monarchs often allow bold 
 discussions on liberty, 156. 
 
 Absolutism, enlightened, not the best 
 government, 26; always spurns fun- 
 damental laws, 274; item, division 
 of power, 275 ; resorts to transporta- 
 tion, favors extraordinary courts, 
 275 ; generally abhors publicity, 276 ; 
 precedent, 277 ; copies foreign mea- 
 sures, 296 ; popular, 373 ; all abso- 
 lutism has an element of communism, 
 38l. 
 
 Acclamation, decrees of, 190. 
 
 Accumulation of single fortunes does not 
 prove general wealth, 391. 
 
 Accusation, trial by, 218 and sequ. 
 
 Accusatorial trial, 218 and sequ. 
 
 Adams, John, opinion that common law 
 is a necessary element of the liberty 
 of the United States, 211. 
 
 Administrative judgments in France, 
 107, 217. 
 
 Advocate, ethics of, 240 ; independence 
 of, 239 and sequ ; is part of the ad- 
 ministration of justice, 243. 
 
 Age, present, its political character, 
 
 17- 
 
 Alexander the Great, 209, 210. 
 
 American liberty founded on English, 
 21 ; cannot be understood without 
 English liberty, 22, 256 and sequ; 
 characterized by representative re- 
 publicanism and federalism, 258; 
 what it consists in, 259 and sequ. 
 
 Americans, of the Anglican race, 21; 
 their task regarding civil liberty, ibid.; 
 more inclined to abstract rights than 
 the English, 261. 
 
 Amyot's translation of Plutarch, great 
 influence in France, 372, note. 
 
 Anaxarchus, 208. 
 
 Ancient liberty, 43 and sequ. 
 
 Ancient philosophers, why they praise 
 Sparta, 365. 
 
 Anglican liberty, 40; its elements, 51 
 and sequ ; how to find out in what 
 it consists, 52. 
 
 Anglican polity, Turgot's opinion on it, 
 195. 
 
 Anti-corn-law league, 125. 
 
 Antiquity, its main differences from 
 modern times, 360. 
 
 Appropriations should be short, 145. 
 
 Aristotle, greater than Alexander, 252. 
 
 Arms, the right of bearing, 120. 
 
 Army, must be under the control of the 
 legislature, 114 and sequ. In Eng- 
 land, and by the Constitution of the 
 United States, ibid. President of 
 the United States is chief com- 
 mander, but cannot enlist soldiers 
 without congress, 115. Declaration 
 of Independence concerning British 
 army, ibid. Standing armies, 116 
 and sequ. In France, its extent 
 and power, 118; French army votes, 
 like the citizens, 119. Armies ought 
 not to possess the right of petition- 
 ing, 119; always favored by despots, 
 
 273- 
 
 Arnold, Dr. Thomas, definition of In- 
 stitution, 303. 
 
 Articles in addition to the Constitution 
 
 of the United States, 526. 
 39 609
 
 6io 
 
 INDEX. 
 
 Articles of Confederation and Perpetual 
 
 Union, in full, 503 and sequ. 
 Association, right of, and importance 
 
 of, 124. 
 Athenian prosecutor punished if he 
 
 wholly failed in his prosecution, 77. 
 Attainder and corruption of blood, in 
 
 England, IO2. 
 
 Authentic interpretation, 208. 
 Autonomy and Self-Government, 38 
 
 and note. 
 
 BACON, quotations from, 23, 24. 
 
 Bail. 67 and sequ. Advantages and 
 disadvantages, 68. 
 
 Ballot, universally established in the 
 United States, 262. Has not the 
 effect which the English expect, 263. 
 
 Batis, 210. 
 
 Bavarian code, against interpretation 
 by courts, 206. 
 
 Beccaria against pardoning, 434. 
 
 Bechard, Lois Municipales des Repub- 
 liques ele la Suisse et des Etats-Unis, 
 321, note. 
 
 Bentham, Jeremy, Tactics of Legislative 
 Assemblies, 192. 
 
 Beranger, opinion on French justice, 75. 
 
 Bernard, Frenchman, accessory before 
 the fact, of Orsini, 57. 
 
 Bicameral system, 193. 
 
 Bill of Rights, in full, 492 and sequ. 
 
 Billeting, debate in commons on, in 
 1856, 116, note. 
 
 Blanc, Louis, one of the representatives 
 of the French school, 367, note; and 
 present imperialists, equally for uni- 
 versal suffrage, 157, note. 
 
 Bodinus, his definition of liberty, 32. 
 Copy of Bodinus used by Jefferson, 
 32, note. 
 
 Bonner's translation of De Tocque- 
 ville's Ancien Regime, 254. 
 
 Bossuet, for centralized power, 371. 
 
 Bourgeoisie derided, 382. 
 
 Brilliant men, or events, not the most 
 influential, 252. 
 
 Brougham, Lord, on discussing peti- 
 tions, 122, note; on the organization 
 of upper house, 198 ; ethics of the 
 advocate, 241, note; on courts of 
 arbitration, 281, note; on German 
 empire, 356, note. 
 
 Bunsen, Baron, on toleration, 54, note; 
 on book of common prayer, 302. 
 
 Bureaucracy, founded on writing, not 
 speaking, 129; new word, 165; its 
 character, ibid. 
 
 Burke on legitimate parties, 148; on 
 
 arbitrary power, 369. 
 By-laws, 322 ; etymology, 323, note. 
 
 , Julius, 376. 
 Csesarean sovereignty, 375, note. 
 Csesarism. See Imperatorial Sover- 
 
 eignty. 
 Campbell, Lord, opinion on petitions 
 
 of British merchants, 58, note ; on 
 
 unanimity of jury, 238, note. 
 Capital, amount of, carried off by emi- 
 
 grants, 94, note ; 95, note. 
 Capital cities, influence of, 389. Mag- 
 
 nificent capital cities pave a state of 
 
 decline, 392. 
 Carey, Mathew, on pardoning in the 
 
 United States, 439. 
 Carlisle, Earl, 121, note. 
 Cassation, court of, 279. 
 Cavaignac, General, his arrest, 109. 
 Censorship of the press in England, 
 
 92. 
 Centralism leads to enfeebling man- 
 
 worship, 394; to base flattery, 394, 
 
 note; to brilliant acts, 395. 
 Centralization, loved by the French, 
 
 151; Turgot in favor of it, 195; 
 
 passion of the French for it, 283. 
 Centralized governments have no in- 
 
 stitutions to break powerful shocks, 
 
 349- 
 Ceracchi, conspirator, executed by sena- 
 
 tus-consultum, 317, note. 
 Chambord, Count, his letter not allowed 
 
 to be published, 386, note. 
 Champ-de-Mars, the many different 
 
 government exhibitions on the same, 
 
 343- 
 Chancellor, Lord, of England, being 
 
 moderator of house of lords, 186; 
 
 member of the cabinet, 186, note. 
 Chardin, on pardoning in Persia, 433. 
 Charter, French, of Louis XVIII., in 
 
 full, 545 and sequ; of the year 1830, 
 
 ibid. 
 Charter, the great, of England, 458 and 
 
 sequ, and 470 and sequ. 
 Chartists, petition in 1848, 121, note. 
 Chatham, Lord, on trial by jury, 233 ; 
 
 on passage in Magna Charta, con- 
 
 cerning administration of justice, 
 
 276 ; on arbitrary power, 369. 
 Chevenix, on national character, 182, 
 
 note. 
 
 Cicero, definition of liberty, 28. 
 Cis-Caucasian race, 22, note. 
 Cities, in the Netherlands were sover-
 
 INDEX. 
 
 eign, 170, note, 337; not sufficient 
 as patria for moderns, 170. 
 
 City, confounded by the ancients with 
 the state, 45 and sequ. 
 
 City-states and national states, 360 and 
 sequ. 
 
