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by which it is intimated, 1. that restraint itself is an evil; 2. that this evil ought to be overbalanced by some public advantage; 3. that the proof of this advantage lies upon the legislature; 4. that a law be ing 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 effects. This maxim might be remembered with advantage 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 dissenters and, amongst 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 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 era of liberty; or another the loss of it; with many expressions of a like absolute form, are intelligible only in à comparative sense.

Hence also we are enabled to apprehend the dis tinction between personal and civil liberty. A citizen of the freest republic in the world may be imprisoned for his crinies; 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 not 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 encroaching 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 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 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 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 di et; 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 harrass its subjects, by oppressive and useless exertions of prerogative. The loss of this security we denom inate 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 country, 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, cousulted 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 gov

ernment.

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 ac tually consented; another is satisfied with an indirect and virtual consent, another again places civil liberty in the separation 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

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the exclufive right of the people to tax themselves by their own representatives; a fixth in the freedom and purity 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 la bour 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 gov erned by no laws, but those to which he has, given his consent, were it practicable, is no otherwise neces sary to the enjoyment of civil liberty, than as it affords a probable security against the dictation of laws, imposing superfluous restrictions upon his privates will...This remark is applicable to the rest. The diversity of these definitions will not surprise us, when we consider that there is no contrariety or op position amongst them whatever; for, by how many different provisions and precautions civil liberty is fenced and protected, so many different accounts of liberty itself, all sufficiently consistent with truth and with each other, may, according to this mode of explaining the term, be framed and adopted.

Truth cannot be offended by a definition, but propriety may. In which view those definitions of lib. erty ought to be rejected, which, by making that essential to civil freedom which is unattainable in experience, inflame expectations that can never be gratified, and disturb the public content with complaints, which no wisdom or benevolence of government can

remove.

It will not be thought extraordinary, that an idea, which occurs so much oftener as the subject of panegyric and careless declamation, than of just reasoning or correct knowledge, fhould be attended with uncertainty and confusion; or that it should be found include may impossible to contrive a definition, which the numerous, unsettled, and ever varying significations, which the term is made to stand for, and at the same time accord with the condition and experience of social life.

Of the two ideas that have been stated of civil lib erty, whichever we assume, and whatever reasoning we found upon them, concerning its extent, nature, value and preservation, this is the conclusion that that people, government, and constitution, is the freest, which makes the best provision for the enact ing of expedient and salutary laws..

CHAPTER VI.'

OF DIFFERENT FORMS OF GOVERNMENT.

As a series of appeals must be finite, there necessarily exists in every government a power from which the constitution has provided no appeal; and which power, for that reason, may be termed absolute, omnipotent, uncontrollable, arbitrary, despotic; and is alike so in all countries.

The person, or assembly, in whom this power re sides, is called the sovereign, or the supreme power of

the state....

Since to the same power universally appertains the office of establishing public laws, it is called also the legislature of the state.

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- A government receives its denomination from the form of the legislature; which form is likewise what we commonly mean by the constitution of a country.

Political writers enumerate three principal forms of government, which, however, are to be regarded rather as the simple forms, by some combination and intermixture of which all actual governments are composed, than as any where existing in a pure and elementary state. These forms are:

I. Despotism, er absolute MONARCHY, where the legislature is in a single person.

II. An ARISTOCRACY, where the legislature is in a select assembly, the members of which either fill up by election the vacancies in their own body, or succeed to their places in it by inheritance, property, tenure of certain lands, or in respect of some personal right or qualification.

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