CHAP. V.

OF CIVIL LIBERTY.

CIVIL Liberty is the not being reftrained 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 state of civil fociety.

I should wish, 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 state of universal independence and felf-direction I should 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 subjected to the dominion of equal laws.

The boafted liberty of a state of nature exists 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 liberty is the right of common upon a waste; civil liberty is the fafe, exclufive, unmolested enjoyment of a cultivated inclosure.

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

ftraints upon the private will of the fubject, which do not conduce in a greater degree to the public happinefs: by which it is intimated, ift, that reftraint itfelf is an evil; 2dly, that this evil ought to be overbalanced by fome public advantage; 3dly, that the proof of this advantage lies upon the legislature; 4thly, that a law being found to produce no fenfible good effects, is a fufficient reafon for repealing it, as adverfe and injurious to the rights of a free citizen, without demanding fpecific evidence of its bad effects. This maxim might be remembered with advantage in a revifion of many laws of this country; especially of the game laws of the poor laws, fo far as they lay reftrictions upon the poor themfelves

of the laws against papifts and diffenters and amongst a people enamoured to excefs and jealous of their liberty, it feems a matter of furprise that this principle has been fo imperfectly attended to.

The degree of actual liberty always bearing, according to this account of it, a reverfed proportion to the number and feverity of the restrictions which are either ufelefs, or the utility of which does not outweigh the evil of the reftraint; 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 speak 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 sense.

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

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as his confinement is the effect of a beneficial public law, his civil liberty is invaded. If this inftance not 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 deftroy 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 per fect poffeffion, and the loftieft 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 thofe 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 refpectable writers upon the fubject, has affixed to the term. This idea places liberty in fecurity; making it to confift not merely in an actual exemption from the constraint of useless and noxious laws and acts of dominion, but in being free from the danger of having any fuch hereafter impofed or exercised. Thus, fpeaking of the political state of modern Europe, we are accustomed to fay of Sweden, that the 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,

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wifer, milder, and more equitable. What then have they loft? They have loft the power and functions of their diet; the conftitution of their states and orders, whofe deliberation and concurrence were required in the formation and establishment of every public law; and thereby have parted with the fecurity which they poffeffed against any attempts of the crown to harafs its fubjects, by oppreffive and ufelefs exertions of prerogative. The lofs of this fecurity we denominate the lofs of liberty. They have changed not their laws, but their legislature; not 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 proclamation the force of law, has properly been called a complete and formal surrender of the liberty of the nation; and would have been fo, although no proclamation were iffued in purfuance of thefe new powers, or none but what was recommended by the highest wisdom and utility. The fecurity was gone. Were it probable, that the welfare and accommodation of the people would be as ftudiously, 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 different degree of care and knowledge of the public interest which may reasonably be expected from the different form and compofition of the legislature, conftitutes the diftinction, in refpect of liberty, as well between these two extremes, as between all the intermediate modifications of civil government.

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

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to this idea. Thus one political writer makes the very effence of the fubject's liberty to confift in his being governed by no laws but thofe to which he hath actually confented; another is fatisfied with an indirect and virtual confent; another again places civil liberty in the feparation of the legislative and executive offices of government; another in the being governed by law, that is, by known, pre-conftitured, inflexible rules of action and adjudication; a fifth in the exclufive right of the people to tax themselves by their own reprefentatives; a fixth in the freedom and purity of elections of representatives; a seventh in the control which the democratic part of the conftitution poffeffes over the military eftablishment. Concerning which, and some other fimilar accounts of civil liberty, it may be observed, that they all labour under one inaccuracy, viz. that they defcribe not fo much liberty itself, as the fafeguards and prefervatives of liberty: for example, a man's being governed by no laws, but those to which he has given his confent, were it practicable, is 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 reft. 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.

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Truth cannot be offended by a definition, but priety may In which view thofe definitions of li berty ought to be rejected, which by making that effential to civil freedom which is unattainable in ex-perience, inflame expectations that can never be gra