chapter xiv.: supremacy of the law.—taxation.—division of power.

19. THE supremacy of the law, in the sense in which it has already been mentioned, or the protection against the absolutism of one, of several, or the people, (which, practically, and for common transactions, means of course the majority,) requires other guarantees or checks of great importance.

It is necessary that the public funds be under close and efficient popular control, chiefly, therefore, under the supervision of the popular branch of the legislature, which is likewise the most important branch in granting the supplies, and the one in which, according to the English and American fundamental laws, all money bills must originate. The English are so jealous of this principle, that the commons will not even allow the lords to propose amendments affecting money grants or taxation.

If the power over the public treasury, and that of imposing taxes, be left to the executive, there is an end to public liberty. Hampden knew it when he made the trifling sum of a pound of unlawfully imposed ship-money a great national issue; and our Declaration of Independence enumerates, as one of the gravest grievances against the mother country, that England “has imposed taxes without our consent.”

One of the most serious mistakes of those who are not versed in liberty is to imagine that liberty consists in withholding the necessary power from government. Liberty is not of a negative character. It does not consist in merely denying power to government. Government must have power to perform its functions, and if no provision is made for an orderly and organic grant of power, it will, in cases of necessity, arrogate it. A liberty thus merely hedging in would resemble embankments of the Mississippi without an outlet for freshets. No one believes that there would be sufficient time to repair the crevasse. This applies to all the concerns of government, and especially to appropriations of money. Merely denying money to government, or, still worse, not creating a proper organism for granting it, must lead either to inanity or to executive plundering; but it is equally true that the strictest possible limitation and hedging in, by law, of the money grants, are as requisite for the cause of liberty as the avoidance of the error I have just pointed out. This subject is well treated in “The Federalist,” and the insufficiency of our ancient articles of confederation was one of the prominent causes which led our forefathers to the adoption of the federal constitution. Lord Nugent truly calls the power of granting or refusing supplies, vested in parliament, but especially in the house of commons, or, as he says, “the entire and independent control of parliament over the supplies,” “the stoutest buttress of the English constitution.”

It is the Anglican rule to make but short appropriations, and to make appropriations for distinct purposes. We insist still more on this principle than the English, and justly demand that appropriations be made as distinct and specific as possible, and that no transfer of appropriations by the executive take place; that is to say, that the executive be not authorized to use a certain appropriation, if not wholly spent, partially for purposes for which another appropriated sum has proved to be insufficient. It is not only necessary for vigorous civil liberty that the legislature, and chiefly the popular branch of it, keep the purse-strings of the public treasury; but also that the same principle be acted upon in all minor circles of the vast public fabric. The money of the people must be under the control of the trustees of the people, and not at the disposal of officials unconnected with the people, or at the disposal of an irresponsible multitude, which, itself without property, readily countenances those mal-appropriations of money which we meet with in every democratic absolutism, from the later times of Athens to the worst-governed large cities of our own country.

The French imperial constitution decrees, indeed, that the budgets of the different ministers must be voted by the deputies, but they must be voted each as a whole; no amendments can be made either in the sums thus voted in the lump, or in anything else proposed by the government, the government alone having the initiative. All the deputies can do is to send back a bill to the government, with remarks. The French provision, therefore, is founded on a principle the very opposite to that which we consider essential regarding money appropriations.

The history of the control over the public funds, in granting, specifying, and spending them, may well be said to be a continuous index of the growth of English liberty. It is this principle which has essentially aided in establishing self-government in England; and which has made the house of commons the real seat of the national government as we now find it. Every one knows that the “supplies” are the means by which the English effect in a regular and easy way that which the Roman populus occasionally and not regularly effected against the senate, by a refusal to enlist in the army when war was at the gates of the city.

The history of the British civil list, or the personal revenue granted to the monarch at the beginning of his reign, is also instructive in regard to this subject. In the middle ages the monarch was the chief nobleman, and had, like every other nobleman, his domains, from which he drew his revenue. Taxes were considered extraordinary gifts. As the monarch, however, wanted more money, either for just or unjust purposes, loans were made, which were never redeemed. Mr. Francis correctly observes, that it is absurd to charge William III. with having created a public debt, as Hume and so many others have done. William III., on the contrary, was the first monarch who treated loans really as loans, and provided either for their repayment or the payment of interest.

