Appendix XVI.: letter of the french minister of the interior, mr. de morny, addressed to the prefects of the deparments

The minister of the interior addressed the following circular to the prefects of the departments:

“Monsieur le Préfet: You will shortly have to proceed to the elections of the legislative body. It is a grave operation, which will be either a corollary or a contradiction of the vote of the 20th December, according to the employment which you make of your legitimate influence. Bear well in mind that universal suffrage is a new and unknown element, easy for a glorious name to make the conquest of, unique in history, representing in the eyes of the populations authority and power, but very difficult to fix on secondary individualities; consequently, it is not by following former errors that you will succeed. I desire to inform you of the views of the head of the state. You perceive that the constitution has aimed at avoiding all the theatrical and dramatic part of the assemblies, by interdicting the publication of the speeches delivered; in that way the members of those assemblies, not being occupied with the effect which their words in the tribune are to produce, will think more of carrying on seriously the affairs of their country. The electoral law will pronounce on the incompatibilities. The situation of public functionaries in a political assembly is always a very delicate matter, as in voting with the government they lower their proper character, and in voting against it they weaken the principle of authority. The exclusion of functionaries, and the suppression of all indemnity, must necessarily limit, in a country where fortunes are so divided as in ours, the number of men who will be willing and able to fulfil such duties. Nevertheless, as the government is firmly decided never to make use of corruption, direct or indirect, and to respect the conscience of every man, the best means of preserving to the legislative body the confidence of the populations is to call to it men perfectly independent by their situation and character. When a man has made his fortune by labor, manufactures, or agriculture, if he has been occupied in improving the position of his workmen, if he has rendered himself popular by a noble use of his property, he is preferable to what is conventionally called a political man, for he “will bring to the preparation of the laws a practical mind, and will second the government in its work of pacification and re-edification. As soon as you shall have intimated to me, in the conditions indicated above, the candidates who shall appear to you to have the most chance of obtaining a majority of votes, the government will not hesitate to recommend them openly to the choice of the electors. Hitherto, it has been the custom in France to form electoral committees and meetings of delegates. That system was very useful when the vote took place au scrutin de liste. The scrutin de liste created such confusion, and such a necessity for coming to an understanding, that the action of a committee was indispensable; but now these kind of meetings would be attended with no advantage, since the election will only bear on one name; it would only have the inconvenience of creating premature bonds, and appearances of acquired rights which would only embarrass the people, and deprive them of all liberty. You will, therefore, dissuade the partisans of the government from organizing electoral committees. Formerly, when the suffrage was restricted, when the electoral influence was divided among a few families, the abuse of this influence was most shameful. A few crosses, little merited, and a few places, could always secure the success of an election in a small college. It was very natural that this abuse should cause great dissatisfaction, and that the government should be called on to abstain from any ostensible interference. Its action and its preferences were then occult, and for that very reason compromised its dignity and its authority. But by what favors could the government be now supposed capable of influencing the immense body of the electors? By places? The whole government of France has not establishments vast enough to contain the population of one canton. By money? Without speaking of the honorable susceptibilities of the electors, the whole public treasury would not be sufficient for such a purpose. You will remember to what the result of the efforts of the government was reduced on the 10th December, 1848, in favor of the candidate to the presidency who was then in power. With universal suffrage there is but one powerful spring, which no human hand can restrain or turn from the current in which it is directed, and that is public opinion; that imperceptible and indefinable sentiment which abandons or accompanies governments, without their being able to account for it, but which is rarely wrong in doing so; nothing escapes it, nothing is indifferent to it; it appreciates not only acts, but divines tendencies; it forgets nothing, it pardons nothing, because it has, and can have, but one moving power—the self-interest of each; it is alive to all, from the great policy which emanates from the chief of the state to the most trivial proceedings of the local authorities, and the political opinion of a department depends more than is generally believed on the spirit and conduct of its administration. For a long time past the local administrations have been subordinate to parliamentary exigencies; they occupied themselves more in pleasing some influential men in Paris than in satisfying the legitimate interests of the communes and the people. These days are happily, it may be said, at an end. Make all functionaries thoroughly understand that they must carefully occupy themselves with the interests of all, and that he who must be treated with the greatest zeal and kindness is the humblest and the weakest. The best of policies is that of kindness to persons, and facility for interests—and that functionaries shall not suppose themselves created for purposes of objection, embarrassment, and delay, when they are so for the sake of dispatch and regularity. If I attach so much importance to these details, it is because I have remarked that inferior agents often believe that they increase their importance by difficulties and embarrassments. They do not know what maledictions and unpopularity they bring down on the central government. This administrative spirit must be inflexibly modified; that depends on you; enter firmly on that path. Be assured that then, instead of seeing enemies in the government and local administration, the people will only consider them a support and help. And when afterwards you, in the name of this loyal and paternal government, recommend a candidate to the choice of the electors, they will listen to your voice and follow your counsel. All the old accusations of oppositions will fall before this new and simple line of policy, and people in France will end by understanding that order, labor, and security can only be established in a durable manner in a country under a government listened to and respected.

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?

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 arrêt d'union.

I do not only allude to such bodies as the French parliaments, but to the fact that down to this century the continental courts of justice conducted, in 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.

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.

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.

In my Political Ethics.

I ask permission to draw the attention of the scholar to a subject which appears to me important. I have used the term Western history, yet it is so indistinct that I must explain what is meant by it. It ought not to be so. I mean by Western history the history of all historically active, non-Asiatic nations and tribes—the history of the Europeans and their descendants in other parts of the world. In the grouping and division of comprehensive subjects, clearness 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, indicates 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 name formed in the spirit and according to the taste of our language. The chemist and natural historian are not the only ones that stand in need of distinct names for their subjects, but they are less exacting than scholars. As the whole race is called the Caucasian, shall we designate the group in question by the name of Cis-Caucasian? It is more important for the scholar of civilization to have a distinct name for the indicated group, than it was for the student of the natural history of our race to adopt the recently formed term of prognathous tribes, in order to group together all the tribes with projecting jaws.

Is it necessary to remind the reader of Dr. Johnson's definition of the Knife? or of the fact that the greater portion of all law business arises from the impossibility of giving absolute definitions for things that are not absolute themselves? A knife and a dagger are terms sufficiently clear in common life, but it has been found very difficult to define them, in many penal cases, when the law awards different punishments for wounds inflicted by the one or the other.

I believe that this has never been shown with greater and more truculent naïvetè than by the present King of Dahomey in the letter he wrote to the Queen of England in 1852. Every case in which an idea, bad or good, is carried to a point of extreme consistency is worth being noted; I shall give, therefore, a part of it.

The British government had sent an agent to that king, with presents, and the direction to prevent him from further trade in slaves; and the king's answer contains the following passage:—

“The King of Dahomey presents his compliments to the Queen of England. The presents which she has sent him are very acceptable and are good to his face. When Governor Winiett visited the king, the king told him that he must consult his people before he could give a final answer about the slave-trade. He cannot see that he and his people can do without it. It is from the slave-trade that he derives his principal revenue. This he has explained in a long palaver to Mr. Cruikshank. He begs the Queen of England to put a stop to the slavetrade everywhere else, and allow him to continue it.”

In another passage he says:—

“The king begs the queen to make a law that no ships be allowed to trade at any place near his domains lower down the coast than Wydah, as by means of trading vessels the people are getting rich and resisting his authority. He hopes the queen will send him some good tower guns and blunderbusses, and plenty of them, to enable him to make war” (which means razzias, in order to carry off cartives for the barracu, or slave market).

The claims of “undoubted sovereignty” and the “independent power” of kings, put forth by the Stuarts, by Louis XIV., and by all who looked upon kings, restricted in their power, as unworthy peers of the “real princes,” must be classed under the same head with the aspirations of the principate of Dahomey, however they may differ in form.

I have dwelt on this subject at length in my Political Ethics.

Quod principi placuerit legis habet vigorem.—L. i. lib. i. tit. 4 Dig.

Summa divisio de jure personarum haec est, quod omnes homines aut liberi, sunt aut servi.—Inst., i. 3.

Observations on the Nature of Civil Liberty, etc., by Richard Price, D.D., 3d ed, Lond., 1776.

Quid est libertas? P 'estas vivendi ut velis.—Cic., Parad., 5, 1, 34.

Since the publication of the first edition of this work, an article on “Mahometanism in Western Asia,” has appeared in the “Edinburgh Review,” October, 1853, in which the Eastern equality as an ingredient of despotism is illustrated by many striking instances from different spheres of life. The writer, who is plainly master of his subject, from personal knowledge, it would appear, agrees with us that liberty is based on individuality. Indeed, it may be said that in a great degree it consists in essential protection of individuality, of personal rights. The present Emperor of the French felt this when he wrote his chapter, De la Liberté individuelle en Angleterre. He was then an exile and could perceive liberty.

More has been said on this subject in Political Ethics, and we shall return to it at a later period.

Descriptions of the Grecian Polities, by F. W. Tittmann; Leipsic, 1822.

De Republica, lib. xii. c. 6. I have mentioned in my Political Ethics that I studied, in the Congress library, the copy of Bodinus which had belonged to President Jefferson, and in which many pencil-marks and notes of the latter are found. It will interest many of my readers to hear that this relic has not perished in the fire which consumed the greater portion of the library.

Mr. Parry, Séances et Travaux de l'Acad. des Sciences Politiques et Morales, July, 1855.

Esprit des Lois, xii. 2: “Of the Liberty of the Citizen.”

He goes on treating liberty in a similar manner; for instance, at the beginning of chapter iv. of the same work.

That a writer of Montesquieu's sagacity and regard for liberty should have thus insufficiently defined so great a subject, is nothing more than what frequently happens. No man is always himself, and Bishop Berkeley, on Tar Water, represents a whole class of weak thoughts by strong minds. I do not only agree with what Sir James Mackintosh says in praise of Montesquieu, in his Discourse on the Study of the Law of Nature and Nations, but I would add, that no person can obtain a correct view of the history through which political liberty has been led in Europe, or can possess a clear insight into many of its details, without making himself acquainted with the Spirit of Laws. His work has doubtless been of great influence.

Beginning of the fifth chapter of Paley's Political Philosophy.

Paragraph four.

Paragraph six of the Declaration of the Rights of Men.

Lord John Russell's History of the English Government and Constitution, second ed., London, 1825. This prominent and long-tried statesman distinguishes, on page 15, between civil, personal, and political liberty; but even if he had been more successful in this distinction than he seems to me actually to have been, it would not be necessary to adopt it for our present purpose.

It will be observed that the terms Liberty and Freedom are used here as synonymes. Originally they meant the same. The German Fretheit (literally Freehood) is still the term for our Liberty and Freedom; but, as it happened in so many cases in our language where a Saxon and Latin term existed for the same idea, each acquired in the course of time a different shade of the 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 distinctive terms, freedom means the general, liberty the specific. We say, the slave was restored to freedom; and we speak of the liberty of the press, of civil liberty. Still, no orator or poet would hesitate to say freedom of the press, if rhetorically or metrically it should suit better. As in almost all cases in which we have a Saxon and a Latin term for the same main idea, so in this, the first, because the older and original term, has a fuller, more compact, and more positive meaning; the latter a more pointed, abstract, or scientific sense. This appears still more in the verbs, to free and to liberate. The Ger man language has but one word for our Freedom and Liberty, namely Freiheit; and Freithum (literally freedom) means, in some portions of Germany, an estate of a Freiherr (baron). In Dutch, the word Vryheid (literally freehood) is freedom, liberty; while Vrydom (literally freedom) means a privilege, an exemption from buidens. This shows still more that these words meant originally the same

[The greater part of this note, relating to the derivation of several words signifying free, and a note a little farther on, relating to the connection between frei and friede (free and peace in German), have been omitted, since much of what is said is not sanctioned by etymologists of the highest repute. Dr. Lieber derives the Greek έλεύθερος from the root ελῠθ, come, or go—a derivation which J. Grimm and G. Curtius accept, while Benfey, Kirchhoff, and Corssen prefer to connect the Greek word with the Latin līber. Liber, again, seems to have nothing in common with the German leib, body, as Dr. Lieber supposed, but is connected by G. Curtius with λιφ in λίπτομαι, a rare Greek word denoting to long for. There must be a common root, as Grimm thinks, in liber, libet, l bet, and in German lieben, our love. Frei, free, does not seem to belong to the same root with friede, peace. Comp. Grimm's Deutsch. Wörterb. Whatever the derivation of this word may be, we may well suppose, as Grimm suggests, that the notion of peace is derived from the earlier one of fence, defense, protection. Comp. einfrieden, to fence or hedge in.]

Autonomeia is literally translated Self-government, and undoubtedly suggested the English word to our early divines. Donaldson, in his Greek Dictionary gives Self-government as the English equivalent for the Greek Autonomy, but, as it has been stated above, it meant in reality independence of other states, a non-colonial, non-provincial state of things. I beg the reader to remember this fact, for it is significant that the term autonomy retained with the Greeks this meaning, facing as it were foreign states, and that Self-government, the same word, has acquired with ourselves, chiefly, or exclusively, a domestic meaning, facing the relations in which the individual and home institutions stand to the state which comprehends them.

The fact that man is in his very essence at once a social being and an individual, 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.

The republic—if, indeed, we can say that an actual and bona fide republic ever existed in England—was called the State, in contradistinction to the regal government. During the Restoration under Charles II., men would say, “In the times of the State,” meaning the interval between the death of the first Charles and the resumption of government by the second. The term State acquired first this peculiar meaning under the Presbyterian government.

It is in a similar sense that Freiligrath, a modern German poet, begins one of his most fervent songs with the line, Die Freiheit ist die Republik; that is, Freedom is the Republic. On the other hand, I find that Prussia, at the time of Frederic the Great, was called, on a few occasions, the Republic, manifestly without any reference to the form of government, and meaning simply the com mon or public weal or concern.

It is a striking fact that nearly all political writers who have indulged in creating Utopias—I believe all without exception—have followed so closely the ancient writers, that they rose no higher than to communism. It may be owing in part to the fact that these writers composed their works soon after the restoration of letters, when the ancients naturally ruled the minds of men.

Chapter xiii. of the second book.

This was written in the year 1837. Since then, events have occurred in France which may well cause the reader to reflect whether, after all, the author was entirely correct in drawing this peculiar line between antiquity and modern times. All I can say in this place is, that the political movements in France resemble the dire imperial times of Rome just so far as the French, or rather the Napoleonists among them, step out of the broad path of modern political civilization, 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 revulsions and ruptures of France. The phase will not be of long duration, and, after it will have passed, it will serve as an additional proof of our position.

Plato, Gorg., 71.

For the evidence and proof I must refer to the original. [Dr. Lieber is in an error in classing generals among the officers chosen at Athens by lot. Comp. K. F. Hermann, Gr. Staatsalterth.,i. § 149; Schömann, Gr. Alterth., i. 422; and Tittmann, Staatsverfass., who gives a list of appointments to office by lot and by cheirotonia, pp. 311-318.]

The history of no nation reminds the student so frequently of the fact that “His ways are not our ways,” as that of England. Many events which have brought 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 as Norman noblemen to the field of Hastings—is one of these remarkable circumstances. The English civil wars; the fact that most of England's monarchs have been indifferent persons, and that after Alfred the Great but one truly great man has been among her kings; the inhospitable climate, which was treated by the people like a gauntlet thrown down by nature; that they developed that whole world of domestic comfort and well-being, known nowhere else, and of such important influence upon all her political life; her limited territory; her repeated change of language; her early conquests,—these are some items of a list which might easily be extended.

Since this note was originally written, a work in praise of Henry VIII. has attracted sufficient attention to make it necessary for me to state that the author means William III. as the great monarch after Alfred.

A chronological table of the leading cases 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 instructive, and show how much we owe to the growth of liberty, and how much this growth is owing to the husbanding of practical cases in the spirit of freedom.

In the year 1848 I published, in an American journal, a paper headed Anglican and Gallican Liberty, in which I indicated several views which have been further developed in the present work. A distinguished German criminalist and publicist did me the honor of publishing a German translation of this paper, in which, however, he says that what I have called Anglican liberty is more generally called Germanic liberty. This is an error. I allow that the original Teutonic spirit of individual independence, distinguished as it is from the Celtic disposition of being swayed by masses, and from the consequent proclivity toward centralization in politics, religion, and literature, and a certain inability to remain long in the opposition, or to stand aloof of a party,—I allow that this original Teutonic spirit largely enters into what I have termed Anglican liberty, but this is a system of civil liberty which has developed itself independent of all other Teutonic nations, has been increasing while nearly all the other Teutonic nations lost their liberty, and of which, unfortunately, the Germans, who ought to be supposed the most Germanic of the Germanic tribes, have nothing, except what may remain of the late attempts at engrafting anew principles or guarantees of liberty on their polities, which had become more and more a copy of French centralization. This is not the place to discuss the subject of so-called Germanic liberty. All that is necessary here to state is, that what is called Anglican liberty consists, as was said before, in a body of guarantees which, as an entire system, has been elaborated by the Anglican race, and is peculiar to them unless imitated by others. Many a detail of Anglican liberty existed long ago in other parts of Europe, and was enjoyed at times in a higher degree than by the English at that period. But it withered or ran wild, and never became a part of a constitutional organism. What has become of the Aragonese fustuia or chief justice? What of the Hungarian excessive self-government of the county?

Bunsen, in his Signs of the Times, calls mutual toleration the true evidence of a firm Christian faith and the only valid evidence before God and men.

He speaks of religion; but the remark, with proper modification, is applicable in all spheres. Strong conviction of right and truth and reality early rises to respectful toleration—a generous acknowledgment of the rights as well as the opinions of others. Feebleness of conviction or consciousness of feebleness makes tyrannical and vindictive. And, let us add, this is one of the many points where true liberty and gentlemanliness meet in requirements and effects.

Political Ethics, chapter on Sovercignty.

The case is The Queen vs. Bernard. [It is, however, in itself right to punish conspiracies against foreign powers, when their base of operations is within our territory, because they are crimes committed on our soil, over which no other state has control, and also because they may involve us in unpleasant relations with foreigners. But in the case mentioned in the text the demand for new legislation was made in the spirit of intimidation.—The English claim to search our vessels in 1858 was dictated by the desire to ascertain whether a given vessel was really of foreign nationality, or an English vessel under false colors.]

The address and declaration of four thousand British merchants, presented in the month of April, 1853, to the emperor of the French, will forever remain a striking proof of British liberty; for in every other European country the government would have imprisoned every signer, if, indeed, the police had not nipped the petition in the bud; and it will also forever remain a testimony how far people can forget themselves and their national character when funds are believed to be endangered, or capital is desired to be placed advantageously. But I have alluded to it in the text as an instance only of popular interference with foreign governments, doubtless the most remarkable instance of the kind on record. Whether the whole proceeding was “not far short of high treason,” as Lord Campbell stigmatized it in the House of Lords, may be left undecided It certainly would have been treated as such during some periods of English history, and must be treated by all right-minded men of the present period as a most unworthy procedure.

To this must now be added the record of the tone which pervaded the address of the lord mayor and aldermen of London to Count Walewski, French Ambassador, in the early part of the year 1858, and the manner in which it was received, when Orsini had attempted to assassinate the count's master and cousin, having obtained his explosive weapons in England. The reply of the ambassador was submitted to, although rising to such a degree of impertinence that it was necessary, at a later period, diplomatically to explain and partially to unsay it.

In many countries, and even among hardly civilized tribes, it has been a rule that no one should enter a man's house without the consent of the owner. Missionaries tell us that the Yarriba people in Central Africa do not allow their king to enter a house, even to arrest a criminal, without the consent of the head of the family. So we are very often told that the trial by jury was known before England had its present name; but the question of importance is, how far a principle is developed, how securely it is guaranteed, how essential a part of a general system it is, and how strong it is to resist when public power should choose to interfere with it. The Chinese have no censorship, but this absence of censorship is not liberty of the press. The Romans cared very little about the religion of their subjects, (so that they were not Christians,) but this was not constitutional toleration or freedom of worship.

In the province of Kouang-St, containing mountainous regions.

A warrant to apprehend all persons suspected, or all persons guilty, etc. etc, is illegal. The person against whom the warrant runs ought to be pointed out. The law on this momentous subject was laid down by Lord Mansfield in the case of Money vs. Leach, 3 Burrow's Rep. 1742, where the “general warrant” which had been in use since the revolution, directing the officers to apprehend the “authors, printers, and publishers” of the famous No. 45 of the North Briton, was held to be illegal and void. [Comp. May, Constit. Hist., ii. chap. 11.]

[For arrests which officers or even private persons are allowed by English law to make without warrant, see Blackstone's Com., iv. chap 21, pp. 292, 293, and the notes of the annotators on his text.]

The reader will find a copy of the Constitution of the United States in the Appendix.

This is section 123 of vol. iii. of Dr. Greenleaf on Evidence, which I have copied by the permission of my esteemed and distinguished friend. I have left out all the legal references. The professional lawyer is acquainted with the book, and the references would be important to him alone.

Long imprisonments before trial are customary means resorted to on the continent of Europe in order to harass the subjects. Guerrazzi and other liberals were sentenced, in Tuscany, on the first of July, 1853, after having been imprisoned for fifty months before ever being brought to trial. It is useless to mention more instances; for long imprisonment before trial is the rule in absolute governments whenever it suits them.

The Appendix contains the habeas corpus act.

Paper No. 1xxxiv.

Blackstone's Commentaries, vol. i. page 136. Note, in the “Federalist.”

In 1854 a complete edition of the emperor's works was published. In that edition was a chapter headed De la Liberte individuelle en Angleterre. In it are the following passages:

“No inhabitant of Great Britain (excepting convicts) can be expelled from the United Kingdom. Any infraction of this clause (the habeas corpus act) would be visited with the severest penalties.” He remarks that we have no public prosecutor, the attorney-general interfering only on extraordinary occasions; and if criminals sometimes escape justice, personal liberty is the less endangered. “In England, authority is never influenced by passion; its proceedings are always moderate, always legal;” there is “no violation of the citizen's domicile, so common in France;” family correspondence is inviolate, and no passports bar the most perfect freedom of traffic,—” passports, the oppressive invention of the Committee of Public Safety, which are an embarrassment and an obstacle to the peaceable citizen, but which are utterly poweiless against those who wish to deceive the vigilance of authority.” A law deprived of the general support of public opinion would be a mere scrap of paper.

“It suffices for us to note this fact, that in France, where such jealousy is shown of everything which touches equality and national honor, people do not attach themselves sò religiously to personal liberty. The tranquillity of the citizen may be disturbed, his domicile may be violated, he may be made to undergo for whole months a preventive imprisonment, personal guarantees may be despised, and a few generous men shall raise their voices, but public opinion will remain calm and impassible as long as no political passion is awakened. There lies the greatest reason for the violence of authority; it can be arbitrary because there is no curb to check it. In England, on the contrary, political passions cease the moment a violation of common right is committed; and this, because England is a country of legality, and France has not yet become so; because England is a country solidly constituted, while France struggles by turns for forty years between revolutions and counter-revolutions, and the sanctity of principle has yet to be created there.”

The plan has not yet been published, but one of the ministers, Sir James Graham, said in the Commons, in April, 1853:

“The first point on which all the authorities consulted were agreed is, that whatever measures are taken, must rely for success on the voluntary acceptance of them by the seamen, and that any attempt to introduce a coercive mode of enlistment would be followed by mischievous consequences and failure.” The difficult question does not yet seem to be wholly settled (1859). It seems difficult to obtain a sufficient number of seamen to man the fleet in emergencies. In France seamen are drafted, as soldiers are for the army. [For the history of impressment, for the army as well as for the navy, down to 1860, comp. May, u.s., ii. 259 et seq. Until 1872 no law abolishing this practice was passed; but the practice itself seems to be in abeyance.]

I William and Mary, stat, ii, c. 2.

Esprit des Lois, xit. 2; “Of the Liberty of the Citizen.”

This comprehensive and excellent work was published in Germany, Erlangen, 1851.

[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 peison was indicted for high treason, he had, as early as 7 Wm. III., the privilege of counsel, which was granted also to persons impeached for the same crime by a statute of 20 Geo. III. In 1836, by statute of 6 and 7 Wm. IV., this privilege was granted in trials for felony. See Blackst., iv., chap. 27, p. 355, and May, u. s., ii. 558.] It must not be forgotten, however, that deficient as the penal trial of England without counsel for the defendant was, it contained many guarantees of protection, especially publicity, a fixed law of evidence, with the exclusion of hearsay evidence, the jury and the neutral position of the judge in consequence of the trial by jury, and the strictly accusatorial character of the trial, with the most rigid adhesion to the principle of trying a person upon the indictment alone, so that the judge could be, and in later times really had been, the protector of the prisoner. Had the trial been inquisitorial instead of accusatorial, the absence of counsel for defence would have been an enormity. To this enormity Austria has actually returned since the beginning of this century. The code promulgated by Joseph gave counsel, or a “defensor,” to the prisoner; but, although the process remained inquisitorial, the defensor was again disallowed. The late revolution re-established him, but whether he has been discontinued again of late I do not know. Nor can it be of very great importance in a country in which the “state of siege” and martial law seem to be almost permanent.

Penal trials of absent persons are common in countries where the principles of the Roman law prevail. They are common in France; and the church has even tried deceased persons for heresy, found them guilty, and confiscated the property which had belonged to the heretic. The presence of the indicted person 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 monaich or his government, or an impassioned populace. Several of the almost solemn procedures of lynch law which have occurred of late in some of our Western States, and according to which absent persons were warned nevet to return to their domicile, are instances in point.

The idea expressed by Dr. Paley regarding this point is revolting. He says, in his Political Philosophy, that we may choose between two systems, the one with fair punishments always applied, the other with very severe punishments occasionally applied. He thus degiades penal law, from a law founded above all upon strict principles of justice, to a mere matter of prudential expediency, putting it on a level with military decimation.

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 in 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 1853, the following? “The minister of general police has just decided that Chapitel, sentenced by the court to six months' imprisonment for having been connected with a secret society, and Brayet, sentenced for the same offence to two months' imprisonment, shall be transported to Cayenne for ten years, after the expiration of their sentence!”

The decree of the eighth of December, 1851, not a law, but a. mere dictatorial order, upon which ten years' transportation is added by way of “nder” to a few months' imprisonment adjudged by the courts of law, is this:

” Article 1. Every individual placed under the surveillance of the high police, who shall be found to have broken his assigned limits of residence, may be transported, by way of general safety, to one of the penitentiary colonies, at Cayenne or in Algeria.

” The duration of transportation shall be five years or less, and ten years or more.” (We translate literally and conectly, whatever the reader may think of this sentence, which would be very droll, were it not very sad.)

“Article 2. The same measure shall be applicable to individuals found to be guilty of having formed part of a secret society.”

The French of the last sentence is, tndividus reconnus coupable d' avoir fau partte d'une société secrète. 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 guilty by process of law is in French convaincre. The reconnaitre, therefore, was used in order to include the police or any one else in authority. So that we arrive at this striking fact: The despot may add an enormous punishment to a legal sentence, as in the cited case, or he may award it, or rather the minister of police under him may do it, without trial, upon mere police information. Two hundred years ago, the English declared executive transportation beyond the seas, or depoitation, to be an unwarranted grievance; and here we have it again, no doubt in imitation of the Roman imperial times, (the saddest in all history,) in the middle of the nineteenth century.

So far the note as written in 1853. In 1858 Orsini made his attempt of assassinating 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.

Sir Samuel Romilly's Memoirs, vol i. p. 315, 2d ed., London, 1840.

Phillipps's State Trials, vol ii. 214, et seq., and, indeed, in many parts of the work.

Beranger, De la Justice Criminelle de France, Paris, 1818, page 2.

The reader will find in Appendix III. a paper on the subject of some continental trials, and the admission of half and quarter proof and proportional punishment

This may be amply seen in the reports on Fiench trials, and, among other works, in Feuerbach's Collection of Geiman Criminal Trials.

See K. F. Hermann, Gr. Staatsalterth., § 144.

Memoirs of the Life of Sir Samuel Romilly, 2d ed., London, 1840, vol. ii P. 235. Strangely enough, there is an English law, 25 George II., ch. 36, accord ing to which prosecutors are to have the expenses of their prosecution reim bursed, and a compensation afforded them for their trouble and loss of time. This is evidently to induce people freely to prosecute; but no guarantee is given on the other hand against undue prosecution, and a compensation for the trouble and loss of time of the acquitted person.

The American reader ought to keep in mind that the term Political Offence is now a well-established term on the continent of Europe. It is used in legislation; thus the late French republic abolished capital punishment for political offenders, and in the treaty of extradition between France and Spain, “political offenders” are excepted, and not subject to extradition. It would, nevertheless, be difficult to give a definition of the term Political Offence sufficiently clear to be acceptable to a law-abiding administration of justice. Indeed, we may say that it was natural this term should have presented itself, in the course of things on the continent of Europe, and it is equally natural, and is full of meaning, that the English law does not know it.

The Writings of John Marshall, p. 42. Ex parte Bollman and Swartwout. The rebellion of the Mormons in 1858 has occurred since the remarks in the text were written. It would seem sound reasoning and statesmanship, that the narrower the limits are to which the public law restricts treason, the more necessary it becomes to execute the law fully within those limits.

Judge Story says: “A state cannot take cognizance, or punish the offence, (i.e. treason against the United States,) whatever it may do in relation to the offence of treason, committed exclusively against itself, if indeed any case can, under the constitution, exist, which is not at the same time treason against the United States.” Chap. 28, vol. iii. of Commentaries on the Constitution of the United States.

