the natural production of a thorough government of law, as distinguished from a government of functionaries. It is so natural to the Anglican race that few think of it as essentially important to civil liberty, and it is of such vital importance that none who have studied the acts of government elsewhere can help recognizing it as an indispensable element of civil liberty.

It is this: that, on the one hand, every officer, however high or low, remains personally answerable to the affected person for the legality of the act he executes, no matter whether his lawful superior has ordered it or not, and even whether the executive officer had it in his power to judge of the legality of the act he is ordered to do, or not; and that, on the other hand, every individual is authorized to resist an unlawful act, whether executed by an otherwise lawfully appointed officer or not. The resistance is made at the resister's peril. In all other countries, obedience to the officer is demanded in all cases, and redress can only take place after previous obedience.1 Occasionally, this principle acts harshly upon the officer; but we prefer this inconvenience to the inroad which its abandonment would make in the government of law. We will not submit to individual men, but only to men who are, and when' they are, the organs of the law. A coup d'état, such as we have lately seen in France, would not be feasible in a nation accustomed to this principle. All the answer which the police officers gave to men like General Cavaignac, who asked them whether they were aware that they committed a high crime in arresting a representative of the people, was, that they had orders from their superior, and had nothing to do with the question of legality. It is obvious how much this peculiar Anglican principle heightens the importance of obedience to the officer, representing the law, and the law alone. Lawlessness in this, as in all other cases, is peculiarly incompatible with the spirit of Anglican freedom.

Extreme cases, as a matter of course, would be allowed to form exceptions. * I must again refer to the Political Ethics, chapter on Obedience to the Law.

As an instance of the opposite to the French principle of that huge institution called gendarmerie, the following simple case may be taken :

A sheriff, provided with the proper warrant, has the right, after request and denial, to open the house door, forcibly to open it, if a third party has taken refuge in it, or sent his goods there. "Every man's house is his castle," will not protect any one but the bona fide dweller in it. Nevertheless, the sheriff provided with his legal warrant does it at his own peril; for, if he break open the house, however well his suspicion may be grounded, and neither the party nor the goods sought for be there, the sheriff is a trespasser, and as such answerable to the inhabitant of the house before the courts of the land. This may be inconvenient in single cases. It may be that the maxim which has been quoted has "been carried as far as the true principles of political practice will warrant― perhaps beyond what in the scale of sound reason and good policy they will warrant." I doubt it, whatever the inconvenience in single cases may be. All law is inconvenient in some cases; but even if this opinion were founded, how august, on the other hand, appears the law-I do not mean a single statute, but the whole self-evolving system of a common law of the land-that errs on the side of individual liberty against the public power and the united weight of government!

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This Anglican principle might be supposed by those who are not familiar with it, that fear of resolute action in the officer would be the consequence. But this is not the case, as experience in England and the United States sufficiently proves. When magistrates and officers who, according to their sphere of action, ought not to be elective, are made elective, timidity or time-serving encroaches indeed upon the resolute performance of the officer's duty; but this has nothing to do with the principle here treated. Nor is it denied that exceptions may take place. A police officer lately stated in

Sir M. Foster, Discourse of Homicide, p. 319. I quote from Broom's Legal Maxims.

open court in London, when asked why he had not performed a certain act clearly lying within the sphere of his duty, that it was so difficult for him to know what was lawful for him to do, according to the opinion of the magistrate, that he had preferred not to act. No machinery works without occasional friction. Compare with this the ruthless European continental police, and choose. The reader will find at the end of the footnote appended to this page an amusing illustration of the fact that monarchical absolutism does not necessarily give freedom or boldness of action to officers.1

The reader has seen from the passage on warrants, which I gave in a preceding part of this work, how far this principle is qarried in the case of resisting an officer, even to the killing him, if his warrant be not wholly correct. Another proof of the uniform acknowledgment of this principle and essential pillar of civil liberty is this, that when a British minister

