chapter xxv.: the institution.—its definition.—its power for good and evil.

It has been shown that civil liberty, as we understand and cherish it, consists in a large amount of individual rights, checks of power, and guarantees of self-government. We have more or less fully indicated that self-government, in the sense in which we take it, and in connection with liberty, consists in the independence of the whole political society, in a national representative government and local self-government, which implies that even general laws and impulses are carried out and realized, as far as possible, by citizens who, in receiving an office, be it by election or appointment, essentially remain citizens, and do not become members of a hierarchy of placemen. We have seen that self-government, in general, requires that there be an organism to elaborate and ascertain public opinion, and that, when known, it shall pass into law, and, plainly, rule the rulers; that government interfere as an exception, and not as the rule; and that, on the other hand, self-government neither means self-absolutism, nor absence of rule, but that, on the contrary, liberty requires a true government. A weak government is a negation of liberty; it cannot furnish us with a guaranteeing power, nor can it procure supremacy for public will. In other spheres it may be true that license is exaggerated liberty, but in politics there can be nothing more unlike liberty than anarchy.

We have still to ascertain how this system of civil liberty is to be realized. Liberty cannot flourish, nor can freedom become a permanent business of actual life, without a permanent love and a habit of liberty. How is the one to be engendered, and the other to be acquired?

There is no mathematical formula by which liberty can be solved, nor are there laws by which liberty can be decreed, without other aids. We gain no more by throwing power unchecked into the hands of the people. It remains power, and is not liberty, and people still remain men. Flattery does not change us, for we are all

and thus flattery is no foundation for liberty. Each one of us may be declared a sovereign, as every Frenchman was designated in a solemn circular, by the provisional government; or the, people may be called almighty—le peuple tout-puissant—as in the midst of loathsome political obscenity they were termed by the dictatorial government when they were expected and led to vote for a new emperor, and thus by an act of omnipotence to extinguish every vestige of their power. They were asked to divest themselves of this very omnipotence, which nevertheless is exclusively claimed for the nation as inherent in its own nature, and to submit their omnipotence to a still greater power of one man. Nothing of all this is liberty. Self-immolation, even where it is an actual and not a theoretical act of free agency, is not life.

Enthusiasm is necessary for liberty, as for every great and noble work, but enthusiasm comes and goes like the breezes of the ocean. How shall they be used for the positive interests of the navigator? Enthusiasm is not liberty, nor does the reality of liberty consist in an aesthetical love of freedom. The poet may be as much the priest of liberty as he is the seer of love, but poetry is no more the thing it sings than theory is the deed, or ethics the character of man.

Education has been considered by many as the true basis of popular liberty. It is unquestionably true, and proudly acknowledged by every lover of modern popular liberty, that a wide-spread and sound education is indispensable to liberty. But it is not liberty itself, nor does it necessarily lead to it. Prussia is one of the best educated of countries, but liberty has not yet found a dwelling-place there. The Chinese government is avowedly based upon general education and democratic equality in the hierarchy of officers, but China has never made a step in the path of liberty. Education is almost like the alphabet it teaches. It depends upon what we use it for. Many despotic governments have found it their interest to promote popular education, and the schoolmaster alone cannot establish or maintain liberty, although he will ever be acknowledged as an efficient and indispensable assistant in the cause of modern freedom. Liberty stands in need of character.

How then is real and essential self-government, in the service of liberty, to be obtained and to be perpetuated? There is no other means than a vast system of institutions, whose number supports the whole, as the many pillars support the rotunda of our capitol. They may be modest in their appearance, and even unseen by the passer-by, as those pillars are, but they are nevertheless the real support.

Let us then consider the nature of institutional liberty more closely. In order to appreciate this subject, it will be desirable to inquire first into the nature of institutions in general.

According to the highest meaning which the term has gradually acquired, an institution is a system or body of usages, laws, or regulations of extensive and recurring operation, containing within itself an organism by which it effects its own independent action, continuance, and generally its own farther development. Its object is to generate, effect, regulate, or sanction a succession of acts, transactions, or productions of a peculiar kind or class. The idea of an institution implies a degree of self-government. Laws act through human agents, and these are, in the case of institutions, their officers or members.

We are likewise in the habit of calling single laws or usages (which are laws of spontaneous growth) institutions, if their operation is of vital importance and vast scope, and if their continuance is in a high degree independent of any interfering power. These two characteristics establish a close affinity between such laws and institutions proper as they have been just defined. Thus, we call marriage an institution in consideration of its pervading importance, its extensive operation, the innumerable relations it affects, and the security which its continuance enjoys in the conviction of almost all men, against any attempts at its abolition. Indeed, we generally mean by the term Institution of Marriage, pretty much the institution of the family, that is, the family as a community sanctioned and fostered by the law, by authoritative usages, and by religion-the cluster of laws and usages, social, political, and religious, which relate to this well-defined community.