I seize upon this opportunity of advising every young reader of this work to study with earnest attention the history of the witch-trials forming, possibly, with the African slave-trade, the greatest aberrations of our Cis-Caucasian race. Such works as Soldan's History of the Witch-Trials [Gesch. der Hexenprocesse, Stuttgard, 1843] exhibit the psychology of public and private passion, of crime and criminal law, in so impressive and instructive a manner, that the sad course of crime and error having been run through, it ought not to stand on record in vain for us. We learn, in history and in psychology, as in nature, to understand the principles, motives, and laws of minor actions, by the changes and convulsions on a large scale; and the vast changes and revulsions by the microscopic observation of the minute reality around us.

When, in 1858, Count Montalembert was tried in Paris for having written a pamphlet in praise of England, a peculiarly small court-room was selected, only a few persons were admitted, by tickets, and no notes were allowed to be taken.

The American trials for treason are collected in Francis Wharton's State Trials of the United States, Philadelphia, 1846.

[And, it may be, acquitted, as the court of ordinary justice would have its own definition of crime, and its own rules of evidence.]

The reader may be acquainted with the Right Hon. Mr. Gladstone's pamphlet on Neapolitan trials for treason, published in 1851. It is but a sample.

I would mention for the younger student, that when I study pervading institutions, or laws and principles which form running threads through the whole web of history, I find it useful to make chronological tables of their chief advancements 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.

The first fair play was given to a free press in the Netherlands.

The law of the United States prohibits any private person 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.]

The American states in which slavery exists have not considered the laws or principles relating to letters to apply to public journals, when suspicion exists that they contain articles hostile to slavery. In some cases people have broken into the post-office and seized the obnoxious papers; in other cases the state legislature have decreed punishments for propagating abolition papers. Thus we read in the National Intelligencer, Washington, October 6, 1853, that “Mr. Herndon, postmaster at Glenville, informs the editor of the Religious Telescope, at Circleville, Ohio, that having, according to the laws of Virginia, opened and inspected his papers, and found them to contain abolition sentiments, he has refused to deliver them as addressed, and has publicly burnt them in presence of a magistrate. It appears by his letter that the penalty for circulating such papers is imprisonment in the penitentiary for not less than one nor more than five years.”

Such is the law, and its lawfulness, wisdom, and dignity must be judged of by the laws and principles by which other measures are judged; but it cannot be denied that a freeman feels himself circumscribed so far as he is denied to read what he chooses. If a government or a set of men were to forbid a man to read an atheistic paper, though he might be a fervent Christian, his liberty would be undoubtedly circumscribed pro tanto.

That the seizure of English papers on the continent is of frequent occur rence, is well known by every reader of the daily papers.

In the decision of the appellate court in the same case we find this to be the chief argument, that government establishes post-offices, and cannot be expected to lend its hand to the promotion of mischief, by carrying letters of evil-doers. This is totally fallacious. Government does not establish post-offices, but society establishes them for itself, though it may be through government. The mail is no boon granted by government.

If it did, it is not a benefit done by a second party, as when A makes a present to B, but government is simply and purely an agent; and, what is more, the right of establishing post-offices is not an inherent attribute of government, such as the administration of justice or making war. Government merely becomes the public carrier, for the sake of general convenience. There are many private posts, and governments without government post-offices, for instance, the republic of Hamburg.

The opening of letters without proper warrant is a frightful perversion of power, and though government should be able to get at secret machinations, the secret of letters is a primordial condition. Government might, undoubtedly, know many useful things if the sacredness of Catholic confession were broken into; but that is considered a primordial and pre-political condition. So, many codes do not force a son to testify against a father; the family affection is considered a primordial condition. The very state of society, for which it is worth living, is invaded, if the correspondence is exposed to this sort of government burglary.

The argument is simply this. Man is destined to live in society, united by converse and intercommunion; this is a basis of humanity. If you open letters, you seriously invade this primary condition. Men are individuals, and social beings, destined for civilization and united progress, and the question is not whether they may be dispensed with, but how to govern with them. Governments too frequently act as though the government were the primary condition, and the remaining question only was, how much may be spared by government to be left for society or individuals. The opposite is the truth.

After this note had been published, the French court of cassation,” all chainbers united,” decided, in the last resort, that in the case of Coëtlogon, Flandin, and others, no illegal act had been committed by the prefect of the police, in opening letters, etc. etc. The decision is given in full in the Courrier des Etais-Unis, New York, December 12, 1853.

[Several corrections are necessary in this and the preceding paragraph. The long parliament-not the commonwealth-passed an ordinance June 11, 1643, for restraining the liberty of the press, and to strengthen some former order? made for that purpose. This led to Milton's Areopagitica, published in November, 1644. Afterwards, September 21, 1647, in consequence of a letter from Gen. Fairfax, complaining of scandalous pamphlets, a new ordinance was passed, which contains several of the particulars mentioned in the text. Comp. Cobbett's Parl. Hist., iii. pp. 131, 132,780. In 1662 a new licensing law was passed under Charles II. In 1695, under William, the Licensing act ceased to have effect, and was not again passed. Comp. Smyth's Lect. on Hist., ii. lect. 22; Macaulay's Hist., iv. 348, et seq., 541.]

On the other hand, an immense amount of capital annually returns, from successful emigrants in the United States, to Ireland and Germany. Persons who have not paid attention to the subject cannot have any conception how many hard yet gladly earned pounds and thalers are sent from our country to aged parents or toiling sisters and brothers in Europe. A wide-spread and blessed process of affection is thus all the time going on-silent, gladdening, and full of beauty, like the secret and beautifying process of spring. It is curious to observe, in connection with this emigration of coin from Europe, (for a large portion of the emigrating capital consists in European specie,) how the coins are first carried to the distant west in the pouches of the emigrants, and then are sent in large boxes from the western banks, into which they naturally flow, to the New York banks, to be sold to the specie-broker, who sells them for shipment back to France, Germany, or England. The Banks of New York, by T. S. Gibbons New York, 1859.

In the Prussian constitution of 1850, Tit. ii. Art. ii., it is said, “The right to emigrate cannot be restricted by the state, except with respect to the duty of military service.”

[Penalties for escaping a draft in time of war, or deserting one's country in its perils, may be perfectly just. Comp. the Oration of Lycurgus against Leocrates, e.g. §§ 11, 16.]

The papers of September, 1853, reported that “the Silby estate, belonging to the Hon. Mrs. Petre, has been sold to Lord Londesborough for £270,000. Mrs. Petre, whose property was left by her husband entirely at her own disposal, has taken the veil in a nunnery in France, which will of course receive the whole of her fortune.”

This emigration of more than a million of dollars, and serving for the purpose of a religious community not favored by the country whence it emigrates, (not to speak of the actual droit d'aubaine in France before the revolution,) indicates a great advance of civilization, and would not be allowed in several countries. [The laws of civilized states, however, may properly limit or forbid the acquisition of property in mortmain or by religious corporations. And if within a country religious bodies were forbidden to hold such property, why should they, if situated 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 1, 1852. The London Spectator of December 17, 1853, said:—

“Not less than £2,972,000 was remitted from Irish emigrants in America to their friends and relatives at home, in 1848, 1849, 1850, and 1851. It is estimated that if the remittances have continued at the same rate, upwards of four millions must have been remitted in the last six years.”

The primordial right of locomotion and emigration has been discussed by me in Political Ethics, at considerable length. The state of Mississippi declares in its bill of rights, that the right of emigration shall never be infringed by law or authority. The English distaste of passports was severely tried when, after Orsini's attempt to assassinate Napoleon III., stringent passport regulations were adopted in France; but the English found them so irksome (and the money they spend is so acceptable to the continent) that those police regulations were soon relaxed in a very great degree. Napoleon III., when an exile, wrote on the individual liberty in England, and called passports “that invention of the Committee of Public Safety.” See his works. The modern passport was, doubtless, greatly developed in the first French revolution, but not invented. The history of the passport, from the Roman Empire to the modern railroad, which naturally interferes with its stringency, is an interesting portion of the history of our race, but it belongs to what the Germans have carved out as a separate branch under the name of Police Science, (Polizei-Wissenschaft.)

Conscience lies beyond the reach of government. “Thoughts are free,” is an old German saying. The same must be said of feelings and conscience. That which government, even the most despotic, can alone interfere with, is the profession of religion, worship, and church government.

See Primordial Rights in Political Ethics.

[A state in the American Union might have a state church, although such an event is at present utterly improbable.]

This disqualification has at length been removed, in 1858. The words “upon the faith of a Christian” may be left out of the qualifying oath by a non-Christian. There are now (1859) three Jews in the house of commons.

Since the text, to which this note is appended, was written, the case of the Madiai family has attracted the attention of all civilized nations in the old and new world. The Madiai family, natives of Tuscany, had become Protestants, and used to read the Bible. No offence has ever been charged to them, except that they read the Bible in the vernacular. Their imprisonment and prosecution caused the formation of a Society for Protecting the Rights of Conscience, in England, in July, 1857. Archbishop Whately presided at the first meeting, and in giving the scope of the society, spoke of the topic in hand with a degree of discrimination which entitles his remarks to be reproduced here. He said:

“We are entirely unconnected with conversion, except so far as converts may be exposed to persecutions for conscience' sake. We enter into no connection with any society for diffusing religious knowledge of any kind. By rights, we understand not necessarily that every one is right in the religion that he adopts, but that his neighbors have no right to interfere with him. We merely maintain that a man has a right, not necessarily a moral right, nor a right in point of judgment, but a civil right, to worship God according to his own conscience, without suffering any hardships at the hands of his neighbors for so doing. We limit ourselves entirely to those descriptions of persecution in which the law can give no relief. As for assaults and violence of any kind, where the law provides and holds out a remedy, we leave all persons to seek that remedy for themselves; and we do not undertake to guard, or to remunerate, or to compensate any persons who are exposed to obloquy, to curses, denunciations of Divine vengeance uttered by men, to ridicule, or to any sort of annoyance of that kind. They should be taught to bear it and to support it with joy and satisfaction through Divine help, and rejoicing that they are counted worthy to suffer in the good cause. But when attempts are made to compel men to conform to what they do not conscientiously believe, by the fear of starvation, by turning them out of employment when they are honest and industrious laborers, by refusing to buy and sell or hold any intercourse with them, then I think it is, and then only, that a society like this ought to come forward, and that all persons, whatever religion they may be of, or whether they are of any religion at all or not, in a feeling of humanity and justice, ought to look with a favorable eye on such a society as yours, provided it keep itself within its own proper bounds.”

It has been one of the main objects in my Essays on Labor and Property, to show the necessity and justice of individual property, and its direct connection with man's individuality, of which it is but the reflex in the material world around him. Man suffers in individuality, therefore in liberty, in the degree in which absolutism, which is always of a communistic nature, deprives him of the possession, enjoyment, production, and exchange of individual property. The Essays treat of property in a political, 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 fines, one of the most universal and most efficacious of penalties.]

I shall not have room to give a whole chapter to the subject of communism, or rather a single chapter would be wholly insufficient on this interesting subject, which, moreover, belongs to general political philosophy, rather than to our branch. I shall mention, therefore, this only, that I use in these pages the word communism in its common adaptation, meaning a state of society in which individual property is abolished, or in which it is the futile endeavor of the lawgiver to abolish it, such as hundreds of attempts made, in ancient times, in the middle ages, and in modern epochs, in Asia and in Europe, among the Spartans, the anabaptists, and French communists. I do not take here the term communism in that philosophical sense according to which every state, indeed every society whatever, necessarily consists of the two elements of individualism and socialism. The grave error of the socialist is that he extends the principle of socialism, correct in itself, to the sphere where individualism or separatism, equally correct, ought to determine our actions. The socialist is as mistaken an enthusiast as the individualist would be, who, forgetting the element of socialism, should carry his principle to the extreme of disjunctive egotism, and 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 denial of government, and an avowal of “individual sovereignty.”

See the constitution of the French Republic of 1848, in the Appendix. It contains a paragraph acknowledging private property, the family, etc. It was right to insert it, under the circumstances. If the Spartans had ever reformed their government, and passed from their socialism to individualism, they would have been justified in proclaiming the sanctity of the family and the acknowledgment of private cookery, however ludicrous this might be under other circumstances.

Points belonging to this subject and its primordial character were pronounced with clearness in the late pleadings in the French courts, when it was endeavored to show, unfortunately in vain, that Louis Napoleon had no right, even as a dictator, to confiscate the private property of the Orleans family, and that the courts were competent to restore it to the lawful owners.

See Judge Story, in his Commentaries on the Constitution of the United States, and his Opinion, as well as Chief-Justice Marshall's' in the celebrated Dartmouth Case, 4 Wheaton R. 518, and also Mr. Webster's Works for his argument in that case.

The English go much farther than ourselves, not indeed in principle, but because they consider many rights, places, and privileges as vested property which we by no means consider as such.

4 An act of parliament under James I. (21 James I. i. 3) prohibited all monopolies granted by the crown, after the courts had repeatedly, even under Elizabeth, declared certain monopolies null and void.

Paragraph fifty-nine, chap. i. vol. i. of History of Europe from the Fall of Napoleon to the Accession of Louis Philippe. Possibly an opportunity may offer itself some day to treat of this melancholy subject at length and in all its details.

I cannot forbear, however, to copy a passage of Sir A. Alison, viz.: “The principal states of the Union have, by common consent, repudiated their state debts as soon as the storms of adversity blew; and they have in some instances resumed the payment of their interest only when the sale of lands they had wrested from the Indians afforded them the means of doing so, without recurring to the dreaded horrors of direct taxation”—and to add that there is not one fact in this whole passage. The principal states did not repudiate; the repudiation was not by common consent; no land has been wrested from the Indians and sold for the benefit of the states, and direct taxation exists in most states, perhaps in all the states to some extent. Many of those readers who have been my pupils will remember that for a number of years I was in the habit of delivering a course of lectures on Repudiation, in which, I trust, I showed no disposition to mince matters; but to repudiate the representative principle as Sir Archibald does when treating of Repudiation, and to present the latter as a natural consequence of republicanism, transcends the bounds of reason. What element in the English polity, we would ask, is it that makes English credit so firm? Is it the monarchical? This cannot well be, for many monarchs have more than loosely dealt with credit, public funds, and even private property. I believe, on the contrary, that the credit of England mainly rests on her representative, her republican principle. I do not mean to say that people lend their money just because she has a parliament. What I mean is that the rehance of the world on the good faith of England in money matters has been built up by her parliamentary government, and would not have been built up without it.

The Dutch Republic enjoyed great credit, while the Regent of France, and his council of state, seriously debated whether the “new government” was obliged to acknowledge the debts of the defunct Louis XIV. One of the worst cases of repudiation was exhibited in England long before the unhappy laxity became manifest in our land. The Prince of Wales (George IV.) and two of his brothers, the Dukes of York and Clarence, desired to escape paying a loan of 3,600,000 guilders which they had made in Holland, through the banker Thomas Hammersly. When the bond-holders came to England to enforce payment, Sir Arthur Pigott, attorney-general of the Duchy of Cornwall, acting for the Prince of Wales, stated in the court that he had never heard of the bonds, which was absolutely untine. All London, and indeed all England, knew of it. The arguments were worthy of any Mississippi repudiator, such as. The present bond-holders are not the original lenders; war has broken out. Ultimately 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.

Sir A. Alison says somewhere in his writings, that the richest men in the city of New York do not dare to have stately fronts for their houses, however costly the interior may be, from fear of displeasing the democracy. Truth and essential progress are never promoted by wrong or false argument.

We shall presently say more on the all-important word Law; but for an extensive discussion of the subject I must refer the reader to the Political Ethics.

It will hardly be necessary to state that the term supremacy of the law has a meaning only when by law we understand general and pre-existing rules of action expressing public will. Whether the name of law be given to personal decrees and arbitrary decisions, is not of the smallest importance. Napoleon, at St. Helena, expressed his surprise at having been called a despot; “I,” said he, “who have always acted by law!” This forcibly reminds us of a prominent French paper, the Univers, which lately stated that it was decidedly in favor of representative government, and that it was only necessary to know what is understood by representative government. The Univers—so said the paper itself—understands by this term a legislative corps, which represents the government. I have known, in an official capacity, a patient in a hospital for the insane, who perseveringly maintained that the difference between him and me consisted solely in the name. “Suppose,” he used to say, “we patients vote that we are sane and the out-door party is crazy?” “Don't you see?” he would add, with a knowing look.

Our constitution prohibits them.

By extraordinary courts of justice are meant, in this connection, courts of an extraordinary composition, not those that are simply directed to sit at an unusual time. The difference between justice, that is, right distributed among men by lawful and regularly appointed judges on the one hand, and the trials, by commissioners on the other hand, is well pointed out by an anecdote, such as Plutarch would not have disdained to give in his writings. Montaign, grand master of the household of Charles VI., was tried, tortured, and executed by Commissioners. He was buried in the church of the Celestines, and when Francis I. came to see his tomb, the king said, “This Montaign has been condemned by justice.” “No, sire,” answered the simple monk who guided the king, “he was condemned by Commissioners.” Histoire du Parlement de Paris, Amsterdam, 1769, ch. 4. Commissioners as judges form a “packed” court, do not feel lasting responsibility, and, in cases of importance to the executive, act on the foregone conclusion 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.

See the French charter in the Appendix.

The act by which martial law was declared in Ireland, during the rebellion in 1798, can be seen in Tytler's Essay on Military Law, appendix, No. 6. I copy this reference from an article, Martial Law, in Political Dictionary, London,1846.

[For the question raised in our late war as to the president's power to do this, and for the limitation that the suspension of habeas corpus allows no illegal arrests, but only the detention of a prisoner arrested for good cause, comp Pomeroy's Constit, Law, p. 475.]

Extreme cases, as a matter of course, would be allowed to form exceptions.

I must again refer to the Political Ethics, chapter on Obedience to the Law.

Sir M. Foster, Discourse of Homicide, p. 319. I quote from Broom's Legal Maxims.

The very opposite to the Anglican principle, that each officer remains responsible for the legality of his own acts, prevails in China and Japan, and probably in all thoroughly systematized Asiatic despotisms. The superior officer is punished for the offence and even for the misfortime of the inferior, or for the accident which may have befallen the latter. The blows with the bamboo, which in China go down from the superior through many grades to the inferior, are well known. Before the late opening of the Japanese ports to the Americans and Europeans, a Christian vessel was driven on the shores of Japan. The governor ripped open his belly, and the viceroy in whose province the wreck had happened was imprisoned for one hundred days, although he was at the time a hundred miles from the place of the disaster. There is also, however, in these cases, to be taken into consideration the confusion of moral laws, and physical laws, and fate, which pervades the whole Chinese code, the ethics of Japan, the moral code of all early nations, and which we find in the early mythology of all nations. The earliest period of Greek history and mythology furnishes us with many illustrations.

Mr. King, in his Notes of the Voyage of the Morrison, New York, 1839, gives the following anecdote: “We had inquired of the Japanese how their officers were to be distinguished; whether they wore any badges besides the ever-famous ‘two sabres.’ The answer was, If you see a man come on board that trembles very much, he is a mandarin.”

The student must take care not to consider the fining of companies for want of caution, skill, or honesty in the persons or officers employed by them, (now so common in consequence of railway accidents,) as invalidating the principle laid down in the text.

For instance, in the scarcity of grain in the year 1766, Chatham prohibited exportation of grain. When parliament met, he read a passage from Locke, to show that what he had done was not legal yet right. Indemnity was passed for him and those who had acted under him. In 1818, ministers asked and obtained indemnity for the suspension of habeas corpus, for themselves and magistrates under them. Many other instances might be given. See Lieber's Legal and Political Hermeneutics, note to page 79. Acts of indemnity cannot be passed with us, because we have a constitution of which the legislature itself is but the creature, and we cannot pass ex post facto laws. All that remains for us to do in cases of absolute necessity or transcendent utility is to pass over the occurrence in silence; or congress may show its concurrence by aiding in the act. This was the case when Mr. Jefferson purchased the territory of Louisiana. Still, congress cannot make the act constitutional; though the silence of congress, or the countenance given by it to an act, gives it such apparent legality, that we find in the present time (1859) many men calling themselves adherents to the strictest interpretation of the constitution, and insisting on liberal interpretation, urging the purchase of the island of Cuba, as if the constitution, which itself declares that it permits nothing but what it distinctly and positively grants, had allowed the purchase of foreign territory.

[See the Petition of Right in Appendix V., and Forster's Life of Sir John Eliot, for earlier complaints about this old outrage.]

[The individual nature of the seaman is developed by many of his duties, while armies act chiefly as bodies and are directly under command.]

The guards of Charles II. were declared anti-constitutional, and the army of James II. was one of the evidences by which he was presumed to have abdicated; that is, in other words, one of his breaches of the fundamental law of the land. A new sanction was given to this principle in the sixth article of the Bill of Rights which runs thus: “A standing army, without the consent of parliament, is against law.”

A remarkable debate took place in the British commons in April, 1856, when Mr. Cowan brought under the notice of the house the billeting system pursued in Scotland, according to which “militia and troops of the line are billeted upon private houses in Scotland.” “It is an intolerable grievance.” Redress was obtained.

Considerations on the Corn Laws, by Dr. Samuel Johnson.

I write at the beginning of 1859.

The French soldiers vote at present, whenever universal suffrage is appealed to—not with the citizens, but for themselves, and the way in which this military voting generally takes place is very remarkable.

I do not feel authorized to say that the Anglicans consider it an elementary guarantee of liberty not to be subjected to the obligation of serving in the army, but certain it is that, as matters now stand and as our feelings now are, we should not consider it compatible with individual liberty—indeed, it would be considered as intolerable oppression—if we were forced to spend part of our lives in the standing army. It would not be tolerated. The feeling would be as strong against the French system of conscription, which drafts by lot a certain number of young men for the army, and permits those who have been drafted to furnish substitutes, as against the Prussian system, which obliges every one, from the highest to the lowest, to serve a certain time in the standing army, with the exception only of a few “mediatized princes.” The Anglicans, therefore, may be said to be at present unequivocally in favor of enlisted standing armies, where standing armies are necessary.

It was stated by him that the right of petition was of essential value only in a monarchy, against the encroachments of the crown. But this whole view was unquestionably a confined one, and caused by irritation against a peculiar class of persevering petitioners.

There is no more striking instance on record, so far as our knowledge goes, than the formidable petition of the chartists in 1848, and the calm respect with which this threatening document was received by the commons, after a speech full of dignity and manly acknowledgment of the people by Lord Morpeth, now Earl of Carlisle.

The discussion of petitions in the house of commons seems to have undergone a marked change, as will appear from the following remarks of Lord Brougham, which he made in the house of lords in June, 1853, when the extension of the time of the income tax was under debate. Lord Brougham said that he did not expect that the income tax would expire in 1860. He recalled the circumstances under which the old income tax was repealed, in defiance of the government of that day; through the instrumentality of nightly discussions on petitions—a popular privilege no longer allowed in the house of commons.

“In 1806, when the income tax was 10 per cent., it was imposed till the end of the war, and no longer, The war ended in 1814, but it broke out again in 1815; and after its final termination a great fight against the continuance of the tax took place in the house of commons. It had been said that the present income tax would not be abandoned in 1860; and he believed that the campaign which took place in parliament in 1816 could not be fought again. How was that campaign conducted? By means of petitions. For five or six weeks, from four o'clock in the afternoon till two or three o'clock in the morning, petition after petition was presented, and each petition was debated. If an account was given of the proceedings of the five or six weeks during which that campaign against the income tax was fought, it would describe one of the most extraordinary scenes ever witnessed within the walls of the house of commons, and a resistance which was perfectly successful. He might mention one incident which occurred during those discussions. After the fight had continued some three weeks or more, one night about eleven or twelve o'clock a question was put from the chair about bringing up the petitions; and all the members on one bench—who might have been supposed to be exhausted by the long sitting—rose in competition with each other to catch, as it was called, the Speaker's eye; and the gallantry of those men in standing by their colors under such circumstances so struck the house that they were hailed with a general cheer of applause. He did not think, however, that in 1860, unless a great change took place elsewhere, the same campaign and stand against the income tax would be possible.”

It would be a grave error, indeed, to conclude from this fact, or from the general democratic character of the Chinese system, that there is liberty in China—a conclusion as hasty as it would be to infer that freedom exists in France because the empire declares itself to be founded on universal suffrage.

The so-called Shakers endeavor to extirpate this principle, and furnish us with an illustration of the evils arising from the endeavor.

[This is not borne out by facts, although the same broad statement has been made by others. Sodalitates were frowned upon, but collegia opificum, although the state controlled and could dissolve them, were numerous. See the list in the Index in vol. in, of the Orelli-Henzen Inscr. Latinæ; 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 Sodalitas. It is true, however, that despotism, especially in modern times, since the means of communication are better and more used, instinctively dreads combined action for any social, moral, or religious end, as dangerous to political power.]

A careful study of the whole history of this remarkable association, which in no state of the European continent would have been allowed to rise and expand, is recommended to every student of civil liberty. It is instructive as an instance of perseverance; of an activity the most multifarious, and an organization the most extensive; of combined talent and shrewd adaptation of the means to the end; and, which is always of equal importance, of a proper conception of the end according to the means at our disposal, without which it is impossible to do that which Cicero so highly praised in Brutus, when he said, Quid vult valde vult.

I cannot forbear mentioning here one of those occuriences which, although apparently trivial, nevertheless show the constant action of a great principle, as the leaf of a tree reveals to the philosopher the operation of the vastest elements in nature. At a meeting of the Royal Academy at London in 1852, at which the ministers were present, the premier, Lord Aberdeen, said that “as a fact full of hope, he remarked that for several years the public, in the appreciation of art, had outstripped the government and the parliament itself.”

The chief executive officer considers it a fact full of hope that the people have outstripped, in interest and action, the government and parliament. How differently would a similar case have presented itself in any of the continental countries!

In the year 1857 the following case was decided in the court of common pleas at Columbia, S. C., in favor of the plaintiff The city council held, in 1855, a public meeting. The editor of one of the city papers, being present, was asked by the mayor whether he had come to take notes. The mayor, being answered in the affirmative, ordered the chief police officer to turn the editor out of the room, declaring at the time that he acted on the strength of a resolution of the city council. At a later period this procedure was defended on the ground that the city appoints a paper to give, officially, all the transactions of the board. Robert W. Gibbes us. Edward J. Arthur and John Burdell. This novel case was reported with great care, and published with all the arguments, at Columbia, S. C., in 1857, under the title, Rights of Corporations and Reporters. The public owes thanks to the plaintiff for having perseveringly pursued this surprising case, the first of the kind, it would appear. The pamphlet contains letters of nearly thirty American mayors, testifying that reporters cannot be denied admission to the deliberations of the councils of their cities, although there be an appointed printer to the board.

The following passage is given here for a twofold purpose. Everything in it applies to the government of the pen on the continent of Europe, and it shows how similar causes have produced similar results in India and under Englishmen, who at home are so adverse to government writing and to bureaucracy. In the Notes on the Northwestern Province of India, by Charles Raikes, Magistrate and Collector of Mynpoorie, London, 1853, we find this passage:

“Action, however, and energy, are what we now lay most stress upon, because in days of peace and outward tranquillity these qualities are not always valued at their true price, and their absence is not so palpably mischievous as in more stirring times. There is more danger now of men becoming plodding, methodical, mere office functionaries, than of their stepping with too hasty a zeal beyond the limits of the law. There is truth, too, in Jacquemont's sneer—India is governed by stationery, to a more than sufficient extent; and one of the commonest errors of our magistrates, which they imbibe from constant and early Indian associations, is to mistake writing for action; to fancy that dictation will supply the place of exertion. In no other country are so many written orders issued with so much confidence, received with such respect, and broken with such complacency. In fact, as for writing, we believe the infection of the ‘cacoethes scribendi’ must first have grown up in the East. It pervades everything, but is more lampant and more out of place in a police office than anywhere else It was not the magistrates who originated this passion for scribbling; but they have never succeeded in repressing it, nor, while the law requires that every discontented old woman's story shall be taken down in writing, is it to be expected they ever will. The Khayeths worship their pen and ink on certain festivals, and there is a sort of ‘religio’ attaching to written forms and statements, which is not confined to official life, but pervades the whole social polity of the writing tribes. An Indian scribe, whose domestic expenditure may average a sixpence a day, will keep an account-book with as many columns, headings, and totals as would serve for the budget of a chancellor of the exchequer. To Tudor Mul and such worthies we owe, no doubt, a great deal for the method and order which they infused into public records; but we have also to thank these knights of the pen for the plaguiest long-figured statements, and the greatest number of such statements, which the world ever saw.” Well may the continental European, reading this, exclaim, C’est tout comme chez nous! In 1858, one of the most distinguished statesmen of France, universally known as a publicist, a former member, cabinet minister, and orator in the house of representatives, wrote from Germany, “I observe that the writing which I have always considered so injurious to our affairs in France is carried, if possible, to a still greater degree in this country.”

This observation followed a request to write henceforth with caution, because, said he, choses politiques ne sont plus ici choses publiques.

I follow the opinion of Mr. Robert C. Winthrop, late Speaker of the house of representatives of the United States, and believe him to be correct, when in an address before the Maine Historical Society (Boston, 1849) he says: “The earliest instance of authorized publicity being given to the deliberations of a legislative body in modern days, was in this same house of representatives of Massachusetts, on the 3d day of June, 1766, when, upon motion of James Otis, and during the debates which arose on the question of the repeal of the stamp 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 senate of the United States.

