1853 LIEBER On Civil Liberty and Self-Government
1853 LIEBER On Civil Liberty and Self-Government
1853 LIEBER On Civil Liberty and Self-Government
CIVIL LIBERTY
AND
SELF-GOVERNMENT.
BY
AUTHOR OF ¢' POLITICAL _rHICS) ') ¢cPRINCIPLES OF L_AL A_qD POLITICAL INTKRPRRTAT[ON, *a
ETC._ R'rC.
PHILADELPHIA:
J. B. LIPPINCOTT & CO.
LONDON:
1883.
Entered, according to Act of Congress, in the year I874, by
MATILDA LIEBElZ,
In the Office of the Librarian of Congress at WashingtOn.
Library
Longwood College
Farmville, Virginia
TO
THIS VOLUME
Is
INSCRIBED
IN KIND REMEMBRANCE
BY THE AUTHOR.
INTRODUCTION
TO
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. Hewas indeed the founderofthis 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
7_ was of the Enghsh, . l.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 _ontemporaries 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 F_DITIOIV. 7
feelings,
and with so little
reserve, isnot thefittestto leavea
genialremembrance and a happy impressionin theminds of
thelargestnumber of men.
Dr. Lieber's.vicissitudes
of life
were ofa kind to cultivate
in
him practicaljudgment concerningpolitical matters.Sharing
in his earlyyouth in that inspiration of patriotism which
drove so many young Germans intothefield, and partaking
of the toilsof theWaterloo campaign,duringwhich,at the
battleof Namur, he was wounded; then returningto his
nativecity,Berlin,to fallunder the suspicionof the govern-
ment on accountof his connectionwith the ardentpatriot
Jahn; next,afterhisgraduationatJena,making hisway into
Greece,as a volunteerin the cause of Greek independence;
thereupon,disappointedand destitute,
takingrefugein Italy,
where thehistorianNiebuhr invitedhim toactas tutorof his
son; thenreturningintoPrussiawithpromisesof protection,
which were fulfilledby hisimprisonment, and gladly,on his
release,
going to London, where he supportedhimselffora
yearby writingand teaching, he at length,in 1827,found a
permanentdomicileintheUnited States.But hereforsome
time he had no fixeddwelling-place. From Boston,where he
stayedfiveyears,he removed to New York in 1832,then to
Philadelphia in 1833,and then,in 1835,acceptedthechairof
History and Political ]Economy in the Universityof South
Carolina.One more transplantation, from thisscene of his
professional aswellasliterary labors,broughthim,aswe have
seen,to New York,in 1858,where he ended hisdays. Thus,
resembling the Greek
,, Qui multorumhornlnummores et vidlt et urbe%"
CHAPTER I.
P _GR
INTRODUCTORY . 17
CHAPTER If.
DEFINITIONS OF LIBERTY. 23
CHAPTER III.
CHAPTER IV.
STATES . 43
CHAPTER V.
ANGLICAN LIBERTY • _ I
CHAPTER VI.
CIIAPTER VII.
BAIL--PENAL TRIAL 6 7
CHAPTER VIII.
HIGH TREASON 79
CHAPTER IX.
CHAPTER X.
PAGE
CHAPTER XI.
CHAPTER XII.
PETITI ON .mAssoCIATION 12 I
CHAPTER XIII.
PUBLICITY . . . 12_
CHAPTER XIV.
CHAPTER XV.
CHAPTER XVI.
CHAPTER XVII.
PARLIAMENTARY LAW AND USAGE.--THE SPEAKER.--Two HOUSES.w
CHAPTER XVIII.
CHAPTER XIX.
JUDGE . 2I 5
CHAPTER XX.
CHAPTER XXI.
P&G_
SELF-GOVERNMENT ...... 247
CHAPTER XXIL
CHAPTER XXIII.
CHAPTER XXIV.
CHAPTER XXV.
CHAPTER XXVI.
CHAPTER XXVII.
CHAPTER XXVIIL
CHAPTER XXIX.
CHAPTER XXX.
CHAPTER XXXI.
CHAPTER XXXII.
PAlm
CHAPTER XXXIII.
EXAMINED. . 38X
CHAPTER XXXIV.
CHAPTER XXXV.
APPENDIX.
APPENDIX I.
Ym oR NO . • 4*3
APPENDIX II.
APPENDIX IlL
APPENDIX IV.
APPENDIX V.
PAGR
THE PETITION OF RIGHT • 478
APPENDIX VI.
AN ACT FOR THE BETTER SECURING THE LIBERTY OF THE SUBJECT_ AND
APPENDIX VII.
1689 . • 492
APPENDIX VIII.
APPENDIX IX.
STATES • 503
APPENDIX X.
APPENDIX XI.
APPENDIX XII.
I830 • _4_
APPENDIX XIIL
APPENDIX XIV.
APPENDIX XV.
PAG_
REPORT OF THE FRENCH SENATORIAL COMMITTEE ON THE PETITIONS TO
APPENDIX XVI.
_852 ...... _5
B
ON
SELF-GOVERNMENT.
CHAPTER I.
INTRODUCTORY.
• These views were laid before the civilized world m a pamphlet, published in
the summer of 1858, welt 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 politlea[ civilization is civil hberty, they take this eode
as the sum of political ciwlization, while it is pecuharly 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 ci_il 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, iustmcfiVelv abhorred everything inclining
toward liberty, even the first germs of freedom ,_
20 ON CIVIL ZIBERTY
* The necessity of a union of the different courts and bodies of the state wa_
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 I648 , when Mazarin strove to annul the arr_t d'umon.
* I do not only allude to such bodies as the French parliaments, but to the fact
that down to this century the continental courts ofjustme 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 Enghsh judge--I do not speak of hl_ 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
Enghsh history, and answer in,a great measure the question so often asked, "Why
is it that France, constituted so much hke 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 file most advanced portions of Spain, at one period,
had a clearer perception of liberty than England had, but are now immeasurably
behmd 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 ac-
_.uired,more forcibly than this very reign of tyranny and royal bloodshed.
AND SELF-GO V.ER_'V_]IEWT. 21
In my Pohtlcal Ethics.
2 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 hi_tory the history of all historically active, non-A_latic nations and
tubes--the history of the Europeans and their descendants in other parts of the
world. In the gloupmg and division of comprehensive subjects, clearness de-
pends in a great measure upon the distinctness of well-chosen terms. Many
students of ciwlization have probably felt with me the desirableness of a concise
term, which should comprehend wnhin the bounds of one word, capable of fur-
rushing 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, Austlaha, 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 w_se 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 natmal contradistinction to Oriental. But Occidental, like Western,
indicates geographical position ; nor did I feel otherwise authorized to use it
here. Europides would not be rea&ly accepted. Japhethlan 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 exprea_ive
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 m 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
robes, in order to group together all the tribes with projecting jaws.
AND SELF-GO V.ERNMENT. 2_t
CHAPTER II.
DEFINITIONS OF LIBERTY.
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 hberty 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. _ He wants it for himself alone. He
* I believe that this has never been shown with greater and more truculent
na_vetdthan by the present King of Dahomey in the letter he wrote to the
Queen of England in _t852. Every case in which an idea, bad or good, is
camed 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 plesents his compliments to the Queen of England.
The presents which she has sent him ale 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, lie
cannot see that he and his people can do without it. It is from the slave-trade
that he delives 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 razzms, in order to carry ot_
eartiv_ for the barracu, or slave market).
26 tIN CIYIL LIBERTY
* Summa divisio de jure personarum haec est, quod omnes homines Rut hberl,
sunt aat servi.--Inst., i. 3.
* Observations on the Nature of Ctml Liberty, etc., by Richard Price, D.D.,
3d ed, Lond., i776.
z Since the publication of the first edition of this work, an article on " Ma-
hometamsm in Western Asia," has appeared in the " Edinburgh Revie_ ," Octo-
ber, x853, in which the Eastern equality as an ingredient of despotlam is illus-
trated by many striking instances from different spheres of hfe. The writer,
who is plainly master of his subject, from personal knowledge, it would appear,
agrees with us that hberty is based on mdiwduality. Indeed, it may be stud
that in a great degree it consists in essentiaI protection of individuality, of per-
sonal rights. The present Emperor of the French felt this when he wrote his
chapter, De la Libert_ individuelle en Angleterre. He was then an exile and
could perceive liberty.
More has been stud on this subject in Political Ethics, and we shall retmn
to it at a later period.
s Descriptions of the Grecian Pohtie% by F. W. Tittmann ; Leipsic, x822.
AWD SELF-GO VERA,'3IENT. 3i
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 bolza 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
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 massacrcs
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 ZDYEI_TY
President Jefferson, and in which many penc11-mark_ 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.
t Mr. Parry, S_ances et Travaux de l'Aead, des Sciences Polltiques et Morales,
July, 1855.
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 OIV CIVIL LIBERTY
z Thatawriter
ofMontcsqmcu's
sagacity
andregardforliberty
should
have
thus
insufficiently
defined
sogreat
asubject,
isnothing
morcthan
whatfrequently
happens. No man is alway_ himself, and Bishop _Berkeley, on Tar _.Vater,
represents a whole class of weak thoughts by strong minds. I do not only agree
with what Sir James Mackintoshsaysin praiseof Montesquieu,in his Discourse
on the Studyof the Law of Nature and Nations,but I would add, that no per-
son can obtaina correctviewof the historythrough which pohtical libertyhas
been led in Europe,or can possessa clearinsight into many cf its details,with-
out making himselfacquaintedwith the Spiritof Laws. His work has doubtless
been of great influence.
* Beginningof the tlRhchapter of Paley'sPolitical Philosophy.
AW.D SELN-GO VER_StlEffT. 35
x Paragraph four.
Paragraph six of the Declaration of the Rights of Men,
36 ON CIVIL LIBERTY
CHAPTER III.
* It will be observed that the terms Liberty and Freedom are used here as
_ynonymes. Originally they meant the same. The German Frelhelt (hterally
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 original
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 distractive terms, freedom means the general, hberty the specific.
We say, the slave was restored to freedom ; and we speak of the hberty of the
press, of civil hberty. 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
s_nse. This appears still more in the verbs, to free and to liberate. The Ger
38 ON CIVIL LIBERTY
man language has but one word for our Freedom and Liberty, namely Freiheit ;
and Frelthum (literally freedom) means, m some portions of Germany, an estate
of a Freiherr (baron). In Dutch, the word Yryheld (literally freehood) is free-
dom, liberty ; while Yrydom (literally freedom) means a privilege, an exemption
from bmdens. This shows still more that these words meant originally the same
[The greater part of this note, relating to the derivation of several wolds
slgmfymgfree, and a note a httle farther on, relating to the connection between
fra 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 _Ze_30epof from the root e;_O,come, or go--a derivation which
J. Grimm and G. Cumus accept, while Benfey, Kirchhoff, and Corssen prefer
to connect the Greek word with the Latin lfber. Ziber, again, seems to have
nothing in common with the German le_b,body, as Dr. Lleber supposed, but is
connected by G. Curtius with hq- in 2dTrrolza¢, a rare Greek word denoting to long
for. There must be a common root, as Grimm thinks, in lfber, l_bet, l bet, and
in German lleben, our love. Prei, free, does not seem to belong to the same root
withfrlede, peace. Comp. Grimm's Deutsch. Wdrterb. 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 earher one of fence, defense, _roteclion.
Comp. einfrieden, to fence or hedge in.]
Autonomeia isliterally translated Self-government, and undoubtedly suggested
the English word 'to our early divines. Donaldson, in his Greek Dictionary
11
AND SELF-GO VERW3/IENT. 39
gives Self-government as the English equivalent for the Greek Autonomy, but,
as it has been stated above, it meant in reahty independence of other states, a
non-colomal, non-provincial state of things. I beg the reader to remember this
fact, for it is s_gnificant 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 ourselve% chiefly, or exclusively, a domestic meaning,
facing the relations in which the individual and home institutions stand to the
state which comprehends them.
* 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
• The repubhc--if, indeed, we can say that an actual and bona fide republic
ever existed m England--was calIed t_e Stage, 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.
It is in a similar sense that Fredigrath, a modern Gen'aan poet, begins one
of his most fervent songs with the line, Die Freiheit ist die Rep,ablik ; that is,
Freedom is the Repubhe. On the other band, 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 corn
mon or pnblic weal or concern.
AND SELF-GO VERWMENT. 43
CHAPTER IV.
z It is a striking fact that nearly all political writers who have indulged m
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-GO VER2VAI"E.NT. 45
z This was written in the year I837. Since then, events have occurred in
France which may well cause the readerto reflect whether,after all, the author
was entirelycorrectin drawingthis peculiar line between antiquityand modern
- times. All I can say in this place is, that the political movementsin France
resemblethe dire imperialtimes of Romejust so far as the French, or ratker the
Napoleonistsamongthem, step out of the broad path o1"modernpoliticalcivili-
46 ON CIFIL LIBERTY
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 re'eul-
slons and ruptures of France. The phase will not be of long duration, and, after
it will have passed, it _ill serve as an additional proof of our p0siuon.
t Plato, Gorg., 7I.
2 For the evidence and proof I must refer to the original. [Dr. Lieber is in
an error in classing generals among the officerschosen at Athens by lot. Comp.
K. F. Hermann, Gr. Staatsalterth.,i. _ I49 ; Sch6mann, Gr. Alterth., i. 422; and
Tlttmann, Staatsverfass., who gives a list of appoimments to office by lot and by
cheirotonia, pp. 3I 1-318.]
Q
AND SELF-GO VERN3IENT. 47
t The history of no nation reminds the student so frequently of the fact that
"' His ways are not our ways," as that of England. lXIanyevents which have
brought rum 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 at 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 polmcal life ; her limited territory ; her repeatecl
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.
.,4WD SELF-GOVERNMENT. 49
CHAPTER V.
ANGLICAN LIBERTY.
z A chronologtcal table of the leading case. 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 growtla of hberty, and how much
this growth is owing to the husbanding of practical cases in the spirit of
freedom.
5I
52 ON CIVIL ZII_ERTt"
which led to its adoption after the failure of the original article5
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 cmtwagd
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
AND SELF-GO V.F_.RNAIENT. 53
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 gentlemauliness meet in requirements and effects.
_6 O.N CIVIL .LIB.EB TY
CHAPTER VI.
* The ease is The Queen vs. Bernard. "lit is, however, in *tsetf right to punish
c.mspiracies against foreign powers, when their base of operahons is within our
58 02¢ CIVIL LIBERTY
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 intlmidati0n.--The English claim to search
our vessels in 1858 was dmtated by the desire to ascertain whether a given vessel
was really of foreign nationality, or an English vessel under false colors.]
z The address and declaraUon of four thousand British merchants, presented in
the month of April, I853, 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 pohce 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. _'hether 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 Walewskl, French Ambas-
sador, in the early part of the year I858, and the manner in which it was re-
ceived, when Orsini had attempted to assassinate the count's master and gousin,
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-GO VERArMENT. 59
* 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 Yarrlba people in Central Africa do not allow their
king to enter a house, even to arrest a crmainal, 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 questxon of maportance 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 intelfere with it. The Chinese have no censorship, but this absence of
censorship is not liberty of the pres_. The Romans cared very little about the
religion of their subjects, (so that they were not Christians,) but this was not con-
stitutional toleration or freedom of worship.
D
AND SELF-GO VERNM-ENT. 6t
i
62 ON CIVIL LZBERTY
z A warrant to apprehend all persons suspected, or all persons guilty, etc. etc,
is iIlegal. 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. I742 , 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, Constat. Hist., ii. chap.
1I.]
AND SELF-GO V.ERNA/IENT. 63
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
outeI 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, wlthout 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,' 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 _rrested, and
may properly prepare for trial. The habeas corpus act did by
no means first establish all these principles, but numberless
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. _
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 :..... 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
CHAPTER VII.
BAIL.DP_-NAL TRIAL,
[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 pelson 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
2o Geo. III. In 1836, by statute of 6 and 7 Win. 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 aceusatorial 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 accusatorml, 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 defens0r 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 martml law seem to be almost permanent.
AWD SELF-GO VER./VAfE_¥ ff, 7i
Penal trials of absent persons ale common in countries where the principles
of the Roman law prevail. They are common in France; and the church l_as
even tried deceased persons for heresy, found them gmlty_ 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 monalch or his government, or an impassioned
populace. Several of the ahnost solemn procedures of lynch law which have
occurred of late in some of our VCestern States, and according to which absent
persons were warned nevel to return to their domicile, are instances in point.
72 ON CIVIL LIBERTY
z The idea expressed by Dr. Paley regarding this point is revolt_ng. He says,
in his Polmcal 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 deglades penal law, from a law founded above
all upon smct principles of justice, to a mere matter of prudential expediency,
putting it on a level _ith military demmatmn.
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.
Tiberius Gracchus erected a temple m honor of Liberty, with a sum obtained
for fines. If the 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 newspape article in a French provincial paper, in I853 , the fol
AND SELF-GO VERNMENT. 73
lowing? " The minister of general police has just decided that Chapitel, sen-
tenced by the court to stx 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, I85I , not a law, but _ 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 hterally and coneetly, whatever the reader may think of
this sentence, which would be very droll, were it not very sad.)
" Article z. The same measure shall be applicable to indlvlduals found to be
guilty of having formed part of a secret society."
The French of the last sentence Is, mdividus reconnus coujba_le d'a_oirfatz
_Oartte d'une soc2d/dsecrOte. This reconnus (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 gmlty by process of law is in French cenvaincre. The
reeonnaltre, therefore, was used m order to include the police or any one else in
authortty. So flaat we arrlve at this striking fact : The despot may add an enor-
mous punishment to a legal sentence, as lu 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 depoitation, to be an unwarranted grievance ; and here
we have at 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 I858 Orsini made his attempt of assas-
sinating t_ce 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 LIBE;,TY
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. B6ranger says, iF
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 ted 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."'
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 a,_ 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/zow 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
The reader will findin AppendixIII. a paper on the subjectof some conti-
nental trlals, and the admission of half and. quarter proof and proportional
punishment
.,qW.D SELF-GO VERW3IENT. 77
z This may be amply seen in the reports on Flench trials, and, among other
works, in Feuerbach's Collection of German Criminal Trials.
See K. Y. Hermann, Gr. Staatsalterth., _ 144.
Memoirs of the Life of Sir Samuel Romilly, 2d ed., London, I84o, vol. il
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 p_osecute ; 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.
_8 ON CIVIL LIBERTY
CHAPTER VIII.
HIGH TREASON.
