CHAPTER V.

ANGLICAN LIBERTY.

In order to ascertain in what this peculiar system of civil liberty consists, we must examine those charters of the whole Anglican tribe, which belong to "the times when governments chartered liberty," and to those "when the people charter governments." We must observe what principles, measures, and guarantees were most insisted upon in periods most distinguished by an active spirit of liberty, of opposition to encroaching power, or of a desire to prune public power so as to make it in future better harmonize with the claims of individual liberty. We must see what it is that the people of England and the people of America in solemn political periods have solemnly declared their rights and obligations. We must study the periods of a vigorous development of liberty, and we must weigh Magna Charta, the Petition of Right, and the Bill of Rights-the three statutes which Lord Chatham called the Bible of the English constitution. We must inquire into the public common law of England, and the common law as it has developed itself on this side of the Atlantic; and especially into the leading cases of

political and constitutional importance that have been decided in England and the United States.1 We must ponder our great federal pact, with the contemporaneous writers on this constitution, and the debates which led to its adoption after the failure of the original articles of confederation, as well as the special charters which were considered peculiarly favorable to liberty, such as many of the colonies out of which the United States arose. We must attentively study the struggles in which the people waged their all to preserve their liberties, or to obtain new ones, and those periods which, with reference to civil liberty, may be called classical. We must analyze the British and our own revolutions, and compare them with the political revolutions of other nations, and we must study not only the outward events, or the ultimate measures, but we must probe their genesis, and ascertain how and why these things came about, and what the principles were for which the chief men engaged in the arduous task contended. We must mark what it is that those nations wish to introduce among themselves, that are longing for freedom similar to that which we enjoy. We must test which of the many institutions peculiar to our tribe, have proved in the

1 A chronological table of the leading cases in England and the United States, by which great constitutional principles or essential individual rights have been settled and sown like a spreading, selfincreasing plant, would be highly instructive, and show how much we owe to the growth of liberty, and how much this growth is owing to the husbanding of practical cases in the spirit of freedom.

course of time as real props of freedom, or most prolific in shooting forth new branches. We must read the best writers on law, history, and political philosophy with reference to these subjects, and observe the process of spreading liberty. We must note which are the most fruitful principles of Anglican self-government in the widening colonies, north and south of the equator; and examine our own lives as citizens of the freest land, as well as the great process of expansion of liberty with ourselves. We ought clearly to bring before our minds those guarantees, which invariably are the main. points of assault when the attempt is made to batter the ramparts of civil liberty and bring the gallant garrison to surrender. And lastly, we ought to study the course of despotism; for the physiologist learns as much from pathology as from a body in vigorous health.

We call this liberty Anglican freedom, not because we think that it ought to be restricted to the Anglican tribe, or will or can be so; but simply, because it has been evolved first and chiefly by this tribe, and because we must contradistinguish it to Gallican liberty as the sequel will show. Nor is it

2 In the year 1848, I published, in an American Journal, a paper headed Anglican and Gallican Liberty, in which I indicated several views which have been farther developed in the present work. A distinguished German criminalist and publicist did me the honor of publishing a German translation of this paper; in which, however, he says that what I have called Anglican liberty is more generally called Germanic liberty. This is an error. I allow that the original Teutonic spirit of individual independence, and the anti-Celtic spirit of being swayed by masses, largely enters into

maintained that all that is included in Anglican liberty is of especial Anglican origin. Liberty is one of the wreaths of humanity, and in all liberty there must be a large fund of universal humanity, as all cultivated languages must agree in embodying the most important principles of intellectual analysis and combination; and as Grecian architecture does not contain exclusively what the Greeks originated, and is not, on account of its very humanity, restricted to Greece. Still, we call it Greek architecture, and we do so with propriety; for it was in Greece that that column and capital were developed which is found everywhere with civilized man, has passed over from a pagan world into christian civilization, and is seen wherever the bible is carried.

Now what we call Anglican liberty, are the guarantees which our tribe has elaborated, as guarantees of those rights which experience has shown to be most exposed to the danger of attack by the strongest power in the state, namely, the executive, or as

what I have termed Anglican liberty; but this is a system of civil liberty which has developed itself independent upon all other Teutonic nations, has been increasing while nearly all the other Teutonic nations lost their liberty, and of which unfortunately the Germans, who ought to be supposed the most Germanic of the Germanic tribes, have nothing, except what they may have left at present of the late attempts of engrafting anew principles or guarantees of liberty on their polities, which had become more and more a copy of French centralization. This is not the place to discuss the subject of so called Germanic liberty. All that is necessary here to state, is that, what is called Anglican liberty is, as was said before, a body of guarantees which, as an entire system, has been elaborated by the Anglican tribe, and is peculiar to this tribe, unless imitated by others.

most important to a frame of government which will be least liable to generate these dangers, and also most important to the essential yet weaker branches of government. It consists in the civil guarantees of those principles which are most favorable to a manly individual independence and ungrudged enjoyment of individual humanity; and, those guarantees which insure the people, meaning the totality of the individuals as a unit, or, the nation, against being driven from the pursuit of those high aims which have been assigned to it by Providence as a nation, or as a united people. Where the one or the other is omitted, or exclusively pursued, there is no full liberty. If the word people be taken as never meaning anything else than a unit, a widely extended and vigorous action of that unit may exist indeed— blinding ambition may be enjoyed, but it is no liberty; if, on the other hand, the term people is never taken in any other sense than a mere term of brevity, and for the impossible enumeration of all individuals, without inherent connection, the consequence must be a sejunctive egotism which loses the very power of protecting the individual rights and

liberties.

These guarantees, then, as we acknowledge them in the period of civil development in which we live, and as far as they are common to the whole Anglican tribe, and, if of a more general character, are still inseparably interwoven with what is peculiar to the tribe, we call Anglican liberty. These guarantees and checks I now proceed to enumerate.