Great as the inconvenience is which arises from the abuse of public speaking, and of that sort of prolixity which in our country is familiarly called by a term understood by every one, Speaking for Buncombe, yet it must be remembered that the freest possible, and therefore often abused, latitude of speaking, is frequently a safety-valve, in times of public danger, for which nothing else can be substituted. The debates in congress, when lately the Union itself was in danger, lasted for entire months, and words seemed fairly to weary out the nation when every one called for action. There was no citizen capable of following closely all those lengthy and occasionally empty debates, with all their lateral issues. Still, now that the whole is over, it may well be asked whether there is a single attentive and experienced American who doubts that, had it not been for that flood of debate, we must have been exposed to civil disturbances, perhaps to the rending of the Union.

Nevertheless, it is a fact that the more popular an assembly is, the more liable it is to suffer from verbose discussions, and thus to see its action impeded. This is especially the case in a country in which, as in ours, a personal facility of public speaking is almost universal, and where an elocutional laxity coexists with a patient tenacity of hearing and a love of listening which can never be surfeited. It has its ruinous effect upon oratory, literature, the standard of thought, upon vigorous action, on public business, and gives a wide field to dull mediocrity. This anti-Pythagorean evil has led to the adoption of the “one-hour rule” in the house of representatives, in congress, and (in 1847) in the supreme court of the United States. The one-hour rule was first proposed by Mr. Holmes, of Charleston, in imitation of the Athenian one-hour clepsydra—yes, the prince of orators had that dropping monitor by his side!—and is now renewed by every new house. The English have begun to feel the same evil, and the adoption of the same rule was proposed in the commons in February, 1849. But the debate concluded adversely to it, after Sir Robert Peel had adverted to Burke's glorious eloquence. Our one-hour rule, however, is not entirely new in modern times. In the year 1562 (on the 21st of July) the Council of Trent adopted the rule that the fathers in delivering their opinions should be restricted to half an hour, which having elapsed, the master of ceremonies was to give them a sign to leave off. Yet, on the same day, an exception was made in favor of Salmeron, the pope's first divine, who occupied the whole sitting, (History of the Life of Reginald Pole, by T. Phillips, Oxford, 1764, p. 397,) very much as in February, 1849, the whole American house called “go on” when Governor McDowell had spoken an hour. He continued for several hours.

Having mentioned the inconvenience of prolix speaking, it may not be improper to add another passage of the address of Mr. Winthrop, already mentioned. It will be recollected that this gentleman has been Speaker. He knows, therefore, the inconvenience in its whole magnitude. “Doubtless,” he says “when debates were conducted with closed doors, there were no speeches for Buncombe, no clap-trap for the galleries, no flourishes for the ladies, and it required no hour rule, perhaps, to keep men within some bounds of relevancy. But one of the grea sources of instruction and information, in regard both to the general measures of government and to the particular conduct of their own representatives, was then shut out from the people, and words which might have roused them to the vindication of justice, or to the overthrow of tyranny, were lost in the utterance. The perfect publicity of legislative proceedings is hardly second to the freedom of the press, in its influence upon the progress and perpetuity of human liberty, though, like the freedom of the press, it may be attended with inconveniences and abuses.”

The following note consists of an article by Mr. James C Welling, of the National Intelligencer, Washington City. It appeared on the 30th of October, 1858, in consequence of some questions I had put regarding a previous article on my remarks on Publicity in the United States. Mr. Welling had doubtless free access to the ample stores of personal recollections possessed by the founders of that public journal. The student of history will find it an instructive document, and I have preferred to give the whole, even with the introduction on the early intercourse between congress and the President of the United States, partly on account of its antiquarian interest, partly because it is not unconnected with the publicity of debate in the senate.

Mr. Welling says that it has been remarked that the principle of publicity seems to have so thoroughly pervaded all the politics of the United States that the framers of our constitution never thought of it, or, if they did, they thought it hardly worth while to make special provision for it, since none doubted its observance. While this statement has a deep foundation in much of our civil history during the period of the revolution and the formation of our present constitution, it should not be forgotten that the sessions of our continental congress were held in secret, and even after the formation of our present constitution, one branch of the national legislature, for more than five years, sat with closed doors. We allude to the senate, whose deliberations, unlike those of the house of representatives, were conducted in secret during the whole of the first and second congresses, and also during a part of the third. As the particulars connected with this fact in our parliamentary history are perhaps not familiarly known to every reader, we have thought it might not be without interest to recall some of the reminiscences corroborative of a statement which at the present day, and with our established notions, must seem not a little extraordinary and anomalous. In doing so, we may take occasion to allude incidentally, by way of preface, to a few subsidiary topics relating to the forms of official intercourse existing between the executive and legislative departments of the government during the earlier days of the republic.

The first session of the first congress of the United States held under the constitution framed and submitted by the federal convention in Philadelphia was begun in the city of New York on the 4th of March, 1789. Neither house, however, could at once proceed to the transaction of business, from the want of a quorum, which was seemed in the popular branch only on the 1st of April following, and in the senate on the 6th of the same month. On that day the latter body, having elected a president pro tem., proceeded, in the presence of the house of representatives, assembled in the senate chamber by invitation, to count the votes of the electors of the several states for President and Vice-President of the United States, when it was found that George Washington was unanimously elected to the former office by the voice of the eleven states then composing the Union, (Rhode Island and North Carolina not having yet adopted the constitution,) and that John Adams was chosen Vice-President by a majority of the votes cast for that office. The senate thereupon appointed Mr. Charles Thomson (long the clerk of the continental congress) to notify Gen. Washington, and Mr. Sylvanus Bourne to notify John Adams, of their election to the offices for which they had been respectively designated.

Mr. Adams took his chair as president of the senate on the 21st of the same month, and on the 30th Gen. Washington received the oath of office, as President of the United States, in the senate chamber, in the presence of both houses of congress, assembled on the occasion to witness the ceremonial. The oath was administered by the chancellor of the State of New York, who proclaimed, as the same was accepted by the president, “Long live George Washington, President of the United States.” The president then resumed the seat from which he had risen to take the oath, and, after a short pause, rose and delivered before the senate and house of representatives his inaugural address. On its conclusion, the president, the vice-president, the senate, and the house of representatives proceeded to St. Paul's Chapel, in New York, where divine service was performed by the chaplain of congress, after which the president was reconducted to his house by a committee appointed for that purpose.

After the celebration of these religious exercises the senate reassembled and appointed a committee to prepare an “answer to the president's speech.” In the house of representatives a similar committee was appointed on the following day. The reply of the senate was read and adopted in that body on the 7th of May, and agreeably to previous arrangement was delivered to the president at his own house on the 18th following, the senate waiting upon the president for this purpose, with the vice-president, their presiding officer, at then head. The president, on receiving the address, made a brief and appropriate response. The reply of the house of representatives was read and adopted on the 5th of May, and, by a similar preconcert, was delivered to the president on the 8th of the same month, in a room adjoining the representatives' chamber, where the speaker, attended by the members of the house, placed in the president's hands, a copy of the address, for which the president returned his thanks in a few appropriate remarks.

Such was the nature of the ceremonial observed in the official communications interchanged between the president and the two houses of congress at the opening of every session of congress during the administration of Washington and John Adams. On the accession of Mr. Jefferson, the practice of delivering he annual presidential speech in person before both houses of congress at its opening was superseded by the present custom of sending a written message. And with this change the habit of preparing a formal reply on the part of both houses to the recommendations of the president fell into similar desuetude. Mr. Jefferson, 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 tendencies” and “royal usages” of our government under the administration of the federalists.

To resume the principal topic of remark in the present article, we repeat that the senate, in the earlier days of the government, sat with closed doors, as well during its legislative as in its executive sessions. Its debates, therefore, unlike those of the house of representatives, were for a time held in secret; but it was provided by a resolution passed on the 19th of May, 1789, that one hundred and twenty copies of the journal of the legislative proceedings of the senate should be printed once a month for distribution among the members of the body, and, we suppose, for partial dissemination among the public, since it was provided that each member should be furnished with but a single copy on his own account.

At this distance of time we may not perhaps be able to understand or state the reasons which determined the senate to sit with closed doors in all their deliberations, as still in those which pertain to executive business. It is probable that the habit grew out of the fact that the senate, in the original theory of its constitution, was regarded primarily as a confidential and advisory council to the executive; and, as is well known, its earlier sessions were pre-eminently occupied in executive business. In relation to measures of legislation it seems to have been conceived that its function was mainly revisory and deliberative; and hence the greater prominence of the house in initiating and debating not only “revenue bills,” which it was provided by the constitution should be originated only by the representatives, but also other measures of federal legislation. In evidence of this fact we may state that the senate was wholly without standing committees until the year 1816, when during the second session of the fourteenth congress it was determined to provide for their appointment. In the house they had been raised by a standing rule as early as the year 1799, although at first their number was restricted to five—a committee respectively on elections, claims, commerce, ways and means, and on revisal and on unfinished business.

The first executive business of the senate was transacted on the 25th of May, 1789, when the president communicated for the advice and consent of the senate certain treaties made with the northern and northwestern Indians. At subsequent sessions he sent in by letter his nominations for various offices appointed to be filled with the advice and consent of the same body. The senate having refused to ratify the nomination of Mr. Benjamin Fishbourn as naval officer for the port of Savannah, President Washington, on the 7th of August, addressed a message to the body vindicating his reasons for nominating that gentleman, and suggesting to the senate the expediency of communicating to him their views on occasions where the propriety of his nominations appeared questionable to them.

Moved by this intimation of the president, the senate appointed a committee to wait on him for the purpose of concerting a mode of communication proper to be pursued between both parties in the formation of treaties and making appointments to office. Accordingly it was resolved that, in conformity with the president's pleasure, he might make his nominations to the senate either in writing or in person; and it was further provided that for this purpose he might wait on the senate in their own chamber, (in which case he should occupy the chair of the president of the senate,) or might summon the president of the senate and the senators to meet him at such place as he should designate. It was provided, however, that all questions, whether in the presence or absence of the President of the United States, should be put by the president of the senate, and “that the senators should signify their assent or dissent by answering, viva voce, aye or no.” On the day following the adoption of this minute, that is on the 22d of August, 1789, it appears from the journal that the President of the United States came into the senate chamber, attended by General Knox, and laid before the senate a statement of facts in reference to the negotiation of certain treaties with various Indian tubes. Desiring to fix certain principles on which the negotiations should be conducted, he reported to the senate a series of questions, to each of which he requested a categorical answer, to guide him in giving instructions to the commissioners appointed to treat with the Indians. The questions were seven in number, and were considered throughout two daily sessions, in the, presence of the president, and, as appears from the journal, of General Knox.

How long the relations between the president and the senate remained on this footing we are unable to say with any accuracy, though the practice of his personal attendance during their sessions in executive business seems to have been abandoned after a time; and authentic tradition records that its disuse was hastened by the blunt speeches of certain senators, who intimated that the presence of the president operated as a restraint on them in canvassing the merits of the candidates submitted for their advice and consent. It soon became habitual for the president to communicate all his nominations to the senate in writing.

As has been already stated, the proceedings of the senate, as well legislative as executive, were conducted during the first session with closed doors. During the second session of the first congress, which was begun in New York on the 4th of January, 1790, the same custom was retained, though, as appears from the journal, not without protest and dissent on the part of some senators. For it appears that on the 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 United States as may choose to hear the debates of this house may have an opportunity of so doing.” This resolution, being postponed for consideration on the following Day, was then taken up, and, after debate, rejected.

At a third session of the first congress, begun in Philadelphia on the 6th of December, 1790, it was again proposed, on the 23d of February following, “that it be a standing rule that the doors of the senate chamber remain open whilst the senate shall be sitting in a legislative capacity, except on such occasions as, in their judgment, may require secrecy; and that this rule shall commence and be in force on the first day of the next session of congress.” And to this end it was proposed “that the secretary of the senate request the commissioners of the city and county of Philadelphia to cause a proper gallery to be erected for the accommodation of the audience.” After debate, extending through two days, the proposition was rejected by a vote of 9 yeas to 17 nays. The names of those voting in the affirmative are Messrs, Butler, Foster, Gunn, Hawkins, King, Lee, Maclay, Monroe, and Schuyler. Those voting in the negative were Messrs. Bassett, Carroll, Dalton, Dickinson, Ellsworth, Elmer, Few, Henry, Johnson, Johnston, Izard, Langdon, Morris, Read, Stanton, Strong, and Wingate.

The first session of the second congress was begun at Philadelphia on the 24th of October, 1791. On the 26th of March following—a few weeks before the adjournment of congress at that session—a resolution identical in terms with that rejected at the last session of the first congress was moved by Mr Monroe and seconded by Mr. Lee, both of Virginia. The proposition met with the same fate, receiving fewer votes than at the former session. Some days after the rejection of this resolution it was moved “that when the senate are sitting in their legislative capacity the members of the house of representatives may be admitted to attend the debates, and each member of the senate may also admit a number not exceeding two persons; provided the operation of this resolution be suspended until the senate chamber is sufficiently enlarged.” This proposition also failed to be adopted, receiving only six votes.

We have recited these several and ineffectual attempts to procure the abrogation of this, established rule of the senate for the purpose of showing that it did not grow up as an unregarded usage, but was founded on considerations satisfactory to a majority of the senate at that day. Nor does it appear to have been a question of party politics, since we find federalists voting with republicans for its abolition, and republicans voting with federalists, for its retention

The first session of the thud congress of the United States, which commenced at Philadelphia on the 2d of December, 1793, was destined to witness the overthrow of the rule which had previously obtained on this point. The senate was called at this session to consider and decide a question which elicited a large share of public interest, because of the political susceptibilities which had been awakened by its discussion. We allude to the contest raised respecting the eligibility of Mr. Albert Gallatin as a member of the senate from the state of Pennsylvania. On the first day of the session of that year a petition was presented by Conrad Laub and others, representing that Mr. G at the date of his election had not been, as the constitution requires, “nine years a citizen of the United States.” The committee to which the whole subject was referred reported adversely to the claims of Mr. Gallatin on the 31st of December, and the report, after being read and ordered to he over for future consideration, was taken up on the 9th of January following, and discussed through several successive days, when, on the 13th of the same month, the matter was re-committed to a special committee of elections appointed for the purpose of hearing both parties to the contest. Before this committee reported, and on the 16th of January, 1794, Mr. Martin, of North Carolina, moved the adoption of the following formal resolutions against the principles and policy of the existing regulations of the senate in regard to the secrecy of its deliberations:

“Resolved, That in all representative governments, the representatives are responsible for their conduct to their constituents, who are entitled to such information that a discrimination and just estimate be made thereof.

“Resolved, That the senate of the United States, being the representatives of the sovereignties of the individual states, whose basis is the people, owe equal responsibility to the powers by which they are appointed, as if that body were derived immediately from the people, and that all questions and debates arising thereupon in their legislative and judiciary capacity, ought to be public.

“Resolved, That the mode adopted by the senate of publishing then journals, and extracts from them, in newspapers, is not adequate to the purpose of circulating satisfactory information. While the principles and designs of the individual members are withheld from public view, responsibility is destroyed, which, on the publicity of their deliberations, would be restored; the constitutional powers of the senate become more important, in being more influential over the other branch of the legislature; abuse of power, mal-administration of office, more easily detected and corrected; jealousies, rising in the public mind from secret legislation, prevented; and greater confidence placed by our fellow-citizens in the national government, by which their lives, liberties, and properties are to be secured and protected.

“Resolved, therefore, That it be a standing rule that the doors of the senate chamber remain open while the senate shall be sitting in a legislative and judiciary capacity, except on such occasions as in their judgment may require secrecy; and that this rule commence on the—day of—.”

These resolutions, being called up on the morrow, were postponed successively from day to day, when, on the 10th day of February, the committee which had Mr. Gallatin's case in charge made their report to the senate, and a day was fixed for its consideration. Immediately on the presentation of the report, it was moved by a member “that the doors of the senate be opened and continued open during the discussion upon the contested election of Albert Gallatin,” which resolution was adopted on the 11th of February, 1794. Meanwhile the series of resolutions abolishing the whole system of secrecy during legislative proceedings was still pending, and came up for consideration on the 19th of February, when each resolution was finally rejected, and a substitute offered in the following terms:

“Resolved, That after the end of the present session of congress, and so soon as suitable galleries shall be provided for the senate chamber, the said galleries shall be permitted to be opened every morning, so long as the senate shall be engaged in their legislative capacity, unless in such cases as may, in the opinion of the senate, require secrecy, after which the said galleries shall be closed.”

This resolution was passed on the following day by a vote of nineteen year to eight nays. Those who voted in the affirmative were Messrs. Bindley, Brown, Butler, Edwards, Ellsworth, Foster, Gallatin, Gunn, Hawkins, Jackson, King, Langdon, Livermore, Martin, Monroe, Potts, Taylor, and Vining. Those who voted in the negative were Messrs. Bradford, Cabot, Frelinghnysen, Izard, Mitchell, Morris, Rutherford, and Strong.

So this regulation of the senate was prospectively repealed and declared inoperative “after the present session,” as by a previous resolution it had been expressly suspended during the debate on the case of Mr. Gallatin, Yet this step was not taken without reservation and caution, as is apparent from the fact that on the same day with the passage of the prospective resolution, it was unanimously resolved “That, on a motion made and seconded to shut the doors of the senate, on the discussion of any business which may, in the opinion of a member, require secrecy, the president shall direct the gallery to be cleared; and that during the discussion of such motion the doors shall remain shut.”

It only remains for us to add, in conclusion, that on the day following the passage of these resolutions the case of Mr. Gallatin was debated in open senate. The discussion extended through several days, and was conducted in the form of a trial, Mr. Gallatin affirming his right to the character of a citizen of the United States, and Mr. Lewis, a member of the Pennsylvania bar, attended by Mr. Schmyser, a member of the state senate of Pennsylvania, appearing as managers of the prosecution on the part of the petitioners. The pleadings, opened on the 21st 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 qualification for membership in the United States senate. This case being settled, the doors of the senate were closed against the public during the residue of the session; but since that period, so far as we can recall, the legislative deliberations of the body have been uniformly conducted in public, without any interruption other than that which has sometimes arisen from the inadvertence of the senate, in resuming its legislative discussions after a secret session, and without thinking for a time to re-open the doors which had been closed during the transaction of executive business.

We need hardly say that it has been frequently proposed to abolish the secrecy of the senate even when called to sit in judgment on the treaties formed or the nominations submitted by the executive branch of the government. But the propriety of such a reservation, made in behalf of diplomatic negotiations not yet brought to a close, is too manifest to need remark, while the freedom and independence which the senator should enjoy in canvassing the propriety and character of the official appointments made with his advice and consent, plead perhaps with equal force in favor of retaining the rule so far as it relates to this other branch of executive business. The injunction of secrecy is from time to time removed by resolution of the senate from all subjects of popular concern whose publication can no longer frustrate the ends of prudent legislation.

It may not be uninteresting to add that President Jefferson, at the time when this change was made, attributed it to other causes. His first annual address to both houses of congress was sent in on the 8th of December, 1801, and was accompanied with the subjoined letter, addressed to the presiding officer of each body:

The circumstances under which we find ourselves at this place [Washington] rendering inconvenient the mode heretofore practised, of making by personal address the first communications between the legislative and executive branches, I have adopted that by message, as used on all subsequent occasions through the session. In doing this I have had principal regard to the convenience of the legislature, to the economy of their time, to their relief from the embarrassment of immediate answers on subjects not yet fully before them, and to the benefits thence resulting to the public affairs. Trusting that a procedure founded in these motives will meet their approbation, I beg leave, through you, sir, to communicate the enclosed message, with the documents accompanying it, to the honorable the senate, and pray you to accept, for yourself and them, the homage of my high respect and consideration.

The Hon. the President of the senate.

While these sheets were passing through the press, (March, 1859,) the house of representatives, at Washington, refused to consider certain amendments, passed in the senate, for the purpose of raising the postage on letters, the house declaring by resolution that these amendments interfered with the constitutional and exclusive right of the house to originate bills affecting the revenue.

[Can the house of lords reject a money bill? In 1671 and 1689 it was admitted that they could. The lords, however, abstained from interfering with bills affecting the supplies, and only now and then rejected or postponed such bills as bore incidentally on supplies and taxation, until 1860, when they postponed the second reading of the Paper Duties Repeal Bill for six months. This led to lively discussion of the privileges of the house of commons; to a search for precedents; and to resolutions of the commons, one of which was that, although the lords had sometimes exercised the power of rejecting bills of various descriptions relating to taxation, yet the exercise of that power was “justly regarded by the commons with peculiar jealousy, as affecting the right to 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.]

“Federalist,” No. xxx. and sequel, Concerning taxation, and other parts of that sage book.

“Memorials of John Hampden,” vol. i. p. 212, London, 1832.

[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 constitution, see Hallam, iii. 159, 160; May, i. 140. The last-cited author points to the want of suspicion of the government on the part of the commons, growing out of the detailed budgets.]

Chatham, when minister to the crown in 1759, and while Lord Clive was making his great conquests in the East, said that neither the East India Company nor the crown ought to have that immense revenue. If the latter had it, it would endanger all liberty. Chatham's Correspondence, vol. i. In the year 1858, however, the government of the East Indies was taken from the company and given to the crown. It would seem that the commons felt so secure, in the middle of the nineteenth century, that they did not fear to have that vast Eastern empire ruled over, theoretically, by the monarch, in reality, by a minister responsible to parliament.

Francis, Chronicles and Characters of the Stock Exchange.

[For the history of the Civil List, see May, i. chap. 4.]

It may as well be observed here that congress means the senate and house of representatives. The president is not included in the term. Parliament, on the other hand, means commons, lords, and king. Practically speaking, the difference is not great; for the president has the veto power, of which he makes occasional use, while the King of England has not made any use of it for about a century. The English administration would resign before it would become necessary in their eyes to veto a bill. But the King of England has the greatest of all veto powers—he can dissolve parliament, which our executive cannot do.

Burke.

These subjects have been considered at length in the Political Ethics. The 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.

For instance, Locke. Montesquieu, at a later period, is generally considered the political philosopher who first distinctly conceived the necessity of the division 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 revolution of 1848, nor has it ever been properly carried out by them, their principle of centralization preventing it. See Pol. Ethics, book ii. c. xxiii.

He has repeatedly given his views, but especially in an elaborate and brilliantly written, but, according to our opinion, superficial paper on the question, why the republic (of 1848) came to a fall. Mr. Girardin and all the French who believe that liberty exists in the right of choosing the ruler, although once elected he be absolute, seem entirely to forget that all the generals of the monastic orders are elective; that in many orders, even in those of nuns, for instance in the Ursuline order, the superiors are elected by universal suffrage, but that no person has ever claimed the possession of liberty for the monks or nuns. Indeed, their very vow is against it. But “republicanism” has actually been vindicated for the monastic orders. In the same way Rome might be considered a republic because the pope is elective.

[Centralization is opposed (i) to division of power between functions, (2) to diffusion of power, or local self-government, which is treated of afterwards.]

Innumerable official instances might be cited. The King of Prussia, when, in May, 1847, he delivered his first throne speech to the united committees of the provincial estates, which were to serve as a substitute for the expected estates general, “appealed in advance to his people “against everything we are accustomed to call-constitutional, “My people does not want a participation of representatives in ruling, … nor the division of sovereignty, nor the breaking up of the plenitude of royal power,” etc. General Bonaparte wrote to the Directory, May 14,1796: “One bad general is even better than two good ones. War is like government, it is a matter of tact”—words which Mr. Girardin quotes with approval, and as an authority for his theory of the best government consisting in a succession of perfectly absolute single rulers to be appointed, and at pleasure recalled by universal suffrage.

This I have endeavored plainly to show in the Political Ethics.

Esprit des Loix, xi. 5.

Mr. Madison's paper on The Meaning of the Maxim, which requires a Separation of the Departments of Power, examined and ascertained. Federalist, No. xlvii. and sequ.

Esprit des Loix, book v. c. 14.

The speech was delivered in the Senate of the United States on the 7th of May, 1834. If I might place myself by the side of these men, I would refer the reader to the Political Ethics, where I stated that despotism is simple and coarse. It is like a block of granite, and may last in its unchanging coarseness a long time; but liberty is organic, with all the delicate vitality of organic bodies, with development, growth, and expansion. Despotism may have accretion, but liberty widens by its own vital power, and gains in intensity as it expands. The long duration of some despotisms decides nothing. Longevity of states is indeed a requisite of modern civilization, but if we must choose, who would not prefer a few hundred years of Roman liberty to the thousands of Chinese dreary mandarraism 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.

Page 122, vol iv. of the Works of Daniel Webster. I have not transcribed this long passage without the permission of those who have the right to give it.

To my mind it appears the most Demosthenian passage of that orator. Perhaps 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 clearness 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, 1832, ch. 2. He says that “whenever Napoleon was angry, his confidants, far from appeasing him, increased his anger by their representations. ‘Your majesty is right,’ they would say: “such a person has merited to be shot, or disgraced, or discarded…. I have long known him to be your enemy. Examples are necessary; they are necessary for the maintenance of tranquillity.' When it was required to levy contributions from the enemy's country and Napoleon would perhaps ask for twenty thousand, he was advised to demand ten more. If it was the question to levy two hundred thousand men, he was persuaded to ask for three hundred thousand; in liquidating a debt which was indisputable, they would insinuate doubts on its legitimacy, and would often cause him to reduce to a half, or a third, and sometimes entirely, the amount of the demand. If he spoke of making war, they would applaud the noble resolution: war alone would enrich France; it was necessary to astonish the world in a manner suitable to the power of the great nation. Thus it was that in provoking and encouraging expectations and uncertain enterprises he was precipitated into continual wars. Thus it is that they succeeded in giving to his reign a character of violence which did not belong to him. His disposition and habits were altogether good-natured. Never a man was more inclined to indulgence and more awake to the voice of humanity. I could cite thousands of examples.”

Whether Napoleon was good-natured or not need not be discussed here, nor is it important to state that he was not so weak as represented by Rapp; but it is instructive to see how a man like Rapp, an uncompromising absolutist, unawares lays bare his own opinion of the character of an absolute monarch, because he is absolute.

Pol., v. 9, § 6; vi. 2, §§ 9, 12.

Since the foregoing chapter was originally written, history has furnished us with many additional and impressive illustrations of some of its contents. Numerous French writer, anxious to vindicate for France the leadership in the race of civilization, yet sadly aware that liberty exists no more in France, have declared that the essence of liberty exists simply in universal suffrage, or, if they abandon even the name of liberty, that the height of political civilization consists in two things—universal suffrage and the code Napoleon, with the proclamation of which it has been stoutly maintained a French army would find the conquest of England and the regeneiation of Italy an easy matter. Once the principle of universal suffrage established, the French statesmen of the imperial school demand that everything flowing from it, by what they term severe or uncompromising logic, must be accepted. This peculiar demand of severe logic is, nevertheless, wholly illogical, for politics are a means to obtain a high object, and the application to certain given circumstances is of paramount importance. We do not build houses, cure or sustain our bodies, by logic; and a bill of rights is infinitely more important and intrinsically true than the most symmetrically logical rights of men. The “severe logic” leads, moreover, diffeient men to entirely different results, as, for instance, Mr. Louis Blanc on the one hand, and the imperial absolutists on the other; and, if universal suffrage, without guaranteeing institutions, is the only principle of importance, the question presents itself immediately, Why appeal to it on lare 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 universal suffrage, in a pamphlet the whole object of which could not be anything else than influencing those who, under universal suffrage, have to give their votes? This is not “severe logic.”

If much has happened and been written since the original penning of this chapter to illustrate the utter falsity of universal suffrage, naked and pure, we must not omit to mention, on the other hand, works of merit which have been written in a very opposite train of thought, by men of great mark, of whom Mr. de Tocqueville deserves particular mention on account of his Ancien Régime.

[The importance of the power of impeachment for obeying a king's unlawful commands would have been practically destroyed in England, if either a pardon had been pleadable against impeachment, or the dissolution of a house of commons had put an end to proceedings in such sort that a new house must commence them de novo. The earl of Danby had been saved for the time by Charles II., by means of a dissolution of the impeaching parliament, and when a new parliament revived the proceedings, pleaded a pardon in bar of the prosecution of the case. (1679.) It was decided in the act of settlement of13 Wm. III. that “no pardon under the great seal of England be pleadable to an impeachment of the commons in parliament.” The question whether an impeachment could survive a dissolution was decided, during the impeachment of Warren Hastings, by very large majorities of both houses in the affirmative. (1791.) After sentence on trial by impeachment, the king can pardon; and, in fact, the house of lords, in 1715, when six peers, involved in the rebellion of that year, had been by this process convicted, begged the king to exercise this prerogative, which he did by pardoning three of the number. Hallam, ii. 555-570. Thus a king can save his minister from the results of a legal sentence by impeachment, but not until he stands convicted before the country, and suffers, it may be, a lifelong loss of reputation.]

It is sufficiently remarkable to be mentioned here, that Napoleon III., when the sanguinary coup d'etat had been perpetrated, supported his demand of a cabinet exclusively dependent upon the chief of the state, by the example of the American president, not seeing or not mentioning that congress has a controlling power.

The following extract of a letter, written by Lord Liverpool to Lord Castle-reagh, (October 23, 1818,) and taken from Correspondence, Despatches, and other Papers of Viscount Castlereagh, second Marquis of Londonderry, 12 vols., London, 1853, is interesting, if we consider how thorough a tory minister Lord Liverpool was:

“Bathurst's despatch and letter of Tuesday, and my letter of to-day, will put you entirely in possession of our sentiments upon the present state of the negotiations. 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,

[Such specific checks on legislative power are coming more and more into use. The people are beginning to distrust the legislatures, as they formerly did the executives.]