The very opposite to the Anglican principle, that each officer remains responsible for the legality of his own acts, prevails in China and Japan, and probably in all thoroughly systematized Asiatic despotisms. The superior officer is punished for the offence and even for the misfortune of the inferior, or for the accident which may have befallen the latter. The blows with the bamboo, which in China go down from the superior through many grades to the inferior, are well known. Before the late opening of the Japanese ports to the Americans and Europeans, a Christian vessel was driven on the shores of Japan. The governor ripped open his belly, and the viceroy in whose province the wreck had happened was imprisoned for one hundred days, although he was at the time a hundred miles from the place of the disaster. There is also, however, in these cases, to be taken into consideration the confusion of moral laws, and physical laws, and fate, which pervades the whole Chinese code, the ethics of Japan, the moral code of all early nations, and which we find in the early mythology of all nations. The earliest period of Greek history and mythology furnishes us with many illustrations.

Mr. King, in his Notes of the Voyage of the Morrison, New York, 1839, gives the following anecdote: "We had inquired of the Japanese how their officers were to be distinguished; whether they wore any badges besides the ever-famous 'two sabres.' The answer was, If you see a man come on board that trembles very much, he is a mandarin.”

The student must take care not to consider the fining of companies for want of caution, skill, or honesty in the persons or officers employed by them, (now so common in consequence of railway accidents,) as invalidating the principle laid down in the text.

obtains an act of indemnity, which is an act of impunity for certain illegal acts, which, nevertheless, necessity demanded, the act of indemnity is never for him alone, but it expresses that the act shall also cover what the inferior officers have done by the direction of the minister in the premises.1

In conclusion, I would remark that it is wholly indifferent who gives the order. If it be illegal, the person who executes it remains responsible for the act, although the president or the king should have ordered it, or the offending person should be a soldier obeying his commander. It is a stern law, but it is a sacred principle, a strict government of law cannot dispense with it, and it has worked well.

For instance, in the scarcity of grain in the year 1766, Chatham prohibited exportation of grain. When parliament met, he read a passage from Locke, to show that what he had done was not legal yet right. Indemnity was passed for him and those who had acted under him. In 1818, ministers asked and obtained indemnity for the suspension of habeas corpus, for themselves and magistrates under them. Many other instances might be given. See Lieber's Legal and Political Hermeneutics, note to page 79. Acts of indemnity cannot be passed with us, because we have a constitution of which the legislature itself is but the creature, and we cannot pass ex post facto laws. All that remains for us to do in cases of absolute necessity or transcendent utility is to pass over the occurrence in silence; or congress may show its concurrence by aiding in the This was the case when Mr. Jefferson purchased the territory of Louisiana. Still, congress cannot make the act constitutional; though the silence of congress, or the countenance given by it to an act, gives it such apparent legality, that we find in the present time (1859) many men calling themselves adherents to the strictest interpretation of the constitution, and insisting on liberal interpretation, urging the purchase of the island of Cuba, as if the constitution, which itself declares that it permits nothing but what it distinctly and positively grants, had allowed the purchase of foreign territory.

act.

CHAPTER XI.

QUARTERING SOLDIERS.-THE ARMY.

12. GOVERNMENTS, if not very closely hedged in, have it in their power to worry citizens into submission by many indirect methods. One of these, frequently resorted to since the introduction of standing armies, is, that soldiers are billeted with the disaffected citizens. An insolent soldiery, supported by the executive, find a thousand ways of annoying, insulting, and ruining the family with whom they are quartered. It has been deemed necessary, therefore, specially to prohibit the quartering of soldiers with citizens, as an important guarantee of civil liberty. The English Bill of Rights, "declaring the rights and liberties of the subject," of 1688, enumerates in the preamble, as one of the proofs that James II. "did endeavor to subvert and extirpate" . . . "the laws and liberties of this kingdom," his "raising and keeping a standing army within the kingdom in time of peace, without consent of parliament, and quartering soldiers contrary to law." It is in England, therefore, a high offence to quarter soldiers without consent of parliament; and the Constitution of the United States ordains. that "no soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law." The framers of the constitution, it will be observed, were very exact in drawing up this paragraph.

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Persons not versed in the history of civil liberty and of progressive absolutism might be surprised at this singling out of quartering soldiers in documents of such elevated character

1 [See the Petition of Right in Appendix V., and Forster's Life of Sir John Eliot, for earlier complaints al out this old outrage.]