ON LIBERTY.
Liberty, like equality, is a word more used than understood. Perfect and absolute liberty is as incompatible with the existence of society, as equality of condition. It is impracticable in a state of nature even, since, without the protection of the law, the strong would oppress and enslave the weak. We are then to understand by liberty, merely such a state of the social compact as permits the members of a community to lay no more restraints on themselves, than are required by their real necessities, and obvious interests. To this definition may be added, that it is a requisite of liberty, that the body of a nation should retain the power to modify its institutions, as circumstances shall require.
The natural disposition of all men being to enjoy a perfect freedom of action, it is a common error to suppose that the nation which possesses the mildest laws, or laws that impose the least personal restraints, is the freest. This opinion is untenable, since the power that concedes this freedom of action, can recall it. Unless it is lodged in the body of the community itself, there is, therefore, no pledge for the continuance of such a liberty. A familiar, supposititious case will render this truth more obvious.
A slave holder in Virginia is the master of two slaves: to one he grants his liberty, with the means to go to a town in a free state. The other accompanies his old associate clandestinely. In this town, they engage their services voluntarily, to a common master, who assigns to them equal shares in the same labor, paying them the same wages. In time, the master learns their situation, but, being an indulgent man, he allows the slave to retain his present situation. In all material things, these brothers are equal; they labor together, receive the same wages, and eat of the same food. Yet one is bond, and the other free, since it is in the power of the master, or of his heir, or of his assignee, at any time, to reclaim the services of the one who was not legally manumitted, and reduce him again to the condition of slavery. One of these brothers is the master of his own acts, while the other, though temporarily enjoying the same privileges, holds them subject to the will of a superior.
This is an all important distinction in the consideration of political liberty, since the circumstances of no two countries are precisely the same, and all municipal regulations ought to have direct reference to the actual condition of a community. It follows, that no country can properly be deemed free, unless the body of the nation possess, in the last resort, the legal power to frame its laws according to its wants. This power must also abide in the nation, or it becomes merely an historical fact, for he that was once free is not necessarily free always, any more than he that was once happy, is to consider himself happy in perpetuity.
This definition of liberty is new to the world, for a government founded on such principles is a novelty. Hitherto, a nation has been deemed free, whose people were possessed of a certain amount of franchises, without any reference to the general repository of power. Such a nation may not be absolutely enslaved, but it can scarcely be considered in possession of an affirmative political liberty, since it is not the master of its own fortunes.
Having settled what is the foundation of liberty, it remains to be seen by what process a people can exercise this authority over themselves. The usual course is to refer all matters of choice to the decision of majorities. The common axiom of democracies, however, which says that "the majority must rule," is to be received with many limitations. Were the majority of a country to rule without restraint, it is probable as much injustice and oppression would follow, as are found under the dominion of one. It belongs to the nature of men to arrange themselves in parties, to lose sight of truth and justice in partizansliip and prejudice, to mistake their own impulses for that which is proper, and to do wrong because they are indisposed to seek the right. Were it wise to trust power, unreservedly, to majorities, all fundamental and controlling laws would be unnecessary, since they might, as occasion required, emanate from the will of numbers. Constitutions would be useless.
The majority rules in prescribed cases, and in no other. It elects to office, it enacts ordinary laws, subject however to the restrictions of the constitution, and it decides most of the questions that arise in the primitive meetings of the people; questions that do not usually effect any of the principal interests of life.
The majority does not rule in settling fundamental laws, under the constitution; or when it does rule in such cases, it is with particular checks produced by time and new combinations; it does not pass judgment in trials at law, or under impeachment, and it is impotent in many matters touching vested rigths. In the state of New York, the majority is impotent, in granting corporations, and in appropriating money for local purposes.
Though majorities often decide wrong, it is believed that they are less liable to do so than minorities. There can be no question that the educated and affluent classes of a country, are more capable of coming to wise and intelligent decisions in affairs of state, than the mass of a population. Their wealth and leisure afford them opportunities for observation and comparison, while their general information and greater knowledge of character, enable them to judge more accurately of men and measures. That these opportunities are not properly used, is owing to the unceasing desire of men to turn their advantages to their own particular benefit, and to their passions. All history proves, when power is the sole possession of a few, that it is perverted to their sole advantage, the public suffering in order that their rulers may prosper. The same nature which imposes the necessity of governments at all, seems to point out the expediency of confiding its control, in the last resort, to the body of the nation, as the only lasting protection against gross abuses.
We do not adopt the popular polity because it is perfect, but because it is less imperfect than any other. As man, by his nature, is liable to err, it is vain to expect an infallible whole that is composed of fallible parts. The government that emanates from a single will, supposing that will to be pure, enlightened, impartial, just and consistent, would be the best in the world, were it attainable for men. Such is the government of the universe, the result of which is perfect harmony. As no man is without spot in his justice, as no man has infinite wisdom, or infinite mercy, we are driven to take refuge in the opposite extreme, or in a government of many.
It is common for the advocates of monarchy and aristocracy to deride the opinions of the mass, as no more than the impulses of ignorance and prejudices. While experience unhappily shows that this charge has too much truth, it also shows that the educated and few form no exemption to the common rule of humanity. The most intelligent men of every country in which there is liberty of thought and action, yielding to their interests or their passions, are always found taking the opposite extremes of contested questions, thus triumphantly refuting an arrogant proposition, that of the exclusive fitness of the few to govern, by an unanswerable fact. The minority of a country is never known to agree, except in its efforts to reduce and oppress the majority. Were this not so, parties would be unknown in all countries but democracies, whereas the factions of aristocracies have been among the fiercest and least governable of any recorded in history.
