ther made with or without our confent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are regulations deftructive of liberty: whereas, if any public advantage can arife from obferving such precepts, the control of our private inclinations, in one or two particular points, will conduce to preferve our general freedom in others of more importance; by fupporting that state of fociety, which alone can fecure our independ ence. Thus the ftatute of king Edward IV 4, which forbad the fine gentlemen of thofe times (under the degree of a lord) to wear pikes upon their fhoes or boots of more than two inches in length, was a law that favoured of oppreffion; because, however ridiculous the fashion then in ufe might appear, the reftraining it by pecuniary penalties could serve no purpose of common utility. But the ftatute of king Charles If, which prescribes a thing feemingly as indifferent, (a drefs for the dead, who are all ordered to be buried in woollen) is a law confiftent with public liberty; for it encourages the staple trade, on which in great measure depends the univerfal good of the nation. So that laws, when prudently framed, are by no means fubverfive but rather introductive of liberty; for (as Mr. Locke has well obferved') where there is no law there is no freedom. But then, on the other hand, that conftitution or frame of government, that system of laws, is alone, calculated to maintain civil liberty, which leaves the fubject entire mafter of his own conduct, except in those points wherein the public good requires fome direction or restraint (3). 3 Edw. IV. c. 5. · 30 Car. II. ft. 1. c. 3. f on Gov. p. 2. § 57. (3) This fection is one of the very few intelligible defcriptions of liberty, which have hitherto been communicated to the world. Though declamation and eloquence in all ages have exhaufted their ftores upon this favourite theme, yet reafon has made fo little progrefs in afcertaining the nature and boundaries of liberty, that there are very few authors indeed, either of this or of any other country, which can furnish the ftudious and ferious reader with a clear THE idea and practice of this political or civil liberty flou rish in their highest vigour in thefe kingdoms, where it falls [127] little short of perfection, and can only be lost or destroyed by a clear and confiftent account of thi: idol of mankind. Thousands worship it, and are even ready to offer their blood as a facrifice to it, under the form of a tree, a cap, or a cockade. Thefe foolish fymbols, with various watchwords of fedition equally unincaning, may enflame the paffions of the vulgar for a time, when practifed upon by all the artifices of defigning and wicked men, and may drown the voice of reafon and fobriety, but the confequences are too terrible to last long. Anarchy muit reform itfelf, or in a country where every crime is committed, and where neither life, perfon, nor property is fecure, in fuch a war of all against all, each for his own fake will foon demand a truce, and offer articles of capitulation. A more extenfive difcuffion of this fubject will be reserved for a future occafion, when I shall endeavour to prove that Englishmen at prefent poffefs every species of liberty in a higher degree than ever was enjoyed in any other country, and ever in a degree unknown to their ancestors. But I fhall here briefly fubjoin 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 paffions urge him to attempt, or his strength enables him to effect, is favage 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. "f. 15.) is the right which nature gives to all mankind of dif"pofing of their perfons and property after the manner they judge. "most confonant 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." This is frequently confounded, and even by the learned Judge in this very fection, with favage liberty. Civil liberty is well defined by our author to be "that of a mem"ber of fociety, and is no other than natural liberty fo far reftrained "by human laws (and no farther) as is neceffary and expedient for the general advantage of the public." Mr. the folly or demerits of it's owner: the legislature, and of course the laws of England, being peculiarly adapted to the prefervation of this ineftimable bleffing even in the meanest 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 confifts in a freedom from all restraints except fuch "as established law impofes for the good of the community, to which the partial good of each individual is obliged to give place."-(A fermon 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 fame 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 cftablished law does not enforce, yet it does not vacate and remove. In the definition of civil liberty it ought to be understood, or rather expreffed, that the restraints introduced by the law fhould be equal to all, or as much fo as the nature of things will admit. Political liberty may be defined to be the fecurity with which, from the conftitution, form, and nature of the established government, the fubjects enjoy civil liberty. No ideas or definitions are more distinguishable than thofe of civil and political liberty; yet they are generally confounded; and the latter cannot yet claim an appropriate name. The learned Judge ufes political and civil liberty indifcriminately; but it would perhaps be convenient uniformly to use thofe terms in the refpective fenfes here fuggefted, or to have fome fixed fpecific denominations of ideas, which in their nature are so widely different.