I have already mentioned the judgment given by the French court, with reference to the opening of letters by the police in order to find out the tracrs of offences. I now give an extract, and shall italicize those passages which bear upon the subject above:

“Considering that if, by the terms of existing legislation, and particularly by art. 187 of the penal code, functionaries and agents of the government, and of the post-office administration, are forbidden either to suppress or to open Setters confided to the said administiation, this disposition cannot reach the prefect of police, acting by virtue of powers conferred upon him by art. 10 of the Code of Criminal Instruction:

“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 tribunals charged with punishing them, has not limited the means placed at his disposition for attaining that end;

“That, in fact, the right of perquisition in aid of judicial instructions is solemnly affirmed by numerous legal dispositions, and that it is of common law in this matter:

“That the seizure in question was made in order to follow the trace of an offence; that it resulted in the discovery of useful and important facts; that, finally, the authors of the said letters have been prosecuted in a court of justice:

“Considering, moreover, that the court is not called upon to inquire into the origin of documents submitted to this appreciation; that its mission is merely to establish their authenticity or their sincerity; that, in fact, the letters in question are not denied by their authors:

“For these reasons the letters are declared admissible as evidence,” etc.

It is pleasing to read by the side of this remarkable judgment so simple a passage as the following, which was contained in an English paper at the same time that the French judgment was given. It relates to a London police regulation concerning cabmen:

“Now, we have no wish to palliate the bad conduct of a class who at least furnish amusing topics to contemporaries. By all means let the evils be remedied; but let the remedy come within the limits of law. It will be an evil day for England when irresponsible legislation and police law, even for cabmen, are recognized and applauded by a certain public because in a given example it happens to be convenient to them. If the ordinary law is not sufficient, let it be reformed; but do not leave the making of penal laws to the police, and the execution of those laws to the correctional tribunal of the same authority.”—Spectator, April 2, 1853.

Does not this argument from the absence of restriction remind the reader of that Baron Viereck, who consented to his daughter's marrying the King of Denmark, the undivorced queen living, and who replied to an expostulating friend that he could find no passage in the Bible prohibiting kings of Denmark from having two wives?

They are generally called written constitutions; but it is evident that the essential distinction of constitutions, derived from their origin, is not whether they are written or unwritten, which is incidental, but whether they are enacted or cumulative. The English constitution—that is, the aggregate of those laws and rules which are considered of fundamental importance, and essential in giving to the state and its government those features which characterize them, or those laws and institutions which give to England her peculiar political organic being—consists in cumulated usages and branches of the common law, in decisions of fundamental importance, in self-grown and in enacted institutions, in compacts, and in statutes embodying principles of political magnitude. From these the Americans have extracted what has appeared important or applicable to our circumstances; we have added, expanded, and systematized, and then enacted this aggregate as a whole, calling it a constitution—enacted, not by the legislature, which is a creature of this very constitution, but by the people. Whether the constitution is written, printed, carved in stone, or remembered only, as laws were of old, is not the distinctive feature. It is the positive enactment of the whole at one time, and by distinct authority, which marks the difference between the origin of our constitutions and those of England or ancient Rome. Although the term written constitution does not express the distinctive principle, it was nevertheless natural that it should have been adopted, for it is analogous to the term lex sciipta, by which the enacted or statute law is distinguished from the unenacted, grown, and cumulative common law. [The distinguishing featuie of the English constitution is that the people have no direct voice in saying what it shall be; the parliament has theoretically an uncontrolled power of adding to or taking away from the fundamental laws.]

The ancient justicia of Aragon had the power of declaring laws unlawful, or unconstitutional, as we call it, against the king and estates, but it was done without the trial of a specific case and specific persons. He was therefore simply in these cases above king and estates, that is, king himself; and it became necessary in course of time to suppress this feature. See Pol. Ethics, vol. ii. p. 281

The term bureaucracy is called by many barbarous, nor has it, so far as I know, been introduced into dictionaries of great authority. Be it so; but, while we have innumerable words compounded of elements which belong to different languages, a term for that distinct idea which is designated by the word Bureaucracy has become indispensable in the progress of political science, because the thing which must be named has distinctly developed itself in the progress of centralization combined with writing. In spite, therefore, of the want of lexical authority, it is almost universally used; for necessity presses. I am under this necessity, and shall use it until a better and more acceptable term be proposed. Mandarinism would not be preferable. Mandannism would express indeed a government by mandarins, by officials, but it would not designate the characteristics 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 mandarinism reed not be a bureaucracy. I observe that the French, from whom 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.

To refer to books on such a subject is very difficult; for it almost comprehends the whole history of modern liberty.

I have treated on many points connected with the representative system, in the Political Ethics. The reader will peruse with interest M. Guizot's Histoire des Origines du Gouvernement repiésentatif en Europe, Paris, 1851. It is interesting to learn the views of a Frenchman of such celebrity on a subject of vital interest to us. Regarding the deputative principle, the Histoire de la Formation et des Progiès du Tiers-Etat, by Augustin Thierry, Paris, 1853, is instructive. I am sorry that I have not been able to read Mr. George Harris's True Theory of Representation in a State, London, 1852.

[Xen., Hellen., i. cap. 7, § 12, comp. 15. It ought, however, to be remarked that the Athenians checked the action of the ecclesia by requiring previous action of the senate, (probouleumata,) and by having laws emanate, in the first instance, not from the ecclesia proper, but from a large committee of the people.]

I take here the term national in the sense of relating to an entire society spread over the territory of an extensive state, and as contradistinguished from what belongs to a city-state, or from the system of the middle ages, which was deputative, on the one hand, (see my Political Ethics on Representative System,) and from a system of juxtaposition rather than of pervading organization, like the Chinese language compared to our grammatical languages. In this sense, then, the government of Virginia or New York would be national, although we use the word in America as synonymous with federal. It were well if we could adopt a distinct term for national in the first sense. See the note at the end of this chapter.

A curious picture of Asiatic local self-government, without any liberty, has lately been given to the public, in Lieutenant-Colonel C. G. Dixon's Sketch of Maiwara, giving a Brief Account of the Origin and Habits of the Mairs, etc, London, 1851.

National representation is closely connected with the idea of country, indispensable for high modern civilization. Nations and Countries appear to me so much elements of modern civilization and of modern liberty that I may be permitted to give an extract relating to this topic, from my Inaugural Speech in 1858:

“Our government is a federal union. We loyally adhere to it and turn our faces from centralization, however brilliant, for a time, the lustre of its focus may appear, however imposingly centred power, that saps self-government, may hide for a day the inherent weakness of military concentrated polities. But truths are truths. It is a truth that modern civilization stands in need of entire countries; and it is a truth that every government, as indeed every institution whatever, is, by its nature, exposed to the danger of gradually increased and, at last, excessive action of its vital principle. One-sidedness is a universal effect of man's state of sin. Confederacies are exposed to the danger of sejunction,as unitary governments are exposed to absorbing central power—centrifugal power in the one case, centripetal power in the other. That illustrious predecessor of ours, from whom we borrowed our very name, the United States of the Netherlands, ailed long with the paralyzing poison of sejunction in her limbs, and was brought to an early grave by it, after having added to the stock of humanity the worsLipful names of William of Orange, De Witt, Grotius, De Ruyter, and William III. There is no German among you that does not sadly remember that his country, too, furnishes us with bitter commentaries on this truth; and we are not exempt from the dangers common to mortals. Yet, as was indicated just now, the patria of us moderns ought to consist in a wide land covered by a nation, and not in a city or a little colony. Mankind have outgiown the ancient city-state. Countries are the orchaids and the broad acres where modern civilization gathers her grain and nutritious fruits. The narrow garden-beds of antiquity suffice for our widened humanity no more than the shoit existence of ancient states. Moderns stand in need of nations and of national longevity, for their literatures and law, their industry, liberty, and patriotism; we want countries to work and write and glow for, to live and to die for. The sphere of humanity has steadily widened, and nations alone can nowadays acquire the membership of that great commonwealth of our race which extends over Europe and Amenca. Has it ever been sufficiently impressed on our minds how slender the threads are that unite us in a mere political system of states, if we are not tied together by the far stronger cords of those feelings which arise from the consciousness of having a country to clmg to and to pray for, and unimpeded land and water loads to move on?

“Should we, then, not avail ourselves of so well proved a cultuial means of fostering and promoting a generous nationality, as a comprehensive university is known to be?Shall we never have this noble pledge of our nationality?All Athens, the choicest city-state of antiquity, may well be said to have been one great university, where masters daily met with masters; and shall we not have even one for our whole empire, which does not extend from bay to bay like little Attica, but from sea to sea, and is destined one day to link ancient Europe to still older Asia, and thus to help completing the zone of civilization around the globe?All that has been said of countries and nations and a national university would retain its full force even if the threatened cleaving of this broad land should come upon us. But let me not enter on that topic of lowering political reality, however near to every citizen's heart, when I am bidden by you to discourse on political philosophy, and it is meet for me not to leave the sphere of inaugural generalities.”

Every historian knows that William of Orange, the founder of the Netherlands' republic, had much at heart to induce the cities of the new union to admit representatives of the country; but the “sovereign” cities would allow no representatives unless noblemen to the farmers and land-owners, who, nevertheless, were taking their full share in the longest and most sanguinary struggle for independence and liberty; but the following detail, probably, is not known to many. The estates of Holland and West Friesland were displeased with the public prayers for the Prince of Orange. which some high-calvinistic ministers were gradually introducing, in the latter half of the seventeenth century, and in 1663 a decree was issued ordaining to pray first of all “for their noble high mightinesses, the estates of Holland and West Friesland, as the true sovereign, and only sovereign power after God, in this province; next, for the estates of the other provinces, their allies, and for all the deputies in the assembly of the States General, and of the Council of State,”

“Separatismus, as German historians have called the tendency of the German princes to make themselves as independent of the empire as possible, until their treason against the country reached “sovereignty,” has made the political history of Germany resemble the river Rhine, whose glorious water runs out in a number of shallow and muddy streamlets, having lost its imperial identity long before reaching the broad ocean.

[The system of representation in Great Britain had long been most unequal and absurd until 1832. To mention but one fact—out of 658 members of the house of commons, 487 were nominees of the aristocracy or of the government, and only 173 represented independent constituencies. In 1832, after a great struggle, a reform bill was passed, by which (1) fifty-six rotten boroughs, returning one hundred and eleven members, were disfranchised, and other small boroughs lost in all thirty members; (2) twenty-two large towns, including districts of London, gained the right to return two members each, twenty to return one each, and the members for the larger counties were increased from 94 to 159. (3) As for the right of electing-in the boroughs it was given to 10l. householders resident in the place, paying rates and not receiving relief from the parish In the counties several classes were added to the old foity-shilling freeholders and leaseholders for terms of years, and tenants at will paying a rent of 50/. a year. (See May, i. chap. 6.)

The more recent bill of 1867, for reforming representation, contains among other provisions the following of principal importance. (1) The franchise. In the boroughs any full-aged man not legally incapacitated can vote in parliamentary and municipal elections, who has been for twelve months an inhabitant, as owner or tenant, of any dwelling-house, has been rated to rates for the lelief 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 10/. or upward, has resided there twelve months before the last day of July of any year, and put in a claim to be registered. In the counties, any man of similar status can vote, who is seised in law or at equity of any lauds or tenements of freehold, copyhold, or any other tenure, for his own or anothei's life or any lives, of the clear yearly value of not less than 5/. He also has the vote who is lessee or assignee of lands, on any tenure, for the unexpired residue of any term originally created for a period of not less than 60 years, of at least 5/. net yearly value; and again, one who occupies lands of the ratable value of 12/. or over has been rated and paid rates. (2) Distribution of seats in parliament. No borough having in 1861 a population of less than 10,000 could return more than one member. 38 boroughs were thus reduced, 10 new boroughs were created, 3 cities returned three members instead of two, 2 old boroughs returned two instead of one, 1 borough was divided into two, and 13 counties were subdivided so as to return 35 members. (3) In London no one can vote for more than three, and in places where three members are returned, no one can vote for more than two. In 1872, ballot, with nomination of candidates, was introduced. The balloting has some rather troublesome formalities.]

[But it was majority of centuries, and not of votes, which determined an election.]

[It is perhaps needless to say that great changes have been made in the constitution of this state since the end of the war in 1865.]

[There are multitudes in the United States who still believe that universal 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 “fieeman.”]

According to the present constitution of Prussia (1859) there is universal suffrage for the election of a certain number of electors, and in addition a graduated property qualification for the election of other electors, who with the former elect representatives.

See Political Ethics on Opposition and Representatives.

[A resident not necessarily in the district, but in the state which he represents. “No person shall be a representative … who shall not, when elected, be an inhabitant of +hat state in which he shall be chosen.” Constit., art i. sect. 2, 2.]

[The subject of representing the minority—so important in a country where government by party prevails—has, since Dr. Lieber published his second edition of this work, been much discussed, and already has a large literature of its own. I have caused two notes of the author's, which of course could not duly present the subject to the reader, to be omitted, and have put into their place a simple account of the methods which have been suggested for attaining this end, with the briefest possible comments. I mention—I, the limited vote—i.e, the vote for a less number of names than there are places, as for two when three persons are to be chosen. This method was introduced into the bill of 1867 for leforming representation in Great Britain. 2. The cumulative vote, where the voter is allowed to cast all or more than one at least of his votes for one person—eg., to cast two, three, or four for one candidate, or to divide them among several. This plan is especially applicable when the practice of voting by general tickets prevails. 3. The election by lists, a Swiss plan, according to which a certain number of lists of candidates, as many on each list as there are representatives in all in a district, are prepared beforehand, and each voter votes for one of these lists. The representatives are selected from each of these lists according to the ratio of the votes on each list to the entire number of votes—e.g., if there are four lists, and 10,000 voters, and 4000 votes for one list, 3000 for another, 2000 for a third, 1000 for a fourth, then 4, 3, 2, 1 would be returned as representatives from the several lists. 4 Preferential voting, or Mr. Thomas Hare's plan, in a book first published in 1859, and which has gone through four editions. This plan has been advocated by J. S. Mill in his Representative Government, chap, vii., and by other persons of note. This plan provides that each, voter or elector may vote in the order of preference for a number of persons, not confining himself in his selections to his own locality. When the votes are counted, the person having a number of votes larger than the electoral quota, that is, larger than the number of voters divided by the number of representatives, is elected, and all the votes for him above the quota are carried down to the next person on the list needing them in order to be elected. The somewhat puzzling details of this plan must be passed by. Its advantages are that it gives a fair chance to all interests and classes of thinkers to unite, although dispersed over a state or country; and no elector would be represented by one whom he had not chosen. 5. Substitute voting. Candidates may cast surplus votes, or those over the electoral quota, and insufficient votes, or those under, and may thus fill up the places which have not been filled by the voting of the electors. 6. Proxy voting, by which a representative may cast as many votes as he receives multiples of the electoral quota. These plans admit of some modifications. There might, for instance, be an aliquot part of the number of representatives chosen from localities, and the rest chosen from the state at large on Mr. Hare's plan.

All of these plans, which imply voting for persons outside of a small area, require more knowledge of men than belongs to the great majonty of voters under a system of universal suffrage]

We elect substitutes for executive officers. The Roman custom was to take, in case of need, the predecessor of the failing incumbent, a principle adopted, at least in former times, in Geneva and other cities. [When a consul or tribune died, the surviving colleague, or colleagues, at first co-optated another. Afterwords a colleague was chosen, (suffectus.) When inferior magistrates died or resigned, the superior held the comitia to fill his place. See T. Mommsen, Röm. Staatsr., vol i. p 161.]

Vertot's History of the Knights of Malta, folio edition, London, 1728, vol ii., Old and New Statutes.

Daru, Histoire de Venise, Paris, 1821, vol. i.

A full statement of all the laws relating to these guarantees in England will be found in Stephens's De Lolme, Rise and Progress of the British Constitution; and Story's Commentanes on the United States gives our con stitutional law on these subjects.

Fearful cases to the contiary have happened in France and our own country. In the former country a court of justice decided against a person, because, not being the government candidate, he had dared to print and distribute his own ticket. Mr. de Montalembert made a speech against the abuse, whereupon the minister of the Interior, Mr. Billault, formeily a socialist, issued a circular to the prefects, instructing them, April, 1857, how to conduct themselves regarding the distribution of election tickets. In our country sanguinary troubles have occurred in New Orleans and Baltimore, in October, 1857, which called forth proclamations of the governors that revealed a frightful state of things, And these crimes at elections were not restricted to the two mentioned cities.

[For the triennial bill of the Long Parliament, Feb. 16, 1641, and its repeal in 1664, but with the provision continued that parliaments should not be intermitted for more than three years, see Hallam, ii. pp. 131, 447. The government could not be carried on with an annual session of parliament. Nothing kept the estates on the continent from a fit development so much as freqaent and long intermissions of their sittings.]

Volume ii. page 174, of Correspondence of William Pitt, Earl of Chatham.

I have given a sufficiently long account of the Septennial Bill, under this head, in the Encyclopaedia Americana.

Free discussion on all things that appear important to the representatives is a right which was obtained after hard struggles, and only in compaiatively recent times. Elizabeth repeatedly warned the commons, in no gentle terms, not to meddle with high matters of state, which they could not understand. James I. and Charles I. did the same.

A similar spirit is now visible on the continent of Europe in unfree or half-free countries. In the bed of justice, held in 1602, Louis XIV., then fourteen years old, forbade his parliament, [which, however, was propeily a judicial body] to deliberate on government and finance or upon the conduct of the ministers of his choice, and forbade its membeis to assume too sumptuous habits in the palaces of the great. Chevenix, on Nat. Charact., vol. ii. p. 510.

Hallam, Hist, of English Constitution, 5th edit., vol. i. p. 268.

Ibidem, vol. i. p. 303.

Why, indeed, it is called legislative corps does not appear. Legislative corpse would be intelligible.

A keeper of the seals, whom usage does not require to be a peer, is now appointed as the chief officer of the law, only when, for some reason or other, no lord chancellor is appointed. The keeper of the seals, nevertheless, presides in the house of lords, or “sits on the woolsack.” The chancellor is now always” made a peer if he is not already a member of the house of lords; and he is always a member of the cabinet. This mixture of a judicial and political character is inadmissible according to American views; yet it ought to be remembered, as an honorable fact, that no complaint of partiality has been made in modern times against any lord chancellor in his judicial capacity, although he is so deeply mixed up with politics. Lord Eldon was probably as uncompromising, and perhaps 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.

This difference in the position of the presiding officers appears, among other things, from the fact that the members of the house of lords address “My lords,” and not the chancellor, while usage and positive rules demand that the member of the other house who wishes to speak shall address “Mr. Speaker,” and receive “the floor” from him. The chancellor would only give the floor if appealed to in case of doubt. In the United States senate, the president of the senate is, indeed, directly addressed, although occasionally “senators” have been addressed in the course of a speech. That body, however, appoints its committees, and leaves little influence to the presiding officer, who, it will be remembered, is not a member of the senate, and has a casting vote only.

I would refer the general reader, on this and kindred subjects, to the article Parliament, in the Political Dictionary, London, 1846.

This is not the place for discussing the doubts which some have entertained regarding the power of the houses of congress to do that which is possessed by every court of justice, though the lowest, namely, to arrest and punish disturbers. The doubt is simply on the ground that it has not been conferred. But there are certain rights which flow directly from the existence of a thing itself, and some that are the necessary consequence of action and life, and without which neither can manifest itself. A legislative body without the power of sending for peisons to be examined by committees would be forced to le islate, in many cases, in the dark. It is true that legislative bodies have become tyrannical; but it must not be forgotten that wherever, in the wide range of history, any struggle for liberty has taken place, we find that a struggle to establish the habeas corpus principle has always accompanied it, and that this struggle for securing personal liberty is always against the executive. I do not remember a single case of an established and separate guarantee of personal liberty against parliamentary violence.

The reader is referred to Mr. Justice Story's Comm. on the Const. U. S., chap, xii., and to Chancellor Kent's Commentaries.

The ancients had no parliamentary law and usage. The Greek agora could of course not have it. Mass meetings cannot debate; they can only ratify or refuse proposed measures. [But there was debate on the probouleumata of the senate at Athens, which might be added to or modified as well as rejected, and free discussion took place on other subjects. The laws of order also were not bad.] It is the same in the democratic Swiss cantons, where the people meet in primary assemblage. (See Political Ethics.) In the Roman senate there was no debating piopei. There was rather a succession of set speeches; and I may be permitted to state here that in debating oratory, in replying on the spot vigorously and clearly to an adversary, the best orators of the last and present centuries are greatly superior to the ancients.

Since the publication of the first edition, an American senator, Mr. Edward Everett, has added his testimony to the vital importance of Anglican parliamentary rules. On December 8, 1853, when resolutions with reference to the late Vice-President of the United States, (and, therefore, presiding officer of the senate,) W. Rufus King, were under discussion, Mr. Everett observed, in the course of his remarks:

“In fact, sir, he was highly endowed with what Cicero beautifully commends as the boni Senatoris prudentia the ‘wisdom of a good senator;’ and in his accurate study and ready application of the rules of parliamentary law he rendered a service to the country, not perhaps of the most brilliant kind, but assuredly of no secondary importance. There is nothing which so distinguishes the great national race to which we belong, as its aptitude for government by deliberative assemblies; its willingness, while it asserts the largest liberty of parliamentary right, to respect what the senator from Virginia, in another connection, has called the self-imposed restrictions of parliamentary order; and I do not think it an exaggeration to say that there is no trait in their character which has pioved 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.

Memoirs of the Life of Sir Samuel Romilly, etc., 2d edit., vol. i. p. 103.

A Treatise on the Formation of Laws, (Traitè de la Confection des Lois,) or an Inquiry into the Rules (Règlements) of the French Legislative Assemblies, compared with the Parliamentary Forms of England, the United States, Belgium, Spain, Switzeiland, etc. by Ph. Vallette, Advocate, etc. and Secretary of the Presidency of the Chamber of Deputies, and by Benat Saint-Martin, Advocate, etc., 2d edit., Paris, 1839; with the words of Mr. Dupin, who long presided over the chamber, as motto: “The excellence of laws depends especially upon the care taken in the elaboiation of the bills. The drawing up of laws constitutes a large share of their efficiency.”

As a striking instance may be mentioned the whole procedure of the people of Oregon, when congress omitted to organize the territory, and ultimately “Organic Laws” were adopted “until such time as the United States of America extend their jurisdiction over us.” They were printed by the senate, May 21, 1846, and, although consisting of a few pages only, form a document of great interest to the political philosopher in more than one respect. A French statesman of mark wrote to the author, years ago, from Algeria: “I wish your way of organizing distant territories, or of allowing them to organize themselves., could be transplanted to this colony.” Justice requiies to add now (1859) that our Kansas troubles had not then occuned.

An excellent book of its kind is the small work of Judge L. S. Cushing, Rules of Pioceeding and Debate in Deliberative Assemblies, Boston, Mass. It has gone through many editions. The same author published in 1855, Law and Practice of Legislative Assemblies in the United States.

Mr. Jeremy Bentham's Tactique des Assemblées Legislatives, edited by E. Dumont, Geneva, 1816, is no pure invention, and could have been written by an Englishman or American only.

See also Mr. Jefferson's Manual of Parliamentary Practice for the use of the senate of the United States.

There is a very curious book, Parliamentary Logic, etc., by Right Hon. W. Gerard Hamilton, (called in his time Single-Speech Hamilton,) with Considerations on the Corn Laws, by Dr. Samuel Johnson, London, 1808. The copy which I own belonged to Dr. Thomas Cooper. That distinguished man has written the following remark on the fly-leaf: “This book contains the theory of deception in parliamentary debate;how to get the better of your opponent, and how to make the worse appear the beter reason. It is the well-written work of a hackneyed politician…. The counterpart to it is the admirable tract of Mr. Jeremy Bentham on Parliamentary Logic, the book of Fallacies. No politician ought to be ignorant of the one book or the other. They are well worth (not perusing, but) studying. T. C.”

Life and Letters of Joseph Story, Boston, Mass., 1851, vol. i. p. 203.

No instance illustrating this fact is perhaps more striking than the meeting of settlers in Oregon territory, when congress had neglected to provide for them, as has been mentioned in a previous note. The people met for the purpose of establishing some legislature for themselves, and at once adopted the principle of two houses. It is to us as natural as the jury.

It was at the period when Dr. Frankin asked why people would put horses not only before, but also behind the wagon, pulling in opposite directions. The true answer would have been, that whenever a vehicle is pulled down an inclined plane we actually do employ an impeding force, to prevent its being dashed to pieces. [Georgia, also, and the Confederation itself, had but one chamber. Franklin wished (Curtis's Hist., i. 435) to introduce the same system into the Constitution in the Convention of 1787.]

I have quoted this long passage from the First Report of the Commissioners, appointed by the General Assembly of Maryland, to revise, simplify, and abridge the Rules of Practice, Pleadings, etc. in the courts of the State, Frederic City, Md., 1855,—a work important also with reference to the subject of codification. This first report is believed to have been written by Mr. Samuel Tyler, one of the commissioners, a gentleman alike distinguished as advocate and writer on philosophy. His last work, on the Progress of Philosophy in the Past and the Future, entitles him to a place among the profoundest writers on philosophy. His friend, the late Sir William Hamilton, acknowledged his great merits.

The reader is referred to De Tocqueville's Ancien Régime for numerous passages showing how general the error of Turgot was in France, and how sincerely the Anglican diversity, necessarily accompanying self-government, was disrelished by the French, profoundly worshipping, not only unity of power, but also uniformity of action.

The speech was delivered on the 27th September, 1848. Mr. de Lamartine speaks of a division of the sovereignty into two parts, by two houses! Poor sovereignty! What strange things have been imagined under that word! If the reader can find access to that speech, I advise him to peruse it, for it is curious from beginning to end, especially as coming from a person who for a lime 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 two houses in the United States were natural, because we are a confederacy, and the senate was established to represent the states as such. But he seems not to have been aware that all our states, in their unitary character, have established the same system, and that it is as natural to the men on the shores of the Pacific as to those in Maine, or to the settlers on the Swan River.

I ought in justice to add, however, that in 1850 Mr. de Lamartine said, in his Counsellor of the People, that he was now for two houses, and that he had been for one house in 1848 because he wanted a dictatorial power; and, added he, La dictature ne se divise pas. But how can a dictatorship be called undivided, when it belongs to a house composed of eight hundred members? And must not, in the nature of things, a division of execution always take place? It 18 surprising that something temporarily desired for a dictatorship should have been insisted upon by Mr. Lamartine with so much vehemence as an integral part of the fundamental law; or was peradventure the constitution of 1848 intended not to last?

[Compare the defence of representation and protection of interests by Mr. Calhoun, Works, i., beginning.]

[The same is shown ethically by the consideration that the constituents, if collected, would be bound to regard the general welfare. The representative takes their duties on himself with their power.]

[The suspensive veto in Norway, which three successive Storthings by a majority can make of no effect, deserves consideration, as avoiding some of the evils of our qualified veto.]

I shall append a paper on pardoning—a subject which has become all important in the United States.

The lack of a proper word for jus, in the English language, induced me to use it on a few occasions in the Political Ethics. The Rev. Dr. W. Whewell, some years later, seems to have felt the same want, adopting in his work on the Elements of Morality, including Polity, London, 1845, the word jural, first used in the Political Ethics, where a note explains why I was compelled to form the word.

When therefore I published a small work on this subject, during my visit to Germany, in 1848, I called it Die Unabhängigkeit der Justiz oder die Freiheit des Rechts, Heidelberg, 1848. Literally translated, this would be The Independence of Justice and Freedom of the Law. Justiz in German, however, does not mean the virtue justice, but the administration of justice; and Recht means, in this connection, jus, not a single jus, but the body of rights and usages, laws and lega practice, of a people.

Hence the peculiar power and the peculiar narrowness of the branch. I have treated of this subject, and the unceasing necessity of interpretation, at the beginning of my Principles of Interpretation and Construction in Law and Politics, Boston, 1839.

I cannot avoid referring again to my work on the Principles of Interpretation and Construction in Law and Politics, where this subject is repeatedly treated of, as it forms one of vital importance in all law, liberty, politics, and self-government. I have given there instances of prohibited commenting, and even lecturing, in the universities, on the codes. This is the pervading spirit of the civil law as it was adopted by modern nations. It is a necessary and combined consequence of the principle contained in the Justinian code itself, namely, that the emperor is the executive, legislator and all; that, therefore, no self-development of the law, such as had indeed produced the Roman jus, could any longer be allowed; and of the fact that the Roman law was adopted as a finished system from abroad. The principle of non-interpretation by the courts prevails for the same reasons in the canon law. I give the following as an interesting instance:

The bull of Pope Pius IV., 26 January, 1564, sanctioning and proclaiming the canons and decrees of the Council of Trent, contains also the prohibition to publish interpretations and dissertations on these canons and decrees. The words of the bull, which correspond exactly to the authority reserved by government concerning the understanding of the law, where codes have been introduced and the common law principle is not acknowledged, are these:

“Ad vitandam præterea perversionem et confusionem, quæ o[Editor: illegible character]ri posset, si unicuique liceret, prout ei liberet, in decreta Concilii commentaries et interpretationes suas edere, Apostolica auctoritate inhibemus omnibus—ne quis sine auctoritate nostra audeat ullos commentarios, glossas, admonitiones, scholia, ullumve interpretationis genus super ipsius Concilii decretis, quocunque modo, edere, aut quidquam quocunque nomine, etiam sub prætexta majoris decietorum corroborationis, aut executionis, aliove quæsito colore, statuere.”

The papal bull goes on to declare that if there be any obscurity in the decrees the doubter shall ascend to the place which the Lord has appointed, viz., the apostolic see, and that the pope will solve the doubts.

