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 interest of the community to which we belong, is civil liberty; that is to say, the only liberty to be defired in a state of civil fociety. in I should wish, no doubt, to be allowed to act every inftance as I pleafed, but I reflect that the reft alfo of mankind would then do the fame; in which ftate of univerfal independence and felf-direction I fhould 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 lefs, than whilft the whole community were fubject to the dominion of equal laws. The boafted liberty of a state of nature exifts only only in a state of folitude. In every kind and degree of union and intercourse with his fpecies, it is poffible that the liberty of the individual may be augmented by the very laws which reftrain it; because he may gain 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 wafte; civil liberty is the safe, exclusive, unmolefted enjoyment of a cultivated inclosure. The definition of civil liberty above laid down, imports that the laws of a free people impose no restraints upon the private will of the fubject, which do not conduce in a greater degree to the public happiness: by which it is intimated, ift, that restraint itself 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 adverse and injurious to the rights of a free citizen, without demanding specific evidence of its bad effects. This maxim might be remembered with advantage in a revifion of many laws of this country; efpecially of the game laws; of the poor laws, fo far as they lay restrictions upon the poor themselves; of the laws againft papifts and diffenters: and, amongst people enamoured to excefs and jealous of their liberty, it feems a matter of furprife that this principle has been fo imperfectly attended to. The degree of actual liberty always bearing, according to this account of it, a reversed proportion to the number and feverity of the reftrictions 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, 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 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 imprisoned for his crimes; and though his personal freedom be reftrained by bolts and fet ters, ters, fo long as his confinement is the effect of a beneficial public law, his civil liberty is not invaded. If this inftance 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 saw a guard placed at the door to oppose his escape, or even ready to destroy 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 justifies it, but reconciles the most odious confinement with the perfect 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 the tyrannical. There is another idea of civil liberty, which, though M 4 though neither fo fimple nor fo accurate as the former, agrees better with the fignification, which the usage 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 ufelefs and noxious laws and acts of dominion, but in being free from the danger of having any fuch hereafter impofed or exercifed. Thus, fpeaking of the political state of modern Europe, we are accustomed to say of Sweden, that she 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, milder, and more equitable. What then have they loft? They have loft the power and functions of their diet; the conftitution of their ftates and orders, whose deliberations 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 harass its fubjects, by oppreffive and useless exertions of prerogative. The lofs of this fecurity we denominate the lofs of liberty. They |