5" THAT penal trial which is the most important with refer-
ence to civil liberty, and in which the accused itidividual
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: 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
z The American reader ought to keep in mind that the term Political Offence is
ti0n; thus the late French republic abolished capital punishment for pohtical
offenders, and irt the treaty of extradldon between France and Spain, "pohtlcal
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,
I seize t_pon thi_ opportunity of advising every young reader of this work to
study with earnest attention the history of the witch-t, ial% forming, possibly,
with the African slave-trade, the greatest aberraUons of our Cis-Caucasian race.
Such works as Soldan's History of the Witch-Trials [Gesch. der Hexenprocesse,
Stuttgard, I843 ] exhibit the psychology of public and private passion, of crime
and criminal law, m so impressive and instructive a manner, that the sad course
of crime and error having been run through, it ought not to stand ou retold in
vain for us. We learn, in history and in psychology, as m 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 mlcroscop_c
observation of the minute reality around us.
AND SELF-GO I/ERNAIENT. 83
z The American trials for treasou are co_leete6 in Francis YV'harton's State
Trials of the United States, Philadelphla, 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.]
s The reader may be acquainted with the Right Hon, Mr. Gladstone's pamphlet
on Neapolitan trials for treason, published in i85I. It is but a sample.
86 ON CIUIL LIBERTY
z 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 thexr 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-GO VERNMENT. 87
CHAPTER IX.
COMMUNION.--LOCOMOTION, EMIGRATION.
t The first fair play was given to a free press in the Netherlands.
88 OW CIVIL ZIBERTY
= The law of the United States prohibits any private pezson periodically and
regularly to carry letters, and also to carry letters in mail ships.
[= 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.]
s 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; m other cases the state
legislature have decreed punishments for propagating abolition papers. Thus.
90 OW CIVIL LIBERTY
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. I
x In the decision of the appellate court in the same case we find this to be the
chief argument, that government estabhshes post-offices, and cannot he 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 marl 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 as more, the
right of establishing post-officesis 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 republie
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 solt 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 eivlhzation and united progress, and the question xs 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 corot of cassation, "all chain-
92 ON CIPTL LIBERTY
bets united," decided, in the last resort, that in the case of Co_tlogon, 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 Courtier des 2Ftats-
Unis, New York, December 12, I853.
z [Several corrections are necessary m this and the preceding paragraph. The
long,_arliament--not lhe commonwea]lh--passed an ordinance June 1I, I643,
for restraining the hberty of the press, and to strengthen some former orde_
made for that purpose. This led to Milton's Areopagitica, published in Novem-
ber, 1644. Afterwards, September 2I, 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-
bert's Pad. Hist., iii. pp. 131, 132, 78o. In I662 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. oa Hist., ii. lect. 22 ;
Macaulay's Hist., iv. 348, et seq., 54I.]
AND SELF-GO VER_'JI£.¥T. 93
x On the other hand, an immense amount of capital annually returns, from suc-
cessful emigrants in the United States, to Ireland and Germany. Pe_son_ x_ho
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 tolhng sisters and brothers in Europe. .4. wlde-apread 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 emign-ation 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 l anks, into which the}"naturally flow, to the
New York banks, to be sold to the specie-broker, who sells them for shipment
back to Fiance, Germany, or England. The Banks of New York, by T. S. Gib-
bons, New York, I859.
In the Prussian constitution of I85O, 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 time of war, or deserting one's country m
its perils, may be perfectly just. Comp. the Oration of Lycurgus against Leocra-
tes, e.g. §§ H, x6.]
A.'UD SELF-GO VERW, klEA'T. 95
• The papers of September, I853, reported that " the Silby estate, belonging
to the Hon. Mrs. Petre, has been sold to Lord Londesborough for _27o,ooo.
Mrs. Petre, whose property was left by her husband entirely at her own disposal,
has taken the veil in a nunnely in France, which will of course receive the wilole
of her fortune."
This emigration of more than a million of dollars, and serving for the purpose
of a religtou_ commumty not favored by the country whence it emigrates, (not
to speak of the actual drott d'aubaine in France before the revolution,) indicates
a great atlvance of civilization, and would not be allowed in several countries.
[The law_ of civilized states, however, may properly limit or forbid the acqmsmon
of property in mortmain or by rehgious corporations. And if within a country
rehgious bodies were folbidden to hold such property, why should they, if situ- "
ated in another, have such capacity of acquisition from the foreign country?]
Hon. Edward Everett's dispatch to Mr. Crampton, on the Island of Cuba,
December I, 1852. The London Spectator of December x7, I853, said :-
"Not less than £2,972,ooo was remitted from Irish emigrants in America to
their friends and relatives at home, in I848, I849, t85o, and 1851. It is esti-
mated that if the remittances have continued at the same rate, upwards of four
millions mu._thave b_en remitted in the last six years."
96 ON CIVIL LIBERTY
not. But this is not the place for further pursuing a questton
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.x
CHAPTEK X.
LIBERTY OF CONSCIENCE.--PROPERTY.--SUPRENIACY OF
TIlE LAW.
It has been one of the mare 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 whmh it is but the reflex in the material world around
him. Man suffers in individuality, therefore in liberty, in the deglee 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 polmcal, psychologic, and economical point of
view.
=The subject of individual inheritance has also been treated at length in the
Essays mentioned in the preceding note.
[Our author of course cannot object to lines, one of the mo_t universal and
most efficacious of penalties.]
I02 ON CIVfL LIBERTY
t I shall not have room to give a whole chapter to the subject of communism,
or rather a single chaptel would be wholly insufficient on this interesting subject,
which, moreover, belongs to general polmcai philosophy, rather than to our
branch. I shall mention, therefore, this only, that I use in these pages the word
¢ommumsm in its common adaptation, meaning a state of society in which indi-
vidual property is ,_bohshed, or m 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, m 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 he, who, forgetting the element of socialism, should carry his
principle to the extreme of disjunctive egotism, and insist 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 de_l
of government, and an avowal of "individual sovereignty."
AND SELF-GO VERzVMEN7: 10 3
debts as soon as the storms of adversity blew ; and they have m 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 dleaded horrors of direct taxatlon"--and to add that there 1%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 nay pupils
will remember that for a nmnber of years I was m tire habit of dehvenng a course
of lectures on Repu&ation, in which, I trust, I showed no d_qposmon to mince
matters ; but to repudmte the repre_entatlve prinmple as Sir Archibald does when
treating of Repudiation, and to present the latter as a natural consequence of
republicamsm, transcends the bounds of reason. What element m the Enghsh
pohty, we would ask, is it that makes Engh_h eredtt so firm ? Is it the monarch-
ical? This cannot well be, for many monmchs have more than loosely dealt _ ith
credit, punic funds, and even prxvate 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 thmr money just because she has a palha-
ment. What I mean _.sthat the rehance of the world on the good faith of Eng-
land in money matters has been bmlt up by her parliamentary government, and
would not have been built up without _t.
The Dutch Repubhc enjoyed great credit, while the Regent of France, and
his eounc,1 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
became manifest in our land. The Prince of Wales (GeolNe IV.) and two of
his brothers, the Dukes of Ymk and Clarence, desired to escape paying a loan
of 3,6o0,000 gmlders which they had made in Holland, through the banker
Thomas I-Iammersly. When the bond-holders came to England to enforce pay-
ment, Sir Althur Pigolt, attorney-general of the Duchy of Co_m_all, acting for
the Prince of "Wales, stated m the court that he had never heard of the bond%
which was absolutely untlue. A_tl London, and indeed all England, knew of
it. The arguments were worthy of any Mismsslppl repudiator, such as. The
present bond-holders are not the original lenders; wm 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, I cannot say
with what degree of truth, they perished, though none of the crew died.
S_r A. Alison says somewhere in his writings, that the richest men m the city
of New York do not clare to have stately fronts for their houses, however costly
the interior may be, trom fear of displeasing the democracy. Truth and essential
progress are never promoted by wrong or false argument.
106 O.N CIVIL ZIt?.te.RTY
z 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 Pohtical
Ethics.
= 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 albltrary 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 formbly reminds us of aprominent French
paper, the Univers, whmh lately stated that it was decidedly m favor of repre-
sentative government, and that it was only necessary to know what is understood
by replesentative government. The Univers--so said the paper itself--under-
stands by this telan a legislative corps, which represents the government. I have
known, in an offimal capacity, a patient in a hospital for the insane, who perse-
veringly mmntained 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.
4 By extraordinary courts ofjustme are meant, in this connection, courts of an
extraordinary compomtion,not those that are simply d_rected to sit at an unusual
time. The &fference between justice, that is, right dlstribmed 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 wlitings. Montaign, grand master of the
household of Charles VI., was tried, tortured, and executed by Commissioners.
He was buried in the church of the Celestine% and when Francis I. came to see
his tomb, theking said, "This Montaign hasbeen condemnedbyjustice," "No,
AND SEL2-Z GO IJElC.W3_.gfi_
A'2". lO 7
sire," answered the simple monk who guided the king, "he was condemned by
bihty, and, in cases of importance to the executive, act on the foregone eort-
clusxon 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.
z The very opposite to the Anghcan pnnciple, that each officer remains re-
sponsible for the legality of hi_ own acts, prevails in China and Japan, and prob-
ably in all thoroughly systematized Asiatic despotisms. The gupertor officer is
punished for the offence and even for the misfortune of the inferior, or for the
accident Much may have befallen the latter. The blows with the bamboo, _hieh
in China go down from the supelior through many grades to the inferior, are
well known. Before the late opemng of the Japanese ports to the Amencan_
and Emopeans, a Chrlman 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 nnprisoned for one hundred days, although he was at the
time a hundred miles from the place of the disaster. There is also, however, in
:hose 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 whmh we find in the early mythology of
all nations. The earhest period of Greek history and mythology furnishes us
with many illustrations.
Mr. King, in his Notes of the Voyage of the Morrison, New York, I839, gives
the following anecdote : "We had inquired of the Japanese how thew officers
were to be distinguished ; whether they wore any badges besides the ever-famous
'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 plinclple laid
down in the text.
I 12 ON CIVIL LIBER TY
x For instance, in the scarcity of grain in the year I766 , 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 x818, ministers asked and obtained
indemmty for the suspension of habeas corpus, for themselves and magistrates
under them. Many other instances might be given. See Lieber's Legal
and Political Hermeneuties, note to page 79. Acts of indemnity cannot be
passed with us, because we have a constitution of which the legislature itself i_
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, thst
we finclin the present time (I859) 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-GO VERNMENT. I 13
CHAPTER XI.
x [See the Petition of Right in Appendix V., and Forster's Life of Sir John
J Eliot, for earlier complaints al,out this old outrage.]
8
114 OJV CIVIL LIBERTY
CHAPTEK XII.
PETITION.--ASSOCIATION.
xIt was stated by him that the right of petitionwas of essentialvalue only in
a monarchy,againstthe encroachmentsof the crown. But this whole viewwas
unquemonablya confinedone, and causedby irritation against a pecuhar class
of perseveringpetitioners.
"There is no more stoking instanceon reeord, so far as our knowledgegoes,
than the formidable petitionof the chartistsin z848,and the calm respectwith
whichthis threatening documentwas received by the commons,after a speech
full of dignityand manlyacknowledgmentof the peopleby Lord Morpeth,now
Earl of Carlisle.
I22 ON CIVIL LZBERTY
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. _
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,
ot 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
* 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 hberty in China
--a conclusion as hasty as it would be to infer that freedom exist_ in France
because the empire declares itself to be founded on universal suffrage.
124 ON CIVIL LIBER TY
* [This is not borne out by facts, although the same broad statement has been
made by others. Sodalitates were frowned upon, but colle_a @ificum, although
the state controlled and eould dissolve them, were numerous. See the list in the
Index in vol. in. of the Orelli-Henzen Inser. Latm_e; 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 Sodalitaa. 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.]
a A careful study of the whole hi_tory of this remarkable association, whmh in
no state of the European continent would have been allowed to rise and expand,
is recommended to every student of civil hberty. 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, Qmd vutt valde
"cult.
I26 ON CIVIL LIBERTY
CHAPTER XIII.
PUBLICITY.
" In the year t857 the following case was decided m the court of common
pleas at Columbia, S. C., m favor of the plaintiff The city council held, in
I855, 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 m the affirmative, ordered the chief pohce officer to turn the edttor out
of the room, declaring at the time that he acted on the strength of a resolution of
the city council At a later permd this procedure was defended on the ground
that the city appoints a paper to give, offlclally, all the transactions of the board.
Robert W. Gibbes vs. Edward J. Althur and John 13urdell. This novel case
was reported with great care, and pubhshed 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 miles, although there be an appointed
printer to the board,
128 ON CIVIL LIBER TY
* This observation followed a request to write henceforth wath caution, bee auk,
said he, choses politiques ne sont plus ici choses publiques.
AND SELF-GO V.ERN.MENT, 13i
t I follow the opinion of Mr. Robert C. Winthrop, late Speaker of the house
of representatives of the Umted State_, and believe ham to be correct, when m
an address before the Maine ttistoncal Society (Boston, 1849) be says : "The
earhest instance of authorized publicity being given to the dehberations of a
legislative body in modern days, was m this same house of representatives of
Massachusetts, on the 3d day of June, 1766, when, upon motion of James Ous,
and during the debates which arose on the question of the repeal of the stamp
act, 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 senale of
the United States.
i32 ON .IVIL LIBERTY
' Great as the inconvenience is which arises tom the abuse of public speaking,
and of that sort of prolixity x_hich in our country is familiarly called by a term
understood by evely one, Speaking for Buncombe, yet it must be remembered
that the freest possible, and therefore often abused, lantude of speaking, is fre-
quently a safety-valve, an times of pubhc danger, for which nothing else can be
substituted. The debates in congress, when lately the Union itself was in danger,
lasted for entlre months, and wolds seemed fairly to weary out the nation when
evely one called for action. There was no cinzen 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, perhap_ 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 espeeiMly the case in a country in which, as in ours, a personal facility of public
speaking is almost universal, and _vhere an elocutlonal laxity coexists with a
patient tenacity of hearing, and a love of listening which can never be surfeited.
AND SELF-GO VER-AzME_VZ I33
administered by file chancellor of the State of New York, who proclaimed, as the
same was accepted by the president, "Long live George Washington, President
of the Umted "_tates." The president then resumed the seat from which he had
risen to take the oath, and, after a short pause, rose and dehvered before the
senate and house of representatives his inaugural address. On its conclusion, the
president, the vlce-presldent, the senate, and the house of representatives pro-
ceeded to St. Paul's Chapel, in New York, where divine service was perfolmed
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 rehglous exercises the senate reassembled and
appointed a committee to prepare an " answer to the president's speech." In
the house of representatives a similar commlttee was appointed on the following
day. The reply of the senate was read and adopted in that body on the 7th of
May, and agreeably to previous ariangement was dehvered to the president at his
own house on the ISth following, the senate waiting upon the president for thin
purpose, with the vice-president, their presiding officer, at then head. The presi-
dent, on receiving the address, made a brief and appropriate response. The
reply of the house of representatwes was read and adopted on the 5th of May,
and, by a similar preconcelt, was dehveled to the president on the 8th of the !
same month, in a room adjoining the repIesentatives' chamber, where the speakei,
attended by the members of the house, l_laced m the president's hand_ a copy
of the address, for which the president returned his thanks m a few appropriate
remarks.
Such was the nature of the ceremonial observed in the official communications
inteichanged between the president and the two houses of congress at the open-
ing of every session of congless during the admmishation of Washington and
John Adams. On the accession of Mr. Jefferson, the practice of delivering ,he
annum 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 pLepanng 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. H_s first annual address to both
houses of congress was sent in on the 8th of December, ISox, and was aceompanmd
with the subjoined letter, addressed to the presiding officer of each body :
DECEMBER8,I8OI,
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 commumcatlons between the legislative and executive branches, I have
adopted that by message, as used on all subsequent occasions through the sessmn.
In doing this I have had pnnclpal regard to the conve'mence of the legislature, to the
economy of their Ume, to their rehef from the embarrassment of immediate answer_
I38 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 m its executive sessions. Its debates, therefore, unlike
those of the house of representatives, were for a tmae held in secret; but It was
provided by a resolution passed on the I9th of May, x789, 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
eaob member should be furnished with but a single copy on his own account.
At this d_stance of tune we may not perhaps be able to understand or state the
reasons which determined the senate to sit with clo_ed doors in all their delibera-
tions, as stilI in those which pertain to executive business. It is probable that
the habit grew out of the fact that the senate, m the originM theory of ats 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
eonceaved that its function was mainly revisory and dehberative ; and hence the
greater prominence of the house m 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 fedelal legislation. In evidence of
this fact we may state that the senat_ was wholly w_thout standing committees
until the year I816, when during the second session of the fourteenth congless
it was determined to provide for their appointment. In the house they had been
raised by a standing rule ,'_searly as the year I799, 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 _dwce and consent of the same body. The senate having
refused to ratify the nomination of Mr. :Benjamin Fishbomn 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 commumcating to him their views
on occasions where the p_opfiety of his nominations appeared questionable to
them.
Moved by this intimatmn of the president, the senate appointed a committee
to wait on him for the purpose of concelting a mode of communication proper to
be pursued between both parties in the formation of treaties and making appoint-
on snbjeels not yet fully before them, and to the benefits thence resulting to the publi*
affairs. Trusting that a procedure founded in these motives will meet their approba-
non, I beg leave, through you, sir, to commumcate the enclosed message, with the
documents accompanying it, to the honorable the senate, and pray you to accept, fol
yourself and them, the homage of my high respect and consideration.
The Hon. the President of the senate. TH. JEFFERSON.
AND SELF-GO VERW3fL_ . 139
meuts 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 walt on the
senate in their own chamber, (m which case he should occupy the chalrof 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 sigmfy their assent or dissent hy answering, viva vote, aye or no."
On the day following the adoption of this minute, that is on the 22d of August, 1789,
it appears from the journal that the President of the Umted States came into the
senate chamber, attended by General Knox, and ]aid before the senate a state-
ment of facts in reference to the negotlatlon of certain treaties with various In-
dian tubes. Desiring to fix celtam prmclples 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 m giving instructions to the eom-
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 Genelal Knox.