It always forms a prominent element in the idea of an institution, whether the term be taken in the strictest sense or not, that it is a group of laws, usages, and operations standing in close relation to one another, and forming an independent whole with a united and distinguishing character of its own.

A system of laws very often consists of a variety of systems, each enjoying a proportionate degree of self-government, as a general organism is composed of many organs with distinct and peculiar functions of their own, although working in unison and according to the principles and regulative laws of the general organism. We have many institutions, which consist of a number of institutions either of the first mentioned or second sort; and, as institutions may exist in all the great spheres of human action, it naturally results that there are institutions of the greatest variety in character and extent. A bank, parliament, a court of justice, the bar, the church, the mail, a state, are institutions, as well as the Lord's supper, a university, the Inquisition, all the laws relating to property, the sabbath, the feudal system. The Roman triumph, the Hindoo castes, the bill of exchange, the French Institute, our presidency, the New York tract society, the Areopagus or the Olympic games, an insurance company, the janizaries, the English common law, the episcopate, the tribunate, the “captainship” of a fishing-fleet on the banks, “the crown,” the German book-trade, the Goldsmiths' Company at London, our senate, our representatives, our congress, our state legislatures, courts of conciliation, the justiceship of the peace, the priesthood, a confederacy, the patent, the copyright, hospitals for lunatics, estates, the East India Company—all these and thousands more are or were institutions in the one or the other adaptation of the term. Whether they are good or bad, expedient or unwise, human or divine, has nothing to do with the distinctive character of an institution as such.

“The School,” that is to say, the whole school system, as well as the modern national army, in Prussia, have been called institutions, when it was desired to express the idea that they are establishments of vast importance and that they enjoy a supposed degree of independent vitality. Baron Bunsen, in his Hippolytus, calls the book of common prayer a “national institution.”

The noun Institution is, indeed, formed of the verb to Institute, but it does not, on that account, express, as noun, the action or the effect of that which constitutes the meaning of the verb. The sense of the noun frequently diverges from that of the verb, in all languages, and especially so in the English. We institute an inquiry; but an inquiry is not an institution; and, on the other hand, there are many institutions which have never been instituted. They have grown.

This class of institutions forms in a certain point of view the most important, as will be admitted when we consider that the jury, systems of common law, the British parliament and our bicameral systems of the legislature, most governments and the states themselves, are grown institutions.

The English language has but one term for both, the crescive institutions, as they might be termed, and the instituted or enacted institutions, such as a corporation, congress, or our legislatures; whose institutors are the people enacting the constitutions. Grown or spontaneous institutions are not ill defined or loosely distinguished from one another on that account; they may be as individualized as a shady tree in the forest; and enacted or contrived institutions are not confined and narrow on that account. They may be as extensive in action as an Atlantic steamship. The speakership is a well-defined crescive institution; the supreme court of the United States is a vast enacted institution.

Most of the institutions which owe their origin to spontaneous growth have become in course of time mixed institutions. Positive legislation has become mingled with self-grown usage, as is the case with the institution of property, the jury, the bill of exchange, the Hindoo castes, money.

It is for the purpose of comprehending the grown as well as the established institutions, that the words “usages, laws, or regulations” have been employed in the definition at the head of this discussion.

Dr. Thomas Arnold, whose name few mention without veneration, says, at the beginning of his Lectures on History: “I would first say that by institution I wish to understand such officers, orders of men, public bodies, settlements of property, customs or regulations, concerning matters of general usage, as do not owe their existence to any express law or laws, but having originated in various ways, at a period of remote antiquity, are already parts of the national system, at the very beginning of our historical view of it, and are recognized by all actual laws, as being themselves a kind of primary condition on which all recorded legislation proceeds. And I would confine the term laws to the enactments of a known legislative power at a certain known period.”

It will be seen that this writer restricts the meaning of the term institution to what has been called grown institutions; nor does he do this with philosophical cogency. He enumerates instances rather than gives a definition; and it seems arbitrary to bestow the term on grown institutions only. It is contrary to universal usage, as well as to the necessity of the case. What is an instituted legislature of Wisconsin, an incorporated bank, an orphan asylum, or a chartered city government, if it be not an institution? According to Dr. Arnold, scarcely a pure institution exists, for in all or nearly all institutions positive enactments have become mixed up with the unenacted usage, as has been mentioned before.