 Civilization, law of spreading, 294. 
 
 Civil Law, influence of, on common law, 
 212. 
 
 Civil Liberty. See Liberty. 
 
 Civil List. See Taxation. 
 
 Code Napoleon and equality, essence 
 of civilization, 19. 
 
 Codification does not prevent interpreta- 
 tion, 205. Lord Cranworth on, 207, 
 note. 
 
 Coetlogon, French case of opening 
 letters, 92. 
 
 Coke, on the justice of the peace, 322, 
 and note. 
 
 Collard, Royer, on absolutism of the 
 majority, 283. 
 
 Colonization Society, 125. 
 
 Color, effect of distinction of races on 
 American sympathy and politics, 260. 
 
 Commissions, contradistinguished from 
 regular courts, 106. 
 
 Common law, necessary for the inde- 
 pendence of the law, 204 and sequ. 
 Constitutes the greater portion of 
 British constitution, 210. Compared 
 with civil law, 21 1; article Common 
 Law in Encyclopaedia Americana, 
 written by Judge Story, 213, note; 
 American writers who take French 
 views of liberty and of law against 
 it, 214. 
 
 Communion, right of, 87 and sequ. 
 Liberty of, always abolished by abso- 
 lutists, 272. 
 
 Communism, the basis of the Utopias, 
 44, note. 
 
 Compensation bill, intended by Ro- 
 milly for accused persons not found 
 guilty, 77. 
 
 Compurgators, 454. 
 
 Conclamation, election by, of medieval 
 character, 401. 
 
 Confederation, Articles of, and Per- 
 petual Union, in full, 503 and sequ. 
 
 Confirmatio Chartarum, 470 and sequ. 
 
 Confirmation of liberties, 470 and sequ. 
 
 Confiscation, incompatible with civil 
 liberty, 101. 
 
 Conflicts between courts and adminis- 
 trations, were to be decided l>y a 
 separate tribunal, according to French 
 constitution of 1848, 566. 
 
 Conscience, liberty of, 97 and sequ. 
 American constitutions regarding it, 
 ibid. Necessity, at present, 99. Why 
 its full acknowledgment in England 
 so late, loo. 
 
 Conscription in France, 119, note. 
 
 Constitutionality, declared by supreme 
 court, 162 and sequ. 
 
 Constitutions, produced in our age, 17, 
 18; written and unwritten, enacted 
 and cumulative, 162, note; of Eng- 
 land, consists chiefly of common 
 law, 2IO; what it consists of, ibid.; 
 of the United States, called atheistic, 
 259, note; of the United States, 
 works on it, and on their govern- 
 ment, 265, note ; of the United 
 States, in full, 514 and sequ ; French, 
 of 1793, in full, 531 and sequ; of 
 the French republic of 1848, 555 
 and sequ; of France, of 1851, 576 
 and sequ. 
 
 Coode, codifying English poor-law, 
 207, note. 
 
 Cooper, Dr. Thomas, opinion of Ham- 
 ilton's Parliamentary Logic, 192, 
 note. 
 
 Corruption of blood, not admitted in the 
 United States, 80 ; in England, 102. 
 
 Council of State, in France, 200. 
 
 Council of Trent, adopted the half-hour 
 rule, 133, note. 
 
 Counsel of the prisoner, 240. 
 
 Country, necessary for moderns, instead 
 of ancient cities, 169, and note. 
 
 Cours prevStales, abolished by charter of 
 Louis XVIII. See Natural Courts. 
 
 Courvoisier, and Philips his counsel, 
 245, note. 
 
 Cranworth, Lord, on codification, 207, 
 note ; on trial by jury, 236, note. 
 
 Crimen exceptum, high treason, 82. 
 
 Cromwell, congratulations on dissolv- 
 ing parliament, 418. 
 
 Crowds, acclaiming, deceive, 396. 
 
 Crown, or principate, on the Continent, 
 
 49- 
 
 Crusades, in connection with the Vox 
 populi vox Dei, 400. 
 
 Cumulative constitutions. See Enacted 
 Constitutions. 
 
 Cumulative voting, 177, note. 
 
 Curtis, G. J., History of the Constitu- 
 tion of the United States, 265, note. 
 
 Gushing, L. S., Rules of Proceeding 
 and Debate, etc., 191, note. 
 
 Cyclopean walls, 353, note. See Porch- 
 hammer.
 
 6l2 
 
 INDEX. 
 
 DAHOMEY, King of, his letter to Queen 
 Victoria, 25, note. 
 
 Daly, Judge, Historical Sketch of the 
 Judicial Tribunals of New York, 
 239, note. 
 
 Debating, not known in Roman senate, 
 189, note ; cannot take place in mass- 
 meetings, ibid. 
 
 Deciduous institutions, 319. 
 
 Declaration of Independence of the 
 United States, in full, 498 and sequ. 
 
 Decree of March 22, 1852, to regulate 
 " the relations of the legislative corps 
 with the president of the republic 
 and the council of state," 582. 
 
 Defensors, of prisoners, 240. 
 
 Definitions of Liberty, 26 and sequ. 
 Difficulty to defend it, ibid. 
 
 Delegated powers, those which are 
 not positively delegated are reserved 
 for the people by the Constitution of 
 the United States, 161. 
 
 Demagogues, 338. 
 
 Democracy, Aristotle's opinion on ex- 
 treme, 156; absolute, or in the agora, 
 hostile to liberty, 167. 
 
 Democratic absolutism, 156. 
 
 Democratic might, divine right and, 
 366. 
 
 Deputative government of the middle 
 ages, 164. 
 
 Despots, brilliant, their danger, 26. 
 
 De Tocqueville and De Beaumont, on 
 the abuse of pardoning in the United 
 States, 438. 
 
 Divine right and democratic might, 
 366. 
 
 Division of government into three 
 branches, 150. 
 
 Division of power, contrary to abso- 
 lutism, 275. 
 
 Dixon, C. G., Sketch of Maiwara, etc., 
 169, note. 
 
 Doge of Venice, his election, 178. 
 
 Dragonnades, under Louis XIV. See 
 Army, Soldiers, etc. 
 
 Dred Scott case, 262, note. 
 
 Duke's laws, 238. 
 
 Dumont, concerning absence of par- 
 liamentary practice in French Revo- 
 lution, 190. 
 
 EBRINGTON, Lord, 283, note. 
 
 Education alone, no basis for liberty, 
 299. 
 
 Egress and regress secured by Magna 
 Charta. See Locomotion, Right of, 
 and the Charter itself, in Appendix. 
 
 Election alone not liberty, 32 ; of the 
 chief ruler, does not establish a re- 
 public, or liberty, 150, note; direct 
 and indirect, 174; in electors to elect 
 President of United States, 175 and 
 sequ; circuitous elections in the mid- 
 dle ages, 178 ; management of elec- 
 tions must not be in the hands of the 
 executive, 179; of chief does not 
 establish liberty, 286 ; not allowing 
 to choose, 386 ; paper on it, Appen- 
 dix, 413 and sequ. 
 
 Elections, ex post facto. See Ex post 
 facto Elections. Conditions to make 
 them valid, 414. Question must have 
 been freely discussed, ibid. Absence 
 of the army, 414 and sequ ; must be 
 carried on by election institutions, 
 415; returns must be protected 
 against falsification, ibid. ; the per- 
 son on whom the voting takes place 
 must not have the supreme power, or 
 it must be possible to make him obey 
 the issue, ibid. ; there must be two 
 things to vote upon, ibid. ; the power 
 claiming the election must not have 
 committed a political crime, ibid. ; 
 must be on things subject to public 
 opinion, 416. Election of patron 
 saint, 416, note. Congratulations 
 crowding on Cromwell after having 
 dissolved parliament, 418; they did 
 not express English public opinion, 
 ibid. Election statistics, ibid. Quali- 
 fied voters abstain in proportion to 
 the general privilege of voting, 419; 
 twenty-five per centum a small num- 
 ber of abstainers, ibid. If qualified 
 voters more than two or three thou- 
 sand, one-half voting shows com- 
 mon interest, 420 ; voting on men 
 draws more votes than voting on 
 measures, ibid. French have never 
 voted no on proposed constitutions, 
 consuls or emperors, ibid. Election 
 of Napoleon I., 421. How many 
 Athenians usually voted, ibid. Os- 
 tracism, 421, 422. Instances of 
 number of abstainers, 423 and sequ 
 Official statement of election after 
 French coup d'etat, 427 ; cannot be 
 correct, ibid. 
 