How long the relatmns between the president and the senate remained on this
footing we are unable to say with any accuracy, though the practlce of his per-
sonal attendance during their sessmns m executive business seems to have been
abandoned after a time ; and authentic tradmon 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 m canvassing the mellts of the
candidates submitted for their advice and consent. It soon bec,'u_ae habitual ior
the president to commumcate 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 sessmn with closed doors. During
the second session of the first congress, which was begun in New York on the
4th of January, x79o, the same custom was 1etained, though, as appears from the
journal, not without protest and dissent on the part of some senators. For it
appears that on the 29th 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 Umted 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 Philadelphm on the 6th of
December, I79 o, it was again proposed, on the 23d of February follo_mg, "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 ¢rected for the
I40 OW CIVIL LIBERTY
,, Resolved, That the senate of the United States, being the represcntatlves of
the sovereignties of the individual states, whose basis is the people, owe equal
responslblhty to the powers by which they ale 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 theil journals,
and extracts from them, in newspapers, is not adequate to the purpose of circu-
lating satisfactory reformation. While the principles and designs of the individual
members are withheld from pubhc view, responslbihty is destroyed, which, on
the publicity of their dehberations, would be restored ; the constitutional powers
of the senate become more important, m being more influential over the other
branch of the legislatme; abase of power, real-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 m
the national government, by which their lives, hbertles, anGl propemes are to be
seemed and protected.
" Resolved, therefore, That it be a standing lule that the doors of the senate
chamber remain open while the senate shall be sitting in a legislatlve and judi-
ciary capacity, except on such occasions as in their judgment may reqmre secrecy ;
and that thl_ lule commence on the ....day of "
" Resolved, That after the end of the present session of congress, and so soon
as statable galleries shall l_e provided for the senate chamber, the said galleries
shall be permitted to be opened every morning, so long as the senate shall be
engaged m their legislative capacity, unless m such case_ as may, in the opinion
of the senate, require secrecy, after u hlch the sa_d galleries shall be closed."
require secrecy_ the president shall &rect the gallery to he 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 m 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 Pennsylvama, 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 28th 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 quahficatlon for membership in the Umted 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 dehberations 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 d_scusslons after a secret
session, and without thinking for a time to re-open the doors which had been
dosed dining 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 fieedom and inde-
pendence which the senator should enjoy in canvassing the propriety and char-
acter of the official appointments made with his advice and con_ent, 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 publication can no longer frustrate the ends of prudent legislation.
AND S-ELF-GO V.-ERNM.ENT. 14 ]
CHAPTER XIV.
/
lish are so jealous of this principle, that the commons will not
even allow the lords to propose amendments affecting mone);
grants or taxation. _ _
• While these sheets were passing through the press, (Match, I859,) the house
of representatives, at Washington, refused to consider certain amendment%
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.
[Can the house of lords reject a money bill? In 1671 and I689 it was
admitted that they conld. The lord% 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 I86% when they
postponed the second reading of the Paper Duties Repeal Bill for six months.
This led tc 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 peenliar jealousy, as affecting the right to
grant 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 LIBEP_TY
• ,'Federalist," No. xxx. and sequel, Concerning taxation, and other parts
of that sage book.
*"Memorials of John Hampden," voLi. p. 212,London, I832.
AND SELfi'-GO VERN3IEN_ i4 5
x [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. I59, 16o ; May, i. I4o. 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.]
to
i46 ON CIVIL .LIBERTY
t Chatham, when minister to the crown in I759, 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 thelatter 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, theoreticMly, by the monarch, in reality, by a minister respon-
sible to parliament.
Francis, Chronicles and Characters of the Stock Exchange.
['For the history of the Civil List, see May, i. chap. 4-]
AWD SELF-GO V.ERWM.EA'T. i47
t It may as well be observed here that congress means the senate and house
of representatives. The president is not included in the term.. Parhament, 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.
I48 ON ClITL LIL'ARTY
z Burke.
.,4A'D SELF-GO V.ERNMENT. 149
reader will peruse with advantage the chapter on Party in Lord John Russell's
Essay on the History of the English Government and Constitution, 2d edit.,
London, 1823.
x For instance, Locke. Montesquieu, at a later perlod, 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 x848, nor has it ever been properly carried out by them, their principle
of centralization preventing it. See Pol. Ethics, book ii. e. xxim
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 repubhc (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
Ursuhne order, the superiors are elected by universal suffrage,but that no person
AND SELF-GO VERNM'E,NT. 151
has ever claimedthe possessionof liberty for the monks or nuns. Indeed, their
very vowis against it. But "republicanism" has actuallybeen vindicatedfor
the monasticorders. In the same way Rome might be considereda republic
becausethe popeis elective.
' [Centralizationis opposed(I) to divisionof powerbetweenfunctions,(2) to
diffusionof power, Jr local self-government,which is treated of afterwards.]
i52 ON CIVIL LIBERTY
z Mr. Madison's paper on The Meaning of the Maxim, which requires a Sepa-
ration of the Departments of Power, examined and ascertained. Federahst, No,
xlvii, and sequ.
9 Esprit des Loix, book v. c. 14.
s The speech was delivered in the Senate of the United States on the 7th of
May, x834. 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 sample and coarse.
It is like a block of gramte, 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 mayhave 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 hberty 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 CIFIL LIBERTY
z Page I22, 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 xtappears 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.
Guizot, Essais sur l'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, I832, 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 ale 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 xtwas the question to
I5 6 ON CIVIL LIBERTY
levy two hundred thousand men, he was persuaded to ask for three hundred
thousand ; in hqmdatmg 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."
V_hether 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 hke Rapp, an uncompromising absolutist, unawares
lays bare his own opinion of the character of an absolute monarch, becauso h_
is absolute.
• Pol., v. 9, _ 6; vi. 2, _ 9, I2.
AND SELF-GO VERNMENT. 157
z Since the foregoing chapter was originally written, history has furnished us
with many addmonal and impressive illustrations of some of its contents.
Numerous French writers, anxious to vindicate for France the leadership in the
race of clvihzatlon, yet sadly aware that liberty exists no more m 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 thmgs--umversal suffrageand 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 regenelation 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 politms 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, diffelent men to
entirely different results, as, for mstance_ Mr. Louis Blanc on the one hand, and
the imperial absolutlsts on the other; and, if universal suffrage, wxthoutguaran-
teeing institutions, is the only principle of importance, the question presents itself
immediately, Why appeal to it on 1are 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
15 8 ON CIVIL LIBEi_ TY
#
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 i_ 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
Rrgime.
AND SELF-GO VERNMETV2": I _..
CHAPTER XV.
After sentence on trial by impeachment, the king can pardon ; and, in fact, the
house of lords, m I715, 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. 555-57 o. 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.]
t It is sufficiently remarkable to be mentioned here, that Napoleon III., when
the sanguinary eo212_d'_la{ 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, I818,) and taken from Correspondence, Despatches, and
other Papers of Viscount Castlereagh, second Marquis of Londonderry, 12 VOLS.,
London, I853 , 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 pt_t
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 a
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-GO VERNM.E2VT. I61
, [Such specific checks on legislative power are coming more and more intt_ _ _-
use. The people are beginning to distrust the legislatures, as they formerly did _ ' _z_
the executives.]
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 traevs of
offences. I now give an extraet_ and shaI1 itahcize those passages which t_ear
upon the subject above :
" Considering that if, by the terms of existing legislation, and particularly by
art. x87 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 administlation, this disposition cannot reach the pretcet of
police, acting by virtue of powers conferred upon him by art. Io of the Code of
Criminal Instruction :
I!
I62 OW CIVIL LIBERTY
,, 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 hmzted the means placed at his d_s-
positzon for attaining that end .'_
"That, in fact, the right of perquisition in aid of jndimal instructions as
solemnly affirmed by numerous legal dispositions, and that it is of common law
in this matter:
" That the seizure in questaon was made in order to follow the trace of an
offence; t:_at it resulted in the discovery of useful and zn_ortant 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 u_bon to inqmre into the
origin of documents submitted to this appreciation ; that its mission is merely to
estabhsh their authenticily or thelr sincerity ; that, in fact, the letters m question
are not demed 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 Enghsh paper at the same tlme
that the French judgment was given. It relates to a London police regulation
concerning eabmen:
"Now, we have no wish to palhate the bad eondnct 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
recogmzed and applauded by a certain pubbe 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 pohee, and the
execution of those laws to the eorreetional tribunal of the same authority."--
Spectator, April 2, I853.
x They are generally called written constitutions ; but it is evident that the
,_,7 , essential d_stinctmn 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 whmh are considered of fundamental importance, and essentia] in giving to
the state and its government those features which characterize them, or lhose laws
and institutions which give to England her pecuhar political organic being--conmsts
in cumulated usages and branches of the common law, in decismns of fundamental
importance, in self-grown and in enacted institutions, in compacts, and in statutes
embodying 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
undlvoreed queen hying, and who rephed to an expostulating friend that he could find
no passage in the Bible prohibiting kings of Denmark from having two wives?
AND SELF-GO VE._WVAIENT. 16 3
* The ancient jumcla 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 _.bove king and estates, that i% king himself; and it became necessary
in course of time to suppress this feature. See Pol. Ethics. vol. ii. p. 281
AND SELF-GO V.ERNAI.ENT. i6 5
z 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 distract 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
centrahzation combined with writing. In spite, therefore, of the want of lexical
authority, it is almost universally used; for necessity presses. I am under th_s
necessity, and shall use it until a better and more acceptable te_n_be proposed.
l_Iandarinism would not be preferable. Mandannism would express indeed a
government by mandarins, by officials, but it would not designate the character-
istacs 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 reed not be a bureaucracy. I observe that the French, from whom
I66 OA CIVIL LIBERTY
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-GO V.ERWM.ENT. i6 7
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 g_ve 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 l_erty a national' 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 fadts, 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
t I take here the term national in the sense of relating to an entire society
spread ovel t} e territory of an extensive state, and as contradistinguished from
what belongs to a city-state, or from the system of the middle ages, whlch was
deputative, on the one hand, (see my Pohtical 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-GO VERNAIEATT. 16 9
CHAPTER XVI.
* [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 i73 represented independent constituencies. In I8J2, after a gieat
struggle, a reform bill was pansed, 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 x_ere increased from 94 to
I59. (3) As for the right of electing--in tke boroughs it was given to lol.
172 ON CIVIL LIBERTY
householders resident in the place, paying rates and not receiving relief from the
parish ]?z t_e counties several classes wele added to the old folty-shitling
freeholders, vlz : copyholders and leaseholders for terms of years, and tenants at
will paying a rent of 5oL a year. (See May, i. chap. 6.)
The more recent bill of 1867, for reforming representation, contains among
other provisions the following of principal nnportance. (i) The fianchlse. Ia
the boroughs any full-aged man not legally incapacitated can vote in parliamentary
ar_l municipal elections, who has been for twelve months an inhabitant, as owner
or tenant, of any dwelhng-house, has been rated to rates for the lehef 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 xoL or upward, has resMed there twelve months
before the last day of July of any year, and put m a claim to lie re;zlstered. In
the counties, any man of similar statu_ 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
_r anothel's hfe or any lives, of the clear yearly value of not le_s than 5l. He
also has the vote who Js lessee or assignee of lands, on any tenure, for the un-
expired residue of any term originally created for a period of not le_s than 60
years, of at least 5/. net yearly value ; and again, one who aee¢tpies lands of the
ratable value of I2z'. or ovel, has been rated and pa_d rates. (2) Distribution
of seats m parliament. No borough having in I86I a population of less than
Io,ooo could return more than one member. 38 boroughs weie thus reduced, Io
new boroughs were created, 3 clt_es returned thlee membms m_tead of two, 2 old
boroughs 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 thlee, and in places where three membms 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.]
.AAD SELF-GO _RA'2IEA'T. 173
" [But it was majority of centuries, and not of votes, which determined an
election.]
2 lit is perhaps needless to say that great changes havebeen made in the con-
stitution of this state since the end of the war in I865. ]
s [There are multitudes in the United States who still believe that universal
I74 OA" CIVIL LIBERTY
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 "fleeman."]
t According to the present constitution of Prussia (I859) there is universal
suffrage for the election of a certain number of electors, and in addition a
AWD SEZ.F- G 0 V.E.R.3;.LIIEW_ 175
' I859.
[A resident not necessarilyin the district,but in the statewhich he repre-
sents. "No personshall be a representative. . . who shall not, when elected,
be an inhabitant of +hatscalein which he shall be chosen." Constit.,art. L
sect. 2, 2.]
AND SEW-GO VERNMENT. 177
' A full statement of all the laws relating to these guarantees in England will
be found in Stephens's De Lolme, Rise and Pregreqs of the British Const*tutmn ;
and Story's Commentalles on the ConsUtution of the United States gives our con
stitutional law _n these subjects. *
180 OW CIVIL LIBERTY
x Fearful cases to the contlary 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 candtdate, he had dared to print and dlsmbute his own
ticket. Mr. de Montalembert made a speech against the abuse, whereupon
the minister of the Interior, Mr. Bfllault, formmly a socialist, issued a circular
to the prefects, instructing them, April, I857, 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-GOV.ER.NSlL'WT. \ I8_
that, from the year I696 , each parliament should not last
longer than three years, but in I716 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. ' This law has ever since prevailed; but even Pitt
called it, in I783, 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 Vill_le, m I824, 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
x [For the triennial bill of the Long Parliament, Feb. 16, I64I, and its repeal
in I664, but with the provision continued that parliaments should not be inter-
mitted for more than three years, see Hallam, ii. pp. I3I , 447. The govern-
ment could not be camed on with an annual session of parliament. Nothing
kept the estates on the continent from afit development so much as frequent and
long intermissions of their sittings.]
2 Volume ii. page 174, of Correspondence of William Pitt, Earl of Chatham.
$ I have given a sufficiently long account of the Septennlal Bill, under this
head, in the Encyclopaedia Atnerlcana.
182 OiV CIVIL LIBEI_TY
CHAPTER XVll.
z 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 polmcal 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 gldon 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- G 0 VERNM'ENT. 18 7
t This difference in the position of the presiding officers appear% 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 ease of doubt. In the United States senate, the president of the
senate is, indeed, directly addressed, although occasionally " senators" have been
addressed in the courseof a speech, That body, however, appoints its commit-
tees, 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.
I88 ON CIVIL ZIBERTY
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.'"
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?
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 and" its protection against impassioned hurry are
• I would refer the general reader, on this and kindred subjects, to the article
Parhament, in the Pohtlcal Dictionary, London, 1846.
2 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 dlsturbel,.
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 whlch neither
can manifest itself. A legislative body without the power of sending for pelson_
to be examined by commlttees would be forced to |e islate, m many cases, in
the dark. It is true that legislative bodies have become tyranmcal ; 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
libertyls always against the executive. I do not remember a single case of an
established and separate guarantee of personal hberty against parliamentary
violence.
The reader is referred to Mr. Justice Story's Comm. on the Const. U. S., chap.
xii., and to Chancellor Kent's Commentaries.
AND SELF- G 0 VERATAfEA'T. 189
z The ancmnts bad no parhamentary 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 thele 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
prima_W assemblage. (See Pohtmal Ethics.) In the Roman senate there was no
debating plopm. There was rather a succession of set speeches; and I may be
permitted to state here that m debating oratory, in replying on the spot vigorously
and clearly to an adversary, the best orators of the last and present centurms are
greatly superior to the ancients.
Since the puhlication of the first edinon, an American senator, Mr. Edward
Everett, has added his testmmny to the vital importance of Anglican parlia-
raentary rules. On December 8, I853, 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
I90 O.V CZK1Z LIBER TY
as the bonl Senatoris 2brudentla, the _wisdom of a good senator ;' and in h_s
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 distingm_hes
the great national race to which we belong, as its aptitude for government by
deliberative assemblies; its willingness, while it asserts the largest hberty tof par-
liamentary right, to respect what the senator from Virginm, 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
p_oved 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."
• He was himself of unmixed French descent, as Lord Brougham observes,
although his family had resided for generations in England.
2 Memoirs of the Life of Sir Samuel Romilly, etc., 2d edit., vol. i. p. Io 3.
3 A Treatise on the Formation of Laws, (Trait_ de la Confection des Lois,)
AND SELF-GO VERAr$IENT. 191
' No instance illustrating this fact is perhaps more stoking than the meeting
of settlers in Oregon territory, when congress had neglected to provide for them,
as has been mentioned in a previou_ 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 tke period when Dr. Franklin asked why people would put horses
A2VD SEZF-GO V.E.RNM.ENT. 19 5
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 I787 published his
Defence of the American Constitutions. In the September
of the same year, the national convention changed the federal
" I have quoted this long passage from the First Report of the Commlssioners_
appointed by the General Assembly of Maryland, to revise, simplify, and abridge
the Rules of Practice, Pleadings, etc. in the courts of the State, Fredenc City,
Md., I855,--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
the commissioners, a gentleman alike dlntinguished 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 writms on philosophy.
His friend, the late Sir William Hamilton, acknowledged his great merits.
The reader is referred to De Tocqueville's Ancien R6gime for numerous pas-
sages showing how general the error of Turgot was in France, and how sincerely
the Anglican diversity, neeesnarily accompanying self-government, was dis-
relished by the French, profoundly worshipping, not only unity of power, but
also uniformity of action.
The speech was delivered on the 27th September, I848. Mr. de Lamartine
speaks of a division of the soveleignty 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 must not 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 t_o houses in
AND SELF-GOVERNMENT. i9 7
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, m their umtary 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 I85o 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 I848 because he wanted a dictatorial power ; and, added he, La
dietature ne se divise pas. But how can a dictatorship be called und_wded,
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 xs
surprising that something temporarily desired for a dictatorship should have been
insisted upon by Mr. Lamaxtine with so much vehemence as an integral part ot
the fundamental law; or was perazlventure the eonstitunon of I848 intended not
to last ?
I98 ON CIVIL LIBERTY
CHAPTER XVIII.
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, x 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
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. _
The independence of the law, or the freedom of the jus, in
the fullest and widest sense, requires a living common law, a
' Hence the peculiar power and the peculiar narrownessof the branch. I
have treated of this subject,and the unceasingnecessityof interpretation,at the
beginning of my Principles of Interpretation and Constructionin Law and
Politics,Boston,I839.
206 ON CIVIL LIBERTY
* Life and Letters of Judge Stoly, vol. i. p. 448. The necessity of proper_
codification has appeared mo_e and more clearly to the English mind, since this
work was first pubhshed, and many pleparatory steps have been taken. In the
month of August Lord Chancellor Cranwolth presented a report to the lords, of
which he said that, in the first place, a hst had been prepared of all the statutes
not obsolete, nor for temporary and local but for general purposes, which have
been passed since Magna Charta. The number is x6,ooo; but, taking away
5300 repealed or virtually repealed, a number besides those which relate to
Scotland or Ireland exclusively, and 390o which the commissioners have not
determined on, thele remain, say 2500 acts for consolidation; and these have
been analyzed. As thele is some difference of opinion as to the best mode of
consolidation, specimens on dlffelent principles had been prepared; and one of
these, a digest of the law of dlstless for rent, was in the lepolt. 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 comnfissioners had been re-
quested to take a subject and frame a scheme of consohdation with that view. "
A very interesting speech on this and cognate topics was made in February,
I856, in the house of commons, by Mr. Napier, attorney-general of Ireland, on
the introduction of his motion :
" That, in the opmmn of this house, as a measure of administratlve 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 Consti'ution for South Carolina, I669, paragraph 80.
