On civil liberty and self-government

Front matter

ON

CIVIL LIBERTY

AND

Introduction

TO

THE THIRD EDITION.

The first edition of " Civil Liberty and Self-Government" was published in 1853, when Dr. Lieber was a professor in the University of South Carolina ; the second, enlarged by notes and corrected, appeared in 1859, two y ears after he had accepted a chair in Columbia College, New York. The second edition was exhausted when he died, October 2, 1872; and if he had lived, he would, I think, have prepared a third edition, for the work had come pretty extensively into the hands both of college students and of mature men of literary culture. But the last years of Dr. Lieber's life, after the war, with the duties and studies which it laid upon him, was over, were occupied with other literary work. And so there has been for some time an important gap in the works which can be recommended to the student of political science. The author of this preface was requested by the family of Dr. Lieber to undertake the office of preparing both the " Civil Liberty and Self-Government," and the " Political Ethics," for a new edition. The former, as being most in demand, it was thought best to get in readiness for the press first; the other, it is probable, will be given to the public after no very long interval.

The writer of these lines had long been familiar with this work. Soon after its appearance, he wrote a somewhat extended review of it, in which he spoke with plainness, perhaps with undue emphasis, of certain minor inaccuracies in the first

6 INTRODUCTION TO THE THIRD EDITION.

edition, which had escaped its author's notice. But the review was the means of bringing him into acquaintance, and afterwards 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 haftre 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 Pennsylvania. He was indeed the founder of this science in this country, in so far as by his method, his fulness of historical illustration, his noble ethical feeling, his sound practical judgment, which was of the English rather than of the German type, he secured readers among the first men of the land, influenced political thought more than any one of his contemporaries in the United States, and made, I think, a lasting impression on many students who were forming themselves for the work of life. Severely scientific he could not be called; he was sometimes a little verbose, and his abundant stores of knowledge and reading were poured profusely out on his readers ; but I am not sure that a writer so full of illustration, so transparent in his

Introduction To The Third Edition 7

feelings, and with so little reserve, is not the fittest to leave a genial remembrance and a happy impression in the minds of the largest number of men.

Dr. Lieber's vicissitudes of life were of a kind to cultivate in him practical judgment concerning political matters. Sharing in his early youth in that inspiration of patriotism which drove so many young Germans into the field, and partaking of the toils of the Waterloo campaign, during which, at the battle of Namur, he was wounded; then returning to his native city, Berlin, to fall under the suspicion of the government on account of his connection with the ardent patriot Jahn ; next, after his graduation at Jena, making his way into Greece, as a volunteer in the cause of Greek independence; thereupon, disappointed and destitute, taking refuge in Italy, where the historian Niebuhr invited him to act as tutor of his son ; then returning into Prussia with promises of protection, which were fulfilled by his imprisonment, and gladly, on his release, going to London, where he supported himself for a year by writing and teaching, he at length, in 1827, found a permanent domicile in the United States. But here for some time he had no fixed dwelling-place. From Boston, where he stayed five years, he removed to New York in 1832, then to Philadelphia in 1833, and then, in 1835, accepted the chair of History and Political Economy in the University of South Carolina. One more transplantation, from this scene of his professional as well as literary labors, brought him, as we have seen, to New York, in 1858, where he ended his days. Thus, resembling the Greek

he was enabled to add to the treasures of history with which his education had enriched his mind, the experience of a man versed in life, acquainted with mankind under many forms of society, having the best opportunities to observe governments and political institutions, and stimulated by intercourse with a person like Barthold Niebuhr. It is worth noticing here that his life in the United States was almost equally diversified with

8 INTRODUCTION TO THE THIRD EDITION.

his earlier life passed in Europe. Especially he had an opportunity, such as few have had, of seeing life in a State where slavery existed, in a State at the very head of Southern institutions, where a large number of refined men, given to politics, had reduced Southern principles to a doctrine, which they sought to engraft on the Constitution of the country, under the guidance of so accomplished and deep-thinking a statesman as Calhoun.