 Electors of President of the United 
 States, 175. 
 
 Eleutheria, 29. 
 
 Emigration, 93 and sequ. Amount of 
 capital carried off by emigrants, 94. 
 
 Enacted or written constitutions, 265.
 
 INDEX. 
 
 613 
 
 England, her service in the cause of 
 freedom, 19 and sequ. Early sepa- 
 ration of justice from administra- 
 tion, 20, note. Her liberty the 
 foundation of ours, 20, 21. Many 
 fortunate circumstances in her his- 
 tory, 48 and note ; becomes the model 
 of liberty for the Continent, 49. 
 
 English a peculiarly jural nation, 451. 
 
 Enlightened absolutism not the best 
 government, 26. 
 
 Enthusiasm no basis of liberty, 299. 
 
 Epistolary communism, 88 and sequ. 
 
 Equality, and Code Napoleon, the es- 
 sence of political civilization, 19. 
 Confounded with liberty, 29. More 
 equality in Asia than in the United 
 States, 30 ; the French seek for lib- 
 erty in it, 281, 282 and sequ; diffi- 
 cult to see what the French mean by 
 it, 285. 
 
 Erskine, Lord, opinion of, on trial by 
 ju>T, 233, note. 
 
 Ethics of the Advocate, 240 and sequ. 
 
 Everett, Edward, opinion of, on impor- 
 tance of parliamentary law and pro- 
 cedure, 189, note; on the French in 
 Canada, and inability of the French 
 to establish governments in foreign 
 parts, 330. 
 
 Every man's house is his castle, 60 and 
 sequ. How it developed itself, 61. 
 Possessing still full vitality, ibid. 
 
 Executive must have a warrant for 
 what it does, 161. 
 
 Ex post facto elections. See Impera- 
 torial Sovereignty, and 413. 
 
 Ex post facto laws, 1 06. 
 
 FABRIK-GERICHTE. See Manufactory 
 
 Courts, 231, note. 
 Fashion, though unanimous, not vox 
 
 populi vox Dei, 402. 
 Federalism characterizes American lib- 
 erty, 258. French hatred of it, 288, 
 
 note. 
 Ferrers, George, member of parliament, 
 
 released from arrest in 1543, 182. 
 Fte of the Eagles, 274. 
 Feudal system, 47. 
 Feuerbach, Manual of the Common 
 
 German Penal Law, 239, note. 
 Fijians take more powder to kill a 
 
 large man, 455. 
 Forchhammer on the Cyclopean walls, 
 
 353, note. 
 Foster, Discourse of Homicide, 1 10, 
 
 note. 
 
 Fox, Charles, Bill on Libel, 235, note. 
 
 Framers of American Constitution, their 
 character, 261. 
 
 Francis, Chronicles and Characters of 
 the Stock Exchange, 146. 
 
 Franklin, Dr., in favor of one house 
 of legislature, 195 
 
 Frederic II., concerning petitions, 123; 
 why should many submit to ">ne ? 
 370. 
 
 Free press, first in Netherlands, 87. 
 Constitution of the United States dis- 
 tinctly establishes freedom of the 
 press, 88. Prohibited by English 
 republican government, 92. 
 
 Freedom, etymology and distinction 
 from liberty, 37 and 38, note. 
 
 Freedom of action desired by all men, 
 25 ; even by despots, ibid. 
 
 Freemen, subjects, and slaves, 26, 27. 
 
 French Constitution of 1793, 531 ; of 
 1851, 576. 
 
 French Charters of Louis XVIII. and 
 of the year 1830, 545 and sequ. 
 
 French idea of liberty and the height 
 of civilization, 157, note. 
 
 French interference, 251. 
 
 French, mistake source of power for 
 foundation of freedom, 197 and sequ. 
 
 French Republic of 1848, Constitution 
 
 of, 555- 
 
 French republicanism strives chiefly for 
 equality, 19. 
 
 French senate, report of, on petitions 
 to change the republic into an em- 
 pire, 588. 
 
 Fronto, letter to Marcus Aurelius, 374, 
 note. 
 
 GALLICAN liberty, 279 and sequ. 
 Court of cassation, ibid. French 
 senate, 281. Sought in equality, 
 ibid. French seek for self-govern- 
 ment in absolute rule of the majority, 
 ibid. Unicameral system, 288. 
 
 Gaza, 210. 
 
 Gendarmerie, no. 
 
 General opinion, mere, worth little as 
 political truth, 417. 
 
 General warrants, 62 and sequ. Lord 
 Mansfield's opinion, ibid. Green- 
 leaf, 63. 
 
 Girardin, Emil, confounded election 
 and liberty, 32; French writer in 
 favor of an undivided public power, 
 150; calls universal suffrage the re- 
 public, 355. 
 
 i iumiettes, Dictionnaire des, 409, note.
 
 614 
 
 INDEX. 
 
 Gottfried, poisoner, 240, note. 
 
 Grayson, moves free river navigation 
 in congress, 268. 
 
 Great cities. See Vaughn. 
 
 Grebo tribe, " patriarchal democracy," 
 287, note. 
 
 Greeks, their definition of liberty, 29. 
 
 Greenleaf on warrants, 63. Collection 
 of cases overruled, 209, note. 
 
 Grey, Sir George, expatriation law, 
 437, note. 
 
 Guards, declared unconstitutional, 114, 
 note. 
 
 Guizot, on absolute monarchy, 155; 
 History of Representative Govern- 
 ments, 318, note; History of Civili-^ 
 zation, 287. 
 
 HABEAS CORPUS, 64; act, Charles II., 
 ibid.; Constitution of the United States 
 prohibits its suspension, 65 ; allows 
 it under certain circumstances, ibid. ; 
 habeas corpus act in full, 483 and 
 sequ. 
 
 Hale, Chief Justice, on misstating au- 
 thorities, 244. 
 
 Hallam, on unanimity of juries, 237. 
 
 Haller, Restoration of Political Sci 
 ences, 349, note. 
 
 Hamilton, W. Gerard, Parliamentary 
 Logic, 192, note. 
 
 Hamilton, Sir William, on origin of 
 vox populi vox Dei, 40x3, note. 
 
 Hammersly, Thomas, banker through 
 whom George IV. and his brothers 
 borrowed Dutch money, 105, note. 
 
 Hampden, 144. Memorials of John 
 Hampden, by Lord Nugent, ibid. 
 
 Harris, Oceana, considered the mere 
 vetoing power in the people the 
 chief protection of liberty, 359. 
 
 Helots and Spartans, 27. 
 
 Henry VIII., even he paid outward 
 respect to law, 20, note. 
 
 Hesiod, quoted by Sir Wm. Hamilton 
 as to origin of vox populi vox Dei, 
 400, note. 
 
 High treason, 79 and sequ. Well- 
 guarded trial for high treason neces- 
 sary for liberty, ibid, and sequ. Com- 
 mon protection of criminals with- 
 drawn from it, 80 ; Constitution of 
 the United States on it, ibid. ; course 
 of its development, 81. Law of high 
 treason a gauge of liberty, 83 ; neces- 
 sary safeguards of a fair trial for high 
 treason, 83 and sequ. The senate 
 
 does not try for it, 85. Neapolitan 
 
 trials for treason, ibid. 
 Hildreth, Theory of Politics, etc., 214, 
 
 note. 
 
