legal treatment, it requires some care to discriminate its true import and define the length and breadth of its contents. And as the idea involved in it lies at the root of all natural definitions and divisions of the law, it requires all the more attention in this place.

Views of Locke, Somers, Beccaria, as to freedom.-Locke says that the end of law is not to abolish or restrain, but to preserve and enlarge freedom, and where there is no law there is no freedom. Somers said, that when a people have no assurance of their liberties or lives, but from the grace and pleasure of the governor, they are but beasts of ourden; and by continual base subserviency to their masters' vices, lose all sense of true religion, virtue, and manhood.2 Beccaria, in his masterly way, explains his notion of liberty thus: "The opinion, that every member of society has a right to do anything, that is not contrary to the laws, without fearing any other inconveniences than those which are the natural consequences of the action itself, is a political dogma which should be defended by the laws, inculcated by the magistrates, and believed by the people—a sacred dogma, without which there can be no lawful society--a just recompense for our sacrifice of that universal liberty of action common to all sensible beings, and only limited by our natural powers. By this principle our minds become free, active, and vigorous-by this alone we are inspired with that virtue which knows no fear, so different from that pliant prudence worthy of those only who can bear a precarious existence." 3

Other authors of eminence give each his own account of the proper use of the phrases-liberty or freedom, natural, civil, and political: and Blackstone, Paley, Austin, Mackintosh, and M'Culloch, may be referred to for valuable observations on this subject.4

Difficulty of reconciling current accounts of liberty.—It must be confessed, that their descriptions of civil liberty do not entirely agree, and somewhat bewilder the mind. Blackstone rather unnecessarily introduces, what he calls natural liberty, or the law of nature, as the standard or

1 Locke, On Govt. b. 2, tit. 57. 2 Somers, Sec. of Engl. p. 1. 3 Beccaria, c. 8.

4 1 Bl. Com. 140. Paley's Mor. Phil. b. vi. 1 Austin Jur. 281. Mackintosh, L. of Nat. M'Culloch, Pol. Econ. p. 1, ch. 10.

common ground of departure; but this tends to confuse his account. Austin seems to view political and civil liberty as something in the nature of a gift from the sovereign government, and as contradistinguished from political or legal restraint. Locke and Beccaria are the writers, who seem to look with the steadiest eyes at the central idea involved. Each writer prefers to explain in his own way a phrase which comes home so forcibly to every one, who has thought of the first principles of society.

Certain it is, that liberty has been the theme of poets, orators, and patriots for ages, and though vague may be the notion they have attached to it, the liberty of the person, and freedom from imprisonment may be said to be the basis of their declamations.

Wentworth in 1575 told the House of Commons that he had found in a little book of that time the words, "Sweet is the name of liberty, but the thing itself beyond all inestimable value." Sir Benjamin Rudyard exclaimed in the great debates in the time of Charles I., that "liberty is a precious thing, for every man may set his own price upon it, and he that doth not value it, deserves to be valued accordingly." Sir R. Phillips of the same period said that if we can be imprisoned at the will of another, "why do we trouble ourselves with the disputes of law, franchises, and propriety of goods?" And Pym said, "If the liberties of the subject were taken away, there should remain no more industry, no more justice, no more courage: who would contend, who would endanger himself for that which is not his own? "4 "Freedom," as Dryden said, "was the English subject's prerogative."

1 1 Parl. Hist. 784.

4 3 St. Tr. 342.

5 North Briton, No. 45.

DE TOCQUEVILLE says: "That which at all times has so strongly attached the affection of certain men is the attraction of freedom itself, its native charms, independent of its gifts, the pleasure of speaking, acting, and breathing without restraint, under no master but God and the law. He who seeks in freedom aught but herself is fit only to be a slave."-De Tocquev. France, 506 (tr. by Reeves). "The essence of liberty," said CICERO, "is to live just as you please."-Cic. De Off. b. i. c. xx.

DUNNING said that "for the great benefit of the public and individuals, natural liberty, which consists in doing what one likes, is

Liberty of subject arises out of legal restriction.-The explanation of the phrase, "liberty of the subject," can scarcely be said to involve much difficulty after the definition and division of the law are settled; or rather, it is merely the correlative and obverse side of the same idea. It may be vaguely described, as Cicero described it, as in some sense indicating the right to do as one pleases without check or interference. But this is a crude conception, and requires much qualification. The sense of mutual restraint, though unuttered or seldom expressed, grows necessarily out of all associations of human beings, and the law is nothing but an elaborate development and classification of the limits and phases of this self-restraint. Such self-restraint is like an instinct, or like the muscular sense pervading all forms of activity and all modes of conduct. Liberty of the subject is the counterpart of this restraint. Most actions being more or less controlled, nothing is or can be done by any individual member of a community, without some conscious or unconscious regard to the correlative and equal acts and conduct of others.