Dr. Lieber's native traits of mind seem to have been such that he was able readily to assimilate the impressions which a great diversity of institutions made upon him. We are wont to contrast the German mind, deep but not clear, prone to speculation, unpractical, with our practical, clear-sighted, but short-sighted English mind. But Dr. Lieber, while he had a scientific " anlage" had an eminently practical spirit, capable of gathering from history and experience their lessons, and of reconciling scientific truth with the demands and possibilities of an existing state of things. The science of politics rests on the idea of justice and of rights; but the questions, What is the best possible state ? How far can the experience of one state be applied with advantage to another ? What securities are needed by a nation against a government ? and What power is needed by a government for the highest welfare of the nation ? — these and many others are purely practical questions, which must be answered by the experience, the knowledge, the wisdom of thoughtful men, or else abstractionists and political revolutionists will answer them to a nation's ruin. Dr. Lieber felt that English liberty had been under a remarkable guidance of the divine Ruler of men; that justice, order, stability, freedom, had been reconciled in it in a wonderful way ; that its capacity of progress without revolution set it up as a model and guide to the nations ; while yet, everywhere, the best men ought to judge, with all the light and candor possible, how far these principles of the Anglican race could be adopted and engrafted on other constitutions. He was thus no German/ except in justly estimating the excellent traits of his fatherland : in his political judgments he was

Introduction To The Third Edition

more of an Englishman or of a republican than anything else. We wonder, as we become acquainted with him in the writings of his mature life, how there could have been any froth of liberty in his youth which brought suspicion upon him, and can only account for the treatment he received from the police of his native country by that dread of revolution which French movements during a generation had aroused, and which, with unnatural sharpness of sight, saw in the youthful deliverers of their country the foes of kings.

The "Civil Liberty and Self-Government" cannot be read profitably without taking into view the events of 1848 and the new empire of Napoleon III. Through the book there is a contrast, which often appears, between Anglican and Gallican liberty, between checks and guarantees, institutions and diffused power, on the one hand, and a government, on the other, with no checks and no institutions, with a centralized power swallowing up all minor authority in the great leviathan, and calling that a government of the people, because the people gave their consent to it once and forever. Our author watched this French system, no doubt, with intense interest, and when he saw the government of lies and of moral corruption falling under the blows of a vigorous foe, it was not as a Prussian or a German that he rejoiced in it, but as a man, a true American and a Christian. Here was the judgment of events, the rebuke of God. If, together with this high satisfaction in catching glimpses of a divine government, we might attribute some pleasure to our author when he found that history was confirming his theory, that he had almost prophesied in this book, and that the hopes of mankind would be the brighter for what happened in 1870, we could not surely find fault with him.

The value of this work in this country consists chiefly in its corrections of some of our prevalent tendencies. In chapter xxii. the author remarks that, as it appears to him, "while the English incline occasionally too much to the historical element, we, in turn, incline occasionally too much toward abstraction ;" and further, " that it is certain that we conceive of the rights of the citizen more in the abstract, and more as

10 INTRODUCTION TO THE THIRD EDITION.

attributes of his humanity." Both of these remarks are undoubtedly true. We are inexperienced and self-confident, with small historical knowledge, and we run into abstractions as the easiest things for the least educated to comprehend, and for demagogues to make the starting-point in their projects and deductions. We make little distinction practically between personal and political rights, so that the right of suffrage seems to belong to the human being as such, although, inconsistently, we withhold it still from women and minors. A citizen without suffrage is hardly conceived of. We are coming, too, to believe in a more liberal construction of the general Constitution, so as to throw larger power into the hands of Congress, and to look to the government for help in difficulty ; and this at the very time when the newest and wisest reforms in state constitutions are restricting legislatures in the sphere of their functions. The tendency plainly is towards a more centralized government by a freer interpretation of the United States Constitution. The dangers which menace us from this tendency, and from what may be called democratic abstraction, are met by such a book as this, which teaches that there is no safe liberty but one under checks and guarantees, one which is articulated, one which by institutions of local self-government educates the whole people and moderates the force of administrations, one which sets up the check of state power within certain well-defined limits against United States power, one which draws a broad line between the unorganized masses of men calling themselves the people and the people formed into bodies, "joined together and compacted" by constitutions and institutions.

May this book still lead our young men into the paths of political wisdom, and may the old guarantees and checks, the substance of English liberty, with whatever of good we have received that is peculiar to the American people, have, as years roll on, more and more of our confidence and veneration !

Theodore D. Woolsey.

New Haven, January 28, 1874.

Appendix

APPENDIX I.

