chapter xxvi.: the institution, continued.—institutional liberty.—institutional local self-government.

Civilization, so closely connected with what we love in modern liberty, as well as progress and security, themselves ingredients of civil liberty, stands in need of stability and continuity, and these cannot be secured without institutions. This is the reason why the historian, when speaking of such organizers or refounders of their nations as Charlemagne, Alfred, Numa, Pelayo, knows of no higher name to give them than that of institutors.

The force of the institution in imparting stability and giving new power to what otherwise must have swiftly passed away, has been illustrated in our own times in Mormonism. Every observer who has gravely investigated this repulsive fraud will agree that as for its pretensions and doctrines it must have passed as it came, had it not been for the remarkable character which Joseph Smith possessed as an institutor. Thrice blessed is a noble idea, perpetuated in an active institution, as charity in a hôtel-dieu; thrice cursed, a wicked idea embodied in an institution.

The title of institutor is coveted even by those who represent ideas the very opposite to institutions.

Louis Napoleon Bonaparte, when he inaugurated his government, dwelt on the “institutions” he had established, with pride, or a consciousness that the world prizes the founding of good institutions as the greatest work of a statesman and a ruler.

Institutions may not have been viciously conceived, or have grown out of a state of violence or crime, and yet they may have become injurious in the course of time, as incompatible with the pervading spirit of the age, or they may have become hollow, and in this latter case they are almost sure to be injurious. Hollow institutions in the state are much like empty boxes in an ill-managed house. They are sure to be filled with litter and rubbish, and to become nuisances. But great wisdom and caution are necessary to decide whether an institution ought to be amputated or not, because it is a notable truth in politics that many important institutions and laws are chiefly efficient as preventives, not as positive agents. It is not sufficient, therefore, that at a glance we do not discover any palpable good produced by the institution, to justify us in destroying it. Antiquity is prima facie evidence in favor of an institution, and must not rashly be confounded with obsoleteness; but antiquity is certainly no proof against positive and grounded arguments. On the other hand, hollow institutions have frequently the serious inconvenience of deceiving and changing the proper venue, as lawyers would express it. The form of a representative government, without the spirit, true principles, and sincere guarantees of self-government in that body, or without being founded upon a candid and real representation, is worse than a government without these forms, because it eases the executive of the responsibility which without that hollow form would visibly rest on it alone. But here, again, it is necessary to observe that an institution may for a time become a mere form, and yet that very form may soon be animated again by a proper spirit. Parliament under Henry VIII. had become a subservient tool, highly noxious because it formally sanctioned many atrocious measures of the king. Yet it was that same parliament which rose to action and importance within fifty years, and within a century and a half became the virtual seat of government and supreme power in the state. There is hardly a portion of the penal trial which has not at times and for an entire period been abused; yet the existence of this very trial, intended to rest on the principle of independence, became in a better period the starting-point of a new order of things.

We must also mention the fact that there are perennial and deciduous institutions, or institutions avowedly fit only for a preparatory state of civilization. Their office is limited in duration, like that of the deciduous teeth, which must be drawn if they do not drop of themselves, or if they resist too obstinately their perennial substitutes.

We may here close our general remarks on institutions, and, now, investigate in what the force of the institution consists, when wisely taken into the service of liberty, and inquire into the characteristics of self-government in particular.

By institutional self-government is meant that popular government which consists in a great organism of institutions or a union of harmonizing systems of laws instinct with self-government. It is essentially of a co-operative character, and thus the opposite to centralism. It is articulated liberty, and thus the opposite to an inarticulated government of the majority. It is of an inter-guaranteeing, and, consequently, inter-limiting character, and in this aspect the negation of absolutism. It is of a self-evolving and genetic nature, and thus is contradistinguished from governments founded on extra-popular principles, such as divine right. Finally, institutional self-government is, in the opinion of our race, and according to our experience, the only practical self-government, or self-government carried out in the realities of life, and is thus the opposite of a vague or theoretical liberty, which proclaims abstractions, but, in reality, cannot disentangle itself from the despotism of one part over another, however permanent or changing the ruling part may be.