Life and Letters of Judge Story, vol. i. p. 448. The necessity of proper codification has appeared more and more clearly to the English mind, since this work was first published, and many preparatory steps have been taken. In the month of August Lord Chancellor Cranworth presented a report to the lords, of which he said that, in the first place, a list had been prepared of all the statutes not obsolete, nor for temporary and local but for general purposes, which have been passed since Magna Charta. The number is 16,000; but, taking away 5300 repealed or virtually repealed, a number besides those which relate to Scotland or Ireland exclusively, and 3900 which the commissioners have not determined on, there remain, say 2500 acts for consolidation; and these have been analyzed. As there is some difference of opinion as to the best mode of consolidation, specimens on different principles had been prepared; and one of these, a digest of the law of distress for rent, was in the report. Mr. Coode, he says, has completed a digest of the poor-laws. What Lord Cranworth then proposed was to see whether the whole of the provisions relating to one subject might not be put into one statute. Each of the commissioners had been requested to take a subject and frame a scheme of consolidation with that view.

A very interesting speech on this and cognate topics was made in February, 1856, in the house of commons, by Mr. Napier, attorney-general of Ireland, on the introduction of his motion:

“That, in the opinion of this house, as a measure of administrative reform, provision should be made for an efficient and responsible department of public justice, with a view to secure the skilful preparation and proper structure of parliamentary bills, and promote the progressive amendment of the laws of the United Kingdom.”

Locke's Constitution or South Carolina, 1669, paragraph 80.

Arrian, Anab., iv. § 10, 7.

Dr. Greenleaf published, in Portland, Maine, 1821, A Collection of Cases Overruled, Doubted, or Limited in their Application, taken from American and English Reports. Several subsequent editions have been published, with additions, for which Dr. Greenleaf, however, has declared himself irresponsible.

In my Ethics, and especially in my Principles of Legal and Political Interpretation and Construction.

Page 299, vol. i., Life and Letters of Joseph Story.

“The civil law, a law of wisdom but of servitude; the law of a great commercial empire, digested in the days of Justinian, and containing all the principles of justice and equity suited to the relations of men in society with each other; but a law tinder which the head of government was ‘Imperator Augustus, legibus solutus.’”—John Quincy Adams, seventh President of the United States, in a letter to Judge Story, page 20, vol. ii., Life and Letters of Judge Story.

The young American reader is recommended to peruse a letter to a young friend, by Mr. Legaré, first published in the National Intelligencer, in which he urges the study of the civil law as one of the best means of mental legal training. That distinguished advocate told the author that whenever he was peculiarly complimented on an argument in civil suits, or had gained a very difficult case, he could trace the reason to his having thoroughly studied the civil law in his younger days in Europe. Mr. Legaré also wrote an extensive article on Roman Law and Legislation in the Southern Review.

The case of Coggs vs. Bernard, 2d ed. Raym. R. 909—note by Judge Story.

Story's Miscellaneous Writings, p. 224

In a similar, though in a far less interesting way, I observe that a whole code has established itself for the extensive sale of books at auction in London. It is a real specimen of the genius of one part of common law.

See article Common Law, in the Encyclopædia Americana. It was written, as many others on subjects of law, by m) lamented friend, Judge Story. An opportunity has never offered itself to me publicly to acknowledge the great obligation under which I am to that distinguished jurist for the assistance he most readily and cheerfully gave me in editing the Americana. I shall never forget the offer he made to contribute some articles when I complained of my embarrassment as to getting proper articles on the main subjects of law, for my work intended for the general reader. Many of them were sent from Washington, while he was fully occupied with the important business of the supreme court. He himself made out the list of articles to be contributed by him, and I do not remember ever having been obliged to wait for one. The only condition this kind-hearted man made was that I should not publish the fact that he had contributed the articles in the work until some period subsequent to their appearance. They have met with much approbation, and I hope I am not guilty of indiscretion if I state here that another friend, a distinguished orator and lawyer, the Hon. William C. Preston, has repeatedly expressed his admiration of them.

The contributions of Judge Story to the Americana “comprise more than 120 pages, closely printed in double columns. But a higher interest than that growing out of their intrinsic worth belongs to them. They were labors dedicated purely to friendship, and illustrate a generosity which is as beautiful as it is rare.” To these words, copied from p. 27, vol. ii. of Life and Letters of Joseph Story, where a list of all his contributions may be found, I may add that Judge Story made his offer at a time when he to whom it was made was known to very few persons in this country, and had but lately arrived here; and that Judge Story took at once the liveliest and most active interest in the whole enterprise, and Contributed much to cheer on the stranger in his arduous task.

Theory of Politics: An Inquiry into the Foundations of Governments, and the Causes and Progress of Political Revolutions. By Richard Hildreth, author of “The History of the United States of America,” etc.; New York, 1853. In this work the reader will find the opinion maintained that the practical working of a democratic government in our own country is obstructed by several disturbing causes, of which the greatest is the common law—” a scheme directly hostile to the spirit of democracy,” and therefore, “under an enlightened democratical government, entirely out of place.”

Lord Mansfield, in a note to a Scottish judge who had asked his advice as to the introduction of trial by jury in civil cases into Scotland, has this remark: “Great alterations in the course of the administration of justice ought to be sparingly made and by degrees, and rather by the court than by the legislature.” Lord Campbell's Chief Justices of England, vol. ii. p. 554.

The learned “opinion” of the court of errors was delivered by Judge Ward-law, Hiller vs. English, 4 Strobhart's Reports, Columbia, S. C., 1850. While I was writing this, the supreme court of Massachusetts decided that the “squeeze of the hand” of a dying person, unable to speak, but having been made aware of the fact that the pressure would be taken as an affirmative, may be taken as “a dying declaration,” though with caution.—National Intelligencer, Washington, May 21, 1853.

Even the Constitution of the French Republic of 1848 said, article 89:

“Conflicts of privileges and duties between the administrative and judicial authority shall be regulated by a special tribunal composed of members of the court of cassation and of counsellors of state, to be appointed, every three years, in equal number, by the respective bodies to which they belong. This tribunal shall be presided over by the minister of justice.”

The letter is dated June 24, 1852.—London Spectator, July 3, 1852.

The trial by accusation has a distinct meaning in the English law; still, I have adopted the term Accusatorial Trial, in conformity to continental lawyers, A distinct term in contradistinction to the Inquisitorial Trial is necessary, and I prefer Accusatorial to Litigious Trial, which I observe Mr. Stephen uses in an interesting paper on English Criminal Law in the collection of articles published from time to time by former students of the two English universities, Oxford and Cambridge, respectively.

There was no public prosecutor in Rome. An individual appeared as accuser, and formed throughout the trial the prosecuting party. See article Criminal Law, in the Encyclopædia Americana.

See Feuerbach on the Jury.

Under the present absolutism, the trial is of course at the mercy of the executive, 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.

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.

See “Federalist,” No. lxxviii. and sequ.

Hard as the task of recording the following occurrence may be, it is better that the distemper be known, so that its cure may become possible. In the year 1857, after the Police Law had long been resisted by the mayor of the city of New York, and after the supreme court of the state had declared it constitutional, a convention of one of the largest parties was held in that state, in order to nominate proper candidates for the various offices to be filled by the approaching election. When the judge of the supreme court, who belonged to the same party, and who, on the bench, had decided for the constitutionality of the Police Law, came to be nominated, the nomination was opposed by the person who had been mayor of New York, in a public speech, on the avowed ground that judges had been made elective by the party, although he himself had been adverse to it; that therefore the judges had been drawn into the sphere of party politics. The party had voted against the Police Law, and the judge had declared it constitutional, therefore he ought not to be nominated for re-election. The worst of the Stuarts never said anything worse concerning judges, and the painful account has been given here to show to the younger students of this work how fearfully rapid the decline of national sentiment is. Not more than ten years ago, such sentiments, publicly avowed, would have created universal abhorrence. May my younger readers remember that the curses pronounced on unjust judges extend to those who appoint judges known to be unjust, or adopt a system which must make them so; be they monarchs or the people—execrations and blessings make no distinction between them. That judges ought to judge by the law alone, has been often felt even by absolute monarchs. Frederic II. of Prussia wrote a letter to the supreme court of his kingdom, enjoining the members to be faithful to their oath, and to do justice in spite of royal demand. The court ordered the letter to be framed and hung up in its hall. Louis XII. of France, in his edict of 1499, concerning the parliaments or high courts of justice, ordained that the law should always be followed, in spite of royal orders, which, as the ordinance says, importunity may have wrung from the monarch.

The remarks of that wise philosopher, Sir William Hamilton, on the election of professors, in his minor works, apply, so far as I remember them now, with equal force, and probably even with greater strength, to the election of judges.

In 1774 parliament passed an act making the justices of the supreme court of Massachusetts independent of the people for their salaries. The grand jurors refused to serve. Paul Revere was one of the grand jury.

See Mr. Macaulay's speech in the commons, June 1, 1853, on a bill to exclude judges from the house of commons. The chief question was to exclude the vice-chancellor from a seat in the commons. Mr. Macaulay is decidedly in favor of letting judges sit in the commons.

The report of the Reform Committee of the New York legislature reveals a state of things which reminds us of the worst state of Athens, while the Louisiana papers copied the most important portions, with strengthening commentaries and illustrations from their state. Numerous individuals, judges, and lawyers have publicly expressed their disapprobation. We trust so great an evil will soon be redressed.

See Political Ethics, under the heads of Judge, Independence of the Judiciary.

I would refer the reader, on all these subjects, to Judge Chambers's Speech on the Judicial Tenure, in the Maryland Convention, Baltimore, 1851. [The evils pointed out by Dr. Lieber are admitted and deprecated by multitudes, but hitherto there are no steps backward. In New York, the state which has suffered most from a judiciary elected by the people and on party grounds, a vigorous effort has lately (1873) been made to change the mode of election, without success. Perhaps if the whole bar of a state was united and strong in desiring such a change it could be effected.]

This constitution will be found in the Appendix.

When it has become necessary to increase the salary of judges, the difficulty has sometimes been avoided by the judges resigning, upon the understanding that, after the legislature shall have increased the salary, they should be re-appointed.

It seems to me a strange anomaly that, as it would seem by a late resolution of the United States senate, the president has authority to remove judges in the “territories.”

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 difficulties which may arise between the employers and the employed out of their immediate relation to one another. The common question, for instance, whether the woven piece, returned by the weaver, contains all the material given to him, or whether it be returned in a perfect state, is adjudged by them. General satisfaction seems to prevail with these courts, whose German name is Fabrik-Gerichte. [Courts or councils somewhat like these have been introduced also into Great Britain.]

For the history of this institution in general, the reader is referred to William Forsyth, History of the Trial by Jury, London, 1852.

Lord Erskine, when he was raised to the peerage, adopted the words Trial by Jury, as the scroll of his coat of arms.

The laxity now unfortunately so common in the administration and execution of the laws, the crying evil that in our large cities numerous idlers, of a low character, make their living, during court time, by being ready to serve as jurymen when called upon, of which they are now very sure, owing to the facility with which judges excuse citizens from serving; the frequency of non-agreement and consequent new trials; the length to which the doctrine is carried that juries are judges of law as well as fact; and many other things, have induced several persons loudly to call for the abolition of the jury. They do not seem to know much of history, or they would know that courts without juries are not exempt from falling into abuses or from becoming actual nuisances. Let us imagine our present elective judges without jury: would that mend matters? The opposite is hardly ever the cure of an evil. A glutton would not take the right step of amendment by the resolution of starving himself to death. Our jury trials exhibit many deplorable facts, in the present time, owing to the general spirit of disorder; but the administration of justice, it would seem, suffers far more from want of energy in the judges. Let us fervently hope that the recuperative 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 thin of state is in danger, by cutting away the very ribs of the ship.

And this is the reason that nearly all great reforms have worked their way from without, and from the non-professional to the professional, or from below upward.

I beg to arrest the reader's attention for a moment on this topic.

In all civilized countries it is acknowledged that there are some important cases, which on the one hand it is necessary to decide, for Mine and Thine are involved, and which, on the other hand, are not of a character that the lines of demarcation can be drawn with absolute distinctness, in a manner which would make it easy to apply the law; e.g., the cases which relate to the imitation of a part of a work of art, of a pattern, or the question of a bona fide extract from an, author's work, which, according to the Prussian copyright law, was decided by a jury of “experts,” long before the general introduction of the jury in that country. A similar case is presented when an officer is accused of unofficer-like and ungentlemanly conduct. Now the question becomes: Are not these cases far more frequent than it is supposed in the countries where the trial by jury does not exist? Are not almost all complex cases such as require in a high degree strong common sense, the tact of practical life, together with the law, in order to be justly decided? Are not perhaps the greater part of civil cases such? The English and Americans seem to believe they are. They believe that close logical reasoning is indeed necessary in the application of the law, and they assign this to the law-officers, but they believe also that a high degree of plain good common sense, unshackled by technicalities, is necessary to decide whether, “upon the whole,” “taken all in all,” the individual case in hand is such as to bring it within the province of the specific law, with reference to which it is brought before the court, and they assign this part of the trial to the jury, that is, to non-professional citizens. The English, and the people of some American states, do not only follow this view in the first stage of a case, but, in order to avoid the evil of letting technicalities get the better of essential justice, of letting the minds of professional lawyers, whose very duty it is to tram themselves in strict, uncompromising logic, decide complicated and important cases in the last resort, they allow an appeal from all the judges to the house of lords, or to the senate.

It appears to me an important fact, which ought always to be remembered when the subject of trial by jury in general is discussed, that by the trial by jury the Anglican race endeavors, among other things, to insure the continuous and necessary admixture of common sense in the decision of cases; and who can deny that in all practical cases, in all controversies, in all disputes, and in all questions which require the application of general rules or principles to concrete cases, common sense is indispensable, that is, sound judgment, which avoids the Nimium? Who will deny that every one is liable to have this tact and plain soundness of judgment impaired in that very line or sphere in which his calling has made it his duty to settle general principles, to find general rules, to defend general points? The grammarian, by profession, frequently, perhaps generally, writes pedantically and stiffly; the religious controversialist goes to extremes; the philosopher, by profession, is apt to divide, distinguish, and classify beyond what reality warrants; the soldier, by profession, is apt to sacrifice advantages to his science. Dr. Sangrado is the caricature of the truth here maintained.

The denial of the necessity of profound study and professional occupation would be as fanatical as the disregard of common sense would be supercilious and unphilosophical. Truth stands, in all spheres, emphatically in need of both.

The whole history of the libel, down to Charles Fox's immortal bill, may serve as an illustration.

Lord Chancellor Cranworth said, in February, 1853, in the house of lords:

“There were many other subjects to be considered. Trial by judge instead of by jury had been eminently successful in the county courts; hut, in attempting to extend this to cases tried in other courts, we must not lose sight of the fact that we should be taking a step towards unfitting for their duties those who are to send representatives to the other house of parliament, who are to perform municipal functions in towns, and who are to exercise a variety of those local jurisdictions which constitute in some sort in this country a system of self-government. It may be very dangerous to withdraw from them that duty of assisting in the administration of justice Mechanics' schools may afford valuable instruction, but I doubt if there is any school that reads such practical lessons of wisdom, and tends so much to strengthen the mind, as to serve as a juryman in the administration of justice.”

On all these subjects connected with the jury I must refer to the Political Ethics.

My conviction has been much strengthened since the original writing of this work. The Scottish jury (consisting of fifteen members) decides by majority. Our continued failures of verdicts would cease. Whenever the jury is out more than half an hour, it is a pretty sure sign that the unanimity is, after all, only one in form and not in truth. Perhaps most professional men adhere to the unanimity principle; but reforms very rarely proceed from the profession, in any sphere. It was not the theologians of the pope from whom the Reformation proceeded. We can add, however, high authority in favor of our opinion. In January, 1859, Lord Campbell, chief justice of England, declared in court, after the jury had pronounced an absurd verdict, which he declined accepting, that he intended to propose a bill, in parliament, for the purpose of adopting the majority principle in civil cases; and while I was revising these pages, a very respectable petition, urged even by judges, to allow judges to decide in. civil cases by the majority of jurymen, when they cannot agree on a unanimous verdict, was presented to the Massachusetts legislature. I consider, however, the principle of verdicts by two-thirds in penal cases even more important than in civil cases.

Judge Daly's, Historical Sketch of the Judicial Tribunals of New York, New York, 1855, page 53.

Forsyth, History of the Trial by Jury.

Feuerbach, in his Manual of the Common German Penal Law, 10th 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 accused, inasmuch as he is bound at the same time to find out everything on which innocence or a less degree of criminality can be founded; and finally, as judge, inasmuch as he must decide upon the given facts. Why not add to this fearful triad the jailer, the executioner?

Although a “defensor” is appointed, it is difficult for him to do his work properly; for in the German inquisitorial process the defence begins when the inquiring judge has finished, 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 depend, even if any latitude were given to the advocate. Mr. Mittermaier, note d, § 14, of his Art of Defending, 2d edition, speaks openly of the great difficulty encountered 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 defensor of the woman Gottfried, in Bremen, who had poisoned some thirty persons, fully indorses these remarks of Mr. Mittermaier, in his work, The Poisoner, G. M. Gottfried, Bremen, 1830, (first division, pp. 17 and 18) He concludes his remarks with these words: “Who does not occasionally think of the passage, 1 Sam. 29: 6—Non inveni in te quidquam mali, sed satrapis non places,” (or, as our version of the Bible has it: Nevertheless, the lords favor thee not.)

For instance, Lord Brougham's well-known assertion tittered at the trial of Queen Caroline—often commented upon, but never taken back or modified by the speaker,—p. 91, Legal and Political Hermeneutics. See also an article on License of Counsel in the January number, 1841, of Westminster Review. The case of Sir Arthur Pigott, attorney-general of the Duchy of Cornwall, stating in court, for the Prince of Wales, that he had never heard of bonds of the Dutch loan, which the prince and some of his brokers had made, has been referred to before. The list of shameful tricks—actual tricks—to which counsel have occasionally resorted in our courts, would require a large space.

Consult Hortensius: an Historical View of the Office and Duties of an Advocate, by William Forsyth, London, 18-3.

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 improvement is manifestly going on in legal ethics. We discuss the pertinent topics at least, and public attention is alive. The following article, taken from the London Spectator, Sept. 3, 1853, may find an appropriate place in a note:

“However little the Smyth case can have answered the purpose of the man who claimed the property, it will not be entirely without beneficial result, since it has put in a very strong light a moral which has not escaped the legal profession. Some time ago it was argued that a barrister becomes completely the agent and advocate of his client, engaged solely to present all that may be said on the side of that client, and disengaged from any moral responsibility as to the merits of the case. This doctrine, however, although it was convenient for the consciences of professional men less sensitive than Romilly, could not be sustained entirely; and barristers have gone to the equally erroneous opposite extreme—that of throwing up a brief as soon as a grossly fraudulent character was exposed in their case. Mr. Bovill threw up his brief in the Smyth case, and in doing so, we think, violated the true principle upon which a barrister should act; a principle which has not been unrecognized by the profession. It is, that the barrister is engaged for the purpose of seeing that his client be treated according to law and in no other way; that he have all the evidence that can be procured and set forth for him; that the evidence be taken according to rule and practice; that the judge charge the jury according to law and rule; in short, that the whole proceedings be regular and complete in all that is required on the part of the client. Acting on this principle, the barrister can retain his brief to the last, as well as on the principle of absolute agency; but he is not required to be an accomplice in suborning false evidence, or in setting forth pleas that he knows to be fraudulent; nor is he bound to anticipate the judgment by a declaration of the verdict in the act of throwing up his brief.

“This principle has been recognized so far that there is a prospect of its becoming more generally adopted as the rule of the profession. But the Smyth case suggests to us that it may very properly be extended to the other half of the profession—the attorneys. They are bound to exercise discretion in their conduct with their clients, otherwise they become parties to conspiracy and fraud. Considering all the opportunities that a man in the profession has of discriminating, it is difficult to find him thus placed and to acquit him either of an extraordinary degree of dulness or of culpable knowledge. It is, for example, excessively difficult to understand how any professional man could see Smyth, hear him tell his lies—nay, take them down in writing in order to insert them in the brief—and not understand the whole character of the fraud. Now, no attorney would put himself into this position, however fraudulent his client might be, if he confined himself to the principle which we have mentioned as adopted by barristers.”

The famous case of Mr. Philips, now on the bench, when defending Courvoisier, is treated at considerable length in Townsend's Modern State Trials, under the trial of Courvoisier. It must be allowed that the defence is not successful, though ingenious. On page 312 of vol. i. of that work, the reader will also find the titles of numerous writings bearing on the moral obligations of the advocate, to which may be added those I have mentioned in the notes appended to my remarks on the advocate in the 2d vol. of the Political Ethics. I also refer to pp. 59 and sequ. in my Character of the Gentleman, Charleston, S.C., 1847.

At the very moment that these pages are passing through the press, (in 1853,) a case has occurred in an English court, of a young man indicted for burglariously entering the room of some young woman. His counsel in the defence suggested that probably the young lady had given an appointment to the prisoner. “That is not in the brief,” cried the prisoner himself, and the court justly reprimanded the barrister. It ought to be added that in this case the barrister wrote a letter of submission to the court. This has not been done in other cases quite as bad in principle. Thus, another publicly reproved barrister insisted that he had done what the profession required when he had resorted to the following trick. He had subpoenaed the chief witness against his client, so that he could not appear, and then argued that the prosecutor must know his client to be innocent, else he would certainly have produced his witness, etc.

Since this was written, the following case has occurred, (in Cincinnati, 1853.) When the defence came on, three hundred witnesses were sworn. The prosecution 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 with? Does freedom consist in giving all possible protection to trickery?

There is a very excellent passage on this topic in the reflections of Sir Samuel Romilly on himself and the good he might do should he be appointed lord chancellor, page 384 and sequ. of vol. iii. of his Memoirs, 2d ed., London, 1840.

This was written in 1853.

The history of this proud word is this: It was doubtless made in imitation of the Greek autonomy, and seems originally to have been used in a moral sense only. It is of frequent occurrence in the works of the divines who flourished in the sixteenth and seventeenth centuries. After that period it appears to have been dropped for a time. We find it in none of the English dictionaries, although a long list of words is given compounded with self, and among them many which are now wholly out of use; for instance, Shakspeare's Self-sovereignty. In Dr. Worcester's Universal and Critical Dictionary, the word is marked with a star, which denotes that he has added it to Dr. Johnson's, and the authority given is Paley, who, to my certain knowledge, does not use it in his Political Philosophy, nor have several of my friends succeeded in finding it in any other part of his works, although diligent search has been made. [It is in Webster, ed. of 1848.]

Whether the term was first used for political self-government in England or America I have not been able to ascertain. Richard Price, D.D., used it in a political sense in his Observations on the Nature of Civil Liberty, etc., 3d edition, London, 1776, although it does not clearly appear whether he means what we now designate by independence, or internal (domestic) self-government. Jefferson said, in 1798, that “the residuary rights are reserved to their (the American states') own self-government.” The term is now freely used both in England and America. In the former country we find a book on Local Self-government; in ours, Daniel Webster said, on May the 22d, 1852, in his Faneuil Hall speech: “But I say to you and to our whole country, and to all the crowned heads and aristocratic powers and feudal systems that exist, that it is to self-government, the great principle of popular representation and administration—the system that lets in all to participate in the counsels that are to assign the good or evil to all—that we may owe what we are and what we hope to be.”

Earl Derby, when premier, said, in the house of lords, that the officers sent from abroad to assist in the funeral of the Duke of Wellington would “bear witness 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 reverence and respect for the free institutions of their country, and the principles of popular self-government controlled and modified by constitutional monarchy.”

In one word, self-government is now largely used on both sides of the Atlantic, in a political sense.

This modern use of the word is no innovation, as it was no innovation when St. Paul used the old Greek word πίστις in the vastly expanded sense of Christian faith. Ideas must be designated. The innovation was Christianity itself, not the use of the word to designate an idea greater than Pistis could have signified before.

That self-government in politics is always applied by the English—speaking race for the self-government of the people or of an institution,—in other words, that self has in this sense a reflective meaning,—is as natural as the fact itself that the word has come, in course of time, to be applied to political government, simply because we must express the idea of a people or a part of a people who govern themselves and are not governed by some one else.

Self-government belongs to the Anglican race, and the English word is used even by foreigners. A German and a French statesman, both distinguished in literature and politics, used not long ago the English word in conversations in their own languages with me.

Donaldson's Greek Dictionary renders ἀντονομία by self-government.

The word self, or its corresponding term in other languages, may have a reflective sense, as in self-murder, or it may have a merely emphatic or exclusive meaning, ipse, he himself. Hence the fact that the Emperor of Russia calls himself autocrat of all the Russias, (self-ruler, himself and alone the ruler,) and we use the corresponding word self-government for the opposite, the government in which the ruling is left to the ruled. The old English self-sovereign is the exact rendering of autocrat. The Germans use the word Selbst-Verlag, i.e., sale of the book by the author himself. German wine-shops in New York have frequently on their signs, in English, the ludicrous words Self-Imported Wines.

As to the first part of this imperial dictum—tout pour le peuple—we know very well how difficult it is to know what is for the people, without institutional indexes of public opinion, and how easy it is, even for the wisest and the best, to mistake and substitute individual, family, and class interests, and passions, for the wants of the people. This, indeed, constitutes one of the inherent and greatest difficulties of monarchical despotism. A benevolent Eastern despot could not have said it, for there is no people, politically speaking, in Asia; and for a European ruler it was either hypocritical, or showed that Napoleon was ignorant of the drift of modern civilization, of which political development forms so large a portion.

London Spectator of September 18, 1852.

Do not all the following, and many more, find their daily or historical applications: Propter imperium imperandi perdere causas; Propter ecclesiam ecclesiæ perdere causas; Propter legem legis perdere causas; Propter argumenta tionem argumenti perdere causas; Propter dictionem dicendi perdere causas?

The Memoirs of Count Miot, the first volumes of which have lately been published, show more in detail than any other work with what eagerness, consistency, and boldness Napoleon I. endeavored, step by step, to break down every guarantee of liberty which the French people had established. He did this so soon as he had been made consul, for life, and succeeded, through the newly-established senate and council of state, in nearly all cases. When he attempted to abolish the trial by jury, supported as he was by his high law-officers, the institution was saved by a few men, showing, on that occasion, a degree of resolution which had become rare, even at so early a period.

Mr. de Tocqueville made this report on the 8th of July, in the name of the majority of that committee, to which had been referred several propositions relating to a revision of the constitution. It was the time when the constitutional term of the president drew to its end, and the desire of annulling the ineligibility for a second term became manifest. It was the feverish time that preceded the second of December, destined to become another of the many commentaries on the facility with which governments founded upon centralization are upset, by able conspiracies or by a terror-striking surprise, such as the revolution of February had been, when the Orleans dynasty was expelled, and another proof how easy it is in such states to obtain an acquiescent majority or its semblance.

In connection with the foregoing, I must ask leave to add the concluding remarks of the Ancien Régime, published since the first edition of Civil Liberty was issued. I know of no passage in modern literature which reminds the reader so directly of the energy and gloom of Tacitus. I quote from Mr. Bonner's translation, New York, 1856, and wish to say that the whole work of Mr. de Tocqueville is a continued historical commentary of all that is said in the present work on Gallican political tendencies.

“When I examine that nation (the French) in itself, I cannot help thinking it is more extraordinary than any of the events of its history. Did there ever appear on the earth another nation so fertile in contrasts, so extreme in its acts—more under the dominion of feeling, less ruled by principle; always better or worse than was anticipated—now below the level of humanity, now far above; a people so unchangeable in its leading features, that it may be recognized by portraits drawn two or three thousand years ago, and yet so fickle in its daily opinions and tastes that it becomes at last a mystery to itself, and is as much astonished as strangers at the sight of what it has done; naturally fond of home and routine, yet, once driven forth and forced to adopt new customs, ready to carry principles to any lengths, and to dare anything; indocile by disposition, but better pleased with the arbitiary and even violent rule of a sovereign than with a free and regular government under its chief citizens; now fixed in hostility to subjection of any kind, now so passionately wedded to servitude that nations made to serve cannot vie with it; led by a thread so long as no word of resistance is spoken, wholly ungovernable when the standard of revolt has been raised—thus always deceiving its masters, who fear it too much or too little; never so free that it cannot be subjugated, nor so kept down that it cannot break the yoke; qualified for every pursuit, but excelling in nothing but war; more prone to worship chance, force, success, éclat, noise, than real glory; endowed with more heroism than virtue, more genius than common sense; better adapted for the conception of grand designs than the accomplishment of great enterprises; the most brilliant and the most dangerous nation of Europe, and the one that is surest to inspire admiration, hatred, terror, or pity, but never indifference?

“No nation but such a one as this could give birth to a revolution so sudden, so radical, so impetuous in its course, and yet so full of missteps, contradictory facts, and conflicting examples. The French could not have done it but for the reasons I have alleged; but, it must be admitted, even these reasons would not suffice to explain such a revolution in any country but France.”

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 12th day of April, 1859, the grand jury is to be dispensed with as an ordinary instrument of criminal proceeding, though power is reserved to the judges to resort to it in certain Special cases. The people of Michigan have thus shown an inclination toward the French system. French, and continental European lawyers in general have an aversion to the grand jury.

Federalism is taken here, of course, in its philosophical and not in its party sense.

