« SebelumnyaLanjutkan »
enth, in the control which the democratic part of the constitution possesses over the military establishment."
MONTESQUIEU on Liberty:
"There is no word that has admitted of more various significations, and has made more different impressions on human minds, than that of liberty. Some have taken it for a faculty of deposing a person on whom they had conferred a tyrannical authority; others, for the power of choosing a person whom they are obliged to obey; others, for the right of bearing arms, and of being thereby enabled to use violence; others, for the privilege of being governed by a native of their own country, or by their own laws. A certain nation for a long time thought that liberty consisted in the privilege of wearing a long beard.
Some have annexed this name to one form of government, in exclusion of others; those who had a republican taste applied it to this government; those who liked a monarchical state, gave it to monarchies. Thus, they all have applied the name of liberty to the government most conformable to their own customs and inclinations; and as in a republic, people have not so constant and so present a view of the institutions they complain of, and likewise as the laws there seem to speak more, and the executors of the laws least, it is generally attributed to republics, and denied to monarchies. In fine, as in democracies, the people seem to do very near whatever they please, liberty has been placed in this sort of gov
ernment, and the power of the people has been confounded with their liberty.
It is true, that in democracies the people seem to do what they please; but political liberty does not consist in an unrestrained freedom. In governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will.
We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing whatever the laws permit; and if a citizen could do what they forbid, he would no longer be possessed of liberty, because all his fellow citizens would have the same power."
BLACKSTONE on Liberty:
"The absolute right of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind.
This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free will. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to con
form to those laws which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable than that wild and savage liberty which is sacrificed to obtain it. For, no man that considers a moment, would wish to retain the absolute, uncontrolled power of doing what he pleases; the consequence of which is, that every other man would also have the same power; and then, there would be no security to individuals in any of the enjoyments of life. Political, therefore, or civil liberty, which is that of a member of society, is no other than natural liberty, so far restrained by human laws, (and no farther,) as is necessary and expedient for the general advantage of the public. Hence, we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind; but that every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny: nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are regulations destructive of liberty; whereas, if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance, by supporting that state of society which can alone secure our independence. Thus the statute of King Edward IV, which forbade the fine gentlemen of those times (under the degree of a lord)
to wear pikes upon their shoes or boots of more than two inches in length, was a law that savored of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties, could serve no purpose of common utility. But the statute of King Charles II, which prescribes a thing seemingly as indifferent, (a dress for the dead, who are all ordered to be buried in woollen,) is a law consistent with public liberty; for it encourages the staple trade, on which, in great measure, depends the universal good of the nation. So that laws, when prudently framed, are by no means subversive, but rather introductive of liberty; for, (as Mr. Locke has well observed,) where there is no law, there is no freedom. But then, on the other hand, that constitution or frame of government—that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint.
The idea and practice of this political or civil liberty, flourish in their highest vigor in those kingdoms where it falls little short of perfection, and can only be lost or destroyed by the folly or demerits of its owner: the legislature, and of course the laws of England, being peculiarly adapted to the preservation of this inestimable blessing even in the meanest subject.
Very different from the modern constitutions of other States on the continent of Europe, and from the genius of the imperial law, which, in general, are calculated to vest an arbitrary and despotic power of controlling the actions of the subject, in the prince or in a few grandees.
And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave, or a negro, the moment he lands in England, falls under the protection of the laws, and so far becomes a freeman, though the master's right to his service may possibly still continue.
Next to personal security, the law of England regards, asserts and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or removing one's person to whatever place one's inclinations may direct, without imprisonment or restraint, unless by due course of law. Concerning which, we may make the same observations. as upon the preceding article; that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and, that in this kingdom, it can never be abridged at the mere discretion of the magistrate, without the explicit permission of the laws."
Now, let the reader examine and study these definitions of Liberty by Paley, Montesquieu and Blackstone, and he will see that they are in pursuit of an ignis fatuus that eludes their grasp. He will see more, that their liberty is a mere modification of slavery. That each of them proposes that degree of restraint, restriction and control, that will redound to the general good. That each is in pursuit of good government, not liberty. Government pre-supposes that liberty is surrendered as the price of security. The degree of government must