 Holt, Lord, doctrine of bailments, 212. 
 Hortensius, Historical View of the Of- 
 fice and Duties of an Advocate, 241, 
 
 note. 
 House, one, of legislature, 194; tried 
 
 in the United States, ibid. 
 Houses, two, of legislature, 194. 
 Howard obtains support of prisoners 
 
 by government, in 1774, 219. 
 Hue, missionary, 123. 
 Hungary, disjunctive constitution of, 
 
 338. 
 
 IMPEACHMENT, American, 85 ; is a po- 
 litical institution, not a penal, ibid. 
 See High Treason. 
 
 Imperatorial sovereignty, 374 and sequ. 
 Roman emperors claimed their power 
 by transfer of popular sovereignty, 
 ibid. Return of the French to the 
 idea, 376. Early Asiatics have the 
 same idea, 378. Peuple-roi, 381. 
 Emperor, centre of democracy, 384. 
 Election of emperors by universal 
 suffrage futile, 385. The Caesar al- 
 ways exists before imperatorial gov- 
 ernment, 386. Recommends itself 
 by substituting democratic equality 
 for oligarchy, 387. 
 
 Impressment of seamen, 66. 
 
 Indemnity, acts of, in England, 112. 
 Not known in the United States, 112, 
 note. 
 
 Independence, Declaration of, of the 
 United States, in 'full, 498 and sequ. 
 
 Independence of the advocate. See 
 Advocate. 
 
 Independence of the judiciary, what it 
 consists in, 203 and sequ. See In- 
 dependence of the Law. 
 
 Independence of the law, 204. What 
 it consists in, 205. Common law 
 necessary for it, 205 and sequ. 
 
 Individual character and its elements, 
 48. 
 
 Individual property, its fullest protec- 
 tion an element of liberty, 101. 
 
 Individual sovereignty, 286; declared 
 by Lamartine, 299. 
 
 Individualism, 101, note. 
 
 Initiative, in legislation, 183. 
 
 Inorganic power of the people not 
 liberty, 367. 
 
 Inquisitorial trial, 218 and sequ; paper
 
 INDEX. 
 
 6l 5 
 
 on it, 451. Influence of the inquir- 
 ing judge, ibid, and sequ; prisoner 
 urged to confess, 452; no cross-ex- 
 amination, ibid. ; no regular indict- 
 ment, ibid. ; character of court and 
 police mingle, ibid. ; cautious de- 
 fence, ibid. ; admits of half proofs, 
 453; illogical character of half proofs, 
 454. Compurgators in Ripuarian 
 laws, ibid. ; in Koran, ibid. Legal 
 truths, 456. Torture, existed very 
 late, 457, note. 
 
 Institute and institution, 305, note. 
 
 Institution, 297 and sequ. Definition 
 of, 300 and sequ. Grown and en- 
 acted institutions, 303 ; definition by 
 Dr. Arnold, 304 ; insures perpetuity, 
 306 ; must be independent, ibid. 
 Greeks had no word for it, 308. Ro- 
 mans reared many institutions, ibid. 
 Old usages called institutions, 310. 
 Necessary attributes of an institution, 
 ibid. ; the opposite to subjectiveness, 
 311; dangers, ibid. ; tendency, 312. 
 Institutional nations, 313; govern- 
 ments, ibid. Gives strength to error, 
 314; effete and hollow ones, 317; 
 deciduous institutions, 319. Institu- 
 tional self-government, ibid. ; Angli- 
 can view of it, 320; its requirements, 
 321 ; its uses and efficiency with ref- 
 erence to liberty, 324. Obedience 
 with reference to institution, 326; its 
 tenacity, 329 and sequ ; its formative 
 power, 330 ; its assimilative and 
 transmissible character, 331 and sequ. 
 Why did the Netherlands not plant 
 colonies which have become inde- 
 pendencies ? 332, note. Its assimila- 
 tive character forcibly shown in the 
 United States, 332. Stability, 333. 
 Its dangers, 337. On conflicts, 340. 
 Institutions bad from the beginning, 
 342. Institutions protect against court 
 profligacy, 350; prevent national en- 
 ergy from being directed exclusively 
 to external increase, 351. Insecurity 
 of uninstitutional governments, 363 
 and sequ. Institutions survived Eng- 
 land's revolutionary absolutism, 363. 
 Democratic inorganic masses hostile 
 to, and in favor of monarchy, 368. 
 
 Institutional liberty, 300 and sequ. 
 
 Institutors, the greatest rulers are, 316. 
 
 Institutum, does not exactly correspond 
 to our word institution, 307, note. 
 
 Interference, French, by government, 
 251. 
 
 Interpretation, unavoidable, 205. Papal 
 power against it, 206, note. Civil law 
 against it, 206. Locke against it, 
 207. Bavarian code, 208. 
 
 JAMES II. subverting constitution ap- 
 parently in favor of liberty, 387. 
 
 Jefferson, Manual of Parliamentary Prac- 
 tice, 192, note. 
 
 Jeffreys-, Lord, even he for allowing 
 counsel to prisoners, 240. 
 
 Johnson, Dr. Samuel, Considerations on 
 the Corn-Laws, 192, note. 
 
 Judge-made law, 210. 
 
 Judiciary, independence of the. See 
 Independence of the Judiciary. 
 
 Jugementsadministratifs, in France, 217. 
 
 Julius Caesar, 376. 
 
 Junkerthum, appellation of a German 
 party, 118. 
 
 Justice of the peace, English, 322 ; 
 French, 280. 
 
 KEEPER of the Seals. See Chancellor, 
 Lord, of England. 
 
 King, Rufus, in connection with Ameri- 
 can free river navigation, 267. 
 
 King's Bench, its power, 359. 
 
 King's Notes on the Voyage of the Mor 
 rison, III, note. 
 
 Kingless polity not necessarily a re- 
 public, 355. 
 
 Kingly commonwealth, name given by 
 Dr. Arnold to English polity, 354. 
 
 LAMARTINE, in favor of one house of 
 legislature, 196; speaks of division 
 of sovereignty into two parts, 196, 
 note; changed his opinion in 1850, 
 197, note; his circular in 1848, 299; 
 on patience in politics, 352. 
 
 Latinism and Teutonism, 293. 
 
 Law, peculiar meaning of the term in 
 England, 20, and note ; above crown, 
 20, 203 ; supremacy of, 106 and 
 sequ, 273 ; independence of the, 204 
 and sequ. 
 
 Layard, Nineveh, 339, note. 
 
 Legare, Hugh, on Civil Law, 212, note. 
 
 Legislative corps, French, decree direct- 
 ing its intercourse with the execu- 
 tive, etc., 583. 
 
 Lemoisne, Wellington from a French 
 point of view, 325, note. 
 
 Lesbian Canon used by Aristotle to 
 explain what psephisma ought to be, 
 353, note. 
 
 Letters, sacredness of, not acknowl-
 
 6i6 
 
 INDEX. 
 
 edged in France, 89 and sequ. Case 
 of Mr. Coetlogon, 92, note. Opened 
 by French police and judgment given 
 by French courts on the act, 161, note. 
 
 Lettre de cachet, 65. 
 
 Liberians traditionally institutional, 330. 
 
 Libertas, meaning abolition of royalty, 
 28 ; of the Romans, 42. 
 
 Liberties, confirmation of, 470 and sequ. 
 
