THE idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, [127] where it falls little short of perfection, and can only authors indeed, either of this or of any other country, which can furnish the studious and serious reader with a clear and consistent account of this idol of mankind. Thousands worship it, and are even ready to offer their blood as a sacrifice to it, under the form of a tree, a cap, or a cockade. These foolish symbols, with various watchwords of sedition equally unmeaning, may inflame the passions of the vulgar for a time, when practised upon by all the artifices of designing and wicked men, and may suppress the voice of reason and sobriety, but the consequences are too terrible to last long. Anarchy must reform itself, or in a country where every crime is committed, and where neither life, person, nor property is secure, in such a war of all against all, each individual for his own sake will soon demand a truce, and offer articles of capitulation. This subject deserves a discussion much more extensive than the limits of a note will admit, in which it would not be difficult to prove that Englishmen at present possess every species of liberty in a higher degree than ever was enjoyed in any other country, and even in a degree unknown to their ancestors. But I shall here briefly subjoin the different notions conveyed by the word liberty, which even by the most eminent writers and orators are generally confounded together. The libertas quidlibet faciendi, or the liberty of doing every thing which a man's passions urge him to attempt, or his strength enables him to effect, is savage ferocity; it is the liberty of a tyger and not the liberty of a man. "Moral or natural liberty (in the words of Burlamaqui, ch. 3. s. 15.) "is the right which nature gives to all mankind of disposing of their "persons and property after the manner they judge most consonant to "their happiness, on condition of their acting within the limits of the "law of nature, and that they do not any way abuse it to the prejudice "of any other men." 66 This is frequently confounded, and even by the learned Judge in this very section, with savage liberty. Civil liberty is well defined by our author to be "that of a mem"ber of society, and is no other than natural liberty so far restrained by "human laws (and no farther) as is necessary and expedient for the general advantage of the public.” be lost or destroyed by the folly or demerits of its owner: the legislature, and of course the laws of England, being peculiarly adapted to the preservation of this inestimable blessing Mr. Paley begins his excellent chapter upon civil liberty with the following definition: "Civil liberty is the not being restrained by “any law, but what conduces in a greater degree to the public welfare." B. vi. c. 5. The archbishop of York has defined "civil or legal liberty to be "that which consists in a freedom from all restraints except such as "established law imposes for the good of the community, to which the "partial good of each individual is obliged to give place." (A sermon preached Feb. 21. 1777, p. 19.) All these three definitions of civil liberty are clear, distinct, and rational, and it is probable they were intended to convey exactly the same ideas; but I am inclined to think that the definition given by the learned Judge is the most perfect, as there are many restraints by natural law, which, though the established law does not enforce, yet it does not vacate and remove. In the definition of civil liberty it ought to be understood, or rather expressed, that the restraints introduced by the law should be equal to all, or as much so as the nature of things will admit. Political liberty may be defined to be the security with which, from the constitution, form, and nature of the established government, the subjects enjoy 'civil liberty. No ideas or definitions are more distinguishable than those of civil and political liberty; yet they are generally confounded; and the latter cannot yet claim an appropriate name. The learned Judge uses political and civil liberty indiscriminately; but it would perhaps be convenient uniformly to use those terms in the respective senses here suggested, or to have some fixed specific denominations of ideas, which in their nature are so widely different. The last species of liberty has probably more than the rest engaged the attention of mankind, and particularly the people of England. Civil liberty, which is nothing more than the impartial administration of equal and expedient laws, they have long enjoyed nearly to as great an extent as can be expected under any human establishment. But some who are zealous to perpetuate these inestimable blessings of civil liberty, fancy that our political liberty may be augmented by reforms, or what they deem improvements in the constitution even in the meanest subject. Very different from the modern constitutions of other states, on the continent of Europe, and from the genius of the imperial law; which in general are of the government. Men of such opinions and dispositions there will be, and perhaps it is to be wished that there should be, in all times. But before any serious experiment is made, we ought to be convinced by little less than mathematical demonstration, that we shall not sacrifice substance to form, the end to the means, or exchange present possession for future prospects. It is true, that civil liberty may exist in perfection under an absolute monarch, according to the well-known verse: Fallitur egregio quisquis sub principe credit CLAUD. But what security can the subjects have for