As civil liberty advanced, all revenue of the monarch, independent of the people, was more and more withdrawn from him, and crown domains were more and more made public domains, until we see George III. giving up all extra-parliamentary revenue. The monarch was made dependent on the civil list exclusively.

20. It is further necessary that the power of making war essentially reside with the people, and not with the executive. In England, it is true, the privilege of making war and concluding peace is called a royal prerogative, but, as no war can be carried on without the nervus rerum gerendarum, it is the commons who decide whether the war shall be carried on or not They can grant or decline the authority of enlisting men, and the money to support them and to provide for the war. The Constitution of the United States decrees that congress shall have power to make war, and an American declaration of war must be passed by congress, like any other law. A declaration of war by the United States is a law.

Where the executive has not only the nominal but the real power of declaring war, we cannot speak of civil liberty or of self-government; for that which most essentially affects the people in all their relations is in that case beyond their control. Even with the best-contrived safeguards, and a deeply rooted tradition, it seems impossible to guard against occasional high-handed assumption of power by the executive in this particular. Whatever our late Mexican war ultimately became in its character, there is probably now no person who will deny that, in its beginning, it was what is called a cabinet war. It was commenced by the cabinet, which, after hostilities had begun, called on congress to ratify its measures.

It has already been stated (paragraph 13) that a perfect dependence of the forces upon the civil power is an indispensable requisite and element of civil liberty.

21. The supremacy of the law and that unstinted protection of the individual as well as of society, in which civil liberty essentially consists, require on the one hand the fullest possible protection of the minority, and, on the other hand, the security of the majority that no factious minority or cabal shall rule over it.

The protection of the minority leads to that great institution, as it has been boldly but not inappropriately called—the opposition. A well-organized and fully protected opposition, in and out of the legislature—a loyal opposition, by which is meant a party which opposes, on principle, the administration, or the set of men who have, for the time being, the government in their hands, but does so under and within the common fundamental law—is so important an element of civil liberty, whether considered as a protecting fence or as a creative power, that it would be impossible here to give to the subject that space which its full treatment would require. I have attempted to do so, and to sketch its history, in my Political Ethics. [Book v. chap. 3.]

The elaboration of that which we call an opposition, is an honor which belongs to the English, and seems to me as great and as noble a contribution to the treasures of civil freedom as the development of the power of our supreme courts (of the United States and of the different states) to declare, upon trial of specific cases, a law passed by the legislature unconstitutional and void. They are two of the noblest acquisitions in the cause of liberty, order, and civilization.

22, The majority, and through it the people at large, are protected by the principle that the administration is founded upon party principles, or, as it has been called, upon a government by party, if by party we mean men who agree on certain “leading general principles in government” in opposition to others, and act in unison accordingly. If by party be understood a despicable union of men, to turn out a certain set of office-holders merely to obtain the lucrative places, and, when they are obtained, a union to keep them, it becomes an Odious faction of placemen or office-hunters, the last of those citizens to whom the government ought to be entrusted. The ruinous and rapidly degrading effect of such a state of things is directly contrary to sound liberty, and serves as a fearful encouragement to those who, politically speaking, are the most worthless. But freedom of thought and action produces contention in all spheres, and, where great tasks are to be performed and where weighty interests are at stake, those who agree on the most important principles will unite and must do so in order to be sufficiently strong to do their work. Without party administration and party action, it is impossible that the majority should rule, or that a vigorous opposition can rise to a majority and rule in turn. Liberty requires a parliamentary government, and no truly parliamentary government can be conceived of without the principle of party administration. It became fully developed under George I., or we should rather say under Sir Robert Walpole. Under the previous governments mixed cabinets of whigs and tories were common, when court intrigues and individual royal likings and dislikes had necessarily often a greater effect than national views and interests, to which it is the object of party administration to give the sway. We have to deal with parties, in this place, only as connected with civil liberty.

For their dangers, their affinity to faction as well as their existence in the arts, sciences, religion, and even in trades—in fact, wherever free action is allowed; for the public inconvenience, and indeed danger, in having more than two parties; the necessity that political parties should be founded upon broad, comprehensive, and political principles; for the galling insolence to which parties in power frequently rise, even in countries like ours; and for the fact that, in England at least, there is a manifest disposition to treat measures and politics in general, as far as possible, without reference to mere party politics; as well as for many other important matters connected with the subject of parties, I must refer to other places.

