СНА Р. V.

OF CIVIL LIBERTY.

CIVIL Liberty is the not being restrained by any Law, but what conduces in a greater degree to the public welfare.

To do what we will is natural liberty; to do what we will, confiftently with the intereft of the community to which we belong, is civil liberty; that is to fay, the only liberty to be defired in a ftate of civil fociety.

I fhould wifh, no doubt, to be allowed to act in every inftance as I pleased, but I reflect that the rest alfo of mankind would then do the fame; in which ftate of univerfal independence and felf-direction Į fhould meet with fo many checks and obftacles to my own will, from the interference and oppofition of other men's, that not only my happiness, but my liberty, would be less, than whilft the whole community were fubjected to the dominion of equal

laws.

The boafted liberty of a ftate of nature exifts only in a state of folitude. In every kind and degree of union and intercourfe with his fpecies, the liberty of the individual is augmented by the very laws which reftrain it; because he gains more from the limitation of other men's freedom than he fuffers by the diminution of his own. Natural li berty is the right of common upon a wafte; civil liberty is the fafe, exclufive, unmolefted enjoyment of a cultivated inclosure.

The definition of civil liberty above laid down, imports that the laws of a free people impofe no re

ftraints

ftraints upon the private will of the fubject, which do not conduce in a greater degree to the public hap pinefs by which it is intimated, ift, that reftrair itself is an evil; 2dly, that this evil ought to be overbalanced by fome public advantage; 3dry, the the proof of this advantage lies upon the legiflature; 4thly, that a law being found to produce no fenfibk good effects, is a fufficient reafon for repealing it, a adverfe and injurious to the rights of a free citize without demanding fpecific evidence of its bad e fects. This maxim might be remembered with ad vantage in a revifion of many laws of this country efpecially of the game laws of the poor laws, far as they lay reftrictions upon the poor themselves -of the laws againft papifts and diffenters: and amongst a people enamoured to excefs and jealous of their liberty, it feems a matter of furprife that this principle has been fo imperfectly attended to.

The degree of actual liberty always bearing, ac cording to this account of it, a reversed proportion to the number and feverity of the reftrictions which are either ufelefs, or the utility of which does no outweigh the evil of the restraint; it follows that every nation poffeffes fome, no nation perfect liberty; that this liberty may be enjoyed under every form of government; that it may be impaired indeed, or increased, but that it is neither gained, nor loft, nor recovered, by any fingle regulation, change, or event whatever; that, confequently, thofe popular phrafes which fpeak of a free people, of a nation of flaves, which call one revolution the æra of liberty; or another the lofs of it; with many expreffions of a like abfolute form, are intelligible only in a comparative fenfe,

Hence alfo we are enabled to apprehend the dif tinction between perfonal and civil liberty. A citizen of the freeft republic in the world may be im prifoned for his crimes; and though his perfonal freedom be reftrained by bolts and fetters, fo long

as his confinement is the effect of a beneficial public law, his civil liberty is invaded. If this inftance appear dubious, the following will be plainer. A paffenger from the Levant, who, upon his return to England, fhould be conveyed to a lazaretto by an order of quarantine, with whatever impatience he might defire his enlargement, and though he faw a guard placed at the door to oppose his escape, or even ready to destroy his life if he attempted it, would hardly accufe government of incroaching upon his civil freedom; nay, might, perhaps, be all the while, congratulating himself, that he had at length fet his foot again in a land of liberty. The manifeft expediency of the measure not only juftifies it, but reconciles the most odious confinement with the perfect poffeffion, and the loftiest notions of civil liberty. And if this be true of the coercion of a prifon, that it is compatible with a state of civil freedom; it cannot with reafon be difputed of those more moderate constraints which the ordinary operation of government impofes upon the will of the individual. It is not the rigour, but the inexpediency of laws and acts of authority, which makes them tyrannical.

There is another idea of civil liberty, which, though neither fo fimple, nor fo accurate as the former, agrees better with the fignification, which the ufage of common difcourfe, as well as the example of many respectable writers upon the fubject, has affixed to the term. This idea places liberty in security; making it to confift not merely in an actual exemption from the conftraint of ufelefs and noxious laws and acts of dominion, but in being free from the danger of having any fuch hereafter impofed or exercifed. Thus, fpeaking of the political state of modern Europe, we are accuftomed to fay of Sweden, that he hath loft her liberty by the revolution which lately took place in that country; and yet we are affured that the people continue to be governed by the fame laws as before, or by others which are

wifer, milder, and more equitable. What then hare they loft? They have loft the power and functionsd their diet; the conftitution of their ftates and or ders, whofe deliberation and concurrence were re quired in the formation and establishment of every public law; and thereby have parted with the fecu rity which they poffeffed against any attempts of the crown to harafs its fubjects, by oppreffive and ufe lefs exertions of prerogative. The lofs of this fecu rity we denominate the lofs of liberty. They have changed not their laws, but their legiflature; no their enjoyment, but their fafety; not their prefent burthens, but their profpects of future grievances: and this we pronounce a change from the condition of freemen to that of flaves. In like manner, in our own country, the act of parliament, in the reign of Henry the Eighth, which gave to the king's procla mation the force of law, has properly been called complete and formal furrender of the liberty of the nation; and would have been fo, although no proclamation were iffued in purfuance of thefe new pow ers, or none but what was recommended by the highest wisdom and utility. The fecurity was gone. Were it probable, that the welfare and accommo dation of the people would be as ftudioufly, and as providently, confulted in the edicts of a defpotic prince, as by the refolutions of a popular affembly, then would an abfolute form of government be no lefs free than the pureft democracy. The differen degree of care and knowledge of the public intere which may reasonably be expected from the different form and compofition of the legislature, conftitutes the diftinétion, in relpect of liberty, as well between thefe two extremes, as between all the intermediate modifications of civil goverument.

The definitions which have been framed of civil liberty, and which have become the fubject of much unneceffary altercation, are most of them adapted

to

this idea. Thus one political writer makes the, ery effence of the fubject's liberty to confift in his eing governed by no laws but thofe to which he ath actually confented; another is fatisfied, with an direct and virtual confent; another again places ivil liberty in the feparation of the legislative and xecutive offices of government; another in the be ig governed by law, that is, by known, pre-confti. ited, inflexible rules of action and adjudication; fifth in the exclufive right of the people to tax emselves by their own reprefentatives; a fixth in he freedom and purity of elections of representa ves; a feventh in the control which the democratic art of the conftitution poffeffes over the military stablishment. Concerning which, and fome other milar accounts of civil liberty, it may be observed hat they all labour under one inaccuracy, viz. that hey defcribe not fo much liberty itself, as the fafeguards and prefervatives of liberty; for example, a nan's being governed by no laws, but those to which he has given his confent, were it practicable, s no otherwife neceffary to the enjoyment of civil liberty, than as it affords a probable fecurity against the dictation of laws, impofing fuperfluous reftrictions upon his private will. This remark is applicable to the rest. The diverfity of these definitions will not furprise us, when we confider that there is no contrariety or oppofition amongst them whatever; for by how many different provifions and precautions civil liberty is fenced and protected, fo many different accounts of liberty itself, all fufficiently confiftent with truth and with each other, may, according to this mode of explaining the term, be framed and adopted.

Truth cannot be offended by a definition, but propriety may. In which view thofe definitions of liberty ought to be rejected, which by making that effential to civil freedom which is unattainable in experience, inflame expectations that can never be gra

tified,