There is no absolute liberty.-There is indeed nothing even among the most isolated groups of savage life which approaches to absolute liberty, if such a term be used in the sense of each doing what seems good in his own eyes, regardless of all that is done by others. The liberty of

1

altered into doing what one ought."-20 St. Tr. 71. "All antiquity resounded with the fame of the Xanthians and Paterans, whose intense love of liberty led them to prefer total extinction to their subjugation by a conqueror."-Plut. Brut. Appian, B. 4.

In the debates of 1758 it was said that "liberty consisted in not being obliged to do or suffer anything but under the direction of known laws; that such as do not inherit wealth are nevertheless heirs to freedom, and they who have no other property have a property in their liberty. Indeed such, above all others, may be thought to have the best title to liberty, since it is the only valuable enjoyment to which they can lay claim."-15 Parl. Hist. 888.

1 A traveller has well observed, that the life of a wild beast is one of constant fear and anxiety. Every antelope in South Africa has literally to run for its life once in every two days, and many times in each day starts or gallops under a false alarm.-Trans. Ethn. Soc. The savage is always suspicious, always on the watch, always the prey of fear, and sees invisible enemies in every bush. An intelligent traveller remarks: "Man in a savage state has little freedom of thought or action, no development of intellect, benevolence, or any

the wild beast is said to be the slavery of fear. Not so with man. The mutual help, the mutual fear, the mutual play of appetites, passions, affections, soon shape with invisible hand the conduct of each, so as to avoid collision, invite help, exchange valuable possessions and offices. A second nature thus grows up, strengthening and expanding rather than suppressing all that is the most cherished and the most intensely enjoyed by the individual. When the liberty of the subject, or civil liberty, is spoken of, it is not meant that he, who possesses it, can do what he likes, but only that he obtains the greatest possible value and benefit out of his own faculties and circumstances. It must be remembered that the more protection is given to each, the more checks must be imposed on all others. Liberty cannot be protected, as Bentham said, except at the expense of liberty.1 And as was better said by Sir R. Atkins, “a just law is no restraint to a just liberty; it rather frees us from a captivity and servitude, namely, to that of our wills and passions." "2 But in a well-devised system of checks and counterchecks, the sense of restraint is lost in the greater intensity and enjoyment of those faculties and tendencies, which are thereby rendered effectual, and made secure, and which are the better part of human nature. Civil liberty, or the liberty of the subject, is not the liberty to murder and plunder, to libel, cheat, and oppress all that stand in the path of selfish ambition, aggrandisement, or indulgence; it is the liberty to attain the largest measure of all desirable things by means of repressing and regulating those incompatible tendencies of others, so far as any human power can repress them. The restraints on men as well as their liberties are, as Burke observes, 'to be reckoned among their rights.3 The means to be used must be such as are not incompatible with the attainment of the same ends by each and every member of the community. Civil liberty is a mixed sentiment, compounded of a sense of mutual restraint, of equality, of justice, and of co-operation.*

other great qualification. The young and weak are helpless; their laws and customs are as binding as our laws, though handed down orally.”—2_Grey's Austr. 217, 219.

11 Benth. W.301.

3 Burke, Fr. Rev.

2 11 St. Tr. 1207.

• MONTESQUIEU said everyone has given the name of liberty to the

Much variety may exist in the complex arrangements devised by each nation for conferring the greatest security on the pursuits of its subjects, and it is not surprising that one nation should differ from another in such details. The natural aversion and resentment against bodily pain, imprisonment, and deprivation of property, and the greatest variety of weapons of self-defence against all evil designs tending to that result, whether on the part of the subject or of the sovereign, but more especially of the latter as being the most powerful, constitute what is usually called in England "the liberty of the subject."

Liberty not confined to bodily freedom. The liberty of the subject is thus a phrase not limited to the security of the body, and it was at first used in contradistinction to the encroachments of the crown; but its essence pervades all the other divisions of the law relating to property and general business. The phrase "civil liberty" is perhaps not so comprehensive, yet it is dissociated from mere bodily freedom, for it embraces all modes of protection by the law against wrong and interference whencesoever proceeding, more especially in relation to the encroachments of one's fellow-subjects. The phrase, " political liberty," again, is that phase of civil liberty which regards the participation of the subject in the machinery of legislation and government. Such participation is of inestimable importance, for in practice it renders the most peremptory edicts of irresistible power much less irksome. It disarms of its terrors that absolute tyrannical force which in all societies must necessarily be wielded by the sovereign authority. It takes the sting out of that inevitable prostration of the

government which agrees with his habits or inclinations.-Spirit of L. b. 11 ch. ii. "We are all agreed as to our own liberty. We would have as much of it as we can get. But we are not agreed as to the liberty of others, for, in proportion as we take, others must lose."-7 Bosw. Johns. 257.

Liberty is a word used in popular authors very loosely. Even Adam Smith says: "Laws which are in violation of natural liberty are bad," without defining what natural liberty is.-Wealth of Nat. b. 4. ch. i. "Such is the excellency of the English constitution that the meanest subject is not beneath the protection of the laws, nor the highest beyond their reach. Thus to be governed is the full perfection of civil liberty."—Per Sir F. Norton, R. v L. Byron, 19 St. Tr. 1185.