CHAPTER XXIV.

GALLICAN LIBERTY.-SPREADING OF LIBERTY.

HAVING considered Anglican liberty, it will be proper for us to examine the French type of civil freedom, or Gallican liberty. In speaking here of Gallican liberty, we mean, of course, that liberty which is characteristically French, either in reality, if we shall find that at any period it has taken actual root, or in theory, if it have remained such, and never practically developed itself. Liberty has sprouted in France as in other countries. People have felt there, as all over Europe, that the administration of justice ought to be independent of the other branches of government. The separation of the three great functions of government was proclaimed by the first constituent assembly. But the question here is, whether any of these or other endeavors to establish liberty have been consolidated into permanent institutions, whether they have been allowed to develop themselves, and whether they were or are peculiar to the French, or were adopted from another system of developed civil liberty, as we adopt the whole or parts of an order of architecture or a philosophical system; and, if we find no such institutions or guarantees peculiar to the French, whether there be a general idea and conception of liberty which pervades all France and is peculiar to that country.

In viewing the French institutions which have been intended for the protection of individual rights or the preservation of liberty, I can discover none which has had a permanent existence, except the court of cassation or quashing. It is the highest court of France, possessing the power of annulling or breaking the judgments of all other courts of justice, whether

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

in civil or criminal matters, on account of faults and flaws in the judicial forms and procedure, or of misapplications of the existing law. It has no power to examine the verdict. It resembles, therefore, the court of Westminster, in England, when the assembled judges hear questions of law, or our supreme court of the United States on similar occasions, and the supreme courts or courts of appeal or error in the different states. The court of cassation must necessarily sometimes judge of certain procedures of the government against individuals, and declare whether individual rights, publicly guaranteed, have been invaded. Thus it showed its power to some extent when Paris was declared in a state of siege and the whole city was under martial law. But the high attribute of pronouncing upon the constitutionality of the laws themselves, which we cherish in our supreme courts, does not belong to it, nor can its power be vigorously and broadly exercised in a conflict with the supreme power, since this power bears down everything in a country so vast and yet so centralized as France, and in which the principle of development, independent of the executive or central power, is not acknowledged in the different institutions. The court of cassation has at the same time a supervisory authority over the judges of other courts, and can send them before the keeper of the seals (the minister of justice) to give an account of their conduct. It is likewise an object of the court of cassation to keep the application of the law uniform in the different portions of the country. This is a necessary effect of its power to quash judgments.

The institution of the justice of the peace ought to be mentioned here, although it can only be considered as indirectly connected with liberty. The French justice of the peace differs from the English officer of the same name in this, that his function is exclusively of a conciliatory character. Courts of conciliation have existed in many countries, and long before the present justices of the peace were established in France by the first constituent assembly; but, as we see them now there, they must be called a French institution. It has

proved itself in France, as well as in other countries, of the highest value in preventing litigation, with all the evils which necessarily attach themselves to it.'

No one, I suppose, would expect the senate, first established by Napoleon I. and then called the conservative senate, that is, the senate whose nominal duty it was to conserve the constitution, and now re-established by Napoleon III., to be enumerated as an institution for the support of liberty. It has no more connection with liberty than the Roman senate had under the emperors. Its very origin would lead no one to expect in it a guarantee of liberty. On the contrary, the French senate has been a great aid to imperial absolutism, by giving to comprehensive measures of monarchical despotism the semblance of not having originated with the absolute monarch or of having received the countenance of a high and numerous political body. In this respect the French senate seems to me worse than that of Russia. The Russian senate is nothing but a council, leaving all power and responsibility with the czar, in appearance as well as in reality.

That which after careful examination must be pronounced to be Gallican liberty is, I take it, the idea of equality founded upon or acting through universal suffrage, or, as it is frequently called by the French, "the undivided sovereignty of the people" with an uncompromising centralism. As it is necessarily felt by many, that the rule of universal suffrage can, practically, mean only the rule of the majority, liberty is believed in France, as has been said, to consist in the absolute rule of the majority.2

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.

Every one who has steadily followed the discussions of the late constituent and national assemblies, who has resolutely gone through the debates of the first constituente, and studied the history of the revolution, and who is fairly acquainted with French literature, will agree, I trust, that the idea of Gallican liberty has been correctly stated. There are many Frenchmen, indeed, who know that this is not liberty, that at most it can only be a means to obtain it; but we now speak of the conception of liberty peculiar to the French school.

Institutions, such as we conceive their necessary character to be, that is, establishments with the important element of self-government, and of a system of guarantees beyond the reach of daily change, do not enter as necessary elements into the idea of Gallican liberty. Self-government is sought for in the least impeded rule of the majority. It has been seen, however, that, according to the Anglican view, the question who shall rule is an important question of liberty indeed, but only one about the means; for if the ruler, whoever he be, deprives the ruled of liberty, there is of course no liberty. A suicide does not the less cease to live because he kills himself; and two game fowls nearly matched, as the parties in a nation may be, do not symbolize liberty, because at one time the one may be uppermost, and at another time the other.

There seems to be in France a constant confusion of equality and democracy on the one hand, and of democracy and liberty on the other; now, although equality largely enters as an element in all liberty, and no liberty can be imagined without a democratic element, equality and democracy of themselves are far from constituting liberty. They may be the worst of despotisms: the one by annihilating individuality, as the communist strives to do; the other-if it means democratic absolutism-by being real sweeping power itself-not power lent, as that of the monarch always must be-power without personal responsibility. It acts; but where is the actor, who is responsible, who can be made responsible, who will judge?

It is with reference to this rule, and this mistaken view of liberty, that one of their wisest, best, and most liberty-loving

men, Mr. Royer Collard, has said: "It is nothing but a sovereignty of brute force, and a most absolute form of absolute power. Before this sovereignty, without rule, without limit, without duty, and without conscience, there is neither constitution nor law, neither good nor evil, nor past nor future. The will of to-day annuls that of yesterday, without engaging that of to-morrow. The pretensions of the most capricious and most extravagant tyranny do not go so far, because they are not in the same degree disengaged from all responsibility."

Where any one, or any two, or any three, or any thousand, or any million, can do what they have the mere power to do, there is no liberty. Arbitrary power does not become less arbitrary because it is the united power of many.

Napoleon said: "The French love equality; they care little for liberty." Napoleon certainly mistook the French, and mankind in general, very seriously in some points, as all men of his stamp are liable to do; there are some entire instincts wanting in them; but we fear that he was right in this saying with reference to a large part of the French people. Present events seem to prove it.3

This equality is again very generally mistaken for uniformity, so that it would naturally lead of itself to centralization, even if the French had not contracted a real passion for centralization ever since the reigns of Richelieu and Louis XIV. It has increased with almost every change of government. It is the love of power carried into every detail, and therefore the

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

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

3 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.