I lately saw a pamphlet, written by an American minister, in which the Constitution of the United States was called atheistical—an expression I have seen before. I do not pretend exactly to understand its meaning. I suppose, however, that the word atheistical is taken in this case as purely negative, and as equivalent to not mentioning God, not, of course, as equivalent to reviling the deity. Even in this more moderate sense, however, the expression seems to me surprising. There was a time when every treaty, nay, every bill of lading, began with the words, In the name of the Holy Trinity, and every physician put the alpha and omega at the lop of his recipe. Whatever the sources may have been from which these usages sprang, I believe it will be admitted that the modern usage is preferable, and that it does not necessarily indicate a diminished zeal. The most religious among the framers may not have thought of placing the name of God at the head of our constitution, for the very reason that God was before their eyes, and that this occasion did not suggest to them the idea of specially expressing their belief. Nee deus intersit nisi dignus vindice nodus.

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.

We can do entirely without it as to property in land. Our abundance of land does not require it; but there are countries in which the constant parcelling of land led to such a ruinous subdivision that the governments were obliged to establish a minimum beyond which land shall not be allowed to be divided, and which, thus undivided, goes either to the oldest or the youngest of the sons. The late president von Vincke, one of the most distinguished Prussian statesmen, mentioned in an elaborate report on the extreme division of land, that there had been a lawsuit in the Rhenish province about a square foot or two of vineyard land. Such cases, probably, are of frequent occurrence in China. What would be said, in those densely-peopled countries, of our Virginia or worm-fences, which waste a strip of land five feet wide throughout the South and West?

[Since Dr. Lieber published these words, in 1859, the system of slavery has disappeared, and perfect, or nearly perfect, political equality of all colors exists.]

This is treated more fully in the Political Ethics.

The Dred Scott case, already so famous, but which will become far more famous still in the course of our history.

See p. 260, note 1.

There is an instructive article on voting in the Edinburgh Review, of October, 1852, on Representative Reform. The writer, who justly thinks it all-important that every one who has the right to vote for a member of parliament should vote, proposes written votes to be left at the house of every voter, the blanks to be filled by him, as is now actually done for parish elections. There existed written votes in the early times of New England, and people were fined for not sending them. It was not necessary to carry them personally to the poll. These written votes prevailed in the middle ages. For this and other subjects connected with elections, see the paper on elections in the Appendix.

[The ballot is now introduced into England.]

Coxe's Memoirs of the Bourbons in Spain.

The character of the English and of our allegiance is treated at length in the Political Ethics. I there took the ground that even English allegiance is a national one, whatever the language of the law-books may be to the contrary. The following may serve as a farther proof that English allegiance, after all, is dissoluble. It appears from the New England charter, granted by James I., that he claimed, or had the right “to put a person out of his allegiance and protection.” Page 16, Compact, with the Charter and Laws of the Colony of New Plymouth, etc., Boston, 1836.

Had we any nobility, or had we closed our confederacy, we roust have been exposed to the troubles to which the ancient republics were exposed, and which form a leading feature through the whole history of Rome. We acquired Louisiana, and, with her French population, she is fairly assimilated with our great polity. She would have been a dangerous cancer had we treated her as Rome treated her acquisitions, and a war of the Socii, as the Romans had it, must ultimately have broken out. In this, then, we differ in a marked way from the English. When Scotland was united to England, by establishing one legislature for both, and when a similar process took place with reference to Ireland, a perfect assimilation was not the consequence, as had been the case with Wales. The non-assimilation is still more marked in the case of the colonies. English readers may possibly believe that a foreign author passes his proper boundary if he ventures to discuss a subject of the highest statesmanship peculiarly domestic in its character, but “the by-stander often sees the faults of the men in the ring.” How could we write on foreign history were we not allowed to judge of foreign subjects? Nor is this subject wholly foreign to an American, because he naturally knows more of Canada than most English do, and he knows his own colonial history. Thus justified, and making full allowance for the difficulties that may exist, we cannot help feeling surprised that England, in many other respects the only power that has shown true liberality toward colonies—so different from Spain!—and with our war of independence before her eyes, should not think of tying the distant empires she creates in all the portions of the globe, by a representation in her parliament, making it, so far as the colonies are concerned, the imperial congress. Though each distinct colony with a colonial self-government should have but two c: three representatives in the commons, representing the colony as such, it seems that the effect upon the consistency of the whole gigantic empire would be distinct, and that such a measure is the only one that would promise continued cohesiveness.

For the English reader I would add that the following works ought to be studied or consulted on this subject: The Constitution of the United States, and the constitutions of the different states, which are published from time to time, collected in one volume; the Debates on the Federal Constitution; The Federalist, by Hamilton, Madison, and Jay; the Writings of Chief-Justice Marshall, Boston, 1839; the History of the Constitution of the United States, by G. T. Curtis, a work of mark; Mr. Justice Story's Commentaries on the Constitution of the United States; Mr. Calhoun's and Mr. Webster's Works; Mr. Rawle's work on the Constitution, and Mr. Frederic Grimké's Considerations upon the Nature and Tendency of Free Institutions, Cincinnati, 1848. To these may be added the Course of Lectures on the Constitutional Jurisprudence of the United States, by W. A Duer, Boston, 1856, [and Pomeroy's Constitutional Law, New York, 1868.] An entire literature of its own has accumulated, by this time, on the constitution, jurisprudence, and constitutional history of the United States. The chief of the enumerated works will suffice to lead the student to the more detailed works of this department.

No. lxv.

As to the parties in America, they may fairly be said to have little to do with civil liberty, which will be readily seen by the so-called National Platforms, resolved upon as the true indexes of the parties by the conventions held preparatory 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) a book of remarkable interest, in many respects: Gottlieb Mittelberger's Journey to Pennsylvania in the Year 1750 and Return to Germany in 1754, Frankfurt, 1756. Mittelberger was organist and schoolmaster. He was seven weeks on his way from Würtemberg to Rotterdam, chiefly on the Rhine, The Journal of Albert Dürer, the great painter, gives the same lamentable account of his journey on the Main and Rhine.

A time may come—I believe it will—when the international law of our family of nations will acknowledge that those who border on a navigable river have a right, by nature, to sail down that river to the sea without hindrance, toll, or inconvenience.

Constitution, of the United States, section 9.

See, among others, Duer's Lectures on the Constitutional Jurisprudence of the United States, 2d edition, page 258 and sequ.

The original is in the possession of Dr. Charles King, president of Columbia College, New York.

This passage is copied from a Defence of the Right and the Duty of the American Union to improve the Navigable Waters, by Samuel B. Ruggles, a speech delivered in October, 1852. The speaker has given his views on this and kindred topics more extensively in a state paper of rare excellence, whether the contents, the historical survey and statistic knowledge, or the transparency of the style and language be considered. The paper bears the title, Memorial of the Canal Board and Canal Commissioners of the State of New York, asking for the Improvement of the Lake Harbors by the General Government, Albany, N. Y., 1858, and was, as such, adopted by the legislature of New York and presented to congress.

[It ought to be added, however, that this ordinance applied only to the Northwest territory, over which the treaty of peace with Great Britain, in 1783, gave to the Confederation full power to act. Navigation within or between the old thirteen states was not touched by this ordinance. The present freedom of navigable rivers depends on the constitutional power of Congress “to regulate commerce with foreign nations and among the several states, and with the Indian tribes;” as well as on the right of governing the territories, conferred by the constitution.]

Much that relates to the history of the spy and informer, in ancient and modern times, may be found in the second volume of Political Ethics, where the citizen's duly of informing is discussed.

I quote the whole passage of this stupendous allocution, which no historian or political philosopher, had he discovered it, as Cuvier found and construed remains of animals, would have assigned to the middle of the nineteenth century. What becomes of England and the United States if the essence of history does not he in the development of the nation and especially of its institutions? The following are the exact words:

“Soldiers, the history of nations is in great part the history of armies. On their success, or on their reverses, depends the fate of civilization and of the country. When they are vanquished, there is either invasion or anarchy; when victorious, glory or order.

“In consequence, nations, like armies, pay a religious veneration to the emblems of military honor, which sum up in themselves a whole past existence of struggles and of triumphs.

“The Roman eagle, adopted by the Emperor Napoleon at the commencement of the present century, was the most striking signification of the regeneration and grandeur of France; and so on.

When the democratic Cæsar reviewed the guards, before they started for the Crimea, in 1855, he called the army the nobility of the French nation.

The words of Robespierre are sufficiently clear, if taken as an illustration of what has been stated in the text; otherwise, I own, the sense is not perfectly apparent.

[I.e., chap. xxix. of the Charter of 9 Henry III., confirmed by Edward I. in the twenty-fifth year of his reign, and nearly agreeing with chapters xlvi. and xlvii. of John's Charter, as given in Appendix IV.]

Very scandalous judicial cases, offensive to public morals, are, in France, conducted with closed doors.

So Bishop Tomlinson tells as in the Life of his pupil.

Casser is the French for breaking; hence the name of the court.

We have seen that courts of conciliation have attracted renewed attention in England since Lord Brougham's proposition of an act for the Farther Cheapening of Justice, in May, 1851. An instructive article on this important subject, and the excellent effects these courts have produced in many countries, shown by official statistics, can be found in the German Staats-Lexicon, ad verbum Friedensgericht.

I have given my views on the subject of the nature of sovereignty and the way it acts, at length in the first volume of the Political Ethics. If I have not succeeded there in mastering the subject, I should not be able to do it here; if I have succeeded, I cannot in fairness repeat a long discussion.

Royer Collard's Opinion, or October 4, 1831.

Words spoken to Lord Ebrington, in his exile on the island of Elba.

Rousseau expressed the political idea of equality, the aversion to representative governments and institutional politics, and the disapproval of private property, boldly and clearly in his Social Contract, a masterly written work, which has exercised an incalculable effect on French affairs. It was the favorite book of the leading men of the first revolution, and continues largely to influence the French. Yet Rousseau only pronounced more clearly, and boldly carried farther, the ideas of unity, concentration, and equality, that had been gradually growing stronger in the French mind long before him. They can be traced not only in politics, but in all spheres.

I have given some remarkable instances of interference on the part of modern absolute governments, in the Political Ethics. I shall add the following recent instance: I am sure that no one accustomed to Anglican self-government considers such details trivial, however well he may be acquainted with the fact in general, that government in those countries tries to guide, direct, manage, initiate, and complete everything that seems of any importance. Some years ago a German king ironically called, in a throne speech, constitutions Paper Providences. The expression was every way most unfortunate. It seems to me that it is these very governments of centralized mandarinism that play at Providence, in which they closely resemble the communists, as indeed all absolutism contains a strong element of communism.

The following is taken from the Paris Moniteur, the French official paper, or organ of government, in October, 1852. I do not give the entire decree, but the principal articles:

There will be published, under the care of the minister of public instruction, a general collection of the popular poetry of France, either to be found in manuscript in the libraries, or transmitted by the successive memories of generations.

The collection of the popular poetry of France will consist of

Religious and warlike songs;

Festive songs and ballads;

Historical recitals, legends, tales, satirical songs.

The committee of language, history, and the arts of France, connected with the ministry of public instruction, is charged with the selection of all pieces sent for inspection, and to determine which are to be received, to regulate them, and give the necessary commentaries.

A medal is to be given to those persons who, by their discoveries and researches, particularly contribute to enrich the collection, which will be called Récueil des Poésies Populaires.

It is unnecessary to remind the reader that, if this undertaking has been dictated by any desire of promoting literature, a political motive has been at least equally strong, according to the old saying: Give me the ballad-making, and I will rule the people.

Nothing is more common than men with a decided intellectual bent towards freedom and an equally decided psychical inclination towards absolutism. Their intellect admires the grandeur of liberty, their reason acknowledges the principles of justice; their desires are for free action, and yet their souls resent every opposition. They appear, therefore, often as hypocrites, without being such in reality. There is a dualism within them whose two elements are at war, very similar to that which, without hypocrisy, makes many persons sincerely preach peace and charity abroad, but act at home as domestic tyrants.

History is full of such characters, and we have had an exhibition of it in one of our presidents. Happily, our institutional system did not allow a very wide play of such a disposition.

History of Civilization in France, lect. xiv., sub fin.

Theo-democracy does not contain a contradiction, however novel and, at first sight, startling the term may appear to us. If democracy necessarily expressed the idea of liberty, then indeed the name theo-democracy would be senseless, for all theocracy or sacerdotal rule is a negation of civil liberty. It immures in dogma.

In a similar manner, and with equal justice, the Rev. Mr. Payne says of the Grebo tribe, at Cape Palmas, that their constitution is patriarchal, with a purely democratic government. His account is contained in “The Report of the Rev. R. R. Gurley, who was recently sent out by the government to obtain information in respect to Liberia,” published by the senate of the United States, in 1850, thirty-first congress, first session, executive document No. 75. The political philosopher can hardly read a more interesting paper than this.

The extent to which this idea is occasionally carried out is, almost inconceivable to us, accustomed as we are to so essentially different a system and train of political thoughts. A few years ago the minister of the interior had given some new directions regarding the quarantine regulations. They were more in conformity with the opinions of scientific men on the contagiousness of the plague. The people of Marseilles, who still keep the terrible plague of the last century in vivid remembrance, disapproved of these orders from the central government, and a meeting of certain persons was called together. Whereupon most newspapers took part with the government, and charged the citizens, with whom this little germ of self-government had shown itself, with the hideous sin of federalism, the crime for which many had lost their heads in the first revolution. This was in the times of the so-called republic, before the second of December, and the few papers which took side with the citizens were legitimist papers, thus furnishing, by the way, another instance of the fact that all sorts of things are possible under peculiar circumstances. It was the Tories who resisted the septennial bill abolishing triennial parliaments in 1716; it was the Jesuits who first enunciated the doctrine of the sovereignty of the people, in order to get a fulcrum against heretical monarchs; it was a Spanish Jesuit who defended regicide under Philip II.; and here we have legitimists, working for a descendant of Louis XIV., who took side for a principle of self-action against the central government!

[In 1866 the four estates of Sweden were converted into two houses, of which the first or upper consists of one hundred and twenty-five members, who represent the noblesse, other landed proprietors, and the clergy, and are elected by landsthings or provincial assemblies, and the second, of one hundred and ninety-one members, represents the towns and rural districts. The term of office of the upper house is, we believe, nine years. In Norway the storthing, or legislature, chosen by electors chosen by the qualified citizens, holds office for three years, and divides itself on assembling into two houses,—the odalsthing, having three-quarters of the whole body for its members, and the lagthing, composed of one-quarter. AH projects of laws or acts originate in the odalsthing; and if the lagthing rejects them twice over, the storthing meets and legalizes the project only by a vote of two thirds.]

This idea has been, since, carried much farther. A large number of persons, and, it would seem, all imperialists, love to dwell upon the idea that imperialism represents Latin civilization, opposite to Teutonic unwieldy, uncentralized, barbaric freedom. When thus Latinism is taken as a distinctive mark, Roman imperialism is meant, not of course Republican Roman self-government The French, in trying to renovate Latinism, seem to fall, as to principle, into an anachronism not dissimilar to that into which the Germans fell as to language when they officially called their empire, down to its dissolution, the Holy Roman Empire of the Germans.

Ecclesiasticus, xxiv. 12.

The mutual influence of different literatures is daily extending. Take as an instance the literature of England, France, Germany, and the United States, and add the mutual influence of the journals of these nations. Then consider how many of the elements of civilization are not national, but common to all—the alphabet, the numeric signs, with the decimal system, musical notation and music itself, commercial usages and bookkeeping, international law, social intercourse and laws of politeness; the visiting-card, the railway, the steamboat, the post-office, the institution of money, the bill of exchange, insurance—indeed, it is impossible to enumerate all the agreements of nations belonging to our race. I shall only add the dress, the furniture, and even cookery.

The most recent and a choice illustration of progressive uniformity of our race and its civilization, is the adoption of Commander Maury's, U.S.N., plan of a uniform maritime observation and record, adopted by many governments in consequence of the naval congress at Brussels, in 1853. May a uniform standard of value soon follow. The wide-spread dollar or scudo has prepared the way for it.

At a sumptuous ball, which the city of Paris gave, in the year 1851, to the commissioners of the London Exhibition, I was sitting in a corner and reflecting on the police officers in their uniforms and the actual patrols of the military pompiers in the very midst of the festive and crowded assemblage, when I was introduced to one of the first statesmen of France and a liberal member of the national assembly. He had been at London, to view the exhibition. It was the first time he had visited England. “Do you know,” said he, “what struck me most—far more than the exhibition of works of art and industry? It was the exhibition of the civisme anglais (this was the term he used) in the London police.” It may be readily supposed that an American citizen turned his face toward the speaker, to hear more, when the Frenchman continued: “I am in earnest. The large number of policemen, with their citizen appearance, although in uniform, seeming to be there for no other purpose than to assist the people—and the people ever ready to assist them—this is what has most attracted my attention. Liberty and the government of law are even depicted in their police, where we should seek it least. What is it that stakes you most in coming here?”

“The American,” I replied, “in visiting the continent of Europe, is most impressed by the fact that the whole population, from Moscow to Lisbon, seems to be divided into two wholly distinct parts—the round hats, the people, and the cocked hats, the visible government. The two layers are as distinct as the hats, and the traveller sees almost as many of the one form as of the other.”

There are large police establishments in all European states. Densely-peopled countries require them. The different spirit and organization, however, of these establishments are most characteristic. Nothing, perhaps, shows more the character of a citizen-government in England than the wide-spread institution of the police, which has developed itself, under Sir Robert Peel, out of the ancient constable. It has great power; it has preventive, detective, and custodial authority; yet it is supported by the citizens, and no one fears that it ever will be used as an institution of political espionage and denunciation—as delatores of old and mouchards of modern times. It is strictly under the public law, and that implies tinder publicity. There is a whole literature on this subject, but I know of no brief paper exhibiting so well its essential character as the seventh paragraph of Mittermaier's English, Scottish, and American Penal Processes.

Paradise Lost, book 9, line 170.

In a circular, sent by the provisional government all over France before the general election for the national constituent assembly, in 1848, was this sentence: “Every Frenchman of the age of manhood is a political citizen; every citizen is an elector; every elector is a sovereign. There is no one citizen who can say to another: ‘You are more of a sovereign than I.’ Contemplate your power, prepare to execute it, and be worthy of entering on the possession of your kingdom.” The author of these phrases is Mr. de Lamartine, who says, in his Revolution of 1848: “The reign of the people is called the republic.”

1 Vol. iii. p. 293.—A member of the late French national assembly, speaking of the enormous California lottery, which was then in its full ruinous operation in France, used the expression: “This is not a lottery; it is a series of lotteries; I ought to say an institution of lotteries.”

The exaggeration was carried farthest when an English newspaper called the Duke of Wellington an institution. We see, however, through the exaggeration, the original sense universally attributed to the term.

The word is a finished and a given thing; the idea is in a constant state of expansion or contraction, far exceeding the formative powers even of the most perfect language, so that frequently a whole class of words derived from the same root retains little in common but an association of ideas, which often almost vanishes. The history of the changing meaning of man's words is instructive, and equally so the history of the changing word. I need only allude to such remarkable 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, Station, Statistics; or we may take Civis, Civitas, Civilis, Civilitas, Civility, Civil (in its two distinct terms,) Civilization, Citizen; Nascor, Nation, National; Populus, Publicus (for populicus,) Public, People, Popular; Gignere, Genus, Gens, Gentile, Gentle, Genteel, Gentleman, with the different meanings through which this last word has passed from the time when it meant a man of gentle—that is, not vulgar, not common-blood or extraction, to its present impoit, which relates exclusively to character and breeding. Breeding itself might be mentioned here.

[If Dr. Arnold means ordérs of men embodying a certain principle, idea, or political habit of a nation, he cannot be found fault with. So of officers. A tribune and the tribuneship cannot be separated. He conceived of the officer as gradually reaching, in old time, certain political functions, which could have otherwise no existence.]

The term Institute seems to differ from Institution, according to present usage, in this, that the first, when it does not mean the initiatory knowledge of a wide system of science, (as the institutes of the pandects, of medicine,) is chiefly used as a noun proper for an institution of learning or the diffusion of knowledge, for instance French Institute, Mechanics' Institute. It may be used as a generic term for institutions of diffusion of knowledge of a higher character; but it is frequently abused in these cases. Schools of some pretence are called institutes, with that deplorable extravagance with which common schools are called academies, common colleges universities, auction rooms auction marts, a single and simple person a party, every chairman a president, and which has so sadly invaded our manly language that many superlative words, such as splendid, magnificent, giantlike, transcendent, illustrious, and hundreds of others, can hardly be any longer used by a sober and vigorous writer, and have become worth little more than old coins, once good, but now clipped, punched, and sweated by unlawful usage.

The Latin Institutum does not exactly correspond to our word institution. It means a purpose, object, plan, or design, and, finally, a settled procedure, by which it is intended to obtain a certain object; hence a uniform method of action, to be observed when similar cases occur. Institutum is very frequently used in conjunction with consuetudo, and often means nothing more than settled usage with reference to certain cases. Institutum thus designates one of the elements of our Institution, but it does not include the idea of a distinctly limited system of laws or usages with a considerable degree of autonomy, nor does it comprehend the idea of our enacted institutions. Institutum retains the idea of usage throughout. Still, it is readily seen how the Roman word institutum was naturally changed and expanded into the modern 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 moderns abstract even against all sense. I read but yesterday in large letters over a shop this word—Carpetings. Here we have first an unmeaning abstraction 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 grandiloquent words, are also given to use abstract terms, or those that approach abstraction, far more than the English. The sign of the smallest baker's shop will not be John Smith, Baker, but Bakery by John Smith, perhaps even American Bakery, or, should it happen to be near the sea, Ocean Bakery. A common shop of a green-grocer in the second largest city of the United States, calls itself United States Market. The negroes have caught the fever. Not long ago I saw a common shanty, erected in a Southern forest to accommodate travellers with coffee while their luggage was ferried over a river, adorned with the following words on a pine board: Jenny Lind and Sontag Hotel. The railway bridge had been carried away, and this café was erected for a few days only.

The best grammarians tell us that Latin nouns ending in io, and adjectives ending in ilis, (that is, abstract terms,) must be used with circumspection, and not without good authority, since they are comparatively rare in the best writers. It speaks volumes concerning the Roman character and mental constitution.

The reader who desires to become acquainted with the opposite view must turn to the Christian Politics, by Rev. Wm. Sewell, Fellow and Subrector of Exeter College, London, 1848; a book which carries out the views of Filmer to an extent which that apologist of absolutism never contemplated. It may be fairly considered to occupy the point opposite to that of the most rabid socialist of France; and, according to the rule that we ought to dwell on works which carry their principles to the fullest length, no matter what those principles may be, it is worth the student's while to make himself acquainted with it. If he can get through the whole, however, he is more patient than I found it possible to be. According to Mr. Sewell, there is but one true government, absolute monarchy, demanding absolute obedience; the king makes the state and the view I have endeavored to prove in my Ethics, that the state, despite of its comprehensive importance, still remains a means to obtain certain ends, is attacked as the opinion of mere “philosophers.” The king, the house of lords, and that of the commons, as they ought to be considered, indicate, according to this writer, the relation in which possibly the three persons of the one deity stand. Filmer stopped short at least with Adam. To counteract the revolting effect which may have just been produced, I refer the reader to page 146, where he will find, in a passage of great length, that the Greek at Marathon fought only for his country, his hearth, and his laws, while the Persian far surpassed him, because he fought for his king (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 Thermopylæ 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 supposed to be dead, and did it not occupy, in view of its preposterous theory, the first place of its class. Nor is it historically uninteresting that such a work has been written in the middle of the nineteenth century. So much is certain, that were the English government actually founded upon that hyper-absolutism which the author considers so Christian, no one would be permitted to assail its fundamental principles with that impunity which he now enjoys.

The great ability of this man seems to be peculiarly exhibited in his mixture of truth and arrant falsehood, his uncompromising boldness and insolence, and his organizing instituting mind. Two men have met almost simultaneously with great success in our own times—Joseph Smith and Louis Napoleon. Of the two, the first seems the more clever. What he performed he did against all probability of success, without any assistance from tradition or prestige.

He meant, of course, the senate, legislative corps, and the council of state. Why he calls these new institutions we cannot see, but he evidently wished to indicate his own belief, or desired that others should believe, in their permanency, as well perhaps as in their own independent action. To those, however, who consider them as nothing more than the pared and curtailed remnants of former institutions, who do not see that they can enjoy any independent action of their own, and are aware that their very existence depends upon the mere forbearance of the executive; who remember their origin by a mere decree of a dictator bound by no superior law,—to those who know with what studied and habitual sneer “parliamentary governments” are spoken of by the ruling party in France, all these establishments appear in principle no more as real institutions than a tent on a stage. The “constitution” of the present empire (Napoleon I. always spoke of les constitutions de l'empire) is a close copy of the organic laws of the first empire. Now, few of my readers, probably, are aware that the very name of senatus-consultum, which played so important a part in the first empire, and by which the most violent fundamental changes were effected, was literally smuggled in by Napoleon I. He did so on occasion of the conspiracy of Ceracchi and others, when the council of state resolved that no law should be demanded, because that “would lead to discussion.” The list of condemned was passed by the council of state, upon a report of the police, not even signed, and the senate adopted and decreed it, as a senatus-consullum. Memoirs of Miot de Melito, (himself a counsellor of state,) vol. i. page 360 and sequ. It hardly deserves mention here, that Napoleon adopted the term from the Roman empire, which was his political beau-ideal, as he did many other terms and symbols.

I am aware that many persons believe nowadays so little in this truth that not only does antiquity of itself appear to them as a proof of deficiency, but they turn their face from the whole Past, as something to be shunned, thus forgetting the continuity of society, progress, and civilization. Mr. Guizot, in his lectures on the History of Representative Governments, delivered in Paris, 1820, found it necessary to warn his hearers against this horror of the Past. The reader will find remarks on the impossibility of “beginning entirely anew,” in my Political Ethics.

Count Miot relates that when Napoleon, as consul, desired to change the entire character of the house of representatives, in order to bring it under the exclusive control of the executive, but hesitated to make an organic change by mere violence, Talleyrand at last suggested that the other assembly had no business assigned to it; why should it not be made to sanction the measure? The history of the whole consulate, and of the early period of the empire, is a striking and continuous illustration of the assistance which a despot derives from mere forms of liberty without the reality of freedom. It would seem that Napoleon I. established certain forms, in conquered countries, for the very purpose of assigning the appearance of responsibility to certain bodies of the state, while he left the government absolute. It is difficult otherwise to explain the constitution which he decreed for Naples, (page 359, vol. ii. of Memoirs of Count Miot de Melito,) according to which “the national representation” was to consist of one chamber divided into five sections, namely: the clergy, nobility, proprietors, savans, and traders; the clergy, nobility, and savans holding their places for life; the others removable at pleasure by the government. The Roman senate, when it had become the recording body of the imperial decrees, gave much support to the emperors, by its appearance of an ancient institution.

T. Toulmin Smith's Local Self-government and Centralization, etc., Lon don, 1851

A work which many of my readers will peruse with interest and instruction is Ferdinand Béchard's Lois Municipales des Républiques de la Suisse et des États-Unis, Paris, 1852. Mr. Béchard is also the author of a Traité de l'Administration Intérieure de la France—a work which must be welcome to every inquiring citizen, because it pictures the details of French centralization, the most consistently carried-out centralization in existence.

Mr. Béchard uses repeatedly in his French work the English term Self-government.

A German work, the title of which is: An Account of the Internal Administration of Great Britain, by Baron von Vincke, edited by B. G. Niebuhr, Berlin, 1815. Niebuhr, who had spent a portion of his early manhood in England, published, and probably modelled in a great measure, this work in order to influence, if possible, the Prussian government to reorganize the state after the expulsion of the French, and to reclaim that kingdom from the centralization it had adopted in many respects from the invaders of Germany. Niebuhr was a follower and great admirer of Baron von Stein, who, when minister of Prussia, had given to the cities some degree of self-government by his Städte-Ordnung—causing not a little umbrage to Napoleon. Niebuhr desired to give increased life to the principles contained in the Cities' Charter, when he published the work I have mentioned.

Coke's Institutes, part 10, ch. xxi., Justices of the Peace. The Earl of Stratford, who, like his royal master, died so well, after, politically speaking, having lived so ill, bade his brother, on the scaffold, to take this among other messages to his eldest son: “Wish him to content himself to be a servant to his country, as a justice of the peace in his county, not aiming at higher preferment.” May 12, 1641. Rushworth, (who was on the scaffold,) vol. viii. p. 760. George Washington, after having aided in founding a great commonwealth, and after having been twice its chief magistrate, was a justice of the peace in his county, in which he was imitated by John Adams, and, perhaps, by other ex-presidents.

S Reports, p. 125.

Reports, p. 63.

Ibid., p. 64.

See Smith's Local Self-government, p 230. The quotations from Coke to which the three last notes refer are likewise in Smith's work, which I recommend to every reader.

By, in by-law, is the same syllable with which the names of many English places end, such as Derby, Whitby, and is etymologically the same with the German Bauen (to build, to settle, to cultivate,) which is of the same root with the Gothic Bua and Boo, and especially the frequentative Bygga, ædificare. See Adelung, ad verbum Bauen. It is a word which runs through all the Teutonic languages, ancient and modern.

Gradually, indeed, bye-laws came to signify laws for a limited circle, a small society, laws which any set of men have the right to pass for themselves within and under the superior law, charter, etc., which constitutes them into a society, and thus it happened that bye-law was changed into by-law, as we have by-ways, roads by the side of others. It cannot be denied that by-law at present is used in the sense of law passed by the side, as it were, of another man law. Very few persons know of the origin, and the present sense of by-law is doubtless that of collateral, expletive, or subordinate law. Such double derivations are not uncommon in our language. The scholar is probably reminded, by this note, of the term God, which we Christians derive from good, and a better, holier derivation, as to the sense of the word, we cannot give to it; yet the historical derivation, the verbal etymology, if I might so say, is an entirely different one. See Jacob Grimm's German Mythology, ad verbum Gott. The starting-point of adoration is, with all tribes, dread, acknowledgment of superior power; then follows acknowledgment of wisdom, and last of all acknowledgment of goodness, purity, holiness.

