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108. Decree for suspending Louis XVI. On August 10, 1792, after the storming of the Tuileries, the following decree was passed by the French Legislative Assembly :
The National Assembly, considering that the dangers of the fatherland have reached their height;
That it is for the Legislative Body the most sacred of duties to employ all means to save it;
That it is impossible to find efficacious ones, unless they shall occupy themselves with removing the source of its evils;
Considering that these evils spring principally from the misgivings which the conduct of the head of the executive power has inspired, in a war undertaken in his name against the constitution and the national independence;
That these misgivings have provoked from different parts of the Empire a desire tending to the revocation of the authority delegated to Louis XVI; . . . decrees as follows:
1. The French people are invited to form a National Convention ; the extraordinary commission shall present to-morrow a proposal to indicate the method and the time of this convention.
2. The head of the executive power is provisionally suspended from his functions until the National Convention has pronounced upon the measures which it believes ought to be adopted in order to assure the sovereignty of the people and the reign of liberty and equality.
I. NATURE OF INDIVIDUAL LIBERTY
109. Different meanings of liberty. Seeley points out the different meanings of the term "liberty” in ordinary usage.1
To sum up: it may be convenient to contrast briefly the three chief political meanings of the word liberty in popular usage:
First, it stands for national independence. This is the case especially in ancient history and poetry, as when we connect it with Marathon, Thermopylæ, Morgarten, Bannockburn, and so on.
Secondly, for responsibility of government. This occurs not only in ancient history, in the classical stories of tyrannicide, but also in our own [England's] constitutional history, for the main object of our struggle in the seventeenth century was to establish the responsibility of government.
Thirdly, it stands for a limitation of the province of government. This meaning also is quite usual, but it has seldom been distinguished from the other.
I gave reasons for thinking that the word liberty is best applied when it bears this meaning, so that a people ought to be called free in proportion as its government has a restricted province.
Thus understood, liberty will appear to be a good or a bad thing according to circumstances. When it is complete it will be equivalent to utter anarchy, and that is not a condition which we have any reason to think desirable. Whatever in human history is great or admirable has been found in governed communities ; in other words, has been the result of a certain restriction of liberty. On the other hand, when government is once established it easily becomes excessively strong. During a great part of their recorded history men have suffered from an excess of government. Accordingly they have learnt to sigh for liberty as one of the greatest of blessings, but in accustoming themselves to regard it so they have insensibly modified the meaning of the word. What poets and orators yearn for is not the destruction of government — though they are not 1 By permission of The Macmillan Company.
careful to explain this, being accustomed to presuppose a government which is certain to be strong enough — but only a reasonable restriction of government.
110. Relation of sovereignty to liberty. Burgess shows that sovereignty and liberty are not contradictory, but that liberty becomes more extensive and secure as sovereignty becomes more definite and real.
The unlimited sovereignty of the state is not hostile to individual liberty, but is its source and support. Deprive the state, either wholly or in part, of the power to determine the elements and the scope of individual liberty, and the result must be that each individual will make such determination, wholly or in part, for himself ; that the determinations of different individuals will come into conflict with each other; and that those individuals only who have power to help themselves will remain free, reducing the rest to personal subjection. It is true that the sovereign state may confer liberty upon some and not upon others, or more liberty upon some than upon others. But it is also true that no state has shown so little disposition to do this, and that no state has made liberty so full and general, as the modern national popular state. Now the modern national popular state is the most perfectly and undisputedly sovereign organization of the state which the world has yet attained. It exempts no class or person from its law, and no matter from its jurisdiction. It sets exact limits to the sphere in which it permits the individual to act freely. It is ever present to prevent the violation of those limits by any individual to the injury of the rights and liberties of another individual, or of the welfare of the community. It stands ever ready, if perchance the measures of prevention prove unsuccessful, to punish such violations. This fact surely indicates that the more completely and really sovereign the state is, the truer and securer is the liberty of the individual. If we go back an era in the history of political civilization, we shall find this view confirmed beyond dispute. The absolute monarchies of the fifteenth, sixteenth, and seventeenth centuries were, no one will gainsay, far more sovereign organizations of the state than the feudal system which they displaced ; and yet they gave liberty to the common man at the same time that they subjected the nobles to the law of the state. In fact they gave liberty to the common man by subjecting the nobles to the law of the state. Should we continue to go backward from the absolute monarchic system to those systems in which the sovereignty of the state was less and less perfectly developed, we should find the liberty of the individual more and more uncertain and insecure, until at last the barbarism of individualism would begin to appear.
111. The idea and source of individual liberty. Burgess states clearly the nature of individual liberty and its source in the sovereignty of the state, as follows :
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 ; i.e. 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. It is not, however, shielded from the power of the state. ...
There is no point in regard to which the modern state presents so marked a contrast to the antique and the medieval as in the recognition of a province within whose limits government shall neither intrude itself not 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 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 defense against the government itself. . .. In the so-called constitutional state, i.e. in the state which is organized back of the government, which limits the powers of the government, 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. ... 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. ...
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 defense. ... 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.
112. The rise of individual liberty. Willoughby traces the development of the idea of individual liberty and distinguishes its two aspects, — political and civil freedom.1
The primary purpose of the State is undoubtedly that of keeping the peace between individuals, and, in the first stages of barbarism, this, together with that of offense and defense against other tribes, is almost its sole aim. As Bagehot has pointed out, in his Physics and Politics, in these early times the quantity of government is much more important than its quality. That which is wanted is a comprehensive rule that shall bind men together and make them act in accordance with some definite rule of conduct. "What this rule is does not matter so much. A good rule is better than a bad one, but any rule is better than none.” Thus this urgent necessity for a public control of some sort or other leaves but little room for the freedom of the individual, — a freedom which, indeed, the individual has not yet learned to desire, or properly to exercise should
1 Copyright, 1896, by The Macmillan Company.