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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, consistently with the interest of the community to which we belong, is civil liberty ; that is to say, the only liberty to be desired in a state of civil society.
I should wish, no doubt, to be allowed to act in every instance as I pleased, but I reflect that the rest also of mankind would then do the same; in which state of universal independence and self-direction I Ihould meet with so many checks and obstacles to my own will, from the interference and opposition of other men's, that not only my happiness, but my li. berty, would be less, than whilst the whole community were subjected to the dominion of equal laws.
The boasted liberty of a state of nature exists only in a state of solitude. In every kind and degree of union and intercourse with his species, the liberty of the individual is augmented by the very laws which restrain it; because he gains more from the limitation of other men's freedom than he suffers by the diminution of his own. Natural liberty is the right of common upon a waste; civil liberty is the safe, exclusive, unmolested enjoyment of a cultivated inclosure.
The definition of civil liberty above laid down, imports that the laws of a free people impose no re.
ad hour demandinis might be laws of this cours, to
straints upon the private will of the subject, which do not conduce in a greater degree to the public hap. piness: by wbich it is intimated, ist, that restraint itself is an evil; 2dly, that this evil ought to be overbalanced by some public advantage; 3dly, that the proof of this advantage lies upon the legislature; 4thly, that a law being found to produce no sensible good effects, is a sufficient reason for repealing it, as adverse and injurious to the rights of a free citizen, without demanding specific evidence of its bad ef. fects. This maxim might be remembered with ad. vantage in a revision of many laws of this country, especially of the game laws—of the poor laws, so far as they lay restrictions upon the poor themselves --of the laws against papists and difsenters : and amongst a people enamoured to excess and jealous of their liberty, it seems a matter of surprise that this principle has been so imperfectly attended to.
The degree of actual liberty always bearing, according to this account of it, a reversed proportion to the number and severity of the restrictions which are either useless, or the utility of which does not outweigh the evil of the restraint ; it follows that every nation poffesses fome, no nation perfect liberty; that this liberty may be enjoyed under every form of government; that it may be impaired in. deed, or increased, but that it is neither gained, nor los, nor recovered, by any single regulation, change, or event whatever ; that, consequently, those popular phrases which speak of a free people, of a nation of flaves, which call one revolution the æra of liberty; or another the loss of it; with many expressions of a like absolute form, are intelligible only in a comparative sense.
Hence also we are enabled to apprehend the distinction between personal and civil liberty. A citi. zen of the freest republic in the world may be imprisoned for his crimes; and though his personal freedom be restrained by bolts and fetters, so long
as his confinement is the effect of a beneficial public law, his civil liberty is invaded. If this instance appear dubious, the following will be plainer. A passenger from the Levant, who, upon his return to England, should be conveyed to a lazaretto by an order of quarantine, with whatever impatience he might desire his enlargement, and though he saw a guard placed at the door to oppose his escape, or even ready to destroy his life if he attempted it, would hardly accuse 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 manifest expediency of the measure not only justifies it, but reconciles the most odious confinement with the per fect possession, and the loftieft notions of civil liberty. And if this be true of the crercion of a prison, that it is compatible with a state of civil freedom; it cannot with reason be disputed of those more mo. derate constraints which the ordinary operation of government imposes 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 so simple, nor so accurate as the for. mer, agrees better with the signification, which the usage of common discourse, as well as the example of many respectable writers upon the subject, has affixed to the term. This idea places liberty in security; making it to consist 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 such hereafter imposed or exercised. Thus, speaking of the political state of modern Europe, we are accustomed to say of Sweden, that she hath lost her liberty by the revolucion which lately took place in that counıry; and yet we are assured that the people continue to be governed by the same laws as before, or by others which are
wiser, wiser, milder, and more equitable. What therta:c they lost? They have lost the power and functions of their diet ; the constitution of their states a'id (e. ders, whose deliberation and concurrence were required in the formation and establishment of esc: public law; and thereby have parted with the icone rity which they possessed against any attemp's of raie crown to harass its subjects, by oppreitive and a less exertions of prerogative. The loss of this iecerity we denominate the loss of liberty. They lais changed not their laws, but their legislature; nuc their enjoyment, but their safety ; not their pilier! burthens, but their prospects of future grievaicos: and this we pronounce a change from the codica of freemen to that of faves. In like manner, 17 our own country, the act of parliament, in the reign of Henry the Eighth, which gave to the king's proc'a. mation the force of law, has properly been cailed a complete and formal surrender of the liberty of the nation ; and would have been so, although no p?o). clamation were issued in pursuance of these new powe ers, or none but what was recommended by ile highest wisdom and utiliiy. The security was gre. Were it probable, that the welfare and accomme). dation of the people would be as studiously, and as providently, consulted in the cdicts of a deipnic prince, as by the resolutions of a popular ail mb., then would an absolute form of goverrmeit be so less free than the purest democracy. The diicret degree of care and knowledge of the public intercit which may reasonably be expected from the disert form and composition of the legislature, constituies she distinction, in refpe&t of liberty, as well between these two extremes, as between all the intermediale modifications of civil government.
The definicions which have been framed of civil liberty, and which have bcome the subject of much unneccfiary alicicalior, are mo.l of them adenied
to this idea. Thus one political writer makes the very essence of the subject's liberty to consist in bis being governed by no laws but those to wbich he hath actually consented ; another is satisfied with ai indirect and virtual consent; anorber again places civil liberiy in the separation of the legislative and executive offices of government; another in the being governed by law, that is, by known, pre-confti. tured, inflexible rules of action and adjudication; a fitih in the exclusive right of the people to tax themselves by their own representatives; a fixth in the freedom and purity of ele&ions of representatives; a seventh in the control which the democratic part of the conftitution poffefles over the military eltablishment. Concerning which, and some other similar accounts of civil liberty, it may be observed, that they all labour under one inaccuracy, viz. that they describe not so much liberty itself, as the safe. guards and preservatives of liberty : for example, a man's being governed by no laws, but those to which he has given his consent, were it practicable, is no otherwise necessary to the enjoyment of civil liberty, than as it affords a probable security against the dictation of laws, imposing superfluous reítric. tions upon his private will. This remark is appli. cable to the rest. The diversity of these definitions will not surprise us, when we consider that there is no contrariety or opposition amongst them whatever; for by how many different provisions and precautions civil liberty is fenced and protected, so many differ. ent accounts of liberty itself, all sufficiently confiftent with truth and with each other, may, accordiog to this mode of explaining the term, be framed and adopted.
Truth cannot be offended by a definition, but pro. priety may in which view those definitions of li. berty ought to be rejected, which by making tbat essential to civil freedom which is unattainable in ex. perience, inflame expectations that can never be gra.