208 OW CIVIL LIBERTY
the side of Zeus to show that all 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.' 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. _
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 hberty 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 thls 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
* "The civil law, a law of wisdom but of serwtude ; the law of a great com.
merclal empire, digested in the days of Justinian, and containing all the principles
of justice and eqmty stated to the relations of men in somety with each other;
but a law under whmh the head of government was ' Imperator Augustu%
legibus solutus.' "--John Quincy Adams, seventh President of the Umted States,
in a letter to Judge Story, page 2% vol. ii,, Life and Letters of Judge Story.
The young American reader is recommended to peruse a letter to a young
friend, by Mr. Legar6, 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 sl_its, 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. Legar6 also wrote an extensive article
on Roman Law and Legislation in the Southern Review.
The case of Coggs vs. Bernard, 2d ed. Raym. R. 9og--note by Judge Story.
AND SELF-GO V.ERNMENT. 213
system which the text and the commentaries of the civil law
had already built up on the continent of Europe."'
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
J
AND SELF-GO V.ERArM'.EA,'_ 2I_
B
CHAPTER XIX.
z The learned " opinion" of the court of errors was delivered by Judge Ward-
law, Hiller vs. Enghsh, 4 Stlobhart's Reports, Columbia, S. C., 185o. 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.--Watfonal Intelligencer, Washington,
May 2I, I853.
Even the Constitution of the French Republic of I848 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 justlce."
AWD SELF-G 0 VERWMEWT. 217
z The trial by accusation has a distinct meaning in the English law ; still, I
have adopted the terra Accusatorlal Trial, m confolanity to continental lawyers,
A distinct term in contradistinction to the Inqnisxtorial Trial is necessary, and I
prefer Accusatorial to Litigious Trial, which I observe Mr. Stephen uses m an
interesting paper on Enghsh Criminal Law in the collection of articles published
from time to time by former students of the two English universities,Oxford and
Cambridge, respectively. •
g There was no public prosecutor in Rome. An individual appeared as ac-
cuser, and formed throughoutthe trial the prosecuting party. See article Crim-
inal Law, in the Encyclowedia Americana.
a See Feuerbach on the Jury.
4 Under the present absolutism, the trial is of courseat 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- G0 _RNAIENT. 2 !9
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 d_ath
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, thmlks 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 I774 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.'
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 jt_ry. The Constitution of
the United States ordains that "no person shall be held to
z 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
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 dwine right. The monarchical absolutists wrap them-
selves in it, and the popular absolutlsts 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, an_l 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
224 ON CIVIL LIBER TY
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, afortiori, that a re-
election by the people, or the losing it, must influence the judge
tkr 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. _
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? 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,
t The repol_ of the Reform Committee of the New York legislatme reveals a
state of things which reminds us of the worst state of Athen% while the Lomslana
papers copied the most important portions, with strengthening commentarieq and
illustrations from theil state. Numerous individuals, judges, and lawyers have
publicly expressed their disapprobation. We trust so great an evil will soon be
redressed.
2 See Political Ethics, under the heads of _tudge, Indejbendenceof tke _di-
¢iary.
3 I would refer the reader, on all these subjects, to Judge Chamhers's Speech
on the Judicial Tenure, in the Maryland Convention, Baltimore, _85t. [The
228 ON CIFIL ZIBEI_TY
z At present, when the house of lords sits as a court of appeal, none but the
law lords are generally present.
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 dlfficultaeswhich 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 counmls
somewhat like these have been introduced also into Great Britain.]
232 ON CIVIL ZIBERTY
CHAPTER XX.
ADVOCATE. •
t For the history of this institution in general, the reader is referred to William
Forsyth, History of the Trial by Jury, London, I852,
AND SELF-GO VERNMEN_ 233
x Lord Erskme, when he was raised to the peerage, adopted the words Trial
by Jury, as the scroll of ins coat of arms.
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 thmr living, during court time, by being ready to _erve 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 earned
that juries are judges of law as well as fact ; and man_; other things,have induced
several persons loudly to call for tbe abolition of the jmy. 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 hmsances. Let us
imagine our present elective ludges 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 starwng 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 _eem, 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
st,i_ of state is in danger, by cutting away the very ribs of the ship.
234 ON CIVIL LIBERTY
x 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 civlhzed 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 he 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 quesUon 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 simtlar ease is presented when an officer is aecuqed of unofficer-llke
and ungentlemanly conduct. Now the question becomes: Are not these eases
far more frequent than it is supposed m the countries where the trial by jury
does not exist ? Are not almost all complex cases such as leqmre in a high
degree strong common sense, the tact of practical life, together w_th the law_in
order to be justly decided ? Are not perhaps the greater part of civd cases such ?
The English and Americans seem to beheve they are. They believe that close
.logical reasomng 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 specafie 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 ease, but, in ,_rderto
AND SELF-GO VERNMEArT. 235
avoid the evil of letting technicahtles get the better of essential justice, of letting
the minds of professional lawyers, whose rely duty it is to tram themselves in
strict, uncomplomising logic, decide comphcated 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 appear 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
necessal_ 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
l'41mium ? Who will deny that every one is hable to have this tact and ph'un
soundness of judgment impaired in that very line or sphere in whlch 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 religmus controversiahst goes to extremes;
the philosopher, by profession, is apt to divide, distinguish, and classify beyond
what reality warrants ; the soldier, by professmn, is apt to sacrifice advantages to
his science. Dr. Sangrado is the caricature of the truth here maintained.
The denial of the neces_ty of profound study and professmnal occupation
would be as fanatical as the disregard of common sense would be supercilious
and unphilosophleal. Truth stands, in all spheres, emphatically in need of
both.
z The whole history of the libel, down to Charles Fox's immortal bill, may serve
as an illustration.
_36 OX CIVIL LIBERTY
x My conviction has been much strengthened since the original writing of thin
work. The Scottish jury (consisting of fifteen members) decides by majority.
Our continued failures of verdicts would cease. Whenever the jmT is out more
than half an hour, it is a pretty sure mgn that the unanimity is, after alQonly one m
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 bad
pronounced an absurd verdict, which be 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 petlfion_
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 "dietsbytwo-
thirds in penal cases even more impo-tant than in civil eases.
AND SELF-GO VER.N_IlEN_ 239
zJudge Daly's Historical Sketch of the Ju&cial Tribunals of New York, New
York, x855, page 53.
Forsyth, History of the Trial by Jury.
s Feuerbaeh, in his Manual of the Common German Penal Law, Iotb 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. "Whynot 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, or 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, _ I4, of his
Art of Defending, 2d edition, speaks openly of the great difficulty encountered
:240 ON CIVIL LIBER TY
by the "defensor" in unveiling the imperfections of the acta which have been,
sent him, because he thereby offends his superior_ upon whom his whole career
may depend; and Mr. Voget, the de%nsor of the woman Gottfried, in Bremen,
who had poisoned some thirty person% fully indorses these remarks of Mr. Mit-
termaier, in his work, The Poisoner, G. M. G_ttfried, Bremen, 183o, (first di-
vision, pp. I7 and 18 ) He concludes his remarks with these words: "Who
does not occasionally think of the passage, x Sam. 29 : 6---Non inveni in te quid.
quam mali_sed satrapis non places," (or, as our version of the Bible has it.
Nevertheless, the lords favor thee not.)
AND SELF-GO VERNMENT. 241
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?* 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-
lial 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
AND SEZ.F-GO V.ERNM.EN_ 243
x 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 lm-
pxo_ement 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 hght a moral which has not escaped the legal profes-
._ton. Some time ago it was argued that a barrister becomes completely the
agent and advocate of hit chent, 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. ']?his doctrine, however, although it was convenient for the
consciences of professional men less sensitive than Romilly, could not be sus-
tained entilely; and barristers have gone to the equally erroneous opposite
extreme--that of throwing up a brief at coon as a grossly fraudulent character
was exposed in their case. Mr. Bovill threw zip his brief in the Smyth case, and
in doing s% we think, violated the txue principle upon wlaich 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 legular and complete in all that is required on the
part of the client. Acting on this plmciple, the barrister can retain his brief to
the last, a_ 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 thlowmg 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 attorney_. They are bound to exerci._e discretion in their
conduct with their clients, otherwise they become parties to contpiracy 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 CZVZZ LZBERTY
When the defence came on, three hundred witnesses were sworn. The prosecu-
tion of course did not believe that 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
wlth_ Does freedom consist in giving all possible protection to trickery?
x 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, 184o.
2 This was written in 1853.
AND SELF-GO VERNM.ENZ', 247
CHAPTER XXI.
SELF-GOVERNMENT.
' The history of this ploud 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 given compounded with self, and among them many which
are now wholly out of use; for instance, Shakspeare's Self-sovereignty. In Dr.
Worcestm's Umversal and Critical Dictionmy, 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 m 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 hm 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 seff-KovernmenA" 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, I852 , 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 modffied by constitutional monarchy."
248 0IV CIVIL LIBERTY
In one word, self-government is now largely used on both sides of the Atlantic,
in a pohtmal sense.
Th_s modern use of the word is no innovation, as it was no innovation when
St. Paul used the old Greek word zdart_"m the vastly expanded sense of Christian
faith. Ideas must be designated. The innovation was Chrlstiamty itself, not
the use of the word to designate an idea greater than Ptsas could have signified
before.
That self-government in politics is always applied by tile Engllsh-_peaking
race for the self-government of the people or of an insutution,--in other words,
that self has in this sense a reflective meaning,--is as natural as the fact itself that
the word has come, m 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-govermnent belongs to the Anglican race, and the English word is used
even by foreigners. A German and a French statesman, both distingmshed in
literature and politics, used not long ago the English word m conversations in
their own languages with me.
Donaldson's Greek Dictionary renders ItvraVolAaby self-government.
The word self, or its corresponding term in other languages, may have tt
reflective sense, as in self-mmder, or it may have a merely emphatm or exclusive
meaning, f2st, 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, Le., 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. 249
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." _
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 manhness 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 substituteindividual,family,and classinterests,and passions,for
the wants of the people. This, indeed, constitutesone of the inherent and
greatest diffieultiesof monarchicaldespotism. A benevolent Eastern despot
could not have said it, for there is no people,I_litieally speaking,m Asia; and
for a Europeanruler it was either hypocritical,or showedthat Napoleonwas
ignorant of the driftof moderncivilization,of which politicaldevelopmentforms
so large a portion.
z London Spectatorof SeptemberI8, I852.
2_2 07: CIVIL LIBERTY
x Do not all the following, and many more, find their daily or historical
apphcations: Propter impenum nnperand_ perdere causas; Propter eccleslam
ecclesi_eperdere causas ; Propter tegem legls perdere eausas ; Propter argumenta
tionem mgumenti perdere causas; Propter dictlonem dicendi perdere causas?
The Memoirs of Count Miot, the first volumes of which have lately heed
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 hberty which the French people had established. He did.
this so soon as he had been made consui-for_fe, and succeeded, through the
newly-established senate and eouneii of st_tte, 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.
2g 4 ON CIVIL LIBERTY
" Mr. de Tocquevllle made th:s report on the 8th of July, in the name of the
majority of that commxttee, 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 destre of annulhng the mebgibihty
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 centralizatlon are upset, by
able eousph'acies or by a .terror-striking surprise, such as the revolut:on 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 fo:egoing, I must ask leave to add the concluding
remarks of the Ancien P._gime, pubhshed since the filst edition of Civil _Llberty
was issued. I know of no passage in modern litelature which reminds the
reader so directly of the energy and gloom of Tacltu_. I quote from Mr. Bon-
ner's translation, New York, I856 , 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 at
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
orse than was anticipated--now below the level of humanity, now far above;
.,4A'D SELF-GOVERNMENT. 255
CHAPTER XXII.
AMERICAN LIBERTY.
z 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 Izth day of April, 1859 , the grand jury is to be dispensed with
as an ordinary instrument of criminal proceeding, though power is re_erved 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-GO VERNI_ENT. 257
' 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 thts ease as purely negative, and as
equivalent to not mentiomng 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 bebeve it w_ll be admitted that the modern
usage it 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 bead 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 msl dignus vindlce nodus.
* 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 d_es not require it; but there are countries in which the constant parcelling
260 OW CII_Z Z2"BERTY
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 ve_-yfew 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.'
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 yon 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 Rhemsh 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 ?
* [Since Dr. Lieber published these words, in I859, the system of slaveryhas
disappeared, and perfect, or nearly perfect, political equality of all colors exists.]
* This is treated more fully in the Political Ethics.
AND SELF-GO V.ERNM.ENT. 261
colony as such, it seems that the effect upon the consistency of the whole gigantic
empire would be distract, and. that such a measure is the only one that would
• No. Ixv.
As to the partie_ in America, they may fairly be said to have httle 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.
* I owe to the friendship of Mr. Kapp (author of the Life of Baron Steuben_
AND SELF-GO VERNzlIENT. 267
contents, the historical survey and statistic knowledge, or the trnu_pareney 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.,
I858 , and was, as such, adopted by the legislature of New York and presented
to congress.
fit 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 we5 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
tubes;" as well as on the right of governing the territories, corfferred by the
constitution.]
270 ON CIVIL LIBERTY
CHAPTER XXlII.
o
272 ON CIVIL LIBERTY
' Much that relates to the histQryof the spyand informer,in ancient and
modern times,may be found in the second volume of Political ]Ethics,where
the citizen'sduty of informingis discussed.
m
AND SELF-GO VER2VMENT. 273
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 f_te 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. _
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
CHAPTER XXIV.
GALLICANLIBERTY.--SPREADING
OF LIBERTY.
In a s_milar manner, and with equal justice, the Rev. Mr. Payne says of the
Grebo tube, at Cape Palmas, that their constitution is patriarchal, with a purely
democratic government. His account is contained in "The Repolt of the Rev.
R. R. Gmley, who was recently sent out by the government to obtain informa-
tmn m reapect to Liberia," pubhshed by the senate of the United States, in 185o,
thirty-first congress, first session, executive document No. 75. The political
philosopher can hardly read a more interesting paper than this.
The extent to which this idea is occasionally carried out is almost incon-
ceivable to us, accustomed as we are to so es_entlally different a system and train
of pohtical thoughts. A few years ago the minister of the interior had given
some new d_recfions regarding the quarantine regulations. They were more in
conformity with the opimons of scientific men on the contagiousness of the
plague. The people of Marsmlles, 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 iri the first revolu-
tion. This was in the times of the so-caUed republic, before the second of
AND SELF-GOVERNMENT. 289
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 resiste¢2;
the septennial bill abolishing triennial parliaments in x7x6 ; 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 Jesmt 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 !
I9
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 obserw 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.'
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 kin_, that the national guards appeared as an
important element of liberty in the first French revolution;
x [In 1866 the four estates of Sweden were converted into two houses, of
which flae 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 assembhes, and the second, of one hundred and
ninety-one members,representsthe towns and rural districts. The terra of o_ce
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
yea_, 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-qnarter. All projects of laws or acts originate in the odalstking; and if
the lagthing rejects them twice over, the stortMng meets and legalizes theproject
only by a vote of two thirds.]
AND SELF-GOVERNMENT. 29 I
CHAPTER XXV.
x At a sumptuous ball, which the city of Paris gave, in the year I85x, to the
commisstoners of the London Exhibiuon, I was sitting in a corner and reflecting
on the police officers in their uniforms and the actual patrols of the military
toompiers in the very midst of the fe_uve 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 rae
most--far more than the exhibition of works of art and industry ? It was the
exhibition of the civlsme 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 assmtthe people--
and the people ever ready to assist them--this is what has most attracted my
attention. Lberty and the government of law are even depicted m their police,
where we should seek it least. What is it that stnkes you most in coming
here ?"
298 ON CIVIL LIBERTY
"Obnoxious,firstand last,
To basestthings," *
*Vol. iii. p. 293.--A member of the late French national assembly, speaking ot
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.
a 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 bat 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, Statistms ; or we may take Civis, Civltas, Civilis, Civilitas, Civility, Civil
(in its two distinct terms,) Civihzation, 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
AND SELF-GO VERN3fENT. 303
this last word has passed fl-omthe time when it meant a man of gentle--that is,
not vulgar, not common-blood or extraction, to its present lmpo_t, which relates
exclusively to character and breeding. Breeding itself might be mentioned
here,
304 ON CIVIL LIBER TY
t [If Dr. Arnold means ord_r_ of men embodying a certain principle, idea, or
political habit of a nation, he cannot be found fault with. So of officers. H
tribune and the tribuneship cannot be separated. He conceived of the officer as
gradually reaching, in old time, certain political functions,which could have
otherwiseno existence.]
AND SELF-GO VER.3,'M'EiVT. 305
x The Latin Instltutum 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 umform method of action,
to be observed when similar cases occur. Inslztutum is very frequently used in
conjunction with consuetudo, and often means nothing more than settled usage
with reference to certain case_. Znst_tutum 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 w_tha considerable degree of autonomy, nor does it compre-
hend the idea of our enacted msatutlons. Znslitutum retains the idea of usage
throughout. Still, it is readily seen how the Roman word institutum was nat_-
rally changed and expanded into the modem word Institution.
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 modems abstract even against all sense. I read but yesterday in large letters
over a shop this word--Carpetmgs. 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
308 ON CIVIL ZII_ER TY
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-grocerin the secondlargest city of the United States,calls itself
United StatesMarket. The negroeshave caught the fever. Not long ago I saw
a commonsTzanty,erected in a Southern forestto accommodatetravellerswith
coffeewhile their luggagewas ferried over a river, adorned with the following
words on a pine hoard: Jenny Lind and Sontag Hotel. The railwaybridge had
been carried away,and this caffiwas erected for a few daysonly.
xThe best grammarianstell us that Latin nouns ending in io, and adjectives
ending in i[zs,(that is, abstract terms,)must be nsedwith circumspection,and
not withoutgood authority,since theyare comparativelyrare in the best writers.
It speaks volume_concerningthe Roman characterand mentalconstitution.
AND SEZF-GO V_RNMENT.. 309
* The reader who desires to become acquainted with the opposite view must
turn to the Chnstmn Pohtics, by Rev. Win. Sewell, Fellow and Subrector of
Exeter College, London, I848 ; a book whmh carnes 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 may be, it is
worth the student's while to make hunself 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, the_e 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 ilx
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 I46, 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
310 ON CIVIL LIBERTY
(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. Igor 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- G0 VERA,5_ENT. 31 I
CHAPTER XXVI.
