relative result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, [*125] and enforce such rights as are absolute, which in *themselves are few and simple (5); and then such rights as are relative, which, arising from a variety of connexions, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security. The natural liberty of mankind. The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural (6) liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature (7); being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free-will. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable than that wild and savage liberty which is sacrificed to obtain it. For no man, that considers a moment, would wish to retain the absolute and uncontrolled power of doing whatever he pleases: the consequence of which is, that every other man would also have the (5) See Vol. 4, p. 3. (6) As to political, or civil liberty, see ante, p. 6, and the note thereto. (7) "The law of nature" means those rules of conduct plainly deducible from principles of natural reason alone, without the aid of revelation, or of municipal regulation. No doubt every real advantage enjoyed by man may be referred to the bounty of God; and the restrictions imposed by the law of nature upon man's liberty of action, by no means impair (they very greatly enhance) the value of that benefaction. same power: and then there would be no security to individuals in any of the enjoyments of life. Political, therefore, or civil liberty, which is that of a member of society, is no other Civil liberty. than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public (c). Hence we may collect that the law, which restrains a man from doing mischief to his fellow- [ *126 ] citizens, though it diminishes the natural, increases the civil liberty of mankind; but that every wanton and causeless restraint of the will of the subject, whether practised by a monarch, a nobility, or a popular assembly, is a degree of tyranny: nay, that even laws themselves, whether made with or without. our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are regulations destructive of liberty: whereas, if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance; by supporting that state of society which alone can secure our independence. Thus the statute of King Edward IV. (d), which forbad the fine gentleman of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that savoured of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. But the statute of King Charles II. (e) (8), which prescribes a thing seemingly as indifferent, (a dress for the dead, who are all ordered to be buried in woollen), is a law consistent with public liberty; for it encourages the staple trade, on which in great measure depends the universal good of the nation. So that laws, when prudently framed, are by no means (c) Facultas ejus, quod cuique facere libet, nisi quid jure prohibetur. Inst. 1. 3. 1. [Blackstone here leaves out the words "vi aut," which he gives in page (8) The statute of Charles II. which Blackstone was disposed to think so favourably of, has been repealed by the statute of 54 Geo. III. c. 108. We are beginning to learn, though slowly, that 6, the note to which see.-ED.] the absence of all interference is more subversive, but rather introductive of liberty: for, as Mr. Locke has well observed (ƒ), where there is no law there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint (9). (f) On Gov. p. 2, § 57. (9) 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 tiger, 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 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." Civil liberty is well defined by our author to be "that of a member of society, and is no other than natural liberty so far restrained by human laws (and no further) as is necessary and expedient for the general advantage of the public." 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. [But see ante, note 9, to p. 6.-ED.] The last species of liberty has probably more than the rest engaged the attention of mankind, and particularly of 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 establish ment. 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 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 The idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, where it falls *little [*127 ] short of perfection, and can only 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 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 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 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. 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 car' soxn 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 paulo jam adductius quam cæteræ Germanorum gentes, nondum tamen supra libertatem. De Mor. Ger. c. 43. It is very surprising that the learned In commentator should cite with appro- Rights and liberties of the subject asserted 1. By Magna Charta; England, falls under the protection of the laws, and so far becomes a freeman (g) (10); though the master's right to his service may possibly still continue (11). 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 (12) (13). 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. First, by the great charter of liberties, which was obtained, sword in hand, from King John, and afterwards, with some alterations, confirmed in parliament by King Henry the Third, his son. Which charter contained very few new grants; but, as Sir Edward Coke (h) observes, was for the most part declaratory [*128] of the principal grounds of the fundamental laws of Eng (g) Salk. 666. See ch. 14, p. 423. (h) 2 Inst. proem. 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).—CH. (13) Anarchy is, no doubt, whilst it lasts, a worse state than tyranny itself; but it is not to be forgotten that anarchy cannot be of long duration, though tyranny may. In any particular case, the change from anarchy may possibly be, not to liberty, but to military despotism; this, however, would be an indifferent reason for submitting, without a struggle, to tyranny. See ante, the notes to pp. 6, 10, and 67. |