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ruled. This desire for national independence was the chief concern of our fathers when they thought of liberty at the time of the American Revolution. So we speak of the long war of the Low Countries (Holland and Belgium) against foreign rulers—Burgundy and Spain—as a struggle for liberty. What is the importance of this kind of liberty? Is a country or a part of a country better off if it is ruled by its own people, and is it true to say that a people is not free if it is 1 not independent?
Consider Canada. Canada, like the United States before the Revolution, was a part of the British Empire, and still remains such, but its citizens consider that they enjoy liberty as truly as the people of the United States. They do not regard themselves as being ruled by a foreign power. They consider Great Britain as the Mother Country, and in turn Great Britain leaves them practically a free hand.
In the case of Scotland there was long a party which believed it better to be independent of England. When we read Robert Burns's stirring poem called “ Scots wha hae wi' Wallace bled,” we think it was fine thing to fight for the “ freedom” of Scotland, and that “proud Edward's power” meant " chains and slavery." Yet if we look back and ask whether Scotland was better off when it was independent, or after it became a part of the one nation of Great Britain, we can have no doubt that there has been more prosperity, and even more liberty, in most senses of the word, for Scotchmen since their country has united with England.
But contrast with this the case of Ireland. The country has been conquered several times, and has had various plans of government, but it has never prospered
as has Scotland. Its people have considered themselves cruelly oppressed, and have sought“ home rule” as the nearest practicable substitute for independence. They have felt much as the American colonists felt toward England in 1776.
At the time of the Civil War in the United States, many people in the Southern States believed that the interests of their states were so different from those of the North that it would be better to form an independent nation. A few in the North thought the same, though the majority believed that to have two nations would lead to constant conflicts and that the reasons for union were stronger than those for separation.
It is evident that national freedom is sometimes highly prized, and that sometimes, on the contrary, a people prefers to be part of a larger whole rather than to be independent. It seems to depend upon whether people of the two countries are so alike in race, language, traditions, and feelings that they can understand and sympathize with each other, and upon whether they have common interests.
Suppose, however, a country which is so distinct from others in these respects that its people desire to be independent. What is the advantage of being independent as compared with being governed by another people, which perhaps seems to be more capable of ruling? This is a good deal like asking: What is the advantage to a boy of becoming independent when he is twenty-one years old, instead of remaining subject to his father as he does in China? We answer: If he is his own master a young man may make mistakes, but to give him his freedom is, on the whole, the best way to make him careful and responsible; if he is his own master he feels greater ambition and pride in doing
well—he is more of a man—than if he is directed by another. In the case of a nation, both these reasons hold good, unless a people is so very ignorant as to be like a child instead of like a grown man. And there is also a third reason. Two peoples may in many respects have like interests, but the more widely separated they are in soil or climate, or by barriers like mountains, the more probable it is that what one nation wants may not be good for the other. In this case the people which is ruled by the other is likely to be oppressed
To sum up then, we may say that national liberty is in most cases the first step toward other kinds of liberty. It is the source of ambition and patriotism. It teaches responsibility and is most likely to lead to national prosperity.
We need not dwell long upon the third kind of liberty, namely special privilege, as we have already given illustrations of it in speaking of the towns and gilds. But the most famous example is found in the liberties granted by Magna Carta. The Great Charter was not, as is often assumed, a general guarantee of liberty for the English people. It was a special treaty made by King John with the barons, and granted them certain special privileges which the people in general did not have. One such special privilege was that of being judged by their “ peers.” This meant that they need not be judged by the regular royal judges whom the barons would not admit to be their peers. The Charter made likewise an important grant to freemen:
3. Special privilege
No freeman may be taken or imprisoned or dis-seized (put out of his house or lands) or outlawed or exiled or in any other way destroyed, injured, nor will we go or
send against him, except by the lawful judgment of his peers, or by the law of the land.
This was a “special privilege ” which later became of great value for more and more of the people as they came to be free men and so could claim the protection of the law of the land. It was thus an example of what we shall speak of in the next chapter as one of the ways in which a special privilege of a small group becomes a means of liberty for a large number.
Civil liberty was secured by a series of steps. The 4. Civil state very early established far better order than there liberty had been under tribal society. This was a great step toward real freedom, for if a man is afraid of being murdered, or beaten, or robbed, or of having his house burned, he has not much liberty. A town might keep order inside its walls, but it could not well protect its merchants when on their journeys. The robber barons built castles from which they would pounce upon the merchants. Or the outlaws in the forest would waylay the traveler. The church did what it could to keep peace, for it forbade men to fight on certain days of the week. Yet it was the king who was most successful in keeping peace, and so in protecting the liberties of people from general violence.
But the subjects of the king would be far from free if the king himself might at any time seize their persons and hold them in prison, or take away their property. In a republic a man would not be free if the legislature could vote at any time to put him to death or banish him or confiscate his property, without showing that he had violated any law. It was then a great gain when a citizen could claim the right to be heard in court, and to be treated the same as all others, that
is, to be judged by the law and not made a special victim of the malice or greed of the king or any other powerful lord. The common law and the courts thus came to defend the rights of citizens against arbitrary acts of the king himself. This seems to have been the origin of an idea which is fundamental in this country. Our fathers, when they organized the various states, determined to protect themselves from arbitrary acts by their rulers. So they framed constitutions in which they included a “bill of rights." These constitutions were to be the supreme law, and they guaranteed to all the citizens certain rights. If the legislature passed a measure in violation of these rights the courts refused to enforce it. In fact they went further; it became a settled principle that the courts might declare such a law unconstitutional and therefore not a law at all. Of course if the state needed money, or needed a particular piece of land it could get it. But it must get the money by the regular way of taxation, not by demanding a special sum of John Doe. It must pay compensation if it took land for public use. And equally of course if a man did wrong the state could punish him. But it must prove that he had broken a law.
One of these rights specified in our Constitution is the right to a writ of habeas corpus. In former times a man might sometimes be seized and kept in prison indefinitely without a trial. But now if a police officer takes a man to prison without accusing him of any definite offense, the man or his lawyer may apply for a writ of habeas corpus,
you may have the body.” This commands the jailer, or whoever is holding the man prisoner, to bring him before the court in order that it may be learned whether he is being lawfully confined.