Mr. Lemoisne, Wellington from a French Point of View.

General Scott has given an account of this affair in some remarks he made at a public dinner at Sandusky, in the year 1852. The generals of most countries would probably charge the victorious general with niaiserie, for declining so tempting an offer. We delight in the dutiful and plain citizen who did not hesitate, and, as the occurrence possesses historical importance, the entire statement of the general is here given. I have it in my power to say, from the best information, that the following account is “substantially correct,” and as authentic as reports of speeches can well be made:

“My friend,” said General Scott, “has adverted to the proposition seen floating about in the newspapers. I have nowhere seen it correctly stated that an offer was made to me to remain in that country and govern it. The impression which generally prevails, that the proposition emanated from congress, is an erroneous one. The overture was made to me privately, by men in and out of office, of great influence—five of whom, of enormous wealth, offered to place the bonus of one million of dollars (mentioned below) to my credit in any bank I might name, either in New York or London. On taking possession of the city of Mexico, our system of government and police was established, which, as the inhabitants themselves confessed, gave security—for the first time perfect and absolute security—to person and property. About two-fifths of all the branches of government, including nearly a majority of the members of congress and the executive, were quite desirous of having that country annexed to ours. They knew that, upon the ratification of the treaty of peace, nineteen out of twenty of the persons belonging to the American army would stand disbanded, and would be absolutely free from all obligations to remain in the army another moment. It was entirely true of all the new regiments called regulars, of all the volunteers, and eight out of ten of the rank and file of the old regiments. Thirty-three and a third per cent, were to be added to the pay of the American officers and men retained as the nucleus of the Mexican army. When the war was over, the government overwhelmed me with reinforcements, after there was no possibility of fighting another battle. When the war commenced, we had but one-fourth of the foice which we needed The Mexicans knew that the men in my army would be entitled to their discharge. They supposed, if they could obtain my services, I would retain these twelve or fifteen thousand men, and that I could easily obtain one hundred thousand men from home. The hope was, that it would immediately cause annexation. They offered me one million of dollars as a bonus, with a salary of $250,000 per annum, and five responsible individuals to become security. They expected that annexation would be brought about in a few years, or, if not, that I could organize the finances and straighten the complex affairs of that government. It was understood that nearly a majority of congress was in favor of annexation, and that it was only necessary to publish a pronunciamento to secure the object. We possessed all the fortresses, all the arms of the country, their cannon foundries and powder manufactories, and had possession of their ports of entry, and might easily have held them in our possession if this arrangement had gone into effect. A published pronunciamento would have brought congress right over to us, and, with these fifteen thousand Americans holding the fortresses of the country, all Mexico could not have disturbed us. We might have been there to this day, if it had been necessary. I loved my distant home. I was not in favor of the annexation of Mexico to my own country. Mexico has about eight millions of inhabitants, and out of these eight millions there are not more than one million who are of pure European blood. The Indians and mixed races constitute about seven millions. They are exceedingly inferior to our own. As a lover of my country, I was opposed to mixing up that race with our own. This was the first objection, on my part, to this proposition. May I plead some little love of home, which gave me the preference for the soil of my own country and its institutions? I came back to die under those institutions, and here I am, I believe I have no more to add in reply.”

There is no doubt in my mind that the institutional government is the real school of civil obedience. Whether the following remarkable passage, which I found in Baron Müffling's Memoirs of the Campaign of 1813 and 1814, edited by Col Philip Yorke, London, 1853, must be in part explained by the general self-government of England, and by the fact that every English gentleman is accustomed to political self-government and consequently to obedience, I shall not decide, but I strongly incline to believe that we must do so. General Müffling was the Prussian officer in the staff of the Duke of Wellington who served as an official link between the two armies. He was, therefore, in constant personal intercourse with the English commander, and had the very best opportunity of observing that which he reports.

“I observed,” says General Müffling, “that the duke exercised far greater power in the army he commanded than Prince Blücher in the one committed to his care. The rules of the English service permitted the duke's suspending any officer and sending him back to England. The duke had used this power during the war in Spain, when disobedience showed itself among the higher officers. Sir Robert Wilson was an instance of this.

“Amongst all the generals, from the leaders of corps to the commanders of brigades, not one was to be found in the active army who had been known as refractory.

“It was not the custom in this army to criticise or control the commander-in-chief. Discipline was strictly enforced; every one knew his rights and his duties The duke, in matters of service, was very short and decided. He allowed questions, but dismissed all such as were unnecessary. His detractors have accused him of being inclined to encroach on the functions of others—a charge which is at variance with my experience.”

Mr. Everett's Address before the New York Historical Society, 1853.

There are doubtless many causes operating together, and one of these may be that the French are not inherently fond of agriculture, as the Germanic races are. The English are eminently so.

From the Canadian census published in 1853, the following difference between the French and the Anglo-Saxon colonists appeared: The inhabitants of Lower Canada are chiefly of French origin, and are not much fewer in number than the Upper Canadians; the latter being 952,004, and the former 890,261, according to the last census. But although so close to them in point of numbers, and also in the quantity of land they have under cultivation, the inhabitants of Lower Canada raise a much smaller quantity of agricultural produce than the Upper Canadians obtain from the soil. With the exception of maple sugar and flax in which they far surpass the inhabitants of the Upper Province, they fall greatly below them in nearly all the more valuable products.

The reader has a right to ask here, why then did not the Netherlands, to institutional in their character, establish prosperous self-governments in foreign parts, as England did? I believe the answer which must be given is this:

The Netherlands lacked at home a protecting national government proper—one that could furnish them with a type of a comprehensive yet popular general government. The Netherlandish colonies always remained mere dependencies upon the executive. The Netherlanders did not plant colonial legislatures.

The Netherlands, moreover, had lapsed into a state of sejunction. The idea of their petty sovereignty was carried to the most ruinous extreme. The Greeks colonized, indeed, by dotting as it were foreign parts. The shores of the Mediterranean were sprinkled with Greek and Phœnician colonies corresponding to the ancient city-states—from which they had branched off. But a Netherlandish town could not thus have established a little colony in Java or the West Indies.

Lastly, I believe the Netherlanders did not become the disseminators of self-government, although institutional in their character, because they had no living common law to take with them, as the talent of the mother-country. They had learned the civil law—at least sufficient of it to stifle farther development of common law. We know already that the Roman Law, however excellent some of its principles are, is void of the element of self-government, and, because superinduced, antagonistic to self-development of law.

Nevertheless, it is a question of interest to Americans, whether, and how far, the settlers of New England were influenced by their sojourn in the republican Netherlands. I throw out the question. It deserves a thorough yet very plain and unbiased inquiry.

The same is said of the Manchous in China. The ruling soldier tribe has not assimilated itself with the Chinese, and the expulsion of the dynasty seems no incredible occurrence, even though the present rebellion should not be successful. In the case of China, the conquered race had many firmly-established laws and civil institutions, to which the conquering race continued strangers, at least so far as to remain chiefly soldiers. No reliance is weaker than that which rests mainly on the army, even if the army is in fighting-order, which the Chinese is not.

The word reported to have been used by Napoleon is lumières, which may mean men who enlighten, or the light which is given. The passage is found in the Mémorial de Sainte-Hélène, by Las Cases. Napoleon was speaking of the clergy, and the whole passage runs thus:

“Je ne fais rien pour le clergé qu'il ne me donne de suite sujet de m'en repentir, disait Napoléon; peut-être qu'après moi viendront d'autres principes. Peut-être verra-t-on en France une conscription de prêtres et de religieuses, comme on y voyait de mon temps une conscription militaire. Peut-être mes casernes deviendront-elles des couvents et des séminaires. Ainsi va le monde! Pauvres nations! en dépit de toutes vos lumières, de toute votre sagesse, vous demeurez soumises aux caprices de la mode comme de simples individus.”

Public Opinion and General Opinion have been discussed in the first volume of Political Ethics.

χαλεπὰ τὰ καλά. May we not add καὶ καλὰ τὰ χαλεπά?

We may also mention as a want of union, the fact that unanimity of all the states was required for all the most important measures, such as taxation and war

The author of the famous Oceana proposed a similar measure for England, as St. Just, “the most advanced” follower of Robespierre, did for France.

“The epitaph inscribed upon the tomb of Sardanapalus, ‘Sardanapalus, the son of Anacyndaraxos, built Anchiola and Tarsos in one day: eat, drink, and last; the rest is nothing,’ has been quoted for ages, and its antiquity is generally admitted.”—Layard's Nineveh, vol. ii. p. 478.

Constitutions, therefore, must not be changed too easily or too frequently; 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. Parliament is theoretically omnipotent in a political sense; the people, with us, are politically omnipotent; and if the people enact new constitutions every five or ten years, the convention sits, in reality, as an omnipotent parliament.

I have expressed my view on this subject in an address to a graduating class. I copy the passage here, because I believe the truth it contains important

“Remember how often I have endeavored to impress upon your minds the truth, that there is no great and working idea in history, no impu'se which passes on through whole masses, like a heaving wave over the sea, no yearning and endeavor which gives a marking character to a period, and no new institution or new truth, which becomes the substantial addition that a certain age adds to the stock of progressive civilization—that has not its own caricature and distorted reflection along with it. No Luther rises with heroic purpose, without being caricatured in a Carlstadt. The miracle wrought by Him to whom it was no miracle, is mimicked in toyish marvels for easy minds. The communists are to the dignity of labor what the hideous anabaptists were to the Reformation, or tyrannical hypocrites in England to the idea of British liberty in a Pym or Hampden. There was a truth of elementary importance conveyed in the saying of former ages, however irreverent it may appear to our taste, that Satan is the mimicking and gumacing clown of the Lord. I will go farther, and assert, that no great truth can be said to have fairly begun to work itself into practice, and to produce, like a vernal breath, a new growth of things, if we do not observe somewhere this historic caricature. Has Christianity itself fared better? Was the first idea, which through a series of errors led to the anchorites and pillar saints, not a true and holy one? Does not all fanaticism consist in recklessly carrying a true idea to an extreme, irrespective of other equally true ones, which ought to be developed conjointly, and under the salutary influence of mutual modification? There is truth in the first idea whence the communist starts, as much so as there is truth in the idea which serves as a starting-post for the advocate of the ungodly theory of divine right; but both carry out their fundamental principle to madness, and, ultimately, often run a muck in sanguinary ferocity. Do not allow yourselves, then, to be misled by these distortions, or to be driven into hopeless timidity, which would end in utter irresolution, and a misconception of the firmest truths.”

The following is taken from a late (1852) French paper. It is of sufficient symbolic interest to find a place in a note:

In 1790, on the 14th of July, the anniversary of the taking of the Bastile was celebrated by what was called the Fète of the Universal Federation of France. Delegations were sent to it by every department, city, town, and village in the country, all eager to manifest their enthusiasm for the revolution of 1789. Every hundred of the National Guards was represented by six members; and there were also six deputies from every regiment of infantry, and four for every regiment of cavalry. These “confederates,” as they were styled, were all entertained by the inhabitants of Paris, who are said to have rivalled each other in hospitality. In order to afford facilities to the immense number of spectators who were expected on the Champ-de-Mars, over twelve thousand workmen were employed to surround it with embankments. Fears, however, being still entertained that the work would not be completed in time, all Paris turned out to assist. Men, women, and children, the National Guard, priests even, and sisters of charity, all took part in it. The Abbè Sieyès and Viscount Beauharnais were seen tugging together at the same wheelbarrow. At the entrance to the field was erected an immense triumphal arch; while in the centre was raised an altar, called the Altar of the Country, at which officiated Talleyrand, then bishop of Autun. A bridge of boats was stretched across the Seine, near the Champ-de-Mars, where since has been erected the bridge of Jena.

In 1791, on the 18th of September, there was a splendid Fète for the publication of the constitution, and for receiving the oath of fidelity to it from Louis XVI.

In 1792, on the 15th of April, the Fète of Liberty was celebrated. The centre of attraction was an enormous car, in which was placed a statue of Liberty, holding a liberty-cap in one hand, and in the other a club. To such an extent was the principle of freedom carried on this occasion, that there was not a single policeman present to preserve order. The master of ceremonies was armed only with an ear of corn: nevertheless, there is said to have been no disorder.

In 1793, there was a fête in honor of the abolition of slavery. On the 10th of August of the same year, there was a fête for the acceptance of the constitution of 1793. The president of the convention received eighty-three commissioners from the departments; after which the registers upon which were inscribed the votes of the Primary Assemblies were brought to him, and he deposited them upon the “Altar of the Country,” amid the firing of cannon, and the rejoicing of the people, who swore to defend the constitution with their lives. On the 2d of December following, the Fête of Victories took place, in celebration of the taking of Toulon. On this occasion the Altar of the Country was transformed, by the poet-painter David, into a temple of immortality.

In 1794, on the 21st of January, the anniversary of the death of Louis XVI. was celebrated by all the principal authorities going to the Altar of the Country and renewing their oath of hatred to royalty. On the 9th of June of the same year, the Fête of the Supreme Being commenced at the Tuileries, and was terminated on the Champ-de-Mars. In the centre of the plain a “Mountain” was thrown up, surmounted by an oak. On the summit of the mountain were seated the representatives of the people; while near them were a number of young men, with drawn swords in their hands, in the act of striking a symbolical figure of the “monster fanaticism.”

In 1796, on the 21st of January, the anniversary of the death of Louis XVI. was again celebrated. All the public functionaries renewed once more their oath of hatred to royalty, and the people spent the day singing the Marseillaise, Çà ira, and various patriotic songs. On the 30th of March following, the Fête of Youth took place, on occasion of arming all the young men over sixteen years of age; and on the 30th of April, on the proposition of Carnot, the Fête of Victories was celebrated.

In 1798, on the 20th of March, was the Fête of the Sovereignty of the People. On the tenth Vendémiaire, there was a funeral fête in memory of General Hoche. On the tenth Messidor, the Fête of Agriculture took place, with a great display of chariots, cattle, fruits, etc. During the five supplementary days of the revolutionary year, there was a series of fêtes, with an exposition of all the products of French industry, on the Champ-de-Mars.

In 1801 there were fêtes in memory of the foundation of the Republic, and in celebration of general peace, which were attended by the First Consul.

In 1804, on the 10th of November, Napoleon, then emperor, repaired to the Champ-de-Mars, and there received the oath of fidelity and obedience from deputations representing all the corps of the army.

In 1814, on the 7th of September, the government of the Restoration distributed colors to the National Guard of Paris. The object of this distributior was to efface, if possible, even the memory of the eagles of the empire and of the tri-colored standard of the revolution. An altar, glittering with gold and costly drapery, was erected near the military school, and in front was placed the throne, occupied by Louis XVIII., who was accompanied by the Count of Artois, the Duke of Angoulême, and the Duke of Berri. Mass was celebrated by the archbishop of Paris, M. Talleyrand-Périgord, uncle of the bishop of Autun, who, as we have seen, officiated at the Fête of Federation in 1790. The National Guards defiled before the throne, while the band played Vive Henri IV and Charmante Gabrielle.

In 1815, on the 1st of June, there was a fête in celebration of the return of the emperor. Napoleon appeared on the throne with his three brothers. A mass was performed; the constitution was acclaimed with enthusiasm; and the air was rent with cries of Vive Napoléon! The oath was taken with enthusiasm. Napoleon addressed the soldiers from the throne in the following words:

“Soldiers of the National Guard of Paris; soldiers of the Imperial Guard; I confide to you the imperial eagle, with the national standard. You swear to defend it with your lives, if need be, against the enemies of the country and this throne. You swear never to rally under any other banner.”

During the restoration, the Champ-de-Mars was used chiefly for reviews of the National Guard; the most notable of which was the last one passed by Charles X., when the citizens manifested that hostility to the king which was a prelude to the revolution of 1830.

In 1837 there was a grand fête in honor of the marriage of the Duke of Orleans, on which occasion the crowd in the Champ-de-Mars was so great that twenty-four persons were suffocated or crushed to death. During most of the reign of Louis Philippe, however, the principal gatherings in the Champ-de-Mars were on occasion of military reviews and horse-races.

In 1848, on the 22d of May, the Fête of Concord was celebrated with great pomp. The Moniteur alluded to the occasion thus:

“This solemnity was celebrated with an éclat enhanced by the magnificent weather. Under so clear a sky, and surrounded by so many joyful countenances, how was it possible to experience any feelings but those of love, conciliation, and harmony? What struck us, especially, was the attitude, so full of enthusiasm and confidence, of the vast concourse of people that crowded the Champ-de-Mars; cries, a thousand times repeated, of Vive la République! Vive la République Démocratique! Vive l'Assemblée Nationale! broke out, in formidable chorus, every instant, as if to proclaim the respect of the people for the institutions which they have adopted, and their invincible repugnance to every retrograde or reactionary idea.”

To the foregoing must be added the gigantic military fête on the 10th of May, 1852, called the Fête of Eagles, that is, the distribution of eagles to all the regiments 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 intended pun on it. The emperor adopted the Roman eagle; the Bourbons brought back the three fleurs-de-lys; and in 1830 the cock was restored. Louis Napoleon, when president for ten years, restored the imperial eagle. It must be owned, the cock looked very much as our turkey would have looked had we adopted Franklin's humorous proposition of selecting our native and respectable turkey, instead of our fine native eagle.

What feast will be celebrated on the same spot next? Whatever it may be, probably it will be nothing intrinsically different from the last.

The Dictionary of the Academy gives, as the last two meanings of the word Peuple—unenlightened men, and men belonging to the lowest classes. Trench, in his Lessons in Proverbs, quotes the French Jesuit Bonhours, who says: Les proverbes sont les sentences du peuple, et les sentences sont les proverbes des honnêtes gens. (But there are very wicked proverbs.) Honnête means, indeed, frequently something like the Latin honestus, and not exclusively our honest, but even with this addition the English term People could never have been contradistinguished from honnêtes gens. To these remarks we must add the mischievous error of giving the dignified name the people to some people gathered together in the street. We find, in the French papers and other publications, at the time of the first revolution, constant use of the term in such manner, as: le peuple has hanged a baker, etc., when the murder was committed by a labble of a few. This confusion of a few lawless people with the people, for whom the sovereign power was claimed, and, in turn, the arrogation of the sacred name by a few Parisians, may be observed throughout the history of the revolution.

Aristocratic as England is in many respects, it is nevertheless true that there is no nobility in the continental sense. The law knows of peers, hereditary lawgivers, but it does not know even the word nobleman. The peerage is connected with primogeniture, but there is no English nobility in the blood. The idea of mésalliance has, therefore, never obtained in England. There is no doubt that the little disposition of the English shown at any time to destroy the aristocracy is in a great measure owing to this fact, as doubtless the far more judicious spirit of the English peers to yield to the people's demands, if clearly and repeatedly pronounced, has contributed much. Mr. Hallam has very correct remarks on the subject of English equality of civil rights, where he speaks of the reign of Henry III.

It was the time when Haller wrote his Restoration of Political Sciences, in which he endeavors to excel Filmer, and does not blush to hold up uncompromising absolutism, although a native of Switzerland. Having secretly become a Catholic, he passed into the service of the Bourbons. The student of political science, desirous of making himself acquainted with the political literature of the European continent of this period in its whole extent, is referred to a German work of a high order, Robert von Mohl's History and Literature of the Political Sciences, 3 vols., large 8vo, Erlangen, 1855 to 1858, (containing 2052 pages.) The comprehensive erudition and liberal judgment of the author, as well as the patient research in the literature of the day and the past and of all civilized countries, make this work a storehouse of historical and critical knowledge concerning political literature, for which every scholar of this branch must feel deeply indebted to him.

The very etymology, with its present meaning, is significant.

There are persons among us who have fallen into this error; and it will always be found that they proportionately disregard our institutions, or are not imbued with esteem for institutional government. I lately received a pamphlet in which the author wishes for a confederacy embracing America from Greenland to Cape Horn. “Universal governments” were the dream of Henry IV., and again pressed into service by Napoleon. I am not able to answer the reader, why that confederacy should comprehend America only. There is no principle or self-defining idea in the term America. America is a name. The water which surrounds it has nothing to do with principles. Water, once the Disso-ciabile Mare, now connects. Polynesia ought to be added, and perhaps Further Asia, and why not Hindostan? Our oath of allegiance might be improved by promising to be faithful to the United States et cetera, as Archbishop Laud's famous oath bound the person who took it upon an Et Cetera.

The same phenomenon may be observed in the more philosophical division of history. People begin to divide the history of a nation by the monarchs, or by any other labelling. When they penetrate deeper, they divide history by the rise and fall of institutions, of classes, of interests, of great ideas. To divide the history of England by George I. and George II. is about as philosophical as if a geologist were to color a chart, not according to the great layers that constitute the earth, but by indicating where the people walking upon it wear shoes or sabots, or walk barefooted.

We ought to compare the repeated advice of the greatest of Americans, to beware of alliances, with the contents of such works as Raumer's Diplomatic Dispatches of the Last Century. It is for this reason that the present publicity of diplomacy has such vital importance.

The cyclopean walls in Greece and Italy, built before the memory even of the ancients, and many of which still stand as firm as if raised in recent times, have their strength in the irregularity of the component stones, and the close fitting of one to the other, so that no interstices are left even for a blade of grass to grow. An irregular polygonal stone was placed first; sheets of lead were then closely fitted to the upper and lateral surfaces. When taken off, they served as the patterns according to which the stones to be placed next were hewn. It was this sheet and this mode of proceeding which was called the Lesbian canon or rule, while the canon or rule which the architect laid down alike for all stones of an intended wall was called a general canon. See On the Cyclopean Walls, by Forchhammer, Kiel, 1847. Now, Aristotle compares the general law, the nomos, to the general canon, but the particular law, the psephisma, ought, as he says, to be made by the Lesbian canon. Ethica ad Nicomachum, 5, 14. It is inelegant, I readily confess, to use a figure which it is necessary to explain, but I am not acquainted with any process in modern arts similar to the one used as an illustration by the great philosopher, except the forming of the dentist's gold plate according to a mould taken from nature itself. I naturally preferred the simile of the philosopher, even with an explanatory note, to the unbidden associations which the other simile carries along with it. Nor would I withhold from my reader the pleasure we enjoy when a figure or simile is presented to us so closely fitting the thought, like the Lesbian canon, and so exact that itself amounts to the enunciation of an important truth, well formulated. This is the case with Aristotle's figure.

In my Political Ethics, first published in 1838.

I do not know that this opinion was ever more strikingly symbolized than lately, when Lord John Russell, the leader of the administration in the commons, moved an address of congratulation to the queen on the birth of a prince, and Mr. Disraeli, the leader of the opposition in the same branch, seconded the motion, while a similar motion was made in the lords by Lord Aberdeen, the premier of the administration, seconded by the Earl of Derby, the premier of the lately ousted administration, and very bitter opponent to the present ministry. What the queen is, in this respect, in England, the constitution, or rather the Union, is in the United States. Our feelings of loyally centre in these, but not in our president, any more than an Englishman's loyalty finds a symbol in his prime minister.

Mr. Emil Giraidin, who has been referred to several times. He is an unreserved writer, who knows how to express his ideas distinctly, and who is a representative of very large numbers of his countrymen. In connection with the expression of Mr Girardin given in the text, the dictum of the Emperor Napoleon III. about the time of his elevation to the throne, may be given. He said: In crowning me, France crowns herself. The reader will find at the end of this work a similar expression of the emperor, when he opened the restored Louvre, namely, that France, in building palaces for her kings, built them to honor herself and to symbolize her unity. Unfortunately, Louis XIV. sorely repented on his death-bed his passion for building, and expressed it in warning counsel to Louis XV.

Lord Brougham, in his Political Philosophy, speaks in terms of high praise of the elective government of the former Germanic empire. Native and contemporary writers have not done so. It was only after the expulsion of the French, and when the German people instinctively longed for German unity and dignity, that, at one time, a poetic longing for the return of the medieval empire was expressed by some. If there be any German left who still desires a return to the elective empire, he must be of a very retrospective character.

Machiavelli—tanto nomini nullum par elogium—says in his Prince, “But in the new government lies the greatest difficulty.” This depends upon circumstances. He undoubtedly had in mind the difficulty of uniting Italy, or rather of eliminating so many governments and establishing one Italian state. For there has been no noble Italian, since the times when Dante called his own Italy, Di dolor ostello, that does not yearn for the union of his noble land, and look for the realization of his hopes as fervently as he believes in a God. Machiavelli was one of the foremost among these true Italians. But he had not lived through our times. There are times when the people throw themselves into the arms of any one that possibly may save them from impending or imaginary shipwreck, or promises to do so. Wearied people will take a stone for a pillow, and no persons deceive themselves so readily as the panic-stricken. On such occasions it is easy to establish a new government, especially if cumbersome conscience is set aside. The reverse of Machiavelli's dictum then takes place, and the greatest difficulty lies in maintaining a government. This applies even to administrations and ministries. All is pleasant sailing at first. A new power charms like a rising sun; but the heat of noon follows upon the morning.

Harris, in his Oceana, St. Just, in the first French revolution, and many former and recent writers, might be mentioned.

These differences between antiquity and modern times, all of which are more or less connected with Christianity and the institution, are:

1. That in antiquity only one nation flourished at a time. The course of history, therefore, flows in a narrow channel, and the historian can easily arrange universal ancient history. In modern periods, many nations flourish at the same time, and their history resembles the broad Atlantic, on which they all freely meet.

2. Ancient states are short-lived; modern states have a far greater tenacity of life.

3. Ancient states, when once declining, were irretrievably lost. Their history is that of a rising curve, with its maximum and declension. Modern states have frequently shown a recuperative power. Compare present England with that of Charles II., France as it is with the times of Louis XV.

4. Ancient liberty and wealth were incompatible, at least for any length of time; modern nations may grow freer while they are growing wealthy.

5. Ancient liberty dwelt in city-states only; modern liberty requires enlarged societies—nations.

6. Ancient liberty demanded disregard of individual liberty; modern liberty is founded upon it.

7. The ancients had no international law. (Nor have the Asiatics now. The incipiency of international law is, indeed, visible with all tribes, for they are men. The Romans sent heralds to declare war, and the Greek, advised to poison his arrows, declines doing so, “for,” Homer makes him say, “I fear the gods will punish me.”)

Indeed, the enormous treasures occasionally met with in Asia are indications of her comparative poverty.

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

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

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

Mr. Burke, in 1788.

He spoke of Wilkes's expulsion.

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

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

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

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

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

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

Sec paper on Elections, in the Appendix.

A sepulchral inscription in honor of Masaniello had an allusion conceived in a similar spirit. I give it entire, as it probably will be interesting to many readers.

Eulogium Thomæe Aniello de Amalfio Cetario mox Cesareo Honore conspicuo qui Oppressa patria Parthenope cum Suppressione nobilium Combustione mobilium Purgatione exulum Extinctione vectigalium Proregis injustitia Libtrata Ab his quos liberavit est peringrate occisus Ætatis suæ anno vigesimo sebtimo, imperii vero Decennio Mortuus non minus quam vivus Triumphavit Tantæ rei populus Neapolitanus tanquam immemor Posuit.

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

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

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

That absolutism and imperatorial sovereignty go hand in hand, was neatly acknowledged by an inscription over the sub-prefecture of Dunkerque, when the imperial couple passed it, in 1855. It was to this effect: À l'héritier de Napoléon, la ville de Louis XIV.

Mr. Michel, on the 10th of November. I quote from the French papers, which gave detailed reports. Mr. Michel, to judge from his own speech, seems to have been the oldest of the defending advocates.

This error broke forth into full blaze at the indicated time, but it had of course been long smouldering, and, as is customary, had found some fuel even in our country. In the year 1841, during the presidential canvass, a gentleman—who has since become the editor of a Catholic periodical, and has probably changed his views—published a pamphlet in which he attacked individual property, and fell into the same error which is spoken of in the text above.

The author of the pamphlet, which was very widely distributed, found it of course impossible to draw the line between the workmen and those who are not “working,” and I recollect that he did not even allow the superintendent of a factory to be a workman. I have treated of these subjects in detail in my Essays on Labor and Property, and believe that a Humboldt is a harder “working man,” not indeed than the poor weaver who allows himself but five hours' rest in the whole twenty-four, but certainly a far harder working man than any of those physically employed persons who want to make their class a privileged order. The fact is simply this, that there is no toiling man, however laboriously employed in a physical way, that does not guide his efforts by an exertion of the brain, and no mentally employed man that is not obliged to accompany his labor by some, frequently by much, physical exertion. To draw an exact line between the two, for political purposes, is impossible. All attempts at doing so are mischievous. The hands and the brain rule the world. All labor is manual and cerebral, but the proportion in which the elements combine is infinite. So soon as no cerebral labor is necessary, we substitute the animal or the machine. In reading some socialist works, one would almost suppose that men had returned to some worship of the animal element, raising pure physical exertion above all other human endeavors. Humanity does not present itself more respectably than in the industrious and intelligent artisan, but every artisan justly strives to reach that position in which he works more by the intellect than by physical exertion. He strives to be an employer. The type of a self-dependent and striving American artisan is a really noble type. The author hopes to count many an American operative among his readers; and, if he be not deceived, he takes this opportunity of declaring that he believes he too has a very fair title to be called a hardworking man, without claiming any peculiar civil privileges on that account

The idea that God speaks through the voice of the people, familiar to the middle ages, is connected with the elections of ruder times by general acclaim. It reminds us also of the Dieu le veut, at Clermont, when Peter the Hermit called on the chivalry and the people to take the sign of the cross. And again it reminds us of the disastrous décrets d'acclamation of the first French revolution. That the government is the true representative of the people has been often asserted in recent times in France, and Napoleon I., in one of his addresses, delivered in the council of state, said: The government, too, is the representative of the people.—Miot de Melito, in his. Memoirs.