-The laft fpecies of liberty has pro bably more than the reft engaged the attention of mankind, and particularly of the people of England. Civil liberty, which is nothing more than the impartial adminiftration of equal and expedient Jaws, they have long enjoyed nearly to as great an extent, as can be expected under any human establishment. But fome who are zealous to perpetuate these inestimable bleflings of civil liberty, fancy that our political liberty may be augmented by reforms, or what they deem improvements in the conftitution of fubject. Very different from the modern conftitutions of other states, on the continent of Europe, and from the genius of the imperial law; which in general are calculated to vest an of the government. Men of fuch opinions and difpofitions there will be, and perhaps it is to be wished that there should be, in all times. But before any ferious experiment is made, we ought to be convinced by little lefs than mathematical demonftration, that we shall not facrifice substance to form, the end to the means, or exchange prefent poffeffion for future profpects. It is true, that civil liberty may exift in perfection under an abfolute monarch, according to the well-known verse : Fallitur egregio quifquis fub principe credit Servitium. Libertas nunquam gratior extat CLAUD. But what fecurity can the fubjects have for the virtues of his fucceffor? Civil liberty can only be fecure where the king has no power to do wrong, yet all the prerogatives to do good. Under. fuch a king, with two houfes of parliament, the people of England have a firm reliance that they will retain and transmit the bleffings of civil and political liberty to the lateft pofterity. 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 excrcife and enjoyment of few rights, it is xal I called liberty. But where imprisonment is neceffary for the ends of public juftice, or the fafety of the community, it is perfectly confiftent with civil liberty. For Mr. Paley has well obferved that," it is "not the rigour, but the inexpediency of laws and acts of autho«rity, 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 fays, Gothones regnantur paulò jam adductius, quam cæteræ Germanorum gentes, nondum tamen fupra libertatem. De Mor. Ger. c. 43. It is very furprising that the learned Commentator should cite with approbation (p. 6. and 125.) and that Montefquieu fhould adopt (b. xi. c. 13.) that abfurd definition of liberty given in Juftinian's Inftitutes: Facultas ejus, quod cuique facere libet, nifi quid arbitrary and defpotic power, of controlling the actions of the fubject, in the prince, or in a few grandees. And this fpirit of liberty is fo deeply implanted in our conftitution, and rooted even in our very foil, that a flave or a negro, the moment he lands in England, falls under the protection of the vi, aut jure prohibetur. In every country, and under all circumftances, the fubjects poffefs the liberty defcribed by this definition. When an innocent negro is seized and chained, or is driven to his daily toil by a mercilefs mafter, he ftill retains this fpecies 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 fyftem 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 fuggeft to the ftudent the different fignifications of the word liberty; a word which it is of the utmost importance to mankind that they should clearly comprehend; for though a genuine fpirit of liberty is the nobleft principle that can animate the heart of man, yet liberty, in all times, has been the clamour of men of profligate lives and defperate fortunes: Falsò libertatis vocabulum obtendi ab iis, qui privatim degeneres, in publicum exitiofi nihil fpei, nifi per difcordias habeant. (Tac. 11 Ann. c. 17.) And the first fentence of our Hooker's Ecclefiaftical Polity contains not lefs truth and cloquence: "He that goeth about to perfuade a multitude, that they "are not fo well governed as they ought to be, fhall never want "attentive and favourable hearers." This fubject will be refumed upon a future occafion, and will be elucidated by various inftances, particularly from the laws and conftitution of this country; and the Editor cannot but cherish even a confident hope, that they who acquire the most intimate acquaintance with thofe laws and that conftitution, will always be the most convinced, that to be free, is to live in a country where the laws are juft, expedient, and impartially administered, and where the fubjects have perfect fecurity that they will ever continue fo; and, allowing for fome flight and perhaps inevitable imperfections, that to be free, is to be born and to live under the English conftitution. Hanc retinete, quafo, Quirites, quam vobis tanquam hæreditatem, majores veftri reliquerunt. Cic. 4 Phil. laws, |