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CHAPTER XXIII.

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, 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, is characteristically French. 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 Gallican tribe, 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 breaking1 the judgments of all other courts of justice, whether 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 revere in our supreme courts, does not belong to it, nor can its power be vigorously and broadly

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

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 is, 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 parts 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.2

2 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 pro

rantee of liberty. On the contrary, th has been a great aid to imperial absolu to comprehensive measures of monarc the semblance of not having origi absolute monarch, or of having recei nance of a high and numerous polit this respect the French senate seem than that of Russia. The Russian se but a council, leaving all power and with the czar, in appearance as well a

That which after careful examinatio nounced to be Gallican liberty, is, I t of equality founded upon or acting thr suffrage, or, as it is frequently called "the undivided sovereignty of the p uncompromising centralism. As it is by many, that the rule of universal practically mean anything else than t majority, liberty is believed in Fran said, to consist in the absolute rule of

duced in many countries, shown by official stat in the German Staats-Lexicon, ad verbum Fried 3 I have given my views on the subject of t VOL. I.-26

Every one who has steadily followed the discussions of the late constituent and national assemblies, who has resolutely gone through the discussions 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.

reignty and the way it acts, at great 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.

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