A paper on elections, election statistics, and general votes of yes or no 413

APPENDIX II.

A PAPER ON THE ABUSE OF THE PARDONING POWER . . . . 43 1

APPENDIX III.

A PAPER ON SUBJECTS CONNECTED WITH THE INQUISITORIAL TRIAL

AND THE LAWS OF EVIDENCE 45 1

APPENDIX IV.

Magna charta of king John 458

CONTENTS. 15

APPENDIX V.

PAGE

The petition of right 478

APPENDIX VI.

An act for the better securing the liberty of the subject, and for prevention of imprisonments beyond the seas, commonly called "the habeas corpus act" 483

APPENDIX VII.

Bill of rights, passed i William and Mary, sess. 2, ch. 2, 1689 492

APPENDIX VIII.

A declaration by the representatives of the United States of America in congress assembled 498

APPENDIX IX.

Articles of confederation and perpetual union between the

STATES 503

APPENDIX X.

Constitution of the United States of America . . . -514

f

APPENDIX XI.

The French constitution, adopted and proclaimed on the twenty-fourth of June, 1793 531

APPENDIX XII.

French charter of Louis XVIII. and that adopted in the year 1830 545

APPENDIX XIII.

Constitution of the French republic 555

APPENDIX XIV.

The present constitution of France 570

1 5 CONTENTS.

APPENDIX XV.

PAGE

Report of the French senatorial committee on the petitions to change the republic into an empire, in november, 1852, and the senatus-consultum adopted in conformity with it . . 588

APPENDIX XVI.

Letter of the French minister of the interior, Mr. De Morny, addressed to the prefects of the departments in the year

1852 605

ON

CIVIL LIBERTY

AND

SELF-GOVERNMENT.

Chapter I, Introductory

We live at a period when it is the duty of reflecting men to ponder conscientiously these important questions : In what does civil liberty consist ? How is it maintained ? What are its means of self-diffusion, and under what forms do its chief dangers present themselves ?

Our age, marked by restless activity in almost all departments of knowledge, and by struggles and aspirations before unknown, is stamped by no characteristic more deeply than by a desire to establish or extend freedom in the political societies of mankind. At no previous period, ancient or modern, has this impulse been felt at once so strongly and by such extensive numbers. The love of civil liberty is so leading a motive in our times, that no man who does not understand what civil liberty is, has acquired that self-knowledge without which we do not know where we stand, and are supernumeraries or instinctive followers, rather than conscious, working members of our race, in our day and generation.

The first half of our century has produced several hundred political constitutions, some few of substance and sterling worth, many transient like ephemeral beings, but all of them testifying to the endeavors of our age, and plainly pointing out the high problem that must be solved ; many of them leaving roots in despite of their short existence, which some day will sprout and prosper. It is in history as in nature. Of all the seeds that germinate, but few grow up to be trees, and of all the millions of blossoms, but thousands, or even hundreds, ripen into fruit.

Changes, frequently far greater than are felt by those who stand in the midst of them, have taken place; violent convulsions have shaken large and small countries, and blood has been shed — that blood which has always flowed before great ideas could settle into actual institutions, or before the yearnings of humanity could become realities. Every marked struggle in the progress of civilization has its period of convulsion. Our race is in that period now, and thus our times resemble the epoch of the Reformation.

Many who unreservedly adhere to the past, or who fear its evils less than those of change, resist the present longings of our kind, and seem to forget that change is always going on, whether we will or not. States consist of living beings, and life is change. Others seem to claim a right of revolution for governments, under the name of coup d'etat, but deny it to the people ; and large portions of the people have overleaped civil liberty itself. They daringly disavow it, and pretend to believe that they find the solution of the great problem of our times either in an annihilation of individuality, or in an apotheosis of individual man, and preach communism, individual sovereignty, or the utmost concentration of all power and political action in one Caesar. " Parliamentary liberty" is a term sneeringly used in whole countries to designate what they consider an obsolete encumbrance and decaying remnants of a political phase belonging to the past. The representative system is laughed at, and the idol of monarchical or popular absolutism is draped anew, and worshipped by thousands as if it were the latest avatar of their political god. What, but a lustre or two ago, would have been universally considered impossible, has come to pass ; Rousseau's hatred of representative government is loudly and largely professed in France, not only by the army and the faction which holds power,

AND SELF-GOVERNMENT.

but also by the French republican of extreme views, to whom nothing is more odious than decentralized self-government ; and the two seem perfectly to agree with the views lately proclaimed on an important occasion, that the essence of political civilization consists in universal suffrage and the code Napoleon, with which, and a moderately strong army, it would be easy to conquer Great Britain. 1

There are not a few in our own country who, seeing the perversion of principles and political corruption, follow the besetting fallacy of men, and seek salvation from one evil in its opposite, as if the means of escaping death by fire were freezing to death.

