« AnteriorContinuar »
utility of which does not outweigh the evil of the restraint, it follows, that every nation possesses some, 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 lost, 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 slaves; 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 citizen of the freest republic in the world may be imprisoned for his crimes; and though his personal freedom be restrained1 by bolts and fetters, so long as his confinement is the effect of a beneficial public law," his civil liberty is not invaded. If this instance appear dubious, the following will be plainer. A passenger from the Levant who,
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 encroaching upon his civil freedom; nay, might, perhaps, be all the while congratulating him-self that he had at length set 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 perfect possession, and the loftiest notions of civil liberty. And if this be true of the coercion of a prison, that it is compatible with a state of civil freedom, it cannot with reason be disputed of those more moderate 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 former, 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 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 revolution which lately took place in that country; and yet we are assured that the people continue to be governed by the same laws as before, or by others which are wiser, milder, and more equitable. What then have they lost? They have lost the power and functions of their diet; the constitution of their states and orders, whose deliberations and concurrence were required in the formation and establishment of every public law; and thereby have parted with the security which they possessed against any attempts of the crown to harass its subjects, by oppressive and useless exertions of prerogative. The loss of this security we denominate the loss of liberty. They have changed, not their laws, but their legislature; not their enjoyment, but their safety; not their present burthens, but their prospects of future grievances and this we pronounce a change from the condition of freemen to that of slaves.
In like manner, in our own coun
try, 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 so, although no proclamation were issued in pursuance of these new powers, or none but what was recommended by the highest wisdom and utility. The security was gone. Were it probable that the welfare and accommodation of the people would be as studiously, and as providently, consulted in the edicts of a despotic prince, as by the resolutions of a popular assembly, then would an absolute form of government be no less free than the purest democracy. The different degree of care and knowledge of the public interest which may reasonably be expected from the different form and composition of the legislature, constitutes the distinction, in respect 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 subject of much unnecessary altercation, are most of them adapted to this idea. Thus one political writer makes the very essence
of the subject's liberty to consist in his being governed by no laws but those to which he hath actually consented; another is satisfied with an indirect and virtual consent; another, again, places civil liberty in the sepa ration of the legislative and executive offices of government; another, in the being governed by law, that is, by known, preconstituted, inflexible rules of action and adjudication; a fifth, in the exclusive right of the people to tax themselves by their own representatives; a sixth, in the freedom and rity of elections of representatives; a seventh in the control which the democratic part of the constitution possesses over the military establishment. 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 safeguards 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 restrictions upon his private will. This remark is applicable to the rest.