BOOK II.

INDIVIDUAL LIBERTY.

CHAPTER I.

THE IDEA, THE SOURCE, THE CONTENT AND THE GUARANTY OF INDIVIDUAL LIBERTY.

The idea. Individual liberty has a front and a reverse, a positive and a negative side. Regarded upon the negative side, it contains immunities, upon the positive, rights; ie. viewed from the side of public law, it contains immunities, from the side of private law, rights. The whole idea is that of a domain in which the individual is referred to his own will and upon which government shall neither encroach itself, nor permit encroachments from any other quarter. Let the latter part of the definition be carefully remarked. I said it is a domain into which government shall not penetrate. not, however, shielded from the power of the state. will be easily understood by those who have carefully perused the previous pages, and will be further explained when we come to consider the source of this liberty.

It is

This

There is no point in regard to which the modern state presents so marked a contrast to the antique and the mediaval as in the recognition of a province within whose limits government shall neither intrude itself nor permit intrusion from any other quarter. This is entirely comprehensible from the standpoint of the reflection that the theocracy crushes the individual will at every point by the divine will; that the despotism confounds the state with the government, and

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vests the whole power of the state in the government; and that the feudal state confounds property in the soil with dominion over the inhabitants thereof, substituting thus the petty despotism for the grand. Not until the rise of the modern monarchic governments upon the ruins of feudalism do we become aware of the fact that a new constitutional principle had found lodgment in the consciousness of the age. To this period individual liberty had existed only in so far as the government allowed. It had no defence against the government itself. Now the understanding tacitly reached between the King and the people was: that while the people would lend their strength to the King in subjecting the nobles to the royal law, the King would deliver the people from the feudal oppression; i.e. while all governmental power should be consolidated in the King's hands, the people should have a sphere of autonomy, not only against the nobles, but against the King's government itself. The weak point in the system was that there existed no organization back of the King's government to define and defend this sphere against that government. Legally the conscience of the King was the ultimate resort. The organization of the state back of the King was then the indispensable necessity. This is the chief point in what is termed by the political historians the constitutionalization of monarchy. In the so-called constitutional state, i.e. in the state which is organized back of the government, which limits the powers of the gov ernment, and which creates the means for restraining the government from violating these limitations, individual liberty finds its first real definer and its defender.

The source. Therefore we affirm that the state is the source of individual liberty. The revolutionists of the eighteenth century said that individual liberty was natural right; that it belonged to the individual as a human being, without regard to the state or society in which, or the government under which, he lived. But it is easy to see that this view is

utterly impracticable and barren; for, if neither the state, nor the society nor the government defines the sphere of individual autonomy and constructs its boundaries, then the individual himself will be left to do these things, and that is anarchy pure and simple. The experiences of the French revolution, where this theory of natural rights was carried into practice, showed the necessity of this result. These experiences drove the more pious minds of this period to formulate the proposition that God is the source of individual liberty. "Dieu et mon droit" was the medieval motto made new again. But who shall interpret the will of God in regard to individual liberty? If the individual interprets it for himself, then the same anarchic result as before will follow. If the state, or the church, or the government interprets it, then the individual practically gives up the divine source of his liberty; for the question of the interpretation and legal formulation of individual rights and immunities is the only part of the question which has any practical value. These two theories embodied a natural and necessary revulsion of sentiment against the practical system of the pre-revolutionary period, which accorded to the individual only such liberty as the government might, at the moment, permit. But they overshot the mark; and a reaction of view as well as practice naturally resulted.

The present moment is much more favorable to an exact and scientific statement of these relations. We may express the most modern principle as follows: The individual, both for his own highest development and the highest welfare of the society and state in which he lives, should act freely within a certain sphere; the impulse to such action is a universal quality of human nature; but the state, the ultimate sovereign, is alone able to define the elements of individual liberty, limit its scope and protect its enjoyment. The individual is thus defended in this sphere against the government, by the power that makes and maintains and can destroy the government; and by the same power, through the government,

against encroachments from every other quarter. Against that power itself, however, he has no defence. It can give and it can take away. The individual may ask for liberties which it has not granted, and even prove to the satisfaction of the general consciousness that he ought to have them; but until it grants them he certainly has them not. The ultimate sovereignty, the state, cannot be limited either by individual liberty or governmental powers; and this it would be if individual liberty had its source outside of the state. This is the only view which can reconcile liberty with law, and preserve both in proper balance. Every other view sacrifices the one to the other.

The content. The elements of individual liberty cannot be generally stated for all states and for all times. All mankind is not to be found, or has not yet been found, upon the same stage of civilization. The individual liberty of the Russian would not suffice for the Englishman, nor that of the Englishman at the time of the Tudors for the Englishman of to-day. As man develops the latent elements of his own civilization he becomes conscious of the need of an ever-widening sphere of free action, and the state finds its security and well-being in granting it. It must be remarked, on the other hand, however, that the elements of individual or civil liberty are much more generally and uniformly recognized than the elements of political rights. The brotherhood of man is much more distinctly expressed through the former than through the latter. We can, therefore, approach nearer, at the present time, to a universal system of individual liberty than of political liberty. In fact, in the modern states the realm of individual liberty is almost identical, no matter whether the governmental executive holds by election or hereditary right. In the four states, whose constitutions it is the purpose of this work to compare, the disagreement as to the essence of the rights and immunities which constitute individual liberty is really but slight. The divergence is chiefly in the character of the

organs which guarantee the enjoyment of these rights and immunities.

We may say, generally, that in all these states individual liberty consists in freedom of the person, equality before the courts, security of private property, freedom of opinion and its expression, and freedom of conscience. The rights of the individual in respect thereto are the powers conferred upon him by the state to exercise certain prerogatives, and to call upon the government, or some branch thereof, for the employment of sufficient force to realize these prerogatives, to the full extent as defined by the state. The immunities of the individual in respect thereto are his exemptions from the power of the government itself, or any branch thereof, to enter or encroach upon this sphere, except in the manner and to the extent prescribed by the state.

The guaranties. The means for protecting individual liberty, on the contrary, as I have already indicated, differ radically in the four states whose constitutional law we are examining. This difference appears most prominently on that side of individual liberty which I term immunities. In the system of the United States, it is the sovereignty back of the government which defines and defends individual liberty, not only against all forces extra-governmental, but also against the arbitrary encroachments of the government itself. The sovereignty back of the government vests the courts of the central government with the power to interpret the prescripts of the constitution in behalf of individual rights and immunities, and to defend the same against the arbitrary acts of the legislature or executive.1 It is the constitutional duty of the executive to obey these final decisions of the United States judiciary in regard to private rights and immunities, and to execute the laws in accordance therewith. Should he refuse, however, and insist upon exercising, in

1 Constitution of the United States, Art. III, sec. 2, § I.