 Liberty, may exist without republican- 
 ism, 256 ; civil liberty, proved by con- 
 traries, 270 and sequ ; admired by 
 many in the abstract, disrelished in 
 reality, 285; election of the chief 
 does not establish it, 286 ; can it be 
 enjoyed by the Anglican race alone ? 
 291; how people are prepared for it, 
 292 ; institutional, 300 and sequ ; sup- 
 ported and promoted by institutions, 
 324; saying of Napoleon III., that 
 liberty never aided in founding a 
 durable edifice, 335; cannot develop 
 itself out of despotism, ibid. Liberty 
 is not a mere negation of power, 359; 
 wealth made compatible with liberty, 
 361; inorganic power of the people 
 not liberty, 367. 
 
 Lieber, Popular Essay on Subjects of 
 Penal I,aw, etc., 72; letter to W. C. 
 Preston on international copyright, 
 92, note ; Essays on Labor and Prop- 
 erty, 101, note, 383; Principles of 
 Interpretation and Construction in 
 Law and Politics, 205, note ; Ency- 
 clopredia Americana, 213, 570; Char- 
 acter of the Gentleman, 245 ; on 
 Independence of Justice and Free- 
 dom of Law, (in German,) 204, note ; 
 Legal Hermeneutics, etc., 206. 
 
 Liverpool, Lord, considers cabinet min- 
 isters responsible to parliament and 
 the public, 160, note. 
 
 Locke, for the division of power, 150; 
 against interpretation of law by courts, 
 207 and sequ ; against unanimity of 
 juries, 238. 
 
 Ix>cootion, right of, 87 and sequ, 93 
 and sequ. 
 
 London, police of, 297 ; though larger 
 than Paris, does not lead England, 392. 
 
 Longevity of modern states, 362. 
 
 Lynch law, 82. 
 
 MACAULAY, Lord, opinion on want of 
 written guarantees when Charles II. 
 was restored, 329. 
 
 Machiavelli, on new governments, 357, 
 note. 
 
 Madiai family, 98. 
 
 Magna Charta of King John, in full, 
 458 and sequ; of Henry III., etc., 
 in full, 470 and sequ. 
 
 Majority, rule of, mistaken for self-gov- 
 ernment, 282. 
 
 Malta, Knights of, election of the mas- 
 ter, 178. 
 
 Mandarinism, 165, note. 
 
 Mansfield, Lord, on warrants, 62 ; letter 
 to a Scottish judge, on alterations to 
 be made by courts, 215, note ; on the 
 case of Rev. Dr. Dodd, 437, note ; 
 calls Socrates the greatest of lawyers, 
 242. 
 
 Marcus Aurelius, letter from Fronto to, 
 374, note. 
 
 Market democracy, irreconcilable with 
 liberty, 167. 
 
 Mars, Mademoiselle, her saying, 405. 
 
 Marshall, Chief Justice, on treason, 81. 
 
 Martial law, executive must not have 
 the sole power of declaring it, 108. 
 In England, by act of parliament, 
 ibid. Under what circumstances the 
 Constitution of the United States 
 permits suspension of habeas cor- 
 pus, 65. 
 
 Masaniello, sepulchral inscription in 
 honor of, 377, note. 
 
 Merchants, London, their spirit towards 
 Napoleon III., 58, note. 
 
 Michel, advocate, 381. 
 
 Michigan, abolishes, in 1859, grand 
 jury, 256. 
 
 Migration of nations, modern, peaceful, 
 21. 
 
 Milton against censorship, 92. 
 
 Ministers, responsible. See Responsible 
 ministers, 159 and sequ ; ministers of 
 the crown had a seat in both houses, 
 even if not members, under the two 
 charters, 183. 
 
 Minority, protected, important to lib- 
 erty, 31; its protection a necessary 
 element of liberty, 148 ; to be repre- 
 sented by mode of voting, 176; to 
 be represented by a mode of election, 
 177, and note. 
 
 Miot, Count, memoirs, account of Na- 
 poleon's attempt to abolish jury, 253, 
 note. 
 
 Miot, Count, with reference to senatus- 
 consultum, 317, note. 
 
 Mirmont, de la Ville de, observations 
 on pardoning for good conduct, 448, 
 note. 
 
 Mittelberger, Gottlieb, seven weeks
 
 INDEX. 
 
 617 
 
 chiefly on the Rhine, from Swabia 
 to Rotterdam, 267, note. 
 
 Mittermaier, opinion of, on importance 
 of penal trial, 69 ; on independence 
 of advocates, 240, note. 
 
 Mobs, 407 and sequ. 
 
 Mohl, Robert von, History and Litera- 
 ture of the Political Sciences, 350, 
 note. 
 
 Montaign, executed by commissioners, 
 106, note. 
 
 Montalembert, Count, his trial in 1858, 
 84 ; prosecution against him, why, 
 197. 
 
 Montesquieu, his definition of liberty, 
 33 ; English liberty his model, 49 ; on 
 penal trial, 69 ; on division of power, 
 150; on despotic power, 152. 
 
 Moral reduplication, case of, 311. 
 
 Mormonism no republic, 288. 
 
 Mormons, 99 and sequ. 
 
 Morny, A. de, letter of, to the pre- 
 fects, concerning the character of 
 French imperial government, 605. 
 
 Morpeth, Lord, Earl Carlisle, I2l,note. 
 
 Muffling, Baron, Campaign of 1813 
 and 1814, edited by Col. P. Yorke, 
 328. 
 
 Mutiny bill, in England, keeps army 
 under control of parliament, 1 14. 
 
 Mutual toleration necessarily connected 
 with liberty, 54. 
 
 NAPOLEON I., on the French love of 
 equality, 283 ; his device, " every- 
 thing for the people, nothing by the 
 people," 250; attempts to abolish 
 jury, 253, note. 
 
 Napoleon III., his testimony in favor 
 of English personal liberty, 65 ; when 
 in exile, wrote against passports, 96, 
 note ; prohibits the sale of printing 
 presses and types, 272 ; declares the 
 history of nations the history of their 
 armies, 274; congratulates France 
 that it enjoys indigenous institutions, 
 293 ; saying regarding liberty being 
 incapable of founding durable edi- 
 fices, 335 ; " in crowning me, France 
 crowns herself," 355, note; speech 
 on opening the Louvre, on the repre- 
 sentative character of great public 
 buildings, 390, note; declared the 
 savior of civilization, 39^ 
 
 National and city states, 360 and sequ. 
 
 National guards, 290. 
 
 National independence an element of 
 liberty, 56 and sequ. 
 
 National representation necessary for 
 
 liberty, 168. 
 
 National states, 1 68 and note. 
 Nationalization, 47. 
 Natural courts, 107. 
 Navy not dangerous to liberty, 114. 
 Netherlands ruined by disjunction, 169, 
 
 note. 
 Netherlands, why did they not plant 
 
 independent empires? 332, note. 
 Niebuhr, B. G., Administration of 
 
 Great Britain, by Baron von Vincke, 
 
 edited by, 321, note. 
 Nobility, its absence in America, when 
 
 the revolution broke out, prevented 
 
 civil war, 257 ; none in England, in 
 
 point of law, 348, note. 
 Nomos and psephisma, 353, note. 
 Nugent, Lord, opinion of, on the right 
 
 of granting supplies, 144. 
 
 OBEDIENCE, in connection with institu- 
 tion, 327. 
 
 Oceana, Harris's, 338, note. 
 
 Occidental, contradistinguished from 
 Oriental, 22. 
 
 Odo, yielding his consent to be Arch- 
 bishop of Canterbury, in connection 
 with vox populi vox Dei, 400, note. 
 
 Omnipotence of parliament, 368, note. 
 
 One-hour rule, 133, note. Council of 
 Trent adopted half-hour rule, ibid. 
 
 Opposition, necessary element of lib- 
 erty, 148 and sequ ; its development 
 in England, 149. 
 
 Oral discussions, 128; necessary to 
 liberty, 129. 
 
 Ordinance of I3th July, 1787, declaring 
 American rivers free, 268. 
 