the virtues of his successor? Civil liberty can only be secure where the king has no power to do wrong, yet all the prerogatives to do good. Under such a king, with two houses of parliament, the people of England have a firm reliance that they will retain and transmit the blessings of civil and political liberty to the latest posterity. There is another common notion of liberty, which is nothing more than a freedom from confinement. This is a part of civil liberty, but it being the most important part, as a man in a gaol can have the exercise and enjoyment of few rights, it is xa?' ex called liberty. But where imprisonment is necessary for the ends of public justice, or the safety of the community, it is perfectly consistent with civil liberty. For Mr. Paley has well observed, that "it is not the rigour, "but the inexpediency of laws and acts of authority, which makes "them tyrannical." (B. vi. c. 5.) This is agreeable to that notion of civil liberty entertained by Tacitus, one who was well acquainted with the principles of human nature and human governments, when he says, Gothones regnantur paulò jam adductius, quam cæteræ Germanorum gentes, nondum tamen supra libertaDe Mor. Germ. c. 43. tem. It is very surprising that the learned Commentator should cite with approbation (p. 6. and 125.) and that Montesquieu should adopt (b. xi. c. 13.) that absurd definition of liberty given in Justinian's Institutes: Facultas ejus, quod cuique facere libet, nisi quid calculated to vest an arbitrary and despotic power, of controlling the actions of the subject, in the prince, or in a few grandees. And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in England, falls under vi, aut jure prohibetur. In every country, and under all circumstances, the subjects possess the liberty described by this definition. When an innocent negro is seized and chained, or is driven to his daily toil by a merciless master, he still retains this species of liberty, or that little power of action, of which force and barbarous laws have not bereft him. But we must not have recourse to a system of laws, in which it is a fundamental principle, quod principi placuit, legis habet vigorem, for correct notions of liberty. So far the Editor thought it proper to suggest to the student the different significations of the word liberty; a word which it is of the utmost importance to mankind that they should clearly comprehend: for though a genuine spirit of liberty is the noblest principle that can animate the heart of man, yet liberty, in: all times, has been the clamour of men of profligate lives and desperate fortunes: Falsò libertatis vocabulum obtendi ab iis, qui priratim degeneres, in publicum exitiosi, nihil spei, nisi per discordias habeant; (Tac. 11 Ann. c. 17.) The first sentence of Hooker's Ecclesiastical Polity contains no less truth and eloquence: "He "that goeth about to persuade a multitude, that they are not so "well governed as they ought to be, shall never want attentive "and favourable hearers." This subject might be elucidated by various instances, particularly from the laws and constitution of this country; and the Editor cannot but cherish even a confident hope, that they who acquire the most intimate acquaintance with those laws and that constitution, will always be the most convinced, that to be free, is to live in a country where the laws are just, expedient, and impartially administered, and where the subjects have perfect security that they will ever continue so; and, allowing for some slight and perhaps inevitable imperfections, that to be free, is to be born and to live under the English constitution. Hanc retinete, quæso, Quirites, quam vobis tanquam hæreditatem, majores vestri reliquerunt. Cic. 4 Phil. the protection of the laws, and so far becomes a freeman &; though the master's right to his service may possibly still continue (4). THE absolute rights of every Englishman, (which, taken in a political and extensive sense, are usually called their liberties,) as they are founded on nature and reason, so they are coeval with our form of government; though subject at times to fluctuate and change: their establishment (excellent as it is) being still human. At some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as even to tend to anarchy, a worse state than ⚫ tyranny itself, as any government is better than none at all (5). But the vigour of our free constitution has always delivered the nation from these embarrassments: and, as soon as the convulsions consequent on the struggle have been over, the balance of our rights and liberties has settled to its proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger. g Salk. 666. See ch. 14. (4) It is not to the soil or to the air of England that negroes are indebted for their liberty, but to the efficacy of the writ of habeas corpus, which can only be executed by the sheriff in an English county. I do not see how the master's right to the service can possibly continue; it can only arise from a contract, which the negro in a state of slavery is incapable of entering into with his master. See page 425. [(5) Lord Camden concluded his judgment in the case of general warrants in the same words: "One word more for ourselves; we are "no advocates for libels; all governments must set their faces against "them, and whenever they come before us and a jury, we shall set "our faces against them; and if juries do not prevent them, they may "" prove fatal to liberty, destroy government, and introduce anarchy; "but tyranny is better than anarchy, and the worst government better than none at all." 2 Wils. 292. |