See the Paper on Elections, in the Appendix.

Mr. de Morny is the frère adultérin of Louis Napoleon, on the mother's side, Queen Hortense. He aided his half-brother very actively in the overthrow of the republic, and the establishment of the empire. Mr. de Morny lost the ministry at the time when L. Bonaparte despoiled the Orleans family of their lawful property, and, it was believed, because the minister could not in his conscience sanction an act at once so unlawful and ungrateful.

When the question of the new imperial crown was before the people of France, Count Chambord, the Bourbon prince who claims the crown of France on the principle of legitimacy, wrote a letter to his adherents, exhorting them not to vote. The leading government papers stated at the time that government would have permitted the publication of this letter, had it not attacked the principle of the people's sovereignty. The people were acknowledged sovereign, yet the government decides what the sovereign may read!

There are psychological processes which indicate suspicious intentions—the adoption of a new and scientifically sounding term for an old and common offence, as Repudiation for declining to pay what is due; and of mystifying, high-sounding abstractions in statesmanship. The latter is carried to a degree, in the following address of Napoleon, which is rare even in France. Louis XIV., according to the present emperor of the French, the great representative of French unity and glory, when he had ruined France by the building of Versailles, warned, on his death-bed, his successor to beware of wars and of building. There are so many points of French politics tersely put in the speech of Napoleon III., when in September of 1857 he opened the Louvre, that its record may be considered a historical document. We give it therefore entire.

The ceremony of opening the Louvre was simple but imposing. The ministers, marshals and generals, the senators and great functionaries, assembled in the hall of the Louvre. The emperor and empress arrived at two o'clock with a vast retinue. The business began by the presentation of an address to the emperor from M. Fould, briefly describing the origin and completion of a work which, begun in 1852 and finished in 1857, unites the Louvre and the Tuileries. The emperor next distributed the legion of honor to the professional men who have distinguished themselves during the election of the building; making some commanders, some simple knights. Having distributed all the honors, the emperor delivered the following address:

“Gentlemen—I congratulate myself, with you, on the completion of the Louvre, I congratulate myself especially upon the causes which have rendered it possible. In fact, it is order, restored stability, and the ever-increasing prosperity of the country, which have enabled me to complete this national work. I call it so because the governments which have succeeded each other have made it a point to do something towards the completion of the royal dwelling commenced by Francis I. and embellished by Henry II.

“Whence this perseverance, and even this popularity, in the building of a palace? It is because the character of a people is reflected in its institutions as in its customs, in the events that excite its enthusiasm as well as in the monuments which become the object of its chief interest. Now France, monarchical for so many centuries, which always beheld in the central power the representative of her grandeur and of her nationality, wished that the dwelling of the sovereign should be worthy of the country; and the best means of responding to that sentiment was to adorn that dwelling with the different masterpieces of human intelligence.

“In the middle ages, the king dwelt in a fortress, bristling with defensive works; but soon the progress of civilization superseded battlements, and the produce of letters, of the arts and sciences, took the place of weapons of war. Thus the history of monuments has also its philosophy as well as the history of events.

“In like manner as it is remarkable that at the time of the first revolution, the committee of public welfare should have continued, without being aware of it, the work of Louis XI., of Richelieu, of Louis XIV., giving the last blow to the feudal system, and carrying out the system of unity and centralization, the constant aim of monarchy—in like manner is there not a great lesson to learn in beholding the idea of Henry IV., of Louis XIII., of Louis XIV., of Louis XV., of Louis XVI., of Napoleon, as regards the Louvre, adopted by the ephemeral power of 1848? One of the first acts, in fact, of the provisional government, was to decree the completion of the palace of our kings. So true is it that a nation draws from its antecedents, as an individual derives from his education, ideas which the passions of a moment do not succeed in destroying. When a moral impulse is the consequence of the social condition of a country, it is handed down through centuries, and through different forms of government, until the object in view is attained.

“Thus the completion of the Louvre, towards which I thank you for your cooperation, given with so much zeal and skill, is not the caprice of a moment, but is the realization of a plan conceived for the glory and kept alive by the instinct of the country for more than three hundred years.”

In the evening some hundreds of persons engaged in the work—workingmen, artists, men of letters, journalists—were entertained at dinner by the minister of state in a gallery of the Louvre. Of course the speaking was ultra-loyal.

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 Intelligence, Morals and Religion, by Robert Vaughn, D.D., London, 1843.

This manifests itself in all spheres. Paris leads in fashion, art, science, language, etc. England has her Oxford and Cambridge.

The title of Walker's Critical Pronouncing Dictionary has these words: “likewise Rules to be observed by the Natives of Scotland, Ireland and London, for avoiding their respective Peculiarities,” as indicating part of the contents. This is strikingly English. The pronunciation and “peculiarities” of the Parisians, even as they change from time to time, are the very standard of French pronunciation.

Similar remarks may be made regarding the courts. The court of Versailles dictated in every sphere at the time when Horace Walpole, the whig, wrote that the English court was not fashionable, and was considered little better than a number of Germans kept there for some useful practical end.

According to the latest news, even the dead are under the control of government, 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 occasions. The blasphemous flattery offered by some dignitaries of the church to Napoleon I. was revolting. We have seen the same when there seemed to be a question who could bid highest in burning incense to the present new Cæsar. The Lord's Prayer was travestied. The following “proclamation” is taken from the “Concorde de Seine et Oise,” of October, 1852, for the very reason that it is not one of the worst:

“Town of Sèvres. Proclamation of the Empire.

“Inhabitants—Paris, the heart of France, acclaimed on the 10th of May for its emperor him whose divine mission is every day revealed in such a striking and dazzling manner. At this moment it is the whole of France electrified which salutes her savior, the elect of God, by this new title, which clothes him with sovereign power: ‘God wills it,’ is repeated with one voice—‘vox populi vox Dei.’ It is the marriage of France with the envoy of God, which is contracted in the face of the universe, under the auspices of all the constituted bodies, and of all the people. That union is sanctified by all the ministers of religion, and by all the princes of the church. These addresses, these petitions, and these speeches, which are at this moment exchanging between the chief of the state and France, are the documents connected with that holy union; every one wishes to sign them, as at the church he would sign the marriage-deed at which he is present. Inhabitants of Sèvres, as the interpreter of your sentiments, I have prepared the deed which makes you take part in this great national movement. Two books are opened at the Mairie to receive your signatures: one of them will be offered in your presence to him whom I from this day designate under the title of emperor. Let us hope that he will deign to accede to the supplications which I shall address to him in your name, to return to the palace of St. Cloud through our territory, by the gate of honor which we possess. The other book, which I shall present for the signature of the prince, will remain in your archives as a happy souvenir of this memorable epoch. Let all the population, without distinction, come, therefore, and sign this document; it sets forth that which is in your heart and in your will.”

This document is accompanied by a formal proclamation, appropriately signed—”Ménager, mayor.”

Plain dealing, however, obliges us to remember, along with such extravagances of foreigners, the repulsive flattery in which some individuals indulged when Kossuth was among us. Nor must we wholly forget the language of certain daily journals at the time of General Jackson's administration. But these were erratic acts of individuals, and, however disgusting, were not officially received by government.

Mr. Chevalier.

St. Luke, xxiii. 13, 21.

Sir Wm. Hamilton begins the third paragraph, page 770, of The Works of Thomas Reid on the Universality of the Philosophy of Common Sense, in this way:

“1.—Hesiod thus terminates his Works and Days:

“The Word proclaimed by the concordant voice Of mankind fails not; for in Man speaks God.”

“Hence the adage?—Vox Populi, vox Dei.”

It is well the learned sage added the query, for, historically at least, the V. P. V. D. certainly does not come from Hesiod.

For many years I was under the impression that I had found this fact when studying the times of Abelard; but I must confess that all my attempts to recover it, when I came to write on this subject, have been fruitless. Sanderson, whom Mr. Hallam calls the most distinguished English casuist, treats of the maxim in his work De Conscientia. I copy from the London Notes and Queries, Nov. 19, 1853, the following passage, which was elicited by the preceding portion of this note:

“The earliest known instances of the use of the saying are, by William of Malmesbury, who, speaking of Odo yielding his consent to be Archbishop of Canterbury, A.D. 920, says, Recogitans illud Proverbium, ‘Vox Populi, vox Dei;’ and by Walter Reynolds, Archbishop of Canterbury, who, as we learn from Walsingham, took it as his text for the sermon which he preached when Edward III. was called to the throne from which the people had pulled down Edward II The reader is farther referred to Mr. G. Cornewall Lewis's Essay on the Influence of Authority in Matters of Opinion, (pp. 172, 173, and the accompanying notes,) for some interesting remarks upon it.”

It may, however, be mentioned, as a historical fact, that even fashion has been shrewdly drawn within the sphere of public action and influence, by the Emperor Napoleon III., through his graceful empress.

It has been calculated that several millions of human beings have been sacrificed by witch-trials in modern times. [!] An article in the Westminster Review, January, 1859, shows that the belief in witches is yet causing occasional disorder and crime in England. Indeed, if the famous Quod omnibus, etc., could ever be applied to any subject, it is to this. It has existed and still exists in all the coiners of the earth, and with tribes wholly insulated. There has been always whipping in the armies, until Always ceased; there was always slavery until it ceased; a multitude of gods was always worshipped; ghosts were always believed 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 poisoned 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 individuals; 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 roan increases his wealth so he deprives others of it; it was always believed that the security of the state requires the masses to be ground down; it was always believed that the eastern continent was all the land of the earth, and the suspicion that there might be another continent was even declared heretical; it was always believed that great cleanliness was not conducive to the health of children; it was always believed that indicted persons ought to be tortured, if they would not confess otherwise; it was always believed that persons accused of treason or witchcraft ought not, on account of the “heinousness of their crimes,” to have that protection which was granted to other indicted prisoners—until the Always and Everywhere ceased. These errors, most of which have caused commotions, risings, and bloodshed, were certainly the opinion of the people; they were the opinion of our whole race, but assuredly not the vox Dei.

Wherever a Semper et ubique exists, such as it is, and if not artificially produced, 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.

Dii laneos habent pedes.

The doctrine Vox Populi Vox Dei, is capable of development. In November, for, 1857, some female, addressing a crowd in the city of New York, said: The voice of the working-men is the voice of God.

Which might lead to this syllogism:

The subject of Mobs has been enlarged upon in the Political Ethics.

The Paris journal, Le Pays, informed the public, at the time the present empire was established, that it had been raised to the dignity of an official paper to the imperial government. The announcement is made in that proclamatory and sententious style so much relished by the French, and in one of the paragraphs, standing by itself, it offers, with a naïveté which, surpasses anything the writer can remember, this comforting assurance:

“In approaching power more closely, we shall not cease to have opinions.”

The facts that it is the “journal of the empire,” that the whole article is short, that every sentence seems to be well weighed by the editor, a writer of note, and that the declaration was made on a very important occasion, give to the whole a character which entitles us to take it as something more than a passing newspaper sentence.

When the maxim Vox populi vox Dei prevails, and governments change in rapid succession, it is a necessary result that there are hosts of turncoats. The French published in 1826, or thereabouts, a bitter satire on this held of politicians, consisting of a work called Dictionnaire des Girouettes—literally translated, Dictionary of Weathercocks; but Anglicized, Dictionary of Turncoats. The names which headed the biographies in the book were succeeded by a number of symbolical weathercocks equal to the number of political somersets of which the respective persons could boast. There was a fearful row of hiero-glyphical vanes after some names. But in reading this droll and bitter account relating to a foreign nation, let us not forget St. Luke, vi. 41.

There is no other term in our language, although it is obvious that these processes cannot be properly called elections. Votings would be more correct.

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 commune Saint-André (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 Icelanders sometimes decided by vote whether Christ or the old gods should be worshipped.

This knowledge of the vote which an elector will give does of coarse not 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 popular vote indicates a proportion between the presidential candidates very different from that which appears from the official votes of the electors. For instance, the popular vote at the last presidential election stood:

and the votes of the electors stood

So that the popular vote stood:

But the votes of the electors:

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.

[Schömann, Gr. Alterth., i. 398, considers that 6000 was the number necessary to be cast against any one person, following in this the corrected Schol. on Aristoph. Eq. 852, (855.) Plutarch, not a first-rate authority, is a clear witness on the other side. He says that the archons counted the mass of votes, and if in all there were not 6000, declared that nothing had been done. This seems on the whole most probable. It is not clear that a plurality out of 6000 decided the ostracism of one who had been voted upon.]

See the Laws of New Plymouth, published by Authority, Boston, 1836, pp 41 and 128.

In Letter VIII. of Silas Steadfast (believed to have been George S. Hillard) en the proposed change of the constitution of Massachusetts, it is said: “In point of fact, no governor of Massachusetts was ever chosen by a majority of all the existing votes.“

In November, 1853, when great excitement about the new constitution existed in Massachusetts, the vote for governor (who was voted for at the same time) stood thus:

which resembles closely the vote of 1851.

In dividing by four I reduce the number of qualified voters in the United States too much, as will appear from the following table, abstracted from the American Census of 1850, and kindly furnished me by Mr. De Bow, at present superintendent of the census:

This gives an average ratio of 3.784. But this table shows the proportion of white males of twenty years and upwards, while a person acquires the right of voting with his twenty-first year only. It will be, therefore, pretty correct, if I take one-fourth of the whole white population. In several states colored persons go to the polls. If they were counted, it would reduce the proportion of actual voters to the number of qualified voters; but I am willing to take one-fourth only.

I am aware that, apparently, Votare has not been used in Low Latin for voting. Du Cange says that Votum was used in the middle ages for suffrage, but Votare for Vovere, Spondere. As it is, however, no uncommon case in the English language to have a noun and an adjective which is not derived directly from the former but from an intermediate though “missing” verb, which would be derived from the noun, did it exist, I feel sure the reader will permit me to use the term Votant, in a language in which brevity is often considered to cover logical and etymological sins.

See the preamble to the constitution proclaimed by Louis Napoleon

On the 10th of December, 1848, when the first French president, for four years, was voted for:

France contained, in the year 1846, 35,400,486 inhabitants; consequently, in 1848 there were about 9,000,000 of authorized voters; and 7,327,345 having voted, about 80 in 100 went to the poll, according to this statement. Yet it must be supposed that the eagerness to go to the ballot-box was, in that year, much greater than after the coup d'état.

The reader cannot fail to remember here the constitution proposed by Mad. de Staël 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.

An inaccuracy of terms has in the case of the veto power created much confusion. The ancient tribune had the privilege of vetoing, and, a so-called vetoing power being ascribed to the chief magistrate of modern constitutional states, people are apt to confound the two, and attack or defend them on common grounds. Yet the two differ materially. The Roman tribune [could prevent the passage of a law and of a decree of the senate by his intercession or veto, and he could by his auxilium, as the magistrate originally of the plebs, obstruct acts of magistrates judged by him to be adverse to the interests of the plebs, (and afterwards of the populus,) even to the extent of arresting them. This last was 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 nothing more than the withholding of one necessary ingredient to pass a bill into a law. In governments where the crown has the concurrent or sole initiative, either house, whose consent is necessary in order to make a law, may be said to have the veto power against the crown with the same propriety with which we call the power, in our president, of withholding his approval a vetoing power. The president can never interrupt the operation of a law once made a law. In the case of pardoning, however, the power actually amounts to a tribunitial veto. There the executive, or whoever may possess the pardoning privilege, actually stops the ordinary operation of the law. A man has been laboriously tried and sentenced according to the course minutely laid down by the law, and another power steps in, not according to a 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. 200, 201, 202, of this work.

Voyage en Perse, London, 1686-1715.

Demosthenes against Timocrates.

Cicero in Verrem 7.

Des Lois Pénales.

Crimes and Punishments, chap. 46, on Pardons; English Translation, 1807

At the beginning of 1858 it appeared from certain documents published in California, that a petition to the governor, numerously signed by citizens of Monterey, to pardon one Jose Anastasia, under the sentence of death, claimed the pardon on the ground that Jose was the only fiddler in Monterey that understood properly to play for dancing.

Lord Mansfield is reported justly to have remarked to George HI., who wished to save the Rev. Dr. Dodd from the gallows, to which he had been sentenced for forgery: “If Dr. Dodd does not suffer the just sentence of the law, the Perreaus may be said to have been murdered.” Holliday's Life of Lord Mansfield, London, 1797, p. 149. The Perreaus were apothecaries of very high standing, but had been hanged for forgery, in spite of the most weighty petitions.

This unhallowed abuse has been raised into a law by Sir George Grey's Expatriation Law, passed in 1847, according to which convicts who behave well shall be pardoned after the lapse of two-thirds of the imprisonment to which they had been originally sentenced, provided they will leave the country.

Translated, with many additions, by Francis Lieber, Philadelphia, 1833.

While these sheets are passing through the press, the papers report that the governor of a large state has pardoned thirty criminals, among whom were some of the worst character, at one stroke, on leaving the gubernatorial chair. What a legacy to the people! Lord Brougham said that the only aim of counsel for the prisoner was to get him clear, no matter what the consequences might be. If all the lawyers acted on this saying, and all the executives as the mentioned governor, Justice might as well shut up her halls, and the people save the expenses 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 mistresses and courtiers who carried on the infamous traffic, though the monarchs knew about it.

House of Representatives, of Massachusetts, 1846, No. 63.

While the work was passing through the press, a document, published by the Massachusetts convention to amend the state constitution, reached the writer. It contains “A List of Pardons, Commutations and Remissions of Sentence, granted to Convicts by the Executive of the Commonwealth for the ten years including 1843 and 1852.” Unfortunately, this important paper, which contains the names of the persons, sentences, number of years sentenced, number of years remitted, and the crimes, does not give any classifications, summings-up, or comparisons with the number of sentences and unremitted punishments. It only exhibits the following recapitulation for 10 years from 1843 to 1852:

This paper will doubtless be made the basis of very instructive statistical calculations, and it is greatly to be desired that other states would follow. As it is, I am incapable of giving at this moment any other information. It would require other documents, which I have not about me. My remarks are not intended to reflect on the gentleman who has drawn up the paper; for it appears that the convention ordered the paper on the 18th of June, and on July 5th it was handed in. There was then no time to collect the materials for comparisons such as I have alluded to. What is now most important to know is the sum total of what sentences for what crimes were chiefly remitted or pardoned; for what reasons, what proportion pardons, &c, bear to unremitted sentences; for what crimes and what duration these sentences were inflicted; of what countries the pardoned, &c., convicts were; and what proportion the pardoned, &c., short sentences bear to pardoned, &c., long sentences or death.

A few examples may illustrate the truth too often forgotten: No farmer can determine the fitness of a given climate for the culture of a certain plant from the mean heat of the summer or the mean cold of the winter; for the mean heat does not indicate whether the weather is uniform or violently changeable; the mean interest at which money may have been obtainable in the course of the year does not indicate the truth, unless we know that it has not been pecuhaily low at some periods and extraordinarily high at others; the general criminality of a community cannot be calculated from the percentage of crime, unless we know that there has not been a peculiarly disturbing cause: for instance, one man who has murdered half a dozen of people in a comparatively small com munity; and the mischief produced by pardons cannot be calculated by the average percentage alone, if we do not know that among these pardons there were not some peculiarly arbitrary or peculiarly hostile to the ends of justice. A wholesale pardon may be warranted by the truest principles, and a single arbitrary pardon may shock the whole community.

The Constitution of the late French Republic of 1848 has this provision:

“Art. 55. He (the president of the republic) shall possess the right of pardon, but he shall not have the power to exercise the right until after he has taken the advice of the council of state. Amnesties shall only be granted by an express law. The president of the republic, the ministers, as well as all other persons condemned by the high court of justice, can only be pardoned by the national assembly.”

I do not consider it desirable that the pardoning power be given or imposed upon a political body already existing for other purposes, as in this case to the council of state; but I have cited this provision to show that the French at that time did nut consider the limitation of the pardoning power in the executive unfavorable to popular liberty.

A remarkable proof of this fact seems to have been afforded by the late constituent assembly of the state of New York; for, so far as we are aware, there was no debate on the question whether the pardoning power ought to be left uncontrolled in the hands of the executive. We can very well imagine that, after a discussion of this subject, a majority might have decided, erroneously in our opinion, that the pardoning privilege ought to remain where it was; but we cannot imagine that a large number of men could have possibly been from the beginning so unanimous upon so important a subject, that not even a discussion was elicited, had the pardoning been made a subject of any reflection at all. This is impossible in the nature of things. Men will differ in opinion upon almost any point, and would certainly have differed upon so weighty and delicate a subject, had their minds been directed to it.

We certainly think that ill health, threatening disastrous consequences, should form a ground of release in cases of comparatively short sentences, if no good prison hospital exists. But, even where no hospital exists (which is undoubtedly a great deficiency), much caution must be exercised. An experienced and highly respectable prison physician in Massachusetts stated in his report, some years ago, that pardons on account of deficient health had a tendency to increase sickness 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 imprisoned 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 imprisonment. There are more serious consequences than this, which we are, nevertheless, unable to separate from punishment. Punishment ought always to be individual, and to strike no one but the evil-doer: yet there is hardly ever an individual punished whose sentence does not at the same time entail moral or physical suffering upon others. Men are decreed to constitute societies, with concatenated weal and woe, and human judges cannot punish without indirectly inflicting suffering upon those who are unconnected with the crime, but connected with the criminal. If we were absolutely to follow out the first principle, that the offender alone should suffer, we could not punish a single convict.

National Gazette, Philadelphia, October 10, 1833.

De la Ville de Mirmont, Observations sur les Maisons Centrales de Detention de Paris, 1833, p. 55, and sequ.

National Intelligencer, Washington, July 12, 1853.

It would seem that the torture actually continues to exist in some parts of Europe. The following is taken from the London Spectator, of December 22d, 1849, which gives as its authority the well-known Allgemeine Zeitung, published at Augsburg, and, consequently, not far from Switzerland

“A strange cncumstance, says the Allgemeine Zeitung, has just taken place at Herisau, the capital of Inner Appenzell, in Switzerland, showing how much, in these countries of old liberties, civilization is behindhand in some matters. A young girl of nineteen, some months back, assassinated her rival. Her lover was arrested with her, and, as she accused him of the crime, both were put to the torture. The girl yielded to the pain, and confessed her crime, the young man held firm in his denial: the former was condemned to death, and on the 7th of this month was decapitated with the sword, in the market-place of Herisau. This fact is itself a startling one, but the details are just as strange. For two hours the woman was able to struggle against four individuals charged with the execution. After the first hour the strength of the woman was still so great that the men were obliged to desist; the authorities were then consulted, but they declared that justice ought to follow its course. The struggle then recommenced, with greater intensity, and despair seemed to have redoubled the woman's force. At the end of another hour she was at last bound by the hair to a stake, and the sword of the executioner then carried the sentence into effect.”

The author has touched upon the fact that, in our country, the abolition of trial by jury has been proposed, in the note appended to page 233. The topic is one of vital importance to our entire system of government and political existence It is for this reason that he does not hesitate to direct the earnest student of law, and of government, to a German work of high merit—Mr. Mittermaier's Legislation and Practice, with Reference to the Penal Trial, according to their Recent Development; Erlangen, 1856. The author had not become acquainted with this important work when the page referred to was printing; but the testimony given by the great criminalist, of the satisfactory results derived from trial by jury, even in countries where it has been recently established, has induced the author to append this note here, rather than leave his readers unacquainted with evidence of such weight in favor of so gieat an institution, considered by almost all friends of liberty as one of the substantial acquisitions obtained by our progressive race.

The Text-Book of the Constitution, Magna Charts, The Petition of Right and the Bill of Rights, with Historical Comments and Remarks on the Present Political Emergencies, by E. S. Creasy, M.A., Barrister-at-Law, Professor of History in University College, London, &c. London, 1848. A small work of 63 pages, excellent in its kind.

Since the first edition of the Civil Liberty was issued, Mr. Creasy has published The Rise and Progress of the English Constitution, London, 1853; the third edition of which was republished, in 1856, in New York, 12mo, 350 pages. It is the best book for the student to commence the study of the British Constitution, and preparatory for Hallam's Constitutional History of England. Throughout the present work it must have appeared that a knowledge of the English Constitution and of its history is indispensable for a correct understanding of our own, and I recommend the work of Mr. Creasy, in this point of view, to every young American student.

See 39th and 40th chapters of John's Charter.

“Par commun assent de tut le roiaume.” The version in our statute-book omits the important word “All.”

This petition was drawn up by Sir Edward Coke. Coke, 207, edit. of 1697.

Copied from the Statute at Large, by Danby Pickering, Esq., edit. 1763, vol. 8, p. 432.

This clause within brackets has been superseded and annulled by the 12th amendment, on pages 527-28.

This article 6 is substituted for the articles 6 and 7 of the old charter, which ran thus:

6. However, the catholic, apostolic and Roman religion, is the religion of the state.

7. The ministers of the catholic, apostolic and Roman religion, and those of other Christian confessions, alone receive stipends from the public treasury.

Article 8 of the old charter:

The French have the right to publish and to cause to be published their opinions, conforming themselves to the laws, which shall prevent the abuse of this liberty.

Article 14 of the old charter:

The king is the supreme head of the state, commands the forces by land and sea, declares war, makes treaties of peace, alliance and commerce, appoints to all offices of public administration, and makes rules and orders necessary for the execution of the laws and the safety of the state.

There was in article 15 of the old charter: and the chamber of deputies of the departments. These last three words have been suppressed.

Art. 15 is in the place of art. 16 and 17 of the old charter, which were thus:

Art. 16. 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.

Art. 17 is substituted for articles 19, 20 and 21, suppressed as useless, after the preceding provisions. They were the following:

Art. 19. The chambers have the right to petition the king to propose a law on any subject whatever, and to indicate what seems to them proper the law ought to contain.

Art. 20. This request may be made by each of the chambers; but, after having been discussed in secret committee, it is not to be sent to the other chamber, by that which proposes, until after the lapse of ten days.

Art. 21. If the proposition is adopted by the other chamber, it is to be laid before the king; if it is rejected, it cannot be presented again in the same session.

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 ordained by the king.

Art. 30 of the old charter:

The members of the royal family and the princes of the blood are peers by the right of birth; they sit immediately behind the president; but they have no deliberative voice before their twenty-fifth year.

Art. 31 was thus:

The princes cannot take their seat in the chamber, but by order of the king, expressed for each session by a message, under penalty of rendering everything null which has been done in their presence. Suppressed.

All deliberations of the chamber of peers are secret. Art. 32 of the old charter.

Art. 36 was thus:

Every department shall have the same number of deputies which it has previously had. Suppressed.

Art. 37 of the old charter:

The deputies shall be elected for five years, and in such a way that the chamber is renewed each year by a fifth.

Art. 38 of the old charter:

No deputy can be admitted into the chamber if he is not forty years old, and if he does not pay direct taxes of 1000 francs.

Article 39 of the old charter:

If, nevertheless, there should not be in the department fifty persons of the indicated age, paying at least 1000 francs direct taxes, their number will be completed by those who pay the highest taxes under 1000 francs; and these may be elected concurrently with the others.

Art. 40 of the old charter:

The electors who concur in electing the deputy cannot have the right of suffrage, if they do not pay a direct tax of 300 francs; and if they are less than thirty years of age.

Art. 41 of the old charter:

The presidents of the electoral colleges shall be nominated by the king, and be, by right, members of the college.

Art. 43 of the old charter:

The president of the chamber of deputies is nominated by the king, from a list of five members, presented by the chamber.

In consequence of the initiative, art. 46 and 47 are suppressed, which were thus:

46. No amendment can be made to a law, if it has not been proposed or consented to by the king, and if it has not been sent back and discussed by the bureaux.

47. The chamber of deputies receives all propositions of taxes; only after these laws have been consented to, they may be carried to the chamber of peers.

Article 56 of the old charter is suppressed; it ran thus:

They cannot be accused except for treason or peculation. Particular laws will specify this kind of offences, and will determine how they are to be prosecuted.

Art. 63 of the old charter:

In consequence there cannot be created extraordinary committees and tribunals. The jurisdictions prévôtales, if their re-establishment should be found necessary, are not comprised under this denomination.

Art. 73 of the old charter:

The colonies will be governed by particular laws and regulations.

Art. 74 of the old charter:

The king and his successors shall swear at the coronation, to observe faithfully the present constitutional charter.

Arts. 75 and 76 of the old charter are suppressed; they ran thus:

75. The deputies of the departments of France who sat in the legislative body, at the last adjournment, will continue to sit in the chamber of deputies, until replaced.

76. The first renewal of the fifth of the chamber of deputies will take place the latest in the year 1816, according to the order established.

The reader will find, on a subsequent page, that the whole of this constitution was retained under the empire, with the exception of a few passages, relating to the hereditary part of the empire.

This report was read by Mr. Troplong, chairman of the committee. It is universally ascribed to him, and Mr. Troplong is now president of the senate. Whether this remarkable paper be considered as a political creed or confiteor, or as a piece of attempted logic to connect certain occurrences and account for surprising turns, or as a high state paper of singular shallowness—in whatever light it may be viewed, it will be allowed on all hands that it fully deserves preservation.

See the speeches delivered in the Tribunal on the return to monarchy in 1804.

Tacitus: “Omnes, exutà equalitate, jussa principis adspectare.”—Annal. i. 4.