 Oregon, meeting of settlers, when con- 
 gress had failed to provide for them, 
 194. 
 
 Ostracism, how many votes polled, 421. 
 
 Otis, James, first proposes to hold pub- 
 lic deliberations of legislature, 131, 
 note. 
 
 Ouvrier, or workman, in 1848, 382. 
 
 PALEY, definition of liberty, 34 ; idea 
 of penal law, 72, note. 
 
 Palmerston, Lord, declaration in 1853 
 that England will protect political 
 exiles, 56; his complacency to Na- 
 poleon punished by the commons in 
 1859, 57; on pardoning, 449. 
 
 Papal interference not suffered in Eng- 
 land at an early period, 59. 
 
 Pardon, a real veto power, 202.
 
 6i8 
 
 INDEX. 
 
 Pardoning, abuse of, paper on it, 431 
 and sequ. Resembles the ancient 
 veto, ibid. Origin of pardoning 
 power, 432. Asiatic despots divest 
 themselves of it, ibid. Chardin 
 speaks of it in Persia, 433. Authors 
 against pardoning, especially Bec- 
 caria, 434. It cannot be dispensed 
 with, ibid. Supremacy of the law 
 invaded by unjust and licentious par- 
 doning, 435. It unsettles reliance on 
 law, 436; destroys certainty of pun- 
 ishment, ibid. ; Shakspeare against 
 it, ibid. ; interferes with reform of 
 criminals, ibid. ; imports criminals 
 from abroad, ibid. ; induces people 
 to petition for it who know nothing 
 about its character, ibid. ; sends crimi- 
 nals abroad, 437 ; places arbitrary 
 power in the hands of an individual, 
 ibid. Lord Mansfield, on Rev. Dr. 
 Dodd, 437, note. De Beaumont and 
 De Tocqueville, on pardoning in the 
 United States, 438. Mathew Carey 
 on it, 439. Taking money for par- 
 doning, ibid., and note. Pardoning 
 in Massachusetts, 440. Averages in 
 penal matters, 442 ; their insuffi- 
 ciency, 443, note. How to abolish 
 the abuse of pardoning, 44/1. Re- 
 striction in the French constitution 
 of 1848, 442, note. Attention not yet 
 sufficiently directed to it, 445, note. 
 Legislature no proper body for par- 
 doning, 446. Requisites of a proper 
 board of pardoning, 447. Restitu- 
 tion different from pardon, 448. Lord 
 Palmerston on pardoning, 449. 
 
 Paris, its influence on account of cen- 
 tralization, 389; dictates in every- 
 thing. 393- 
 
 Parliament, British, distribution of seats 
 in, 172, note. 
 
 Parliamentarism, term coined by the 
 French, 289. 
 
 Parliamentary law, 185 and sequ ; is 
 part of common law, 187. Ancients 
 had it not, 189. 
 
 Parliamentary liberty derided, 18, 317. 
 
 Parliamentary procedure, 188; Judge 
 Story on its importance, 193. 
 
 Parties and party government, 148. 
 Their dangers, 149. 
 
 Passports, dislike of them by our race, 
 96. 
 
 Patience in politics, 352. 
 
 Patriotism not national vanity, 294. 
 
 Patron saint, election of, 416, note. 
 
 Payne, Rev. Mr., on the Grebo tribe, 
 288, note. 
 
 Peerage is not nobility, 348, note. 
 
 Penal law of England formerly very 
 cruel, but not the trial, 219. 
 
 Penal laws, according to Montesquieu, 
 determine liberty, 34. 
 
 Penal trial, well-secured, necessary for 
 liberty, 68. Montesquieu on it, 69. 
 Ancient, 70; French, 71. Not a fa- 
 vorite topic of lawyers, ibid. ; requi- 
 sites of a sound penal trial, 71 and 
 sequ. Dangers of putting questions 
 to prisoners, 74. Questioning was 
 formerly allowed in England, ibid. ; 
 reasons against it, 75. No man to be 
 tried twice for the same offence, 76. 
 As important as penal law itself, 219. 
 
 People, the different meanings of the 
 term in different countries, 346. In 
 England and America, an honored 
 word, 347. Confusion of the people 
 and some people, 347, note. The 
 people "never violate the constitu- 
 tion," 381. What does the term 
 mean in " vox populi vox Dei" ? 398, 
 405. 
 
 Personal liberty, its guarantees, 59. 
 
 Persons and papers, power of sending 
 for, 1 88. 
 
 Petition, right of, 121 and sequ. Con- 
 sidered lightly by an American states- 
 man, 121. In Russia, 122 ; in China, 
 123. In Prussia, under Frederic II., 
 ibid. No demonstrations of physical 
 force ought to accompany it, 123. 
 
 Petition of Right, in full, 478 and sequ. 
 
 Petre, Hon. Mrs., and Silby estate 
 affair, 95, note. 
 
 Peuple tout-puissant, 299, 368. 
 
 Philips, in the Courvoisier case, 245, 
 note. 
 
 Pickering, Timothy, letter to Rufus 
 King, urging free river navigation, 
 268. 
 
 Pigott, Sir Arthur, repudiating for the 
 Prince of Wales, 105, note. 
 
 Pitt, his last words on England's self- 
 reliance, anecdote related by Wel- 
 lington, 251. 
 
 Pius IX., Pope, uses " vox populi vox 
 Dei," 406. 
 
 Plato's Republic, 44. 
 
 Plumper, in elections, 177. 
 
 Plutarch, influence of, in France, 372. 
 
 Police governments, 91. 
 
 Polignac, Duke of, charge against him, 
 179, 385-
 
 INDEX. 
 
 619 
 
 Political offence, 79. 
 
 Pope Pius IV., against interpretation, 
 206, note. 
 
 Popular absolutism, 373. 
 
 Popular unrestrained power, opposite 
 to self-government, 388. 
 
 Power, its " impotency," Napoleon's 
 saying, 253 ; too much growth of, 
 can only be prevented by institu- 
 tions, 357; necessary for government, 
 358 ; mere negation of, no security 
 for liberty, 366; its origin has no 
 connection with liberty, 371 ; neces- 
 sity of giving some fair account of its 
 basis, 379. 
 
 Practice, parliamentary, 189. 
 
 Practice, so-called, in German courts, 
 
 215- 
 
 Precedent, element of all development, 
 208. Necessary to liberty, 209. Lib- 
 erty stands in need of, 276. 
 
 Preferential voting, 177, note. 
 
 Preston, Wm. C., letter to, on inter- 
 national copyright, 92, note. 
 
 Price, Dr., his definition of liberty, 28; 
 Turgot's letter to him, 195. 
 
 Principate, or erown, 49. 
 
 Private property acknowledged by the 
 French constitution, 103. 
 
 Procedure, parliamentary, 188; absence 
 of it in the French revolution, 190. 
 American habit of, 191. French 
 work on it, by Vallette and St. -Mar- 
 tin, 191, note. 
 
 Proclamation of Napoleon, president 
 of the republic, preceding the con- 
 stitution which became the imperial 
 one, 571. 
 
 Property, transmission of, by inheritance, 
 101. Unimpeded exchange and ac- 
 cumulation, elements of liberty, 102. 
 Protected by the Constitution of the 
 United States, 103. Basis of repre- 
 sentation, 171 andsequ. What is really 
 meant by it, 173. Consisted chiefly in 
 land, in the middle ages, 174. 
 
 Propter vitam vivendi perdere causas, 
 
 253- 
 Proudhon, no one less democratic than 
 
 the people, 369. 
 Proverbs, voice of the people, but not 
 
 of God, 406. 
 Proxy voting, 177, note. 
 Psephisma and Nomos, 353, note. 
 Psychical reduplication, 192. 
 Public, derivation of the word, 130. 
 Public funds must be under control of 
 
 the legislature, 143. 
 