Nor is it accurate to call certain “officers or orders of men” institutions. What unites the individual officers into an institution? or how can the institution outlast the individual officers existing at any given period? How could the house of representatives of congress be an institution, which every one calls it, and which assuredly it is, when its members cease to be such every two years? They are but temporary members of the perpetual institution. The institution itself is the organic law in the Constitution of the United States which provides for the organization and periodical renewal of the house. The same is true with reference to the state and its citizens, living at any given time. Citizens are born and die, but the state is a continuum. The jury of the common law is an institution now spreading over the territory of at least sixty-eight millions of people, but the jurors form only very transitory, although continually repeated, representations or embodiments of the institution.

It is this very fact, passed over by Dr. Arnold, that constitutes one of the most important practical features of the institution. It spreads the framework of the same system of laws over sets of men periodically renewed, prescribing their line of action, so that it becomes a consistent continuation of that which their predecessors have done, or, to express it in other words, it breathes the same leading principles into different aggregates of men and different generations, as the same principles in varying matter produce and reproduce the same seasons. The institution thus insures perpetuity, and renders development possible, while without it there is little more than subjective impulsiveness, which may be good and noble, or ruinous and purely passionate, but always lacks continuity, and consequently development and safe assimilating growth. A market assembly, convened at stated intervals, without institutions, can produce little more than a succession of instinctive or impulsive actions—the more impulsive the more exciting the subject is on which the uninstitutional multitude acts. The same applies to larger communities, if they act without institutions, and in this resemble the Indians of the pampas, who meet and act on each question by simple majority, unguided, unmoulded, unrestrained by permanent laws and usages, or without a maturing organism.

There is nothing so void of lasting good as that history which consists of a mere succession of acts through which there runs no connecting idea, and which show neither growth nor expansion. It sinks to mere anecdotical chronology. All that is deeply good or truly great, and not only vast, in the sense of Attila's conquest, requires development and progress. Impulsiveness without institutions, enthusiasm without an organism, may produce a brilliant period indeed, but it is generally like the light of a meteor. That period of Portuguese history which is inscribed with the names of Prince Henry the Navigator, Camoens, and Albuquerque is radiant with brilliant deeds, but how short a day between long and dreary nights! Portugal had no institutions to perpetuate her glory, and that splendor was but the accidental effect of fortunate circumstances happening to combine at that period. Noble national impulses, without institutions, are at best happy accidents.

When it is said that one of the requisites of the institution is that it shall contain within itself an organism by which it effects its own independent action and continuance, it is obvious that this must be taken in a comparative sense, because every institution ought to stand in connection with others, and is frequently a minor organism of a more comprehensive one; or an institution may be actually the creature of the legislature, and the legislature itself may be the creature of the constitution, which may have emanated from the sovereign will of the people. Yet we call a body of laws or usages an institution only when we unite the idea of an independent individuality with it. It must have its own distinct character, its own peculiar action, and it must not owe its continuance to the arbitrary mandate of a will foreign to it. Independence does not mean disjunction or isolation.

If this were not so, we would not stand in need of the term institution, and the simple term of Law or Ordinance would suffice.

Neither the Romans nor the Greeks had a separate term for institution; indeed, the Greeks had not even distinct words for the Latin jus and lex, a paucity of language which we share with them; and if the Romans had no word for institution, although they had many real institutions, we have many important separate systems of law, such as the law of insurance, of bailment, the maritime law, without having an appropriate term for separate bodies of laws and rules. Nor did the Roman probably feel the want of a word for institution, for the same reason that he expressed time by saying: “Two hundred years after the founded city.” The thing itself, the city, was in his mind. We would say: Two hundred years after the foundation of the city. The foundation of the city, an abstraction, is in our mind. The Roman said Respublica, the Public Thing, and upon this raft of words, strong but coarse, his own political progress and civic life forced him to put a heavy freight of meaning, until it came to designate the vast idea Commonwealth. The Roman was adverse to abstract terms. Abstracting was a process at which he was no good hand. The Greeks, however, may have lacked a proper term for the idea institution, although so ready to abstract, and possessed of a plastic language, which offered peculiar facilities for the formation of abstract terms, while yet the people were characterized by an eminently political temperament, simply because the Greeks were, comparatively speaking, not a tribe of a strongly institutional bias. They were not prone to establish political institutions, and, with the exception of the Dorians, preferred to bring everything under the more or less direct will of the mass. But, although the Greeks abstracted well, and had a language in which they could readily cast any abstraction, it must not be forgotten that they rather restricted their terms of abstraction to philosophical speculation, and in all the other spheres of life and action they manifested the true antique spirit, that of positive reality. Their style and expressions accorded with this bias. They might as easily as ourselves have said the Union or the League of the Achæans, but their word for our union was simply “the common body,” (τὸ χοινόν.)