D
THE INSTITUTION, CONTINUED.--INSTITUTIONAL LIBERTY.--1N-
STITUTIONAL LOCAL SELF-GOVERNMENT.
x The great ability of this man seems to be peculiarly exhibited in his mixture
of truth and arrant falsdhood, his uncompromising boldness and insolence, and. *
his organizing instituting mind. Two men have met almost simultaneously with
great success in our ,)wn 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.
AA'D SELF- G 0 VERN,$IEA'T. 317
t He meant, of course, the senate, legislative corps, and the council of state.
Why he calls these new restitutions we cannot see, bat 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 m principle no more as real institutions
than a tent on a stage. The "constitution" of the present empire (Napoleon I.
always spoke of les consfitutions de rempzre) 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-eonsultum, 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-consullum. Memoirs of Mtot de
Melito, (himself a counsellor of state,) vol. i. page 36o 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 term_ and symbols.
318 02," CIVIL LIB£R TY
• 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, hut they
turn their face from the whole Past, as something to be shunned, thus forgetting
the continuity of society, progress, and civilization. Mr. Gmzot, in his lectures
on the History of Representattve Governments, delivered in Parts, I82o, 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.
• 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 denves from
mere folans 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 constztution
which he decreed for Naples, (page 359, vol. ii. of Menaoirs of Count Miot de
Melito,) according to which "the national representation" was to constst of one
chamber divided into five sections, namely: the clergy, nobility, proprietors,
sarans, and traders; the clergy, nobility, and sarans 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-GO VERNAIENT. 3i 9
than the grant of the king; ''* 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
we--that is, of the collection of dwellers, or of the settlement
as we, in America, perhaps would naturally express it.4
CHAPTER XXVII.
the persons belonging to the American army would stand disbanded, and would
be absolutely free from all obhgatlons 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 Amer;can officers and men retained
as the nucleus of the Mexican army. When the war was over, the government
overwhelmed me with remtbrcements, after there was no possibility of fighting
another battle. When the war commenced, we had but one-fomth of the force
whmh we needed The Mexicans knew that the men m 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 mllhon of dollars as a bonus, with a
salary of _25o,ooo 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-
elnment. It was understood that nearly a majority of congress was in favor of
annexation, and that it was only necessary to pubhsh a pronunciamento to secure
the ob3ect. We possessed all the fortresses, all tile arms of the country, thmr
cannon foundries and powder manufactories, and had possession of their porta
of entry, and might easily ]_ave held them in our possession if this anangement
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
there to this day, if it had been necessary. I loved my distant home. I was not
m frtvor 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 milhon who are of pure European blood. The Indians and mixed
races constitute about seven millions. They are exceedingly inferrer to our own.
As _ lover of my counhy, I was opposed to mixing up that race with our own.
"rhiz. was the first objection, on nay part, to this proposition. May I plead some
1,ttle love of home, which gave me the preference for the soil of my own country
sad its institutions ? I came back to d_e under those institutions, and here I a_,.
I b* lieve I have no more to add in reptyY
AND SELF-GO V.ERNMENT. 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 la_s which the obeyer considers erroneous, yet knows
to be th_'_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
spontaneousact of submitting,they obey an institutionof
328 ON CIVIL LIBERTY
xThere are doubtlessmany causes operating together, and one of these may
he that the French are not inherentlyfond of agriculture,as the Germanicraces
are. The Enghsh are eminentlyso.
From the Canadiancensuspubhshedin 1853,the followingdifferencebetween
the French and the Anglo-Saxoncolonistsappeared: The inhabitantsof Lower
Canada are chieflyof French origin,and are not much fewerin numberthan the
UpperCanadians; the latter being 952,o04,and the former89o,261,according
to the last census. But althoughso closeto them in point of numbers,and also
in the quantity of land theyhave under cultivation,the inhabitantsof Lower
Canada raise a much smallerquantityof agricultural produce than the Upner
Canadiansobtainfromthe soil. With the exceptionof maplesugar and flax in
which they far surpassthe inhabitantsof the Upper Province,they fall gre,tly
below them in nearlyall the moreval_uableproducts.
* The reader has a right to ask here, whythen did not the Netherlands,*o
332 ON CIVIL LIBERTY
this day are little more than they were on the day of their
conquestmisolated 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 Mohammelkans
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.'
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," of all your
z The same it said of the Manchons in China. The rtrling 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 fighfing_order,which the Chinese
is not.
* The word reported to have been used by Napoleon is lumik,'es, which may
mean men who enlighten, or the light which is given. The passage is found ir_
334 ON CIVIL LIBERTY
CHAPTER XXVIII.
' "The epttaph insmibed upon the tomb of Sardanapahs, ' Sardanapalus, the
son of Anaeyndaraxos, built Anchiola and Tarsos in one day : eat, drink, and 1,ast;
the re_t is nothing,' has been quoted for ages, and its antiqmty is generally ad-
mitted."--Layard's Nineveh, vol. ii. p. 478.
2 Constitutions, thmefore, must not be changed too easily or too fi-equently ;
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. Parha-
ment is theoretically omnipotent in a political sense ; the t_eople, with us, are
politically omnipotent ; and if the people enact new constitutions every tlve or
ten years, the convention sits, in reality, ffs an omnipotent parliament.
340 OW CIII"IZ LfBEI_TY
Q
A NI) SELF- a 0 V£RN_fE2VT. 343
o
344 ON CIVIL LIBERTY
In I815, on the Ist of June, there was af_te 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 P_ve 2Vapoldon / The oath was taken with enthusiasm.
Napoleon addressed the soldmrs fl'om the throne in the following words :
" Soldiers of the National Guard of Pans; soldiers of the Imperial Guard;
I confide to you the impellal eagle, with the national standard. You swear to
defend it with your hves, if need be, against the enemies of the country and this
throne. You swear never to rally under any other banner."
Dulmg the restoration, the Cham_-de-A/ars was used chiefly for reviews of the
National Gua, d; the most notable of which was the las_ne passed by Charles
X., when the citizens manifested that hostihty to the king which was a prelude
to the revolution of I83O.
In I837 there was a grand f_te m honor of the marnage of the Duke of Or-
leans, on whtch occasmn the crowd in the Cham_-de-_]lars was so great that
twenty-four persons were suffocated or crushed to death. During most of the
reign of Louis Phihppe, however, the principal gatherings in the Cham_-de-3Zars
were on occasion of md_tary rewews and horse-races.
In I848, on the 22d of May, the F_te of Concord was celebrated with great
pomp. The A_Ionzteur alluded to the oceasmn thus:
"This solemnity was celebrated with an 6clat enhanced by the magnificent
weather. Under so clear a _ky, and surrounded by so many joyful eount_.nances,
how was it possible to expermnce any feehngs but those of love, coneihation, and
harmony ? What struck us, especially, was the attitude, so full of enthusiasm
and confidence, of the vast concourse of people that crowded the C._az_-de-
3Iars; cries, a thousand times repeated, of Vive la R_ublique / We la R_.
2kubt_que Ddmocralique / Vive l'Assemblle 2Vationale / 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 reactiona*y _dea."
To the foregoing mu_t be added the gigantic militaryf_te on the xoth of May,
I852, called the F_te 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 Galha, 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 183o the cock was restored. Louis
Napoleon, when presadent 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 he,
probably it will be nothing intrinsically different from the last.
346 ON CIVIL LIBERTY
CHAPTER XXIX.
• The Dictionary of the Academy gives, as the last two meanings of the word
Peuple--unenllghtened men, and men belonging to the lowest classes. Trench,
in his Lessons in Proverbs, quotes the French Jesuit Bonhours, who says: Les
proverbessont les sentencesdu peuple,et les sentencessont les proverbes des
honngtesgens. (Butthere are verywickedproverbs.) ]']'onn_temeans,indeed,
frequentlysomethinglike the Latin honestus,and not exclusivelyour honest,but
AND SELF-GOVERNMENT. 347
t It was the time when Huller wrote his I_e_torafion of Pohfical S_.ences, in
which he endeavors to excel Filmer, and does not blush to hold up uncom-
promising absolutism, although a native of Switzerland. Having secletly 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 or this period in its whole extent, is referred to a German
work of a high order, Robert yon Mohl's History and Literature of the Political
Sciences, 3 vols., large 8vo, Erlangen, I855 to 1858, (containing 2052 pages.)
350 OW CIVZL LIBERTY
The comprehensive erudition and hberal judgment of the author, as well as the
patient research in the literature of the day and the pa_t and of all civilized
couutries,'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.
• "_e very etymology, with its present meaning, is significant.
.42_rD SELF-G 0 VERN3IL'NT. 351
xThere are persons among us who have fallen into this erttor; and it will
always be found that they ploportionatelydisregard our mstituuons,or are not
imbued with esteem for institutionalgovernment. I lately receiveda pamphlet
m which the authorwishesfor a confederacyembracingAmericafi'omGreenland
to CapeHorn. " 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 confederacyshould comprehendAmericaonly. There is no principle
or self-definingidea in the te_m America. America is a name. The water
which surrounds it ha_ nothing to do with principles. Water,once the Disso-
ciabile Mare,now connects. Polynesia ought to be added, and perhapsFurther
Asia, and why not Hmdostan? Our oath of allegiance might be improved by
promisingto be faithful to the United States et cetera,as Alchbishop Laud's
famousoathbound the personwho took it upon an Et Cetera.
352 OAr CIVIL LIBERTY
Dispatches of the Last Century. It is for this reason fllat the present publicity of
diplomacy has such vital importance.
AND SELF- G 0 VERA*MENT. 3 53
* The cyclopean walls in Greece and Italy, bmlt before the memory even of
the ancients, and many of which still stand as firm as if raised in recent times,
ha_e 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 Lesblan canon or
rule, while the canon or rule which the architect laid down ahke for all _tone_
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, thepse_hisma, ought, as he
says, to be made by the Lesbian canon. Ethica ad Nicomachum, 5, I4- 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 amount_ to the
enunciation of an important truth, well formulated. This is the case with Aris.
totle's figure.
23
3_4 O.N CIVIL LIBERTY
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." ' 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 suffi'age 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
CHAPTER XXX.
z These differences between antlqmty and modern times, all of which are more
or less connected with Christiamty and the institution, are :
I. 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 deelining, 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
Charte_ 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 hberty
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 warp and the Greek, advised to
poison his arrows, declines doing so, "for," Homer makes him say, "I fear tt_
gods will punish me.")
AWD SELF-GO VERNM.EWT. 36r_
CHAPTER XXXI.
royalty : "There is but one thing to which all Frenchmen cling with enthusiasm,
ahnost with fanaticism, and that is absolute unity." Those statesmen who have
not unconditionally joined this sentiment, such as Mr. Guizot, are considered
unnational.
t The Contrat Social was the bible of the most advanced convention men.
Robespierre read it daily, and the influence of that book can be traced 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
the 3, dtffer 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-GO VERNMENT. 373
CHAPTER XXXII.
IMPERATORIAL SOVEREIGN2_2".
z 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 Caesar,) mentions the applause which be had
received from the audience for some oration which he had delivered, and then
continues thus : "Quorsum hoc retuli? uti te, Domine, ira compares, ubi quid in
ccetu hominum recltabis, 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, 2_o20ulo
#ostulante
ornatis aut manumittitis, nocentes etiam _omine_ aut see/ere damnatos, sed 2k_mlo
_Oostulanteeonceditis. U3_ue ig_tur jOo_ulusdomlnatur et jOrw_ollet. Igitur ut
_o2ulo gratum erie, ila facies atqu¢ ita dlces."_Eplst, ad Marc. Cms., lib. i.
epist. I.
AND SELF-GO V.ERNMEN7:. 375
z Not unhke 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 chmax 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.
The idea which I have to express would have prompted me, and the Latin
word C_esa_euswould have authorized me, to use the term Ceesarean Sovereignty.
It is unquestionably preferable to imperatorial sovereignty, exce.pt that the Eng-
lish term C_esarean 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 alway_ used it in my lectures. It will be observed that
I use the term sovereignty in this ease 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 termmit is clear that no individual ever possessed or
can possess it. On the other hand, it is not to be eonfoanded with absolute
power. My views on this important subject have been given at length in my
Political Ethics, as I have said before.
376 ON CIVIL LIBE_tTTY
Suppressione nobilium
Combustionemobilium
Purgatione exulum
2_xtinctione vectiKalium
Proregls injustilia
Ziberata
Ab Ms quos liberavit est perlngrale ocdsus
A_tatis sua_anno vlgesimo sebtimo, imperll veto
}?ecennlo
Mortuus non minus quam virus
Triumphavit
Tanta rei po_ulus 2Vea2_olitanus tancuam immemor
Posult.
378 ' O_IVCIVIL LIBERTY
t
"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 hberty. The word Libertas occurs
frequently on the coins of Nero, and still more often the sen-
timental words, Fides Mutua, Liberalitas Augusta, Felicitas
Yublica.
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' 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
t As the words stand above, I own, they may be variously interpreted ; but R
would evidently lead me too far, were I to attempt a full-statement of the sense
meant to rise it fas aut nefas, x 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.
x 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
Acarnanian_ against the 2Etolians 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!
./tND SELF-GO VERN3:fENT. 381
CHAPTER XXXIII.
*This errorbroke forth into full blaze at the indicatedtime, but it had of
coursebeenlong smouldering,and, as is customary,had found some fuel even
AND SELF-GO VERNMENT. 383
in our country. In the year I84 I, during the presidential canvass, a gentleman
--who has since become the ed,tor of a Catholic periodmal, and has probably
changed his views--published a pamphlet in which he attacked individual prop-
erty, and fell into the same error whmh is spoken of in the text above.
The author of the pamphlet, _hlch 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 m detail m my Essays
on Labor and Property, and believe that a Humboldt is a harder " working man,"
not indeed than the pool weaver who allows himself but five hours' rest m the
whole twenty-four, but ee,tainly 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 m a physical way, that does not grade 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 exe,tion. To draw an exact llne between
the two, for political purposes, is impossible. All attempts at doing _o are mis-
chievous. The hand_ and the brain rule the world. All labor is manual and
cerebral, but the propomon m 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 m 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, ff he be not deceived, he takes this opportunity
of declanng that he believes he too has a very fair title to be called a hard-
working man, without claiming any peculiar civlt privileges on that account.
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 tts also of the Dteu 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 disastrolls d&rets d'acclamation of the first French revolution. That
384 ON CIVIL LIBERTY
the government is the true repre_entaUve of the people has been often asserted in
recent times in France, and Napoleon I., in one of his addresse% delivered in
the council of state, said : The government, too, is the representative of the
people.--Mlot de Metito, in his Memoirs.
t
AND SELF-GO V.ERNM'.ENT. 385
• When the question of the new imperial crown was before the people of
Franee, 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-GO V.ERN_rENT. 38 ]
CHAPTER XXXIV.
committee of public welfare should have continued, without being aware of it,
the work of Lores XI., of Richelieu, of Lores XIV., giving the last blow to the
feuda! system, and carrying out the system of umty and centrahzation, the con-
stant aim of monalchy--in hke 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 x848 _ 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 ahve by the instinct
of the country for more than three hundred years."
In the evening some hundreds of persons engaged in the work--workingmen,
mists, men of letters, journahsts---were entertained at dinner by the minister of
state in a gallery of the Louvre. Of course the speaking was ultra-loyal.
392 01V CIVIL LIBERTY
• No one will charge the author, he trusts, with political iconoclasm, that has
read his chapter on monuments in his Political Ethics.
• The Age of Great Cities, or Modern Society viewed in its Relation to Intelli-
gence, Morals and Religion, by Robert Vaughn, D.D., London, I843.
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 word_ : _'Like-
wise Rule_ 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-GO VERNMENT. 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 repubhc.
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 I848 , the repubhc 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 court_. The court of Versailles
dictated in evm T 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.
394 01V CIVIL LIBERTY
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 dlgnitanes 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 C_esar.
The Lord's Prayer was travestied. The following "proclamation" is taken from
the " Concorde de Seine et Olse," of October, 1.852, for the very reason that it
is not one of the worst :
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, ale 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 S_vres, as the interpreter of your sentiments, I
have prepared the deed which makes you take part in this great national move-
merit. Two books are opened at the Mairie to receive your signatures: one of
them will be offmed 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 telritory, by tile gate of honor which we possess. The
other book, whmh 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, w_thout d_stmctmn, 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
-" M6nager, 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
iournals at the time of General Jackson's administration, t_ut these were erratm
acts of individuals, and, however disgusting, were not officially received by
government. •
z Mr. Cheval|er.
39 _ ON CI_VL LIBERTY
CHAPTER XXXV.
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
unceasin K 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.'
I am under the impression that the famous maxim first came
into use in the middle ages, at a contested episcopal election,"
x Sir Wm. Hamilton begins the third paragraph, page 770, of The Works of
Thomas Reid on the Umversality of the Philosophy of Common Sense, in this
way :
" I.--Hesiod thus terminates his Works and Days :
¢b_lltrl
6'olJrtC_r(qtlrav?tTr6)_vrat_]vrwa zroZTm_
Aao_(Prltzt(ovat.Oebqv_ "rtfkar_,_a_avrC?.
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 farthel referred to Mr. G. Cornewall Lewis's Essay on the Influence
of Anthority in Matters of Opinion, (pp. I72 , I73 , and the accompanying notes,)
for some interesting remarks upon it."
26
402 O_V CIVIL LIi_IFRTY
' It has been calculated that several mlllions of human beings have been sacri-
ficed by witch-trials in modern times. [!] An article in the Westminster Review,
January, 1859 , shows that the behef in witches is yet causing occasional disorder
and crime m England. Indeed, if the famous Quod omnibu% etc., could ever
be applied to any subject, it is to this. It has existed and still exists in all the
coiners of the earth, and with tribes wholly insulated. There has been always
whlppmg in the armies, until Always ceased ; there was always slaver 3, 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 LII_ERTY
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 wa_ 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 cleanhne_s was not eonduclve to the health of children; it
was always believed that mdtcted persons ought to be tortured, if they would
no'_ 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-GO V.ERNAIENT. 405
* The Paris journal, Le Pays, informed the public, at the time the present em-
pire was estabhshed, 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 rehshed 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 winter 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 popuh vox Dei prevails, and governments change in
rapid succession, it is a necessary result that there are hosts of turncoats. The
French published m 1826, or thereabouts, a bitter satire on this held of poli-
ticians, consisting of a work called Dlctlonnabe des Girouettes--literally trans-
lated, Dictionary of Weathercocks; but Anghcized, Dictionary of Turncoats.