We must find our way through all these mazes. This is one of our duties, because it has pleased Providence to cast our lot in the middle of the nineteenth century, and because an earnest man ought to understand, above all other social things, his own times.

Besides these general considerations, weighty as they are, there are others which press more immediately upon ourselves. Most of us descend in blood, and all of us politically, from that nation to which has been assigned, in common with ourselves, the high duty of developing modern civil liberty, and whose manliness and wisdom, combined with a certain historical good fortune, which enabled it to turn to advantage elements that proved sources of evil elsewhere, have saved it from the blight of absorbing centralization. England was the earliest country to put an end to feudal isolation, while still retaining independent institutions, and to unite the estates

1 These views were laid before the civilized world in a pamphlet, published in the summer of 1858, well known to be countenanced by the ruling party in France, and have been frequently stated before. The code Napoleon flatters the vanity of the French people, and not being conscious of the fact that the most important element of political civilization is civil liberty, they take this code as the sum of political civilization, while it is peculiarly obtuse on all matters relating to political rights and man's protection as a freeman. How could it be otherwise with a code which proceeded from the civil law, and received, wherever it treats of personal rights, an impress from a man who, more perhaps than any other person on the stage of history, instinctively abhorred everything inclining toward liberty, even the first germs of freedom ?

into a powerful general parliament, able to protect the nation against the crown. 1 There, too, centuries ago, trials for high treason were surrounded with peculiar safeguards, besides those known in common criminal trials, in favor of the accused, an exception the very reverse of which we observe in all other European countries down to the most recent times, and in most countries to this day. In England we first see applied in practice, and on a grand scale, the idea which came originally from the Netherlands, that liberty must not be a boon of the government, but that government must derive its rights from the people. Here, too, the people always clung to the right to tax themselves; and here, from the earliest times, the administration of justice has been separated from the other functions of government, and devolved upon magistrates set apart for this end, a separation not yet found in all countries. 2 In England, power of all kind, even of the crown, has ever bowed, at least theoretically, to the supremacy of the law ; 3 and that country may claim the imperishable glory of

1 The necessity of a union of the different courts and bodies of the state was often perceived by those who felt called upon to resent the crown, and the corresponding desire to defeat it, by the crown. An instance was furnished in France in 1648, when Mazarin strove to annul the arret d^ union.

2 I do not only allude to such bodies as the French parliaments, but to the fact that down to this centuiy the continental courts of justice conducted, in innumerable cases, what is now frequently called the administrative business, such as collecting taxes, letting crown domains, superintending roads and bridges. The early separation of the English judge — I do not speak of his independence, which is of much later date — and the early, comparatively speaking, independent position of the English church, seem to me two of the most significant facts in English history, and answer in a great measure the question so often asked, Why is it that France, constituted so much like England down to the twelfth or thirteenth century, lost her liberty, and England not? It partially accounts for the still more surprising fact that the most advanced portions of Spain, at one period, had a clearer perception of liberty than England had, but are now immeasurably behind her.

3 Even a Henry VIII. took care to have first the law changed when it could not be bent to his tyrannical acts. Despots in other countries did not take this trouble; and I do not know whether the history of any other period impresses the student with that peculiar meaning which the English word Law has acquired, more forcibly than this very reign of tyranny and royal bloodshed.

having formed a national representative system of two houses, governed by a parliamentary law of their own, with that important element, at once conservative and progressive, of a lawful, loyal opposition. It is that country which alone saved judicial and political publicity, when secrecy prevailed everywhere else ; x which retained a self-developing common law and established the trial by jury. In England, the principles of self-government were not swept away, and all the chief principles and guarantees of her Great Charter and the Petition of Right have passed over into our constitutions.

