I
Civil Liberty
Both logically and historically the first point of attack is arbitrary government, and the first liberty to be secured is the right to be dealt with in accordance with law. A man who has no legal rights against another, but stands entirely at his disposal, to be treated according to his caprice, is a slave to that other. He is “rightless,” devoid of rights. Now, in some barbaric monarchies the system of rightlessness has at times been consistently carried through in the relations of subjects to the king. Here men and women, though enjoying customary rights of person and property as against one another, have no rights at all as against the king’s pleasure. No European monarch or seignior has ever admittedly enjoyed power of this kind, but European governments have at various times and in various directions exercised or claimed powers no less arbitrary in principle. Thus, by the side of the regular courts of law which prescribe specific penalties for defined offences proved against a man by a regular form of trial, arbitrary governments resort to various extrajudicial forms of arrest, detention, and punishment, depending on their own will and pleasure. Of such a character is punishment by “administrative” process in Russia at the present day; imprisonment by lettre de cachet in France under the ancien régime; all executions by so-called martial law in times of rebellion, and the suspension of various ordinary guarantees of immediate and fair trial in Ireland. Arbitrary government in this form was one of the first objects of attack by the English Parliament in the seventeenth century, and this first liberty of the subject was vindicated by the Petition of Right, and again by the Habeas Corpus Act. It is significant of much that this first step in liberty should be in reality nothing more nor less than a demand for law. “Freedom of men under government,” says Locke, summing up one whole chapter of seventeenth-century controversy, “is to have a standing rule to live by, common to every one of that society and made by the legislative power erected in it.”
The first condition of universal freedom, that is to say, is a measure of universal restraint. Without such restraint some men may be free but others will be unfree. One man may be able to do all his will, but the rest will have no will except that which he sees fit to allow them. To put the same point from another side, the first condition of free government is government not by the arbitrary determination of the ruler, but by fixed rules of law, to which the ruler himself is subject. We draw the important inference that there is no essential antithesis between liberty and law. On the contrary, law is essential to liberty. Law, of course, restrains the individual; it is therefore opposed to his liberty at a given moment and in a given direction. But, equally, law restrains others from doing with him as they will. It liberates him from the fear of arbitrary aggression or coercion, and this is the only way, indeed, the only sense, in which liberty for an entire community is attainable.
There is one point tacitly postulated in this argument which should not be overlooked. In assuming that the reign of law guarantees liberty to the whole community, we are assuming that it is impartial. If there is one law for the Government and another for its subjects, one for noble and another for commoner, one for rich and another for poor, the law does not guarantee liberty for all. Liberty in this respect implies equality. Hence the demand of Liberalism for such a procedure as will ensure the impartial application of law. Hence the demand for the independence of the judiciary to secure equality as between the Government and its subjects. Hence the demand for cheap procedure and accessible courts. Hence the abolition of privileges of class. Hence will come in time the demand for the abolition of the power of money to purchase skilled advocacy.