The names which headed the biographies ii'l the book were succeeded by a
number of symbohcal weathercocks equal to the number of pohtical somersets
, of which the respective persons could boast. There was a fearful row of hiero-
glyptncal vanes after some names. But in reading this droll and bitter account
relating to a foreign nation, let us not forget St. Luke, vi. 4r.
APPENDIX.
APPENDIX 1.
A PAPER ON ELECTIONS, ELECTION STATISTICS,AND GENERAL
VOTES OF YES OR NO.
• There is no other term in our language, although it is obvious that these pro-
cesses cannot be properlycalled elections. Votings would be more correct.
AND SELF-GO V.ERN3IENT. 415
t 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,
St. 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 Icetanders some-
times decided by vote whether Christ or the old gods should be worshipped.
AND SELF-GO VERNM'E)VT. 4_7
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 questlon, 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 fhem, 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
418 ON CIVIL LIBERTY
• This knowledge of the vote which an elector will give does of course not
AA'D SELF- GO VERW3IENT. 419
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 proportionbetween the presidential candidates very different
from that which appears from the official votes of the electors. For instance,
the popular vote at the last prcsidcmtialelection stood :
For Pierce . . 1,5o4,471
,. " Scott ...... 1,283,I74
" 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 I32 to IOO.
But the votes of the electors :
Pierce to Scott as 6o 5 to 1oo.
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.
420 ON CIVfZ LIBERTY
When there are three fairly supported candidates, the total num.
her 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
o;¢er 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, x85I, was placed before them. In the year I793, in
the years III., VIII., and XIII., similar appeals were made, and the
AWD SELF-GO VERNME2V_ 421
* [SchSmann, Gr. Alterth., i. 398, considers that 6ooo 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 m
all there were not 6o0o, declared that nothing had been done. This seems on
the whole most probable. It is not clear that a plurality out of 6ooo decided the
_stracism of one who had been voted upon.]
422 ON CIVIL LIBERTY
138,129
which resembles closely the vote of x851.
AA'D SELF- GO VERNAIEN_ 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 x852, about 75 or 76 out of each hundred voters
to the poll. The calculation has been made from the official elec-
tion returns, and takmg 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 gwen by
Mr. Kennedy, the first superintendent of the United States Census
for i85o , and dividing that number by four: I have called the
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 thewhole 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
t I am aware that, apparently, Votare has not been used in Low Latin for
voting. I)u Cange says that Votum was used in the middle ages for suffrage,
but Votare for Vovere, Spondere. As it is, however, no uncommon.ease 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 "¢otant, in a language in which brevity is often considered to cover
logical and etymological sins.
* See the preamble to the constitution proclaimed by Louis Napoleo,
f
AA'D SEI-F-GO ['E_gAITIEA'T. 427
8,489,372
Total . Io,2o3,428
This shows a very different result from the vote on the coup
d'_tat. It gives twenty-five abstinents in a hundred ; but there are
other points not easil_understood. Of thlrty-one persons, one
only voted no. This is a state of harmony to which people of the
M;VD SELF-GO VER_VI_EWT. 429
x On the loth of December, 1848, when the first French president, for four
yeals, was voted for:
There were polled 7,327,345
Of which : For Louis Napoleon 5,434,226
For General Cavaignac x,448,Io7
" Ledru Rollin 376,II9
" Lamartine . 17,910
" Changarnier , 4,7o0
Lost Votes i2,6oo
France contained, in the year I846, 35,4o0,486 inhabitants; consequently, in
1848 there were about 9,0o0,000 of authorized voters; and 7,327,345 having
_,,ted, about 80 in Ioo went to the poll, according to this statement. Yet it
lutt_! be supposed that the eagerness to go to thetlbaUot-boxwas, in that year,
i,,ach greater than after the coup d'6tat.
43 ° ON CIVIL LIBERTY AND SELF-GOVERNMENT
• The reader cannot fail to remember here the constitution proposed by Mad.
de Sta_l 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 T_CIEPARDONING POWER.
* 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 ehief magistrate of modern constitutional states,
people are apt to confound the two, and attack or defend them on common
grounds. Yet the two &tier 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 auxillum, 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
43I
43 2 ON CIVIL LIBEI_T]"
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 ease 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 prescribed 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. _-oo,2oi, 202, of
this work.
• Voyage en Perse, London, I686--I7I 5,
AWD SELF-GO VERfVM'ENT. 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, _ so does the civil law acknowledge the privilege m 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 apparont 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
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 /
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 eases ; because the changes of
society, things, and relations necessarily change the effect produced
by the same laws; _nd 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,
'eases 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
savereign(y 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 Pr_ocrustes, and would
sometimes sacrifice essential justice as a bleeding victim at the
shrine of unconditional and inexorable law itself. It is to these
case% 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 pecuhar 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 prlnciples 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 wlth 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 whicl-, the pardon is applied_influences,
therefore, which in this respect are arbitrary or accidental All
436 ON CIVTL LIBERTY
i
438 ow CIVIL LIBERTY
t While these sheets are passing through the press, the papers report that the
governor of a large state has pardoned thirty criminMs, 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-'_b
penses which they incur for the administration of justice. It is paying too dear
for a farce, which is not even entertaining.
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 traf_c, though the monarchs
knew about it.
440 ON CIVIL LIBERTY
* VV'hflethe 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 I843 and 1852." Unfortunately, this important paper, which contains
the names of the persons, sentences, number of years sentenced, nmnber of years
remitted, and the crimes, does not give any classifications,summmgs-up, or com-
parisons with the numberof sentences and unremltted punishments. It only ex-
hibits the following recapitulation for Io years from I843 to z85_:
Full Pardons , 36
Remissions , 3x9
Restorations Io3
Commutations . 35
Total . . 483
This paper will doubtless be made the basis of very instructive statistical cal.
culat_ons,and it is greatly to be desired that other states would follow. As it is,
I am ilIeapable of giving at this moment any other information, It would require
otherdocuments, 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 t8th 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 unremittedsentences; for what crimesand
442 ON CIVIL LIBERTY
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, &e., long sentences or death.
AND SELF-GO V.ERfFIIENT. 443
x A few example_ 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 weatheJ" is uniform or violently changeable ; the
mean interest at which money may have been obtainable in the course of the
year does not indmate the truth, unless we know that it h_ not been pecuhally
low at some periods and extraordinarily high at others ; the general criminality
of a community cannot be calcu|ated 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 corn
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 slngl¢_
arbitrary pardon may shock the whole community.
444 0iV CIVIL LIBERTY
The Constitution of the late French Republic of I848 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 othex
AWD SELT:GO UEP_AI_IEWIC. 44_
persons condenmed by the high court of justice, can only be pardoned by the
national a.s_embly."
!r 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 lit)erty.
z 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 onght to be left
uncontrolled ill 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 an)" point, and would certainly have differed upon so weighty and delicate
a subject, had their minds been directed to it.
We certaiuh" think that ill health, threatening disastrous coW,sequences, 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 OA r 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 pumshment. 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 ume 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 v,ith 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.
A_VD SELF-GO VIF.RWIIIEIVT. 447
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 umversally called for a total change
of such a trial, and, as I stated before, so.me very important changes
have taken place.
The chief incongruity m this inquisitorial real, however, is that
it admits of half proofs, two of whmh 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
punisLment, is inflicted.
It is ha. dly conceivable how an intelligent nation, advanced in
the scie,m_s, can have continued a logical absurdity of such crying
characte; 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, a_,d substituting evidence, the means of arriving at the fact,
• which is .'h_ thing to determine the punishment, for the criminal
fact•
The plmciple from which we start in penal law is, that crime
ought to oe followed by evil, as a consequence of the crime. If
crimes punished themselves, we should not want judges; if judges
were ommscient, 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 aIone that can be
punishable. But the idea of a fact does not admit of degrees.
There may, indeed, be every possible degree of behef in a judge_
t¥om the first suspicion, from surmise, doubt, and belief, to the
fullest convic,ion ; 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 0to 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 creme, 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, whmh, 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
(Z.eg. agi_uar., 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, qThe
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
dND SELF-G 0 YERNMENE 455
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 _leed 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 Anghcan 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-establishment
AND SELF-GO V_.RI_:IIZ:2.ATT. 457
Indeed, has the torture not been used ? Mr. Gladstone's pamphlet
on Neapolitan affairs tells us strange things.'
* It would seem that the torture actually continues to exist in some palts of
Europe. The following is taken from the London Speetatob of Decembel 22d,
I849, which gives as its authority the well-known A-1tgememe Zeltung, pubhshed
at Augsburg, and, consequently, not far from Switzerland
"A strange cncumstanee, says the Allgcmeme Zeitung, has just taken place
at Herisau, the capital of Inner Appenzell, m Switzerland, showing how much,
in these countries of old hbertms, c_vfllzat_on ts behindhand m some matters. A
youug girl of mneteen, some months back, assassinated her nv.al. Her lover
was arrested with her, and, as she accused hm_ of the clime, both were put to
the torture. The gill yielded to the pare, and confessed her cringe, the young
man held firm m his demal : the former was condemned to death, and on the
7th of this month was decapitated w_th the sword, in the market-place of
Herlsau. This fact is itself a starthng one, but the details are just as strange.
For two hours the woman was able to struggle against four mdlwduals charged
with the execution. After the first hour the stlength of the woman was still so
great that the men were obhged to de.-ist ; the authorities were then consulted,
but they declared that 3ustlce ought to follow its course. The stluggle then le-
commenced, wzth 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 executmner then carried the sentence into effect."
The author has touched upon the fact that, m our country, the abolition of
trial by jury has been proposed, m the note appended to page 233. The topic
is one of vital impmtance to our entire system of government and political
existence It is for thls 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 Legislatmn 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 temmony given by the great cnrnmalist, of the satisfactory results de-
rived from trial by jury, even in countries where it has been recently estabhshed,
has reduced the author to append this note here, rather than leave his readers
unacquainted with ewdence of such weight in favor of so great an instltutmn,
considered by almost all friends of liberty as one of the substantial acquisitions
obtained by our progressive race.
APPENDIX IV.
MAGNA CHARTA OF KING JI_HN,
chattels ot 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 flee 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.
XI,IV. We will not have the wardship of an heir, nor of any
,alxd which he holds of another by military service, by reason of
464 ON CIVfL LIBERTY
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 file 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 _s never to be restored.
LVIL 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 shpendiaries, 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
_o
466 ON CIVIL LII?,_R TY
the said five and twenty barons, together with the community of
the whole kingdom, shall distrein 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-GO VERNMENT. 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 ITth day of June, in the x7th
year of our reign.
MAGNA CHARTA,
MADE IN THE NINTH YEAR OF KING HENRY THE THIRD_ AND CON-
CHAPTER I.
A ConflrmaEon of Liberties.
"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-GO VERNMENT. 47I
CHAPTER III.
The Wardship of the Heir within Age. The Heir a Knight.
[-Similar to 3d chapter of John's Charter.]
CHAPTER IV.
.Vo waste shall be made by a Guardian in waste lands.
[Same as 4th chapter of John's Charter.]
CHAPTER V.
G_¢rdians shall maintain the Inheritance of Wards. Of
Bishoprics, 6_c.
iS'tailor to 5th chapter of John's Charter, with addition of like
pr,wisions against the waste of ecclesiastical possessions while in
the king's hand during a vacancy m the see, &c.]
CHAPTER VI.
Heirs shall he Married without Dz'slbaragement.
[Similar to 6th chapter of John's Charter.]
CHAPTER VII.
CHAPTER IX.
CHAPTER X.
Wane shall distrain for more Service than is due.
[Same as :6th chapter of John's Charter.]
CHAPTER XI.
Common Pleas shall not follow the _fnga s Court.
[Same as iTth chapter of John's Charter.]
4.72 ON CIVIL LIBERTY
CHAPTER XIV.
fIow Afen of all sorts shall be amerced, and by whom.
[Same as 2oth and 21st chapters of John's Charter.]
CHAPTER XVII.
CHAPTER XVIIL
The King's Debtor dying, the King shall be first jkaid.
[Same as 26th chapter of John's Charter.]
CHAPTER XXII.
CHAPTER XXIII.
In what _laces Wears shall be ffut down.
[Same as 33 d chapter of John's Charter.]
CHAPTER XXIV.
In what case a _Prceci_e in Capite is grantable.
[Same as x4th chapter of John's Charter.]
AND SELF-GO VERNJ[E2VT. 473
CHAPTER XXV.
There shall be but one Afeasure through lhe Realm.
[Same as 35th chapter of John's Charter.]
CHAPTER XXVI.
_zfuisition of Zfe and Member.
[Same as 38th chapter of John's Charter.]
CHAPTER XXVII.
CHAPTER XXVIII.
CHAPTER XXIX.
CHAPTER XXX.
_l'erchant Strangers coming into this Realm shall be well used.
[Same as 4Ist chapter of John's Charter.]
CHAPTER XXXI.
CHAPTER XXXlI.
Lands shall not be AZiened to the Prejudice of the .Lord's Service "
[L e. Zord of the Tee].
CHAPTER XXXlII.
CHAPTER XXXIV.
. CHAPTER XXXV.
CHAPTER XXXVI.
2Wa.Land shall be given in 3fortmain.
"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.
CONFIRMATIO CHARTARUM.
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.
AA'D SELF-GO VERNMENT. 477
CAP. VI.
HIJM_LV 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 A_de
should be laid or levied, by the King or his heires, in this Realme ;
without the good-will and assent of the Arch B1shopps, Btshopps,
Earles, Barons, Kmghts, 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 Ralgne of King Edward the
third, it is declared and enacted, that from thenceforth hoe 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 hke 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 refilsall soe to doe,
have had an oath administered unto them, not warrantable by the
• Thi_ petition was drawn up by Sir Edward Coke. Coke, 207, edit. of 1697.
478 "_
02V CIVIL LIBERTY .,42VD SIZLF-GOVER.NMENT. 479
Pc/ilion of 3ollz _ouses lo lhe King, an the 7th clay of June, z628,
wherein a more full and satisfaclory answer go lhe above _Petilion
is _rayecl for.
your People, doth much depend" upon your Majestie's answer upon
their Petltion of Right, formerly presented _ with unanimous con-
sent do now become most humble suitors unto your Majestie, that
you would be pleased to give a clear and satisfactory answer there-
unto in full Parhament.
t
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."x
, Copied from the Statutes at Large, by Danby Pickering, Esq., edit. 1763,
vol. 8, p. 432.
483
484 ON CIVIL ZIBEXT}"
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
kis 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 _ioo; (2) and for the
second offence the sum of _2oo, 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-GO VERN3IEiVT. 487
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
brought before the judge of asstze in open court, who is thereupon
to do what to justme 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 informatlon, smt 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, smt 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 _OK DECLARING THE RIGHTS AND LIBERTIES OF THE SUBJECT_ AND
SETTLING TItE SUCCESSION OF THE CROWN.
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
.,4ND SELF. G 0 VER2V3IEWT. 495
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 lorcls 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 thereto 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 lord_ 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 XIII. irrelevant.
APPENDIX VIII.
A DECLARATION BY THE REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED.
MASSACHUSETTSBAY. CONNECTICUT.
Samuel Adams, Roger Sherman,
John Adams, Samuel Huntington,
Robert Treat Paine, William Williamr,
Elbridge Gerry. Oliver Wolcott.
502 ON CIVIL .Llt?ERTI" AND 3"ELF-GOVERN3IEWT.
VIRGINIA.
NEW JERSEY,
ARTICLE IV.
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 m 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.
AR.,,TICLE 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 m 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 court_
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 a_ 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 pubhe stores, a due number of
field-pieces and tents, a_l 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 c_ngress 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 0
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 cases 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 ISnited 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 determinatlon; 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 '0
same time claimed to have originated antecedent to such settlement
of jurisdmtion, 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-GO IT.ER2V_IlE2VZ 509
ARTICLE X.
ARTICLE XI.
ARTICLE XIII.
On the part and behalf of the state of Rhode Island and Provi-
dence Plantations :
William Ellery, John Collins.
Henry Marchant,
and no person holding any office under the United States shall be
a member of either house during his continuance in office.
SECT_O_ 7. All bills for raising revenue shall originate in the
house of representatlves; 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
biI1, 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, 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 representative_
may be necessary (except on a question of adjournment), shall be
presented to the President of the United States i and before the
same shall take effect, shall be approved by him i or, being disap-
proved by him, shall be repassed by two-thirds of the senate and
house of representatives, according to the rules and hmitations
prescribed in the case of a bill.
S_CTIO_ 8. The congress shall have power
To lay and collect taxes, duties, imposts, and excises i 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 law_
o_ the subject of bankruptcies throughout the United States: Q
5 18 OW CIVIL LIBER TY
ARTICLE II.
t This clause within brackets has been superseded and annulled by the I_th
amendment, on pages 527-28.
AA'D SELF-GO VERNMENT. 521
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
mimsters 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.
ARTICLE IV.
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 S_LF-GO VERASVENT. 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, b_h 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 V,II.
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.
GEO. WASHINGTON,
])resident 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
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.
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.
ARTICLE XL
ARTICLE XII.
The electors shall meet in their respective states, and vote by
baUot for president and vice-president, one of whom, at least, shall
528 OW CIVIL LIBERTY
ARTICLE XIII.
SECTION r. 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.
o
AND SELF-GO V.ERNA/fENX 529
ARTICLE XIV.
ARTICLE XV.
SECTIONI. 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.
SECTION2. The congress shall have power to enforce this article
by appropriate legislation.
APPENDIX XI.
THE FRENCH CONSTITUTION, ADOPTED AND PRO-
CLAIMED ON THE TWENTY-FOURTH OF JUNE 1793.
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., i848.
CONSTITUTION
OF THE REPUBLIC.
II. The primary assemblies are formed of the citizens who have
resided six months in a canton.
i2. They consist of no less than 200 and no more than 600
citizens, called together for the purpose of voting.
z3. They are organized, after a president, secretaries and col-
lectors of votes have been appointed.
I4. They exercise their own police.
15 . No one is allowed to appear there with arms.
i6. 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 _rimary assembly at , numbering
votes, vote for, or vote against, by a majori(y of--
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.
a 9. Every deputy belongs to the whole nation.
3o. In case of non-acceptance, of abdication, or expiration of
officer 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 numberofcitizens [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.
61. The laws, decrees, sentences, and all public transactions are
superscribed :
In the name oft he ffrench _eo2le, in the year of the French
Re2ublie.
OF THE EXECUTIVE POWER.
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.