 Public opinion differs from general 
 opinion, or passion, 387. 
 
 Public trials, criminal, in Naples, 21. 
 
 Publicity, in justice and legislation, 
 saved by England, 21, 127 and sequ. 
 What it consists in, 128. Of courts 
 of justice, not guaranteed by positive 
 law in the United States or England, 
 130. First distinctly authorized for 
 the legislature in Massachusetts, 131. 
 Public speaking necessary, and the 
 ornament of liberty, 133. To read 
 speeches in legislatures an evil, 134. 
 Hostility of absolute governments to 
 publicity, ibid. Interesting historical 
 account of the introduction of pub- 
 licity in the Senate of the United 
 States, by James C. Welling, 135, note. 
 
 QUARTERING of soldiers, 113 and sequ. 
 Queen of England, called an institution, 
 309- 
 
 RAIKES, CHARLES, Notes on the North- 
 western Province, 128, note. 
 
 Rapp, General, his opinion of Napo- 
 leon, 155, note. 
 
 Raumer, von, Diplomatic Despatches 
 of the Last Century, 352, note. 
 
 Reduplication, psychical, 192; law of, 
 
 3 
 
 Report of the French senate on the 
 petitions to change the republic into 
 an empire, 588. 
 
 Representation, basis of, 171. 
 
 Representative government, 164 and 
 sequ ; differs from deputative govern- 
 ment, ibid. Derided, 18; hated by 
 Rousseau, ibid. 
 
 Representatives must be free, 180; fre- 
 quent election of them, ibid. ; must 
 be protected, ibid. Free from arrest, 
 182. Possessing the initiative, 183. 
 Officers of the United States cannot be 
 members of congress, 183. Are they 
 national, or merely for their constit- 
 uents ? 200. 
 
 Republic and respublica, 42. 
 
 Republic, in 1848, was telegraphed 
 frum Paris to the departments and 
 accepted by return, 393. 
 
 Republique democratique et sociale, 
 284. 
 
 Repudiation, 104. Sir A. Alison on 
 Repudiation, 104 and note. Repu- 
 diation has not been republican, but 
 rather monarchical, 105, note. 
 
 Responsible ministers, 159 and sequ.
 
 620 
 
 INDEX. 
 
 Respublica and republic, 42. 
 
 Right, Petition of, in full, 478 and sequ. 
 
 Rights, Bill of, in full, 492 and sequ. 
 
 Rights of man, 531 and sequ. 
 
 Ripuarian laws, 454. 
 
 Rivers, international question of free 
 navigation of, 266, 267, and note; 
 freedom of their navigation peculiar to 
 the United States, 266. Difficulty in 
 Germany, ibid. ; the Scheldt, 267. 
 Magna Charta regarding rivers, ibid. 
 Ordinance of 1787 declaring rivers 
 forever free, 268. 
 
 Robespierre's "great speech," 275. 
 
 Roman lawyers, their definition of lib- 
 erty, 27. Their dictum of the em- 
 peror's pleasure, 27 and note. 
 
 Romans did not incline to abstraction, 
 307 and sequ. 
 
 Romilly, Sir Samuel, his opinion on 
 putting questions to the prisoner, 74 ; 
 on absence of parliamentary practice 
 in French revolution, 190; on ethics 
 of lawyers, 246. 
 
 Rousseau hates representative govern- 
 ment, 18; his views lead to central- 
 ized government, ibid. ; against divi- 
 sion of power, 151,371 ; his aversion 
 to representative government, 283, 
 note, 289; his Social Contract only 
 establishes unity of power, 371 , his 
 Social Contract the text-book of lead- 
 ing revolutionists in France, 372. 
 
 Royal republic, England called thus, 
 354- 
 
 Ruatan warrant, 177. 
 
 Ruggles, Samuel B., speech on right and 
 duty of American Union to improve 
 the navigable waters, 1852, and me- 
 morial of the canal board and canal 
 commissioners, etc., 1858, 268, note. 
 
 Russell, Lord John, on definitions of lib- 
 erty, 36. His History of the English 
 Government and Constitution, ibid. 
 
 Russia, insecurity of her rulers, 364. 
 
 SANDERSON, English casuist, 400, note. 
 Sardanapalus, inscription on his tomb, 
 
 339- 
 
 Scheldt, navigation of the, 267. 
 Schmidt, I. J., Translation of History 
 
 of the East Mongols by Ssanang 
 
 Ssetsen Changsaidshi, 378. 
 Scott, General, his conduct when the 
 
 government of Mexico was offered to 
 
 him, 325 ; his own statement, 325, 
 
 326, note. 
 Secret political societies, 135. 
 
 Sejunction of the Netherlands, 337. 
 
 Self-accusation, principle of, in China, 
 7 6. 
 
 Self-development of law, 215 and sequ. 
 
 Self-government, 247 and sequ. His- 
 tory of the term, 247, 248, note ; is 
 organic, 249. 
 
 Self-government, saved by England, 
 21; the word belongs exclusively to 
 the Anglican race, ibid. 
 
 Self-government, the fittest govern- 
 ment for man in his nobler phase, 
 252; frequently not brilliant, yet 
 more efficacious, ibid. ; prevents gov- 
 ernment from becoming its own end, 
 253; has an element of federalism, 
 289. See also De Tocqueville. Does 
 not consist in denying power to 
 government, 298. Institutional self- 
 government, 319. Popular absolutism 
 opposite to self-government, 388. 
 
 Self-incrimination, 73. 
 
 Semper ubique, 403, note, and sequ. 
 
 Senatus-consultum, a term smuggled in 
 by Napoleon I., 317, note; the whole 
 senatus-consultum restoring the em- 
 pire, 602. 
 
 Separatism, 170, note. 
 
 Septennial bill, introduced in France 
 by Viliele, 181 ; in England, ibid. 
 
 Sewell, Rev. William, Christian Poli- 
 tics, 309, note. 
 
 Sheriff, killing him by resistance, if his 
 warrant is not legal, constitutes man- 
 slaughter only, no. 
 
 Silby Estate affair, 95, note. 
 
 Silence made punishable, 93. 
 
 Single-Speech Hamilton. See Hamil- 
 ton, IV. Gerard. 
 
 Slaves, subjects, and freemen, 26. 
 
 Smith, T. Toulmin, Local Self-Govern- 
 ment, 321, note. 
 
 Socialism, 102, note. 
 
 Socrates, called by Lord Mansfield the 
 greatest of lawyers, 242. 
 
 Soldan's History of the Witch-Trials, 
 82, note. 
 
 Soldiers. See Army, Quartering of 
 Soldiers, 113 and seqa. 
 
 Sovereignty, what it consists in, 152; 
 confounded with absolute majority, 
 286 ; of the individual, ibid. 
 
 Sparta, favorable view of, by ancient 
 philosophers, 43. 
 
 Spartans and Helots, 27. 
 
 Speaker of the English Commons, 185 ; 
 under the French charter, 186; in 
 America, ibid.
 
 INDEX. 
 
 621 
 
 Sprenger, Malleus Maleficarum, 403. 
 Ssanang Ssetsen Changsaidshi, History 
 
 of the East Mongols, translated by 
 
 Schmidt, 378. 
 Stability of institutional government, 
 
 333- 
 
 Standing armies. See Army. 
 
 State, an extensive territory with fixed 
 population and independent govern- 
 ment, a modern idea, 47. 
 
 Statistics of elections, 418 and sequ. 
 
 St -Just, liberty of a negative character, 
 
 359- 
 
 St. -Martin, French work on parlia- 
 mentary procedure, etc., 191, note. 
 
 Story, Judge, on importance of par- 
 liamentary procedure, 193; on codi- 
 fication, 207. 
 
 Subjects, slaves, and freemen, 26. 
 
 Substitute voting, 177, note. 
 