Few nations have evinced a greater and more constant tendency to build up institutions, or to cluster together usages and laws relating to cognate subjects into one system and to allow it its own vitality, than the Romans in their better period. The Greeks, as has been observed, were far less an institutional people. There is a degree of adhesiveness and tenacity—a willingness to accumulate and to develop precedents, and a political patience to abide by them—necessary for the growth of strong and enduring institutions, which little agreed with the brilliant, excitable, and therefore changeable Greeks. This was at least the case with the Athenians and all their kindred, and to them belongs the main part of all that we honor and cherish as Grecian.

The London Times has called the Queen of England an institution. This is rhetorically putting the representative for the thing—the queen for the crown, which itself is a figurative expression for the kingly element of the British polity. Nevertheless, the meaning of the position that the Queen of England is an institution, is correct and British. It originated from a conviction that the monarch of Great Britain is not such by his own individuality, that he is not appointed by a superior power or divine right, but that he enjoys his power by the law of the land, which confines and regulates it. It means that he is the chief office-bearer, or, it may be, the chief emblem-bearer, of a vast institution which forms an integral part of the still more comprehensive institution called the British government or the state. In the same way are the lord chancellor, the justice of the peace, the coroner, institutions; not indeed the individuals who happen to be invested with the office, but those systems of laws and usages which they represent at the time.

It is likewise obvious why very old usages or offices of large influence are often called institutions. The fact of their being old proves a degree of independent action or existence. No change of things around them has swept them away; no power has ventured to strike them down. They appear to be rooted in society itself, beyond the reach of government; and single offices occasionally are called institutions, by way of flattery, because all feel that a real institution is in dignity superior to a single law or office, on account of its inherent principle of self-government.

The following, then, are necessary attributes of a complete institution, taking the term in its full modern adaptation:

A system or an organic body of laws or usages forming a whole;

Of extensive operation, or producing widely-spread effects;

Working within a certain defined sphere;

Of a high degree of independent permanency;

With an individual vitality and an organism, providing for its own independent action, and, frequently, for its own development or expansion, or with autonomy;

And with its own officers or members, because without these it would not be an actual system of laws, but merely a prescript in abeyance.

The institution is the opposite of subjective conception, individual disposition, and mere personal bias. The institution implies organic action. In this lies not only its capacity of perpetuating principles and of insuring continuous homogeneous and expansive action, but also its great power, its grandeur, its danger, and its mischief, according to its original character and its inherent principle. Christ imprinted on his church the missionary character, and, from the apostles to the servants of the gospel who lately starved near Cape Horn, the institution of the missionary ministry has been the pioneer and handmaid of extending civilization. But if the institution is intrinsically bad, or contains vicious principles, it lends additional and fearful power to the evil element within it, and gives a proportionate scope to its calamitous influence. If it be established in a sphere in which the subjective ought to prevail, it becomes an agent of ruin by making the objective prevail more than is desirable, or by making the annihilation of individuality one of its very objects. The gigantic institution of the Society of Jesus, and some of the modern Trades' Unions, are impressive and amazing examples.

Whenever men allow themselves to glide into the belief that moral responsibility can be aught else than individual, and that responsibility is divisible, provided many perform but one act; whenever the esprit du corps prevails over the moral consciousness of man, which is inseparable from his individuality, the institution gives a vigor to that which is unhallowed and unattainable by the individual. The institution is, like every union of men, subject to the all-pervading, elementary law of moral reduplication, as I have called it on previous occasions, and which consists in this, that any number of united individuals, moved by the same impulse, conviction, or desire, whether good or bad—whether scientific, æsthetic, or ethical, patriotic or servile, self-sacrificing or self-seeking—will countenance and impel each other to far better or far worse acts, and will develop in each other the powers for the specific good or evil, in a far greater extent, than would have been possible in each separate individual. It is the law which is illustrated by the excellence of whole periods in one particular sphere; by the rapid decadence of nations when once their fall begins; by the lofty character of some times, and by the contaminating effect of indiscriminate imprisonment; by the power of example; by the silliness which at times pervades whole classes or communities; by the sublime, calm heroisn on board a sinking man-of-war, and at other times by the panic of large masses. It is the universal law of mutual countenance and excitement.

If an institution is founded on a vicious principle, or if a bad impulse has seized it for a time, it will not only add to the evil force, according to the general law of moral reduplication, but lend additional strength by the force of its organization and the continuity of its action. Members of an institution will do that which, singly, they would never have dared to perpetrate. They will deny the obligation of paying what is due to widows and orphans, in cases which would have made them look upon the denial as disgraceful, had they acted in their own individual capacity. Thousands who have committed acts of crying cruelty as members of the Holy Office would not have been capable of committing them individually. The in stitution in these cases has the same effect which all united and continuous action has.