23. A principle and guarantee of liberty, so acknowledged and common with the Anglican people that few think of its magnitude, yet of really organic and fundamental importance, is the division of government into three distinct functions, or rather the keeping of these functions clearly apart.

It is, as has been mentioned, one of the greatest political blessings of England, that from a very early period her courts of justice were not occupied with “administrative business,” for instance, the collection of taxes, and that her parliament became the exclusive legislature, while the parliaments of France united a judicial, legislative, and administrative character. The union of these functions is absolutism, or despotism on the one hand, and slavery on the other, no matter in whom they are united, whether in one despot or in many, or in the multitude, as in Athens after the time of Cleon the tanner. The English political philosophers have pointed out long ago the necessity of keeping the three powers separate in a “constitutional” government Those, however, who have no other definition of liberty than that it is equality, discard this division, except, indeed, so far as the mere convenience of transacting business would require.

We have seen already that a distinguished French publicist, Mr. Girardin, declares himself for an undivided public power. Unité du pouvoir is the watchword of the French republicans, and it is the very principle with which Louis Napoleon checkmated them. It belongs to what may well be called Rousseau-ism. Rousseau is distinctly against division of power. His Social Contract became the political Bible of the convention-men, and it has ever since kept a firm hold on the mind of a very large part of the French people, probably of the largest portion. Indeed, we may say that the two great types of government now existing among the civilized and striving portion of mankind are representative (or, as the French choose to call it, parliamentary) government, which is essentially of a cooperative character-it is the government of Anglican liberty; and unity of power, the Galilean type. The French people themselves are divided according to these two types. Mr. Guizot may perhaps be considered as the French representative of the first type. A pamphlet, on the other hand, on government, and generally ascribed to Louis Napoleon, published not long before the explosion of the republic, for which it was evidently intended to prepare the public mind, advocates the unity of power in the last extreme, and as a truly French principle.

It may be granted that when French publicists and historians speak with undisguised praise of the introduction of centralization and unity of power as one of the greatest blessings, they may at times mean an organized and uniform government, as opposed to merely specific protection in antiquity and the middle ages, where tribunes, jurats, and other officers were appointed to protect certain interests or classes, somewhat like foreign ministers or consuls of the portions of society, in times of peace-it is possible that they occasionally mean something of this sort, without being quite conscious of the difference; but, as matters stand, we who love Anglican liberty believe that what is now and emphatically called unity of power is unvarnished absolutism. It is indifferent who wields it. We insist upon the supremacy, not the absolutism, of the legislature. We require the harmonious union of the co-operative whole, but abhor the unity of power.

What the French republicans demand in the name of the democracy, kings insist upon in the name of divine right. Both loudly protest against the “division of sovereignty,” which can only mean a clear division of power; for what in a philosophical sense can truly be called sovereignty can never be divided, and its division need not, therefore, be guarded against. Sovereignty is the self-sufficient source of all power from which all specific powers are derived. It can dwell, therefore, according to the views of freemen, with society, the nation only; but sovereignty is not absolutism. It is remarkable how all absolutists, monarchical or democratic, agree on the unity of power.

Power, according to its inherent nature, goes on increasing until checked. The reason is not that power is necessarily of an evil tendency, but because without it, it would not be power. Montesquieu says: “It is a lasting experience that every man who has power is brought to the abuse of it. He goes on until he finds its limits.” And it is so with “every man,” because it lies in the very nature of power itself. The reader is invited to reperuse “The Federalist” on this weighty subject.

The unity of power doubtless dazzles, and thus is the more dangerous. The French ought to listen to their own great countryman. He says: “A despotic government (and all unity of power is despotic) strikes the eye, (saute pour ainsi dire aux yeux;) it is uniform throughout: as it requires nothing but passions to establish it, all sorts of people are sufficiently good for it.”

Our own Webster, in his speech on the presidential protest, delivered the following admirable passage on the subject of which we treat, and on liberty in general—a passage which I give entire, in spite of its length, because I cannot find the courage to mutilate it. I have tried to select some sentences, but it seemed to me like attempting to break off some limbs of a master-work of sculpture which has happily come down to us entire.

Mr. Webster said: “The first object of a free people is the preservation of their liberty, and liberty is only to be preserved by maintaining constitutional restraints and just divisions of political power. Nothing is more deceptive or more dangerous than the pretence of a desire to simplify government.