75. The executive council shall have its scat 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 CIVIL JUSTICE.
85. The civil and penal code is the same for the whole re-
pubhc.
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.
9 ° . 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 o17 CIVIL LIBERTY
95. The justices of the peace and the public arbitrators are
chosen annually.
OF CRIMINAL JUSTICE,
xi8. The French nation is the friend and natural ally of free
nations.
544 O_/V CIVIL LIBERTY AND SELF-GOVERMMENT.
branch of the royal house, are leaving, at this 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
d_gmty in appearing to grant to the French rights which essentially
belong to them ; 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
I814, as amended by the two chambers on the 7th August, and
adopted by us on the 9th, be published anew in the following
terms :
PUBLIC LAW OF THE FRENCH.
z 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 file catholic, apostolic and Roman religion, and those of
other Christian confessions, alone receive stipends from the public treasury.
AND SELF-GO VERNMEN_ 547
ART. I2. 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 ex_kress law. 2
ART. X4. 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 2_eers, and to the chamber of d_uties.
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.
Article 14 of the old charter :
- The king is the supreme head of the state, commands the forces by land and
nea, 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 x5 of the old charter, and the chamber of deputies of
the departments. These last three words have been suppressed.
548 ON CIVIL LIBERTY
Art. x5 is in the place of art. I6 and *7 of the old charter, which were
thus:
Art. I6. 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, so and 2I, 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. 2o. 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
se_ion.
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
should be ordairmd by the king.
.AND SELF-GO VERNMENT. 549
has attained the age of thirty years, and if he does not _assess the
other conditions prescribed by the law.*
ART. 33" If, however, there should not be in the department
fifty persons of the age specified paying the amount of taxes flxed by
/aw, 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 twen(y-_ve
years of age; and if he does not _Oossessall 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 dmmber of deputies is to be elected
by the chamber itself at the olOening of each session, s
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. n
46. No amendment can be made to a law, if'it has not been proposed or con
,t ,
AND SELF- GO V.ERNMEIV_ 5 5I
ART. 40. NO tax can be established nor im2_osed, if it has not been
consented _o by the #we chambers, and sartctianed by the hing.
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.
JUDICIAL REGULATIONS.
sented to by the king, and if it has not been sent back and discussed by the
bt_rcaux.
47.The chamberof deputiesreceives
allpropositiomof taxes
; onlyafter
theselawshavebeenconsented
to,theymay be carried
tothechamberofpeers.
• Article
56oftheoldcharterissuppressed
; itranthus:
They cannotbe accusedexceptfortreasonor peculation.
Particular
laws
willspecify
this
kindof offences,
andwilldetermine how theyaretobe prose-
cuted.
5 52 OW CIVIL LII_ER TY
By the king:
The Minister Secretary of the State for the department of the
Interior.
Signed GuIzoT.
CONSTITUTION.
CHAPTER I.
OF SOVEREIGNTY.
CHAPTER II.
CHAPTER IlL
OF PUBLIC POWER.
ART. I8. All public powers, whatever they may be, emanate from
the people. They cannot be delegated by hereditary descent.
.ART. X9. The separation of powers is the first principle of a free
government.
CHAPTER IV.
OF THE LEGISLATIVE POWER.
ARt. 29. The conditions of the preceding articles are not appli-
cable to assemblies elected for the revision of the constitution.
• ART. 3 o. The elections for representatives shall be by depart-
ments, and by ballot. The electors shall vote at the chief place
of their districts nevertheless the district may be, from local causes,
divided into several subdivisions, under the forms and in conformity
with the conditions to be determined by the electoral law.
ART. 3I. 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. 3 z. 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.
Ar_T. 34. The members of the national assembly are the repre-
sentatives, not of the department which nominates them, but of the
whole of Frafice.
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
It
11
_60 ON CIVIL LIBERTY
CHAPTER V.
CHAPTER VI.
CHAPTER vn.
OF THE INTERIOR ADMINISTRATION.
CHAPTER VIII.
OF TIlE J"e/DICIARY POWER.
CHAPTER IX.
ART. Ior. The public force is instituted for the purpose of de-
fending the state against enemies from without, and to insure,
_68 ON CIVIL LIBERTY
CHAPTER X.
SPECIAL REGULATIONS.
CHAPTER XI.
OF THE REVISION OF THE CONSTITUTION,
CHAPTER XII.
TRXr_S_TORY
ARRANG_r_NTS.
LOUIS NAPOLEON,
PRESIDENT OF THE REPUBLIC.
t The reader will find, on a subsequent page, that the whole of this constitu-
tion was retained under the empire, with the exceptiQn of a few passages, relating
to the hereditary part of the empire.
_7 2 OW CIVIL LIBF_RTY
CHAPTER I.
CHAPTER II.
FOR_SOF TK_ GOVEXNMENT
OF T_E R_Pum.m.
CHAPTER In.
oF T_E PReSiDENTOF TH_ R_r_UC.
ART. I2. 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
mthey 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. I4. 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 andjCdelity to the
_resident.
ART. 15" A senatus-consultum fixes the sum allowed annually to
the president of the republic during the whole continuance of his
functions.
ART. x6. 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. I7. 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.
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,ooo electors.
ART. 36 . The deputies are to be elected by universal suffrage,
without set, tin de liste.
AI_T. 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. 4 x. 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. 4 2 . 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. _St
CHAPTER VI.
OF THE COUNCIL OF STATE.
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,
x852.
LOUIS NAPOLEON.
Sealed with the great seal.
The reader must remember that all the decrees, which were issued
after the coup d'dtat, 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 qaw 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, i852 , appeared
the following important decree:
CHAPTER I.
CHAPTER II.
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 dmsolving 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. 53. 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
_86 ON CI_TZ LIBERTY ,
the speaker" for the rest of the sitting on the same question. The
decision takes place by assis et/ev_ without debate.
ART. 6 4 . 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 Iev_ 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.
APT. 6 7 . 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 motiv¢s. The previous question--that is to say,
that there is no ground for deliberationJis 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
I4 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-GO VER.N_ENT. 587
CHAPTER IV.
MINUTES.
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 pldbiscite by anticipation, proceeding from
the heaTts 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
:tepreciate) 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. It 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 I8r4, 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 .
interest, that they are, in man_y 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 patti-
mony in fact.
If these reasons do not apply in all their extent to the members 4
SENATUS - CONSULTU._L
SENATUS-CONSULTUM.
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 I852.
eign, I7o, note, 337 ; not sufficient Conscience, liberty of, 97 and _equ.
as patria for moderns, I7o. American constitutions regarding it,
City, confounded by the ancients with ibid. Necessity, at present, 99- Why
the state, 45 and sequ. its full acknowledgment in England
City-states and national states, 36o and so late, Ioo.
sequ. Conscription in France, Hg, note.
Ci_ ihzation, law of spreading, 294. Conmtutionality, declared by supreme
Civil Law, influence of, on common law, court, I62 and sequ.
212. Constitutions, produced in our age, I7,
Civil Liberty. See Liberty. 18; written and unwritten, enacted
C_vil List. See Taxation. and cumulative, I62, note; of Eng-
Code Napoleon and equality, essence land, consists chiefly of common
of civihzatlon, x9. law, 21o; what it consists of, ibid. ;
Codificanon does not prevent interpreta- of the United States, called atheistm,
tion, 2o 5. Lord Cranworth on, 2o7, 259, note; of the Umted States,
note. works on it, and on their govern-
Co_tlogon, French ease of opening ment, 265, note; of the United
letters, 92. States, in full, 5 I4 and sequ ; French,
Coke, on the justice of the peace, 322, of I793, in full, 531 a,ud sequ; of
and note. the French repubhc of I848 , 555
Collard, Royer, on absolutism of the and sequ; of France, of I851 , 576
majority, _-83. and sequ.
Colonization Society, I25. Coode, codifying English poor-law,
Color, effect of distraction of races on 2o7, note.
American sympathy and pohtics, 260. Cooper, Dr. Thomas, opinion of Ham-
Commissions, contradisfinguished from ilton's Parhamentary Logtc_ I92 '
regular courts, IO6. note.
Common law, necessary for the inde- Corruption of blood, not admitted in the
pendenee of the law, 204 and sequ. Umted States, 80 ; in England, lO2.
Constitutes the greater portion of Council of State, in France, 2o0,
Brmsh constitution, 2IO. Compared Council of Tlent. adopted the half-hour
with civil law, 2II; article Common tale, I33, note.
Law in Encyelopsedia Amermana, Counsel of the prisoner, 240.
written by Judge Story, 213, note; Country, necessary for moderns, instead
American writers who take French of ancient cities, 169, and note.
views of liberty and of law against Corns pr6v6tales, abohshed by charter of
it, 214. Louis XVIII. See zVatural Courts.
Commumon, right of, 87 and sequ. Courvolsier, and Phllips his counsel,
Liberty of, always abolished by abso- 245, note.
lutists, 272. Cranwolth, Lord, on codification, 207,
Communism, the basis of the Utopias, note ; on trial by jury, 236, note.
44, note. Crimen exceptnm, high treason, 82.
Compensation bill, intended by Ro- Cromwell, congratulations on dlssolv-
mtlly for accused persons not found ing parliament, 418.
guilty, 77. Crowds, acclaiming, deceive, 396 .
Compurgators, 454. Crown, or principate, on the Continent,
Conclamation, election by, of medieval 49.
character, 49I. i Crnsades, in connection with the Vox
Confederation, Articles of, and Per- populi vox Det, 400.
petual Union, in full, 5o3 and sequ. Cumulative constitutions. See Elzacted
Confirmatio Chartarum, 470 and sequ. Conslittetians.
Confirmation of liberties, 47 ° and sequ. Cumulative voting, t77, note
Confiscation, incompatible with civil Curtis, G. J., History of the Constltu-
liberty, tot. tion of the Umted States, _65, note.
Conflicts between courts and admmis- Cushing, L S., Rules of Proceeding
trafions, were to be decided by a and Debate, etc., 19I,note.
_eparate tribunal,according to French Cyclopean walls, 353, note. See Forth-
constitution of 1848, 566. ha_u#er.
612 INDEX.
DAHOMEY, King of, his letter to Queen Election alone not liberty, 32 , of file
Victoria, 25, note. chief ruler, does not establish a re-
Duly, Judge, Historical Sketch of the pubic, or libelty, 15o , note; direct
Judicial Tribunals of New York, and indirect, 174; in electors to elect
239 , note. President of United States, 175 and
Debating, not known in Roman senate, sequ ; circmtous elections in the mid-
189, note ; cannot take place in mass- die ages, 178 ; management of elec-
meetings, ibid. lions must not be in the hands of the
Deciduous institutions, 319 . executive, 179; of chief does not
Deciaration of Indepeudenee of the establish liberty, 286; not allowing
United States, in full, 498 and sequ to choose, 386 ; paper on it, Appen-
Decree of March 22, I852 , to regulate dix, 413 and sequ.
" the relations of the legislative corps Elections, ex post facto. See Ex _ost
with the president of the republic facto Elections. Conditions to make
and the council of state," 582. them valid, 414 . Question must have
Defensors, of prisoners, 24 o. been freely discussed, ibid. Absence
Definitmns of Liberty, 26 and sequ. of the army, 414 and sequ ; must be
Difficulty to defend it, ibid. earried on by election institutions,
Delegated powers,--those which are 415; returns mu_t be protected
not positively delegated are leserved agmnst fal_lfieation, ibid. ; the per-
for the people by the Constitution of sou on whom the voting takes place
the Umted States, I6I. must not have the supreme power, or
Demagogues, 338. it must be possible to make him obey
Democracy, Aristotle's opinion on ex- the issue, ibid. ; there must be two
treme, I56 ; absolute, or in the agora, things to vote upon, ibid. ; the power
hostile to liberty, 167. clanning the election must not have
Democratic absolutism, 156. committed a poliueal crime, ibid.;
Democratic might, divine right and, must be on things sub3ect to public
366. opinion, 416 Election of patron
Deputative government of the middle samt_ 416, note. Congratulations
ages, 164. crowding on Cromwell after having
Despots, brilliant, their danger, 26. dissolved parliament, 418 ; they did
De Tocquowlle and De Beaumont, on not express Enghsh public opinion,
the abuse of pardoning in the United ibid. Election statistics, ibid. Quail-
States, 438 . fled voters abstain in proportion to
Divine nght and democratic might, the general privilege of voting, 419;
366. twenty-five per centum a small hum-
Division of government into three ber of abstainers, ibid. If qualified
branches, 15o. . voters more than two or three thou-
Division of power, contrary to abso- sand, one-half voting shows com-
lutism, 275. mon intelest, 42o; voting on men
Dixon, C. G., Sketch of Maiwara, etc., draws more votes than vgting on
I69, note. measures, ibid. French have never
Doge of Venice, his election, I78. voted no on proposed constituuon%
Dragonnades, under Louis XIV. See consuls or emperors, ibid. Election
Army, Soldiers, etc. of Napoleon I., 421. How many
Dred Scott case, 262, note. Athenians usually voted, ibid. Os-
Duke's laws, 238. tracism, 42I, 422. Instances of
Dumont, concerning absence of par- number of abstainers, 423 and sequ
liamentary practice in French Revo- Official statement of election after
lution, 19o. French coup d'dtat, 427 ; cannot be
correct, 1bid.
EBRII',!OTON,Lord, 283, note. Electors of President of the United
Education alone, no basis for liberty, States, 175.
299. Eleuthetaa, 29.
Egress and regress secured by Magna Emigration, 93 ,and sequ. Amount of
Charta. See Locomotion, Rigkt of, capital carried off by emigrants, 94.
and the Charter itself, in Appendix. Enacted or written constitutions_ 265.
INDEX. 613
England, her service in the cause of Fox, Charles, Bill on Libel, 235, note.
freedom, t9 and sequ. Early sepa- FramersofAmencan Constltuaon_thelr
ration of justice fi'om admlmstra- character, 26I.
non, 2% note. Her liberty the Francis, Chronicles and Characters of
foundation of outs, 2o, 2I. Many the Stock Exchange, I46.
fortunate circumstances m her hls- Franklin, Dr., m favnr of one house
tory, 48 and note ; becomes the model of leglslature, I95
of hberty for the Continent, 49- Frederic II., concerning petmons, 123 ;
English a peculiarly 3ural nation, 451. why should many submit to "me ?
Enlightened absolutism not the best 37o.
government, 26. Free press, first m Netherlands, 87.
Enthusiasm no basis of liberty, z99. Constitution of the United States dis-
Epistolary communism, 88 and sequ. tinctly establishes freedom of the
Equahty, and Code NapoI6on, the es- press, 88. Prohibited by English
sence of pohticat civilization, 19. republican government, 92.
Confounded w_th liberty, 29. More Freedom, etymology and distinction
equality in Asia than in the United from liberty, 37 and 38, note.
States, 3o; the French seek for hb- Freedom of action desired by all men,
erty in it, 28I, 282 and sequ ; dlffi- 25 ; even by despots, ibid.
cult to see what the French mean by Freemen, subjects, and slaves, 26, 27 .
it, 285. French Constitution of I793, 531 ; of
Er>kine, Lord, opinion of, on trim by I851 , 576.
jury, 233 , note. Flench Charters of Louis XVIII. and
Ethics of the Advocate, 24o and sequ. of the year 183o, 545 and sequ.
Everett, Edward, opinion of, on impor- French Idea of hberty and the height
tance of parliamentary law and pro- of civilization, 157, note.
cedure, I89, note; on the French in French interference, 25I.
Canada, and inability of the French Fiench, mistake source of power for
to establish governments in fotelgn foundatmn of freedom, I97 and sequ.
parts, 33 o. French Repubhc of 1848, Constitution
Every males house is his castle, 60 and of, 555.
sequ. How it developed itself, 61. French republicanism strives chiefly for
Possessing ,.till full vltahty, ibid. equality, 19.
Executive must have a warrant for French senate, report of, on petitions
what it does, I6I. to change the republic into an em-
Ex post facto elections. See Zm_era- plre, 588.
tormI Sovereignty, and 4I 3. Fronto, Letter to Marcus Aurelius, 374,
Ex post facto laws, Io6. note.
Gottfried, poisoner, 240, note. does not try. for it, 85. Neapolitan
Grayson, moves free river navigation trials for treason, ibid.
in congress, 268. Hddreth, Theory of Politics, etc., 214,
Great cities. See Vaughn. note.
Grebo tribe, "patriarchal democracy," Holt, Lord, doctrine of ballments, 212.
287, note. Hortensins, Historical View of the Of-
Gleeks, their definition of liberty, 29. rice and Duties of an Advocate, 241 ,
Greenleaf on warrants, 63. Collection note.
of cases overruled, 2o9, note. House, one, of legislature, 194; tried
Grey, Sir George, expatriation law, in the United States, ibid.
437, note. Houses, two, of leglslatme, 194.
Guards, declared uneonstitutaonal, 114, Howard obtains support of prisoners
note. by government, in I774, 219.
Gmzot, on absolute monarchy, 155 ; Huc, missionary, 123.
History of Representative Govern- Hungary, disjunctive constitution of,
ment_, 318, note; History of Clvih- 338.
zatlon, 287.
IMPEACHMENT,American, 85 ; is a po-
liucal institution, not a penal, ibid.
HABEAS CORPUS, 64 ; act, Charles II., See l¥.Wh Treason.
ibid.; Const*tution oftheUnited States Imperatorial soverelgmy, 374 and sequ.
prohibits ItS suspension, 65 ; allows Roman emperors claimed theirpower
it under certain circumstance% ibid. ; by transfer of popular sovere3gnty,
habeas corpus act in full, 483 and ibid. Return of the French to the
sequ. idea, 376- Early Asiatics have the
Hale, Chief Justice, on misstating au- same idea, 378- Peuple-roi, 381.
thorltles, 244. Emperor, centre of democracy, 384 .
tlallam, on unanimity of juries, 237. Election of empeiors by unlvelsal
Hailer, Restoration of Political Sci suffrage futile, 385. The C_esar al-
ences, 349, note. ways exists before impelatorial gov-
Hamilton, W. Gerard, Parliamentary ernment, 386. Recommends itself
Logic, 192, note. by substituting democratic equality
Hamilton, Sir William, on origin of for oligarchy, 387 .
vox populi vox Dei, 40% note. Impressment of seamen, 66.
Hammersly, Thomas, banker through Indemnity, acts of, in England, 112.
whom George IV. and his brothers Not known in the United States, I I2,
borrowed Dutch money, 1o5, note. note.
Hampden, 144. Memorials of John Independence, Declaration of, of the
Hampden, by Lord 1qugent, ibid. Umted States, in full, 498 and sequ.