On the other hand, institutions have been able, for the same reason, to resist iniquitous inroads, or its members have been wrought up to a manly devotion, when the individual would not, and, often at least, could not, have resisted. In almost all cases of an invasion of rights by one of the domestic powers, we find that some institution has formed the breakwater against the rushing tide of power. There are many instances, such as the “Case of the Bishops” under James II., and the rejoicing of the better-disposed Frenchmen when the court of Paris declared itself; although in vain as it turned out, competent to judge of the spoliation which the dictator had decreed against the Orleans family, that show how instinctively men look toward institutions for support and political salvation.

I have purposely restricted my remarks on the resisting force of institutions to cases of invasion by domestic powers. When foreign invaders trample upon rights and grind down a people, something different and sharper is required to rouse them, to electrify them into united resistance. Humanity itself must be stung; an element in man's very nature must be offended, so that the most patient cannot endure the oppression any longer. We find, therefore, that innumerable popular risings against foreign despots, in antiquity and modern times, have taken place, when the insolent oppressor, having gone all lengths, at last violates a wife or a daughter. Such outrage comes home to the most torpid heart, and will not be borne by the veriest slave.

We investigate, here, the nature of the institution in general. Like everything possessing power, it may serve for weal or woe, as we have seen Constituted evil is as much worse, as constituted good is more efficaciously good than that effected by the individual. When we know the essential nature of the Institution, we shall be able to judge when, and where, and how it may be used beneficially. An institution is an arch: but there are arches that support bridges, and cathedrals, and hospitals; and others that support dungeons, banquet-rooms of revelry, torture-chambers, or spacious halls in which criminal folly enacts a melancholy farce with all the pitiful trappings of unworthy submission.

The greater or less degree in which the institutional spirit of different nations is manifested furnishes us with a striking characteristic of whole nations. The Romans, the Netherlanders, and indeed all the Teutonic tribes, until the dire spirit of dis-individualizing centralization seized nearly all the governments of the European continent, were institutional nations. The English and ourselves are still so. The Russians and all the Sclavonic nations, the Turks and the Mongolian tribes, seem to be remarkably uninstitutional.

A similar remark naturally applies to different species of governments. Some do not only result from a decidedly institutional tendency of the people at large, but they also promote it, while there is in others an inherent antagonism to the institution No absolutism, whether that of one or many, brooks institutions. Cunning monarchical absolutism, sometimes, allows the forms of institutions to exist, in order to use them for its own purpose. The reason why all absolutism is hostile to living institutions is not only because all absolute rulers discountenance opposition, but because there is in every despotism an ingrained incompatibility with independent action and self-government, in whatsoever narrow circle or moderate degree it may strive to maintain itself. This is so much the case that often despots of the best intentions for the welfare of the people have been the most destructive to the remnants of former or to the germs of future institutions, in the very proportion in which they have been gifted with brilliant talents, activity, and courage. These served them only to press forward more vigorously and more boldly in the career of all absolutism, which consists in the absorption of individuality and institutional action, or in levelling everything which does not comport with a military uniformity, and with sweeping annihilation of diversity.

As institutions may be good or bad, so may they be favorable or unfavorable to liberty. They may indeed give to the representative of the institution great freedom, but only for the repression of general freedom. The viziership is an institution all over Asia, and has been so from remote periods, but it is an institution in the spirit of despotism, and forms an active part of the pervading system of Asiatic monarchical absolutism. The star chamber was an institution, and gave much freedom of action to its members, yet the patriots under the Stuarts made it their first business to break down this preposterous institution. When in 1660 the Danes made their king hereditary and absolute, binding him by the only oath that he should never allow' his or his successors' power to be restricted, the Danish crown became undoubtedly a new institution, but assuredly not propitious to liberty. Of all the Hellenic tribes the Spartans were probably the most institutional, but they were communists, and communism is hostile to liberty. They dis-individualized the citizens, and, as a matter of course, extinguished in the same degree individual liberty, development, and progress. A state in which a citizen could be punished because he had added one more to the commonly adopted number of lute-strings, cannot be allowed to have been favorable to liberty.

Many of those very attributes of the institution proper, which make it so valuable in the service of liberty, constitute its inconvenience and danger when the institution is used against it. It is a bulwark, and may protect the enemy of liberty. It is like the press. Modern liberty or civilization cannot dispense with it, yet it may be used as its keenest enemy.