Although real political liberty can have but one character, that of a popular base, the world contains many modifications of governments that are, more or less, worthy to be termed free. In most of these states, however, the liberties of the mass, are of the negative character of franchises, which franchises are not power of themselves, but merely an exemption from the abuses of power. Perhaps no state exists, in which the people, either by usage, or by direct concessions from the source of authority, do not possess some of these franchises; for, if there is no such thing, in practice, as perfect and absolute liberty, neither is there any such thing, in practice, as total and unmitigated slavery. In the one case, nature has rendered man incapable of enjoying freedom without restraint, and in the other, incapable of submitting, entirely without resistance, to oppression. The harshest desposts are compelled to acknowledge the immutable principles of eternal justice, affecting necessity and the love of right, for their most ruthless deeds.
England is a country in which the franchises of the subject are more than usually numerous. Among the most conspicuous of these are the right of trial by jury, and that of the habeas corpus. Of the former it is unnecessary to speak, but as the latter is a phrase that may be unintelligible to many, it may be well to explain it.
The literal signification of Habeas Corpus[1] is, "thou may'st have the body." In arbitrary governments, it is much the usage to oppress men, under the pretence of justice, by causing them to be arrested on false, or trivial charges, and of subjecting them to long and vexatious imprisonments, by protracting, or altogether evading the day of trial. The issue of a writ of Habeas Corpus, is an order to bring the accused before an impartial and independent judge, who examines into the charge, and who orders the prisoner to be set at liberty, unless there be sufficient legal ground for his detention.
This provision of the English law has been wisely retained in our system, for without some such regulation, it would be almost as easy to detain a citizen unjustly, under a popular government, as to detain the subject of a monarchy; the difference in favor of the first, consisting only in the greater responsibility of its functionaries.
By comparing the privileges of the Habeas Corpus, where it exists alone, and as a franchise, with those of the citizen who enjoys it merely as a provision of his own, against the abuses of ordinances that he had a voice in framing, we learn the essential difference between real liberty and franchises. The Englishman can appeal to a tribunal, against the abuse of an existing law, but if the law be not with him, he has no power to evade it, however unjust, or oppressive. The American has the same appeal against the abuse of a law, with the additional power to vote for its repeal, should the law itself be vicious. The one profits by a franchise to liberate his person only, submitting to his imprisonment however, if legality has been respected; while the other, in addition to this privilege, has a voice in getting rid of the obnoxious law, itself, and in preventing a recurrence of the wrong.
Some countries have the profession of possessing a government of the people, because an ancient dynasty has been set aside in a revolution, and a new one seated on the throne, either directly by the people, or by a combination that has been made to assume the character of a popular decision. Admitting that a people actually had an agency in framing such a system, and in naming their ruler, they cannot claim to be free, since they have parted with the power they did actually possess. No proposition can be clearer than that he who has given away a thing is no longer its master.
Of this nature is the present government of France. In that country the ancient dynasty has been set aside by a combination of leaders, through the agency of a few active spirits among the mass, and a prince put upon the throne, who is virtually invested with all the authority of his predecessor. Still, as the right of the last sovereign is clearly derived from a revolution, which has been made to assume the appearance of popular will, his government is termed a government of the people. This is a fallacy that can deceive no one of the smallest reflection. Such a system may be the best that France can now receive, but it is a mystification to call it by any other than its proper name. It is not a government of consultation, but one of pure force as respects a vast majority of Frenchmen.
A good deal of the same objection lies against the government of Great Britain, which, though freer in practice than that of France, is not based on a really free system. It may be said that both these governments are as free as comports with discretion, as indeed may be said of Turkey, since men get to be disqualified for the possession of any advantage in time; but such an admission is only an avowal of unfitness, and not a proof of enjoyment.
It is usual to maintain, that in democracies the tyranny of majorities is a greater evil than the oppression of minorities in narrow systems. Although this evil is exaggerated, since the laws being equal in their action it is not easy to oppress the few without oppressing all, it undeniably is the weak side of a popular government. To guard against this, we have framed constitutions, which point out the cases in which the majority shall decide, limiting their power, and bringing that they do possess within the circle of certain general and just principles. It will be elswhere shown that it is a great mistake for the American citizen to take sides with the public, in doubtful cases affecting the rights of individuals, as this is the precise form in which oppression is the most likely to exhibit itself in a popular government.
Although it is true, that no genuine liberty can exist without being based on popular authority in the last resort, it is equally true that it can not exist when thus based, without many restraints on the power of the mass. These restraints are necessarily various and numerous. A familiar example will show their action. The majority of the people of a state might be in debt to its minority. Were the power of the former unrestrained, circumstances might arise in which they would declare depreciated bank notes a legal tender, and thus clear themselves of their liabilities, at the expense of their creditors. To prevent this, the constitution orders that nothing shall be made a legal tender but the precious metals, thus limiting the power of majorities in a way that the government is not limited in absolute monarchies, in which paper is often made to possess the value of gold and silver.
Liberty therefore may be defined to be a controlling authority that resides in the body of a nation, but so restrained as only to be exercised on certain general principles that shall do as little violence to natural justice, as is compatible with the peace and security of society.
- ↑ "Habeas," second person singular, present tense, subjunctive mood, of the verb "Habere," to have; "Corpus," a noun, signifying "body."