5 - Public Liberty in Jeopardy

Summary

This situation of England [under Elizabeth], was in reality more remote, tho’ seemingly it approached nearer, a despotic and eastern monarchy, than the present government of that kingdom, where the people, tho’ guarded by multiplied laws, are totally naked, defenceless, and disarmed, and besides, are not secured by any middle power, or independent powerful nobility, interposed between them and the monarch.

Hume, The History of England, under the House of Tudor, 1759

In his Stuart History, Hume claimed that ‘by the changes, which have since [the Stuart accession] been introduced, the liberty and independence of individuals has been rendered much more full, intire, and secure; that of the public more uncertain and precarious’. His notion of ‘civil liberty’ entailed a wide range of personal freedoms under the aegis of the law, such as the freedom of individuals to property, life, conscience, and speech. Indeed, the flourishing of civil liberty depended on the proper administration of justice through the legal system. The arbitrary power of the sovereign prince constituted the main obstacle to the perfection of civil liberty. The primary channels of the monarch's authority, especially the Star Chamber and the Court of High Commission, posed a constant threat to the legal protection of liberty and property.

By ‘public liberty’, Hume meant the freedom of Parliament to make and maintain laws independently, including the freedom to redress abuses of the royal prerogative by the monarch; to enable its members to take their seats; and to judge their elections and returns after taking leave. As with civil liberty, the main obstacle to public liberty was the discretionary and suspending power of the Crown. Nonetheless, public liberty was more concerned with the extent to which the Crown ought to possess and thus exercise its discretionary or suspending power, which tended to obstruct the regular administration of the law, rather than with the question of whether this power actually endangered the liberty and property of the people.

According to Forbes, Hume's direct comparison between civil liberty (or ‘the liberty and independence of individuals’) and public liberty (or parliamentary privilege) was rooted in contemporary issues, especially the parliamentary obsession with ‘the perfection of civil society’, which was typified by the ideal of property rights and which threatened to endanger public liberty and unbalance the constitution.