Institutional self-government is the political embodiment of self-reliance and mutual acknowledgment of self-rule. It is in this view the political realization of equality.

Institutional self-government is the only self-government which makes it possible to unite self-government and self-government.

According to the Anglican view, institutional self-government consists in the fact that all the elementary parts of the government, as well as the highest and most powerful branches, consist in real institutions, with all the attributes which have been ascribed to an institution in the highest sense of the term. It consists, farther, in the unstinted freedom and fair protection which are granted to institutions of all sorts, commercial, religious, cultural, scientific, charitable, and industrial, to germinate and to grow—provided they are moral and do not invade the equal rights of others. It receives its aliment from a pervading spirit of self-reliance and self-respect—the real afflatus of liberty.

It does not only require that the main functions of the government—the legislative, the judicial, and the executive—be clearly divided, but also that the legislature and the judiciary be bona fide institutions. The first French constituent assembly pronounced the separation of the three powers, and was obliged to do so, since it intended to demolish the absolutism which had grown up under the Bourbons; but so long as there existed an absolute power, no matter of what name, that could dictate, liberty was not yet obtained. Indeed, it may be said that an efficient division of power cannot exist, unless the legislature and the judiciary form real institutions, in our sense of the term.

These institutions, again, consist of many minor institutions, as an organism consists of many minor ones. Our congress is a real institution, but its component parts, the senate and house of representatives, are its constituent institutions, and the whole is in close connection with other institutions, for instance the state legislatures, or depends upon others such as the common law.

Yet the self-government of our country or of England would be considered by us little more than oil floating on the surface of the water, did it consist only in a congress and state legislatures with us, and in a parliament in England. Self-government, to be of a penetrative character, requires the institutional self-government of the county or district; it requires that everything which, without general inconvenience, can be left to the circle to which it belongs, be thus left to its own management; it consists in the presenting grand jury, in the petty jury, in the fact that much which is called on the European continent the administrative branch be left to the people. It requires, in one word, all the local appliances of government which are termed local self-government; and Niebuhr says that British liberty depends at least as much on these as on parliament, and in contradistinction to them he calls the governments of the continent Staats-Regierungen, (state governments, meaning governments in which all detail is directed by the general and supreme power.)

It must be in view of this local self-government, combined with parliamentary freedom, that Sir Edward Coke said of the Justice of the Peace: “It is such a form of subordinate government for the tranquillity and quiet of the realm as no part of the Christian world hath the like, if the same be duly executed.”

Anglican self-government requires that every institution of local self-government shall have the right to pass such bylaws as it finds necessary for its own government, without obtaining the consent of any superior power, even that of the crown or parliament, and that of course such by-laws shall stand good in the courts of law, and shall be as binding upon every one concerned as any statute or law. I believe that it is in the Anglican system of liberty alone that by-laws are enacted and have full force without consent of superior power. There are in other countries exceptions, but they are rare indeed, and very limited in power, while the by-law is the rule in our system. The whole subject of the by-law is characteristic and important, and stands out like the comprehensive and peculiar doctrine of the Anglican warrant. The character of self-government is moreover manifested by the fact that the right of making by-laws is not derived from any grant of superior power, but has been ever considered in the English polity as inherent in the local community—a natural right of freemen. Coke says, with reference to these laws and their force: “Of more force is the agreement of the folk and people than the grant of the king;” and in another place he says: “The inhabitants of a town, without any custom, may make ordinances or by-laws for any such thing which is for the general good of the public, unless indeed it be pretended by any such by-law to abridge the general liberty of the people, their inherent birthright, assured to all by the common law of the whole land, and which that common law, in its jealous regard for liberty, does not allow to be abrogated or lessened even by their own consent—much less, therefore, by the consent of their delegates in parliament.”

It may be added that by-law does not mean, as many suppose, additional law, law by the side of another or complementary, but it means law of the place or community, law of the by or pye—that is, of the collection of dwellers, or of the settlement as we, in America, perhaps would naturally express it.