“The simplest governments are despotisms; the next simplest, limited monarchies; but all republics, all governments of law, must impose numerous limitations and qualifications of authority, and give many positive and many qualified rights. In other words, they must be subject to rule and regulation. This is the very essence of free political institutions.

“The spirit of liberty is, indeed, a bold and fearless spirit; but it is also a sharp-sighted spirit; it is a cautious, sagacious, discriminating, far-seeing intelligence; it is jealous of encroachment, jealous of power, jealous of man. It demands checks; it seeks for guards; it insists on securities; it entrenches itself behind strong defences, and fortifies itself with all possible care against the assaults of ambition and passion. It does not trust the amiable weaknesses of human nature, and therefore it will not permit power to overstep its prescribed limits, though benevolence, good intent, and patriotic purpose come along with it. Neither does it satisfy itself with flashy and temporary resistance to its legal authority. For otherwise. It seeks for duration and permanence. It looks before and after; and, building on the experience of ages which are past, it labors diligently for the benefit of ages to come. This is the nature of constitutional liberty; and this is our liberty, if we will rightly understand and preserve it. Every free government is necessarily complicated, because all such governments establish restraints, as well on the power of government itself as on that of individuals. If we will abolish the distinction of branches, and have but one branch; if we will abolish jury trials, and leave all to the judge; if we will then ordain that the legislator shall himself be that judge; and if we place the executive power in the same hands, we may readily simplify government. We may easily bring it to the simplest of all possible forms, a pure despotism. But a separation of departments, so far as practicable, and the preservation of clear lines of division between them, is the fundamental idea in the creation of all our constitutions; and, doubtless, the continuance of regulated liberty depends on maintaining these boundaries.”

Unity of power, if sought for in wide-spread democracy, must always lead to monarchical absolutism. Virtually it is such; for it is indifferent what the appearance or name may be, the democracy is not a unit in reality; yet actual absolutism existing, it must be wielded by one man. All absolutism is therefore essentially a one-man government. The ruler may not immediately take the crown; the pear may not yet be ripe, as Napoleon said to Sieyes; but it soon ripens, and then the avowed absolute ruler has far more power than the king whose absolute power is traditional, because the tradition itself brings along with it some limitations by popular opinion. Of all absolute monarchs, however, it is true that “it is the vice of a pure (absolute) monarchy to raise the power so high and to surround it with so much grandeur that the head is turned of him who possesses it, and that those who are beneath him scarcely dare to look at him. The sovereign believes himself a god, the people fall into idolatry. People may then write on the duties of kings and the rights of subjects; they may even constantly preach upon them, but the situations have greater power than the words, and when the inequality is immense, the one easily forgets his duties, the others their rights.” Change the terms, and nearly every word applies to absolute democracies with equal truth. Aristotle says that extreme democracy (what we would call democratic absolutism) has the character of the tyrannis (monarchical absolutism.) This is true, yet we must add these modifications: The power of the absolute monarch, though centred in one man, according to theory is lent to him by those over whom he rules; he may be brought to an account; but the power of an absolute democracy is fearful reality, with which there is no reckoning. It strikes, and the strikers vanish. Where shall they be impeached? Even he who led them is shielded by the inorganic multitude that followed him. It is felt to be heroic to oppose the absolute monarch; it is considered unpatriotic or treasonable to oppose the absolute democracy, or those people who call themselves the people.

Absolute monarchs, indeed, often allow free words. The philosopher Kant uttered remarkable political sentiments under Frederic the Great, and Montesquieu published his Spirit of Laws under the auspices of Madame de Tencin, the chanoiness mistress of the Duke of Orleans, regent of France, and successively mistress of many others. Montesquieu was favored by these persons; for nothing is more common than that sprightly people have a sentimental love for the theory of liberty. But neither Kant nor Montesquieu would have been suffered to utter his sentiments had there been any fear whatever that they might pass into reality. There is an immense difference between admiring liberty as a philosophical speculation, loving her like an imaginary beauty by sonnet and madrigal, and uniting with her in real wedlock for better and for worse. Liberty is the loved wife and honored companion, through this earthly life, of every true American and Englishman, and no mistress for sentimental sport or the gratification of spasmodic passion, nor is she for them a misty nymph with whom a mortal falls in consuming love, nor is she the antiquated portrait of an ancestor, looked upon with respect, perhaps even with factitious reverence, but without life-imparting actuality.