Harris, Oceana, considered the mere Independence of the advocate. See
vetoing power in the people the Advocate.
chief protection of liberty, 359. Independence of the judiciary, what it
Helots and Spartans, 27. consists in, 2o 3 and sequ. See ./n-
Henry VIII., even he paid outward de#endence of the Zaw.
respect to law, 2o, note. Independence of the law, 204. What
Hesiod, quoted by Sir Wm. Hamilton it consists in, 2o 5. Common law
as to origin of vox populi vox Deb necessary for it, 2o 5 and sequ.
4oo, note. Individual character and its elements,
lhgh treason, 79 and sequ. Well- 48.
guarded trial for high treason neces- Individual property, its fullest protcc
sary for liberty, ibid. and sequ. Corn- tion an element of liberty, JoI.
mon protection of criminals with- Individual soveleignty, 286; declare0
drawn from it, 80; Constitution of by Lamartine, 299.
the United States on it, ibid. ; course Individuahsm, IOl, note.
of its development, 8I. Law of high Initiative, in legislation, I83.
treason a gauge of liberty, 83; neces- Inorganic power of the people not
sary safeguards of a fair trial for high liberty, 367.
tteason, 83 and sequ. The senate Inquisitorial trlal, 218 andsequ; paper
INDEX. 6xS
on
ins it,judge,
45 I. ]bid.
Influence of theprisoner
and sequ; inquir- Interpretation, unavoidable, 205. Papal
power against it, 2o6, note. Civil law
urged to confess, 452; no cross-ex- against ]t, 2o6. Locke against it,
amination, 1bid. ; no regular indict- 2o7. Bavarian code, 2o8.
ment, 1bid.; character of court and
police mingle, ibid. ; cautious de- JAMES II. subverting constitution ap-
fence, ibid. ; admits of half proofs, parently in favor of hberty, 387 .
453, illogical character of half proofs, Jefferson, Manualof Parliamentary Prac-
454. Compurgators in R]puarian rice, I92 , note.
taws, ibid.; in Koran, ibid. Legal Jeffreys, Load, even he for allowing
truths, 456, Torture, existed very counsel to prisoners, 24o
late, 457, note. Johnson, Dr. Samuel, Considerations on
Institute and restitution, 305, note. the Corn-Laws, i9z , note.
Institution, 297 and sequ. Definition Judge-made law, 21o.
of, 300 and sequ. Grown and en- Judiciary, independence of the. See
acted institutions, 303 ; definition by Independence of the _udiciarv
Dr.
-_c
Arnold, - 3o4;
_
insures
1 _
peroetmtv,
* _
lu_ementsad--:
J b
....... _LLIIS,
ltixltl_Ll
_ In trance,
_ --" 217 -
3uv ; must De maepenctent, ibid. Julius Caesar, 376.
Greeks had no word for it, 3o8. Ro- Junkerthum, appellation of a German
roans reared malay institutions, ibid. party, 118.
Old usages called institutions, 31o. Justice of the peace, English, 322;
Necessary attributes of an restitution, French, 28o.
ibid. ; the opposite to sublecfivenes %
3II ; dangers, ibid. ; tendency, 312. KEEPER of the Seals. See C/_ancellor,
Institutional nations, 313 ; govern- Lord, ofl_ngland.
merits, ibid. Gives strength to error, King, Rufus, in connectmn with Ameri
314; effete and hollow ones, 317 ; can free river navigation, 267.
deeiduons institutions, 319" Institu- King's Bench, its power, 359.
tional self-government, ibid. ; Angh- King's Notes on the Voyage of the Mot
can wew of it, 32o; its requirements, nson, I I I, note.
32I ; its uses and efficiency with ref- Kingless polity not necessarily a re-
erence to hberty, 324. Obedience public, 355.
with reference to institution, 326; its Kingly commonwealth, name given by
tenacity, 330;
power, 329 andits sequ; its formative
assimilative and Dr. Arnold to English pohty, 354.
i .....
INDEX. 617
chiefly on the Rhine, from Swabia National representation necessary for
to Rotterdam, 267, note. hberty, I68.
Mlttellmaler, opmlon of, on importance National states, I68 and note.
of penal trial, 69; on independence Natlonalizatlon, 47.
of advocates, z4o, note. Nattrral courts, IO7.
Mobs, 4o7 and sequ. Navy not dangerous to hberty, I 14.
Mohl, Robert yon, History and Litera- Netherlands ruined by disjunction, I69,
ture of the Pohtical Sciences, 35o, note.
note. Netherlands, why did they not plant
Montaign, executed by commissioners, independent empires ? 332, note.
IO6, note. Niebuhr, B. G., Admimstration of
Montalembert, Count, his trial in I858, Great Britain, by Baron yon Vincke,
84; prosecution against him, why, edited by, 321, note.
I97. Nobihty, its absence m America, when
Montesquieu, his definition of liberty, the revolution broke out, prevented
33 ; English hberty his model, 49 ; on civil war, 257 ; nolle in England, in
penal trial, 69 ; on division of power, point of law, 348, note.
I5O ; on despotic power, 152. Nomos and pqephlsma, 353, note.
Moral reduplication, ca_e of, 31I. Nugent, Lold, opinion of, on the nght
Mormonism no republic, 288. of granting supplies, I44.
Mormons, 99 and sequ.
Morny, A. de, letter of, to the pre- OBEDIENCE, m connection with mstltu-
fects, concerning the character of tion, 327 .
French imperial government, 6o 5. Oceana, Harris's, 338, note.
Morpeth, Loid, Earl Carlisle, IgI,note. Occidental, contradistinguished from
Miiffimg, Baron, Campaign of 18I 3 Oriental, 22.
and I814, edited by Col. P. ¥orke, Odo, yielding his consent to be Arch-
328. bishop of Canterbury, in connection
Mutiny bill, in England, keeps army with vox popuh vox Dei, 400, note.
under control of parhament, II4. Omnipotence of parhament, 368, note.
Mutual toleration necessarily connected One-hour rule, 133, note. Council of
with liberty_ 54. Trent adopted half-hour rule, 1bid.
Opposition, necessary element of lib-
NAPOLEON I., on the French love of erty, I48 and seq_u; its development
equality, 283 ; his device, "every- in England, 149.
thing for the people, nothing by the Oral discussions, I28 ; necessary to
people," 25o; attempts to abolish hberty, 129.
jury, 253 , note. Ordinance of I3th July, 1787, declaring
Napoleon 1II., his testimony in favor American rivers free, 268.
of English personalliberty, 65 ; when Oregon, meeting of settlers, when con-
in exile, wrote against passports, 96, cress had failed to provide for them,
note; prohibits the sale of printing 194.
presses and types, 272; declares the Ostracism, how manyvotes polled, 42I.
history of nations the history of their Otis, James, first proposes to hold pub-
armies, 274; congratulates France he" dehberations of legislature, I3I,
that it enjoys indigenous restitutions note.
293 ; saying regarding liberty being Ouvrier, or workman, in I848, 382.
incapable of founding durable edi-
rices, 335 ; "in crowning me, France PALE¥, definition of liberty, 34 ; idea
crowns herself," 355, note ; speech of penal law, 72, note.
on opening the Louvre, on the repre- Palmerston, Lord, declaration in 1853
sentative character of great public that England will protect political
buildings, 39 o, note; declared the exiles, 56; his complacency to Na-
savior of clvdization, 396. poleon punished by the commons in
National and city states, 36o and sequ. 1859, 57 ; on pardomng, 449-
National guard_, 290. Papal interference not suffered in Eng-
National independence an element_of land at an early period, 59-
hberty, 56 and ,,equ Pardon, a real veto power, zo2.
618 INDEX.
Pardoning, abuse of, paper on it, 431 Payne, Rev. Mr., on the Grebo tribe,
and sequ. Resembles the ancient 288, note.
veto, ibid. Origin of pardoning Peerage is not nobility, 348, note.
power, 432. ]k_tatic despots divest Penal law of England formerly very
themselves of it, ibid. Chardin cruel, but not file trial, ",I9.
speaks of it in Persia, 433. Authors Penal laws, according to Montesquieu,
against pardoning, especially Bec- determine liberty, 34.
caria, 434- It cannot be dispensed Penal trial, well-secured, necessary for
with, _id. Supremacy of the law liberty, 68. Montesquieu on it, 69.
invaded by unjust and licentious par- Ancient, 7° ; French, 7l. Not a fa-
doning, 435- It unsettles rehance on vorite topic of lawyers, ibid. ; requi-
law, 436; destroys certainty of pun- sites of a sound penal trial, 7! and
ishment, ibid.; Shakspeare against sequ. Dangers of putting questions
it, ibid. ; interferes with reform of to prisoners, 74. Questioning was
criminals, ibid. ; imports criminals formeriy allowed in England, ibid. ;
from abroad, ibid. ; reduces people reasons against it, 75- 1No man to be
to petition for it who know nothing tried twice for the same offence, 76.
about its character, ibid. ; sends crlmi- As important as penal law Rself, 2I 9-
rials abroad, 437 ; places arbitrary People, the different meanings of the
power in the hands of an individual, term in different count-;es, 346. In
1bid. Lord Mansfield, on Rev. Dr. England and America, ,..: honored
Dodd, 437, note. De Beaumont and word, 347. Confusion of the people
De Tocqueville, on pardoning in the and some people, 347, note. The
United States, 438. Mathew Carey people "never wolate the constltu-
on it, 439. Taking money for par- tion," 381. What does the term
doning, 1bid., and note. Pardoning mean in "vox populivox DeW ? 398,
in Massachusetts, 440. Averages in 405 .
penal matters, 442; their insuffi- Personal liberty, its guarantees, 59.
ciency, 443, note. How to abolish Persons and papers, power of sending
the abuse of pardomng, 444. Re- for, I88.
strietmn in the French constitution Petition, right of, I2I and sequ. Con-
of 1848, 442, note. Attention not yet sidered lightly by an Amemcan states-
sufficiently directed to it, 445, note. man, 121. In Russia, I22 ; in China,
Legislature no proper body for par- I23. In Prussia, under Frederic II.,
doning, 446. Reqmsites of a proper ibid. No demonstrations of physical
board of pardoning, 447. Restitu- force ought to accompany it, 123.
tion different from pardon, 448. Lord Petition of Right, in full, 478 and sequ.
Palmerston on pardoning, 449. Petre, Hon. Mrs., and Sflby estate
Pans, its influence on account of ten- affair, 95, note.
tralization, 389; dmtates in every- Peuple tout-puissant, 299, 368.
thing, 393. Philips, in the Courvoisler case, 245,
Parhament, British, distribution of seats note.
in, I72, note. Pmkering, Timothy, letter to Rufus
Partiamentarism, term coined by the King, urging free river navigation,
French, 289 . 268.
Parliamentary law, I85 and sequ ; is Plgott, Sir Arthur, repudiating for the
part of common law, I87. Ancients Prince of Wales, Io5, note.
had It not, I89. Pitt, his last words on England's self-
Parliamentary hberty derided, x8, 317 . reliance, anecdote related by Wel-
Parliamentary procedure, 188; Judge lington, 25L
Story on its importance_ 193. Pius IX., Pope, uses "vox populi vox
Parties and party government, I48. Dei," 406.
Their dangers, I49. Plato's l_.epublic, 44.
Passports, dishke of them by cur race, Plumper, in elections, 177.
96 . Plutarch, influence of, in France, 372 .
Patmnce in politie% 352. Police governments, 9 L
Patrmtism not national vanity, 294. Polignac, Duke of, charge against him,
Patron saint, Cection of, 416, 1.ore. I79, 385.
IA_DEX. 6i 9
Political offence, 79. Pal)lie opinion differs from general
Pope Plus IV., against interpretation, opimon, or passion, 387 .
2o6, note. Public trials, criminal, in Naples, 2L
Popt_larabsolutism, 373. Publicity, in justice and legislation,
Popular unrestrained powerj opposite saved by England, 21, I27 and sequ.
to self-government, 388. What it consists in, I28. Of courts
Power, its "impotency," Napoleon's of justice, not guaranteed by positive
saying, 253 ; too much growth of, law m the United States or England,
can only be prevented by institu- 13o. First distinctly authorized for
tions, 357 ; necessary for government, the legislature in Massachusetts, I3I.
358; mere negauon of, no security Pubhc speaking necessary, and the
for libelty, 366; its origin has no ornament of hberty, I33. To read
connection with hbelty, 371 ; neces- speeches in legislatures an evil, I34.
sity of giving some fair account of its Hostility of absolute governments to
basis, 379. publicity, ibid. Interesting historical
Practice, parliamentary, 189. account of the introductaon of pub-
Practlce, so-called, in German courts, hclty in the Senate of the United
2I 5. States, by James C. Welhng, x35 , note.
Precedent, element of all development,
2o8. Necessary to hberty, 2o 9. Lb- QUART_RIr_G of soldiers, 113 and sequ.
erty stands in need of, 276 Queen of England, called an restitution,
Pleferential voting, 177, note. 3o9 .
Preston, Win. C., letter to, on inter-
national copyright. 9 z, note. RAIKES, CHARLES, Notes on the North-
Price, Dr., his definmon of liberty, 28; western Province, 128, note.
Turgot's letter to him, x95. Rapp, General, his opinion of Napo-
Princlpate, or clown, 49. leon, I55, note.
Private property acknowledged by the Raumer, yon, Diplomatic Despatches
French con,tltution, IO3. of the Last Century, 35 z, note.
Procedure, parliamentary, I85; absence Reduphcation, psychical, 192 ; law of,
of it in the French revolutton, I9o. 311.
American habit of, 19_. French Report of the French senate on the
work on 1t, by Vallette and St.-Mar- petitions to change the republic into
tin, 191, note. an empire, 588.
Ploclamatmn of Napoleon, president Representation, basis of, 17I.
of the republic, preceding the con- 'Representattve government, x64 and
stitution which became the imperial sequ; differs from deputatlve govern-
one, 57 I. ment, 1bid. Derided, 18 ; hated by
Property, transmi_slon of, by inheritance, Rousseau, 1bid.
IoI. Unimpeded exchange and ac- Representatives must be free, 18o; fre-
cumulatmn, elements of bberty, lO2. quent electron of them, _bid.; must
Protected by the Constitution of the be protected, ibid. Free from alrest,
United States, ro 3. Basis of repre- 182. Possessing the initmtive, 183.
sentation, 171 and sequ. What is really Officers of the Umted States cannot be
meant by it, 173. Consisted chiefly in members of congress, I83. Are they
land, in the middle ages, 174. national, or merely for their constlt-
Propter vitam vivendt perdere causas, uents? 2o0.
z53. Repubhe and respublica, 4 _-.
Ploudhon, no one less democratic than Republic, in x848, was telegraphed
the people, 369 . from Paris to the departments and
Proverbs, voice of the people, but not accepted by return, 393.
of God, 4o6. Rdpublique ddmocrattque et sociale,
Proxy voting, I77, note. 284.
Psephisma and Nomos, 353, note. Repudiation, Io4. Sir A. Alison on
Psychical reduplieanon, 19_. Repudiation, Io4 and note. Repu-
Public, derivatton of the word, I3O. diation has not been republican, but
Public funds must be under control of rather monarchical, Io5, note.
the legislature, 143. Responsible mimsters, 159 and sequ.
620 .rN.D.EX.
it, 197. In America, 262. Universal the necessityof courts of law deciding
suffrage alone not the basis of liberty, on doubts arising from royal procla-
288 ; called by Girardin the republic, mations, 217.
355 ; may support absolutism, 382. _'ar, power of making it, in England,
Upper house, organization of it, 198 147. In the Umted States, the power
and sequ. Lord Blougham's opin- belongs to congress, ibid. Where
ion, I98. the executive has the real power of
Usage, in institutional governments, making it, civil hberty does not exist,
348. ibid.
Utopias always founded on commu- Wardlaw, Judge, opinion on dies non-
msm, 44, note. juridlcus, 216.
Warrant, importance of, 62. Constitu-
VALLETTE, French work on parlia- txon of the United States on warrants,
mentary procedure, etc., 19x, note. 63.
Vanghn, Robert, D.D., The Age of Warrants, general, 62 and sequ.
Great C_ties, 392, note. Wealth made compatible with liberty,
Vertot, History of the Knights of Malta, 36 I.
I78, note. Webster, on simplicity of despotism,
Veto, 2oo; of the Roman tribune, 2o1 ; x54. Necessity of complicated char-
of king and president, 2oi, 202. aeter of liberty, ibid.
Vice-president of the United States pre- Welling, James C., interesting histori.
sides over the senate, 187. cal account of the introduction of
Vill_le, Count, introduced septennial publicity in the senate of the Umted
bill, I8I. States, I35 , note, and sequ.
Vincke, yon, reports a lawsuit about a Wellington, does not desire sovereignty,
square foot of land, 26o, note. 325. Obedience of officers to him,
Voget, defensor of the poisoner Gott- 328, note.
fried, his opinion on the independ- Western, designating Europeans and
ence of advocates, 24o , note. their descendants, 22, note.
Voting, various proposed modes of, 177 , Wharton, Francis, State Trials of the
note. United States, 85 .
"Cox populi vox Dei, 398 and sequ. Whately, Archbishop, his view of lib..
Crusades, 399. Unammity does not erty of conscience, and assistance to
prove it, 4OL French manufacturers be gxven to those who suffer for it,
used it against taboo-manufacturing, 98, note.
4o2. Fashion is unanimous, but not IWilliam III., declaration of, regarding
V. P. V. D., 402 and sequ ; witch- I liherty of conscience, 99.
trials unanimous, 4o 3. Unanimous ]William of Malmesbury, concerning
eommercial speculations, 4o4. The ] "vox populi vox Del," 4oo, note.
worst passions unanimous,4o 4. What IWinthrop, Robert, I31, note. His
is the voice of the people, 4o 5. Pro- I tesumony in favor of publicity of
verbs, voice of the people, but not speaking, t33 , note.
of God, 4o6. Pius IX. uses it, ibid. Witch-trials, importance of their study,
Used chiefly in France after the coup ] 82, note ; unanimous all over Europe,
d'_tat, 4o 7. Real lover of liberty] 4o3 .
diseards it, ibid. Has no political IWitchcraft a erimen exeeptum, 8_.
worth, 4o8. It enfeebles and unfits Workman,ouvr_er, clalms an aristocracy
for opposition, ibid. for himself, 382.
IWritten constitution. See _nacted
WALEWSKI, Count, his treatment of] Constitutions.
British merchants, 58 , note.
Walpole, cabinet member in I852 , on YORKE, Col. Philip. See 2_Iaffting.
THE END.