We belong to the Anglican race, which carries Anglican principles and liberty over the globe, because wherever it moves, liberal institutions and a common law full of manly rights and instinct with the principle of an expansive life, accompany it. We belong to that race whose obvious task it is, among other proud and sacred tasks, to rear and spread civil liberty over vast regions in every part of the earth, on continent and isle. We belong to that tribe which alone has the word Self-Government. We belong to that nation whose great lot it is to be placed, with the full inheritance of freedom, on the freshest soil in the noblest site between Europe and Asia, a nation young, whose kindred countries, powerful in wealth, armies, and intellect, are old. It is a period when a peaceful migration of nations, similar in the weight of numbers to the warlike migration of the early middle ages, pours its crowd into the lap of our more favored land, there to try, and at times to test to the utmost, our institutions — institutions which are our foundations and buttresses, as the law which they embody and organize is our sole and sovereign master.

These are the reasons why it is incumbent upon every American again and again to present to his mind what his own liberty is, how he must guard and maintain it, and why, if he neglect it, he resembles the missionary that should proceed to

1 Trials, especially criminal trials, remained public in several countries, for instance, *in the kingdom of Naples ; but judicial and political publicity vanished everywhere except in England; nor was the publicity of such trials as those of Naples of much value.

convert the world without Bible or prayer-book. These are the reasons why I feel called upon to write this work, in addition to what I have given long ago in another place on the subjects of Justice, Law, the State, Government and Sovereignty, on Liberty and Right, 1 and to which, therefore, I must refer my reader for many preliminary particulars ; and these, too, are the reasons why I ask for an attention corresponding to the sense of responsibility with which I approach the great theme of political vitality — the leading subject of Western history 2 and the characteristic stamp and feature of our race, our age, our own country and its calling.

1 In my Political Ethics.

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 history the history of all historically active, non-Asiatic nations and tribes — the history of the Europeans and their descendants in other parts of the world. In the grouping and division of comprehensive subjects, cleaimess depends in a great measure upon the distinctness of well-chosen terms. Many students of civilization have probably felt with me the desirableness of a concise term, which should comprehend within the bounds of one word, capable of furnishing us with an acceptable adjective, the whole of the Western Caucasian portion of mankind — the Europeans and all their descendants in whatever part of the world, in America, Australia, Africa, India, the Indian Archipelago and the Pacific Islands. It is an idea which constantly recurs, and makes the necessity of a proper and brief term daily felt. Bacon said that " the wise question is half the science;" and may we not add that a wise division and apt terminology is its completion? In my private papers I use the term Occidental in a sufficiently natural contradistinction to Oriental. But Occidental, like Western, indkates geographical position ; nor did I feel otherwise authorized to use it here. Europides would not be readily accepted. Japhethian would comprehend more tribes than we wish to designate. That some term or other must soon be adopted seems to me clear, and I am ready to accept any expressive nnme formed in the spirit and according to the taste of our language. The chemist and natural historian are not the only ones that stand in need of distinct names for their subjects, but they are less exacting than scholars. As the whole race is called the Caucasian, shall we designate the group in question by the name of Cis-Caucasian ? It is more important for the scholar of civilization to have a distinct name for the indicated group, than it was for the student of the natural history of our race to adopt the recently formed term of prognathous tribes, in order to group together all the tribes with projecting jaws.

Chapter II. Definitions Of Liberty

A distinguished writer has said that every one desires liberty, but it is impossible to say what it is. If he meant by liberty, civil liberty, and that it is impossible to give a definition of it, using the term definition in its strictest sense, he was right; but he was mistaken if he intended to say that we cannot state and explain what is meant by civil liberty in certain periods, by certain tribes, and that we cannot collect something general from these different views. Civil liberty does not fare worse in this respect than all other terms which designate the collective amount of different applications of the same principle, such as Fine Arts, Religion, Property, Republic. The definitions of all these terms imply the use of others variable in their nature. The time, however, is passed when, as in the age of scholastic philosophy, it was believed that everything was strictly definable, and must be compressed within the narrow limits of an absolute definition before it could be entitled to the dignity of a thorough discussion. The hope of being able absolutely to define things that belong either to the commonest life 1 or the highest regions, betrays a misconception of human language, which itself is never absolute except in mathematics. It misleads. Bacon, so illustrious as a thinker, has two dicta which it will be well for us to remember throughout this discussion. He says: " Generalities