It was this common usage which Lincoln had in mind The opinion of when he said: "The world has never had a good defini- Lincoln tion of the word 'liberty.'" Continuing, he added: "We all declare for liberty; but in using the word, we do not all mean the same thing. With some, the word 'liberty' may mean for each man to do as he pleases with himself and the product of his labor; while with others, the same word may mean for some men to do as they please with other men and the product of other men's labor. Here are two, not only different, but incompatible things, called by the same name-liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names-liberty and tyranny. The shepherd drives the wolf from the sheep's throat, for which the sheep thanks the shepherd as his liberator, while the wolf denounces him for the same act as the destroyer of liberty." There lies the fundamental defect of every realistic theory of liberty.

ultimate

government

No solution of the dilemma is possible which does not The explain the liberty which the people of a commonwealth problem seek in terms of social, not individual, interests, and of of right public, not private, purposes. But how shall social interests be ascertained and public purposes declared? This is the problem which the political idealist has to solve. It is a problem of governmental forms and processes. It is a problem of making just laws. How in practice shall the law be made just, as the political idealist defines justice? Or must the law, as the realist asserts, inevitably serve the private interests of the rulers of the state and of their friends and followers? If the question, how is the government of a commonwealth rightly constituted, cannot be answered, the idealistic theories of justice and liberty can have no practical significance, unsatisfactory as the realistic theories may be. An idealistic theory may express the

1 A. Lincoln, Address at a Sanitary Fair in Baltimore, April 18, 1864.

aspirations of enlightened men, but realistic theories alone will explain the kinds of justice and liberty that political states actually afford.

NOTES ON BOOKS

1. See L. T. Hobhouse's Morals in Evolution (2 vols., 1906). 2. In addition to the books already noted, especially those noted in the preceding chapter, see B. Russell's Proposed Roads to Freedom; Socialism, Anarchism and Syndicalism (1919). A convenient edition of Mill's Liberty, useful also for its introduction, is that in the Everyman's Library (ed. by A. D. Lindsay). This volume contains also his essays on Utilitarianism, and on Representative Government.

3. The most significant passages from the writings of Hobbes, Locke, Rousseau, and Montesquieu are reprinted in F. W. Coker's Readings in Political Philosophy (1914). Locke's Second Treatise of Government (1690) and Montesquieu's L'Esprit des Lois (1748), contributed most to the American belief in the importance of the forms and processes of government for the security of the blessings of liberty. See F. Lieber's Civil Liberty and Self-Government (1853; T. D. Woolsey's 3d ed., 1874, is the best). But the Founding Fathers made a thorough study of the science of government. See, for example, C. M. Walsh's The Political Science of John Adams (1915). For much judicious, though scattered, comment on the theory of liberty, see The Federalist (the best edition is P. L. Ford's, 1898). The limitations of the doctrines of natural rights and of the social compact, whether utilized to support a realistic or an idealistic theory of justice and liberty, have been discussed by many writers, notably by D. G. Ritchie in his Natural Rights (3d ed., 1916). The best account of the development of the political ideas, underlying the American philosophy of liberty, is L. Stephen's History of English Thought in the Eighteenth Century (2 vols., 3d ed., 1902).

CHAPTER VIII

DOMESTIC TRANQUILLITY

1

of liberty

BESIDES the realistic and idealistic philosophical mean- Juristic ings of liberty, the word has a juristic significance which is meaning different from either. This is evident from its use in the Constitution of the United States, where it appears not only in the Preamble but also in the Fifth and Fourteenth Amendments. The former, adopted in 1791, was designed to protect the individual against oppression by the government of the United States, and contains the provision that no person shall be deprived of life, liberty, or property without due process of law. The latter, adopted in 1868, was designed to protect the individual against oppression by the States, and contains a similar provision. Concerning the meaning of liberty, as used in these two amendments, there have been several radically different opinions. These differences of opinion have led to a great deal of discussion in American politics and to a great many actions in the courts of law. Sometimes one opinion has tended to prevail in the halls of legislation and in the decisions of the courts, sometimes another. The reasons for the fluctuations of opinion on the part of the authorities, and the consequences thereof in the conduct of public affairs, are an important matter for consideration in any study of constitutional government in the United States. First, however, it is necessary to inquire, what the different opinions are, and, if possible, to determine which is correct.

Liberty, as a general term in English law, means a privilege held by royal grant or prescription. This is the

(1) General meaning: privileges and immunities

sense in which the term is used in Magna Carta, the Great Charter of the Liberties of Englishmen. The first article, for instance, provides that the Church of England shall have "her whole rights and her liberties inviolable." The second confirms the grant "to all the freemen of our kingdom” of “all the underwritten liberties, to be had and holden by them and their heirs, of us and our heirs, forAnd the sixtieth confirms the benefits of the Charter, not only to the greater clergy and barons who had extorted it from a reluctant king, but to all the English people. "All the aforesaid customs and liberties, which we have granted to be holden in our kingdom, as much as it belongs to us, all people of our kingdom, as well clergy as laity, shall observe, as far as they are concerned, towards their dependents." The term is used in the same sense in the Petition of Right of 1628, the full title of which is, "The Petition exhibited to His Majesty by the Lords Spiritual and Temporal, and Commons in this present Parliament assembled, concerning divers Rights and Liberties of the Subject." It is used in this sense also in the Bill of Rights of 1689, the title of which is, “An Act for declaring the Rights and Liberties of the Subject," etc. It is used in this sense finally in Blackstone's Commentaries on the Laws of England, published on the eve of the American Revolution, the work from which the Colonists largely obtained, not only their knowledge of the rights of Englishmen, but also their definitions of legal terms. This is the settled meaning of the word, liberty, standing alone without any qualification, expressed or implied, as used by English lawyers throughout the period since the liberties of Englishmen were first put down in writing.

An Englishman's liberties, therefore, are a determinate body of ancient legal privileges, which have "broadened down," as Tennyson finely said of the whole body of Eng

and

lish law, "from precedent to precedent" and become con- Primary stitutional rights of to-day. They are all susceptible of secondary precise definition. Blackstone treated the subject under liberties the heading, "The absolute rights of individuals," which, he added, “are usually called their liberties." He divided these rights or liberties into two classes, primary and secondary. The primary rights are three in number: the right of personal security, the right of personal liberty, and the right of private property. Personal security included preservation of life, limb, health, and reputation. Personal liberty Blackstone defined as the "power of locomotion, of changing situation, of moving one's person to whatever place one's inclination may direct, without imprisonment or restraint, unless by due course of law." Among the secondary rights which Blackstone mentions are the right of petition, the right to bear arms, and the right to seek justice in the courts of law. These, he stated, are derived from the primary rights. He makes no mention in this connection of religious liberty or any general freedom of speech and of the press. Certain other privileges or immunities of the subject, however, such as those relating to the quartering of soldiers in subjects' houses in time of peace, unreasonable searches and seizures, and cruel and unusual punishments, which Blackstone excludes from the category of "absolute rights" or "liberties," he disposes of under the description of "relative rights." It is unnecessary to multiply instances of the use of the word, liberty, by the English lawyers. The American people were familiar from earliest times with this juristic sense of the term, as witness the Massachusetts Body of Liberties of 1641, the most notable of the ancient codes in the Colonies. The Federal Constitution,

1 The best evidence of the meaning attached to the word, liberty, as used in colonial legal documents, is afforded by section 91 of the Massachusetts Body of Liberties, dealing with the "liberties of foreigners and strangers": "There shall never be any bond slavery, villeinage, or