 Substitutes for representatives, not used 
 in the Anglican system, 178. 
 
 Supplies by legislature, always shunned 
 by absolute rulers, 273. See Taxa- 
 tion. 
 
 Supremacy of the law, 106 and sequ ; 
 requires that officers of government 
 remain personally answerable, 108; 
 only English and Americans have 
 this principle, ibid. ; whether the 
 principle has been carried too far, 
 no. 
 
 Suspects, law of, 73, note. 
 
 Suspensive veto, 202, note. 
 
 Sweden, legislature of, 290, note. 
 
 Swiss, dependence of, 57. 
 
 TAXATION, right of self-taxation, 103 ; 
 Declaration of Independence con- 
 cerning taxes without consent, 144; 
 merely denying taxes is not liberty, 
 ibid. ; appropriations should be short, 
 145 ; French imperial constitution 
 demands appropriations en bloc, ibid. ; 
 history of English supplies, ibid. ; 
 civil list, 146. 
 
 Teutonic spirit, its relation to Anglican 
 liberty, 53. 
 
 Teutonism and Latinism, 293. 
 
 Theo-democracy of the Mormons, 287. 
 
 Titmann, F. W., Descriptions of the 
 Grecian Polities, 31. 
 
 Tocqueville, de, Ancien Regime, 196, 
 note ; opinion of, on centralization of 
 France and its insecurity, 254; on 
 the general character of the French, 
 from his Ancien Regime, 254, note. 
 
 Torture, existed very late, 457, note. 
 
 Townsend, History of the House ot 
 Commons, 187. 
 
 Transportation, decreed by the dictator 
 in France, 73, note ; expatriation, 
 etc., almost always resorted to by 
 absolutism, 275. 
 
 Treason. See High Treason, Trial for. 
 
 Trench, Lessons in Proverbs, 406. 
 
 Trial by jury, 232 and sequ ; Declara- 
 tion of Independence regarding its 
 denial, 233 ; some Americans desire 
 its abolition, 233, note ; its advan- 
 tages, 234; Lord-Chancellor Cran- 
 worth's opinion on it, 236. See 
 Unanimity. 
 
 Trial, Penal. See Penal Trial. 
 
 Tribune, Roman, his veto, 2OI. 
 
 Troplong, President of the French 
 senate, on democracy ascending the 
 throne in the Roman Ccesars, 377 ; 
 remarkable state paper by, 588 and 
 sequ. 
 
 Turgot, on Anglican polity, 195 ; 
 against two legislative houses, ibid. 
 
 Turks, do not assimilate with conquered 
 people, 333. 
 
 Turncoats, Dictionary of, 409, note. 
 
 Tyler, Samuel, author of First Report 
 of Commissioners, etc., 196, note; 
 writer on philosophy, ibid. 
 
 UNANIMITY of juries, Hallam's opin- 
 ion, 237. Locke against it, 238. 
 Duke's laws demanded it in capital 
 cases only, 238. 
 
 Unanimity principle in the Netherlands, 
 337, note. 
 
 Unarticulated masses, 387. 
 
 Unicameral system, 194, 288, 290. 
 
 Uniformity extending among civilized 
 nations, 295 and note. 
 
 Uninstitutional governments insecure, 
 363 and sequ. 
 
 Union, the loyalty of an American 
 centres in it, 354, note. 
 
 United States, important situation of, 
 regarding the progress of civiliza- 
 tion, 21 ; Constitution of the, 514 
 and sequ. 
 
 Unity of power, the Gallican type, 151. 
 French pamphlet, ascribed to Napo- 
 leon III., in favor of it, ibid. Is 
 absolutism, 152. Is brilliant, 153. 
 Montesquieu on it, ibid. In democ- 
 racy always leads to monarchy; de- 
 sired in France ; De Tocqueville on 
 it, 196, note. 
 
 Universal suffrage, Rousseau regarding
 
 622 
 
 INDEX, 
 
 it, 197. In America, 262. Universal 
 suffrage alone not the basis of liberty, 
 288; called by Girardin the republic, 
 355 ; may support absolutism, 382. 
 
 Upper house, organization of it, 198 
 and sequ. Lord Brougham's opin- 
 ion, 198. 
 
 Usage, in institutional governments, 
 348. 
 
 Utopias always founded on commu- 
 nism, 44, note. 
 
 VALLETTE, French work on parlia- 
 mentary procedure, etc., 191, note. 
 
 Vaughn, Robert, D.D., The Age of 
 Great Cities, 392, note. 
 
 Vertot, History of the Knights of Malta, 
 178, note. 
 
 Veto, 200 ; of the Roman tribune, 201 ; 
 of king and president, 201, 202. 
 
 Vice-president of the United States pre- 
 sides over the senate, 187. 
 
 Villfile, Count, introduced septennial 
 bill, 181. 
 
 Vincke, von, reports a lawsuit about a 
 square foot of land, 260, note. 
 
 Voget, defensor of the poisoner Gott- 
 fried, his opinion on the independ- 
 ence of advocates, 240, note. 
 
 Voting, various proposed modes of, 177, 
 note. 
 
 Vox populi vox Dei, 398 and sequ. 
 Crusades, 399. Unanimity does not 
 prove it, 401. French manufacturers 
 used it against calico-manufacturing, 
 402. Fashion is unanimous, but not 
 V. P. V. D., 402 and sequ ; witch- 
 trials unanimous, 403. Unanimous 
 commercial speculations, 404. The 
 worst passions unanimous, 404. What 
 is the voice of the people, 405. Pro- 
 verbs, voice of the people, but not 
 of God, 406. Pius IX. uses it, ibid. 
 Used chiefly in France after the coup 
 d'etat, 407. Real lover of liberty 
 discards it, ibid. Has no political 
 worth, 408. It enfeebles and unfits 
 for opposition, ibid. 
 
 WALEWSKI, Count, his treatment of 
 
 British merchants, 58, note. 
 Walpole, cabinet member in 1852, on 
 
 the necessity of courts of law deciding 
 on doubts arising from royal procla- 
 mations, 217. 
 
 War, power of making it, in England, 
 147. In the United States, the power 
 belongs to congress, ibid. Where 
 the executive has the real power of 
 making it, civil liberty does not exist, 
 ibid. 
 
 Wardlaw, Judge, opinion on dies non- 
 juridicus, 216. 
 
 Warrant, importance of, 62. Constitu- 
 tion of the United States on warrants, 
 
 63- 
 
 Warrants, general, 62 and sequ. 
 
 Wealth made compatible with liberty, 
 361. 
 
 Webster, on simplicity of despotism, 
 154. Necessity of complicated char- 
 acter of liberty, ibid. 
 
 W'elling, James C., interesting histori- 
 cal account of the introduction of 
 publicity in the senate of the United 
 States, 135, note, and sequ. 
 
 Wellington, does not desire sovereignty, 
 325. Obedience of officers to him, 
 328, note. 
 
 Western, designating Europeans and 
 their descendants, 22, note. 
 
 Wharton, Francis, State Trials of the 
 United States, 85. 
 
 Whately, Archbishop, his view of lib- 
 erty of conscience, and assistance to 
 be given to those who suffer for it, 
 98, note. 
 
 William III., declaration of, regarding 
 liberty of conscience, 99. 
 
 William of Malmesbury, concerning 
 "vox populi vox Dei," 400, note. 
 
 Winthrop, Robert, 131, note. His 
 testimony in favor of publicity of 
 speaking, 133, note. 
 
 Witch-trials, importance of their study, 
 82, note ; unanimous all over Europe, 
 403- 
 
 Witchcraft a crimen exceptum, 82. 
 
 Workman, ouvrier, claims an aristocracy 
 for himself, 382. 
 
 Written constitution. See Enacted 
 Constitutions. 
 
 YORKE, Col. Philip. See Muffling. 
 
 THE END.