sity" of Louis Napoleon, do it on the avowal that anarchy was impending; but no one of us will say that Augustus was the harbinger of freedom, or that the French emperor allows the people any enjoyment of liberty. If, however, Montesquieu meant the security of those liberties which Algernon Sidney meant when he said, "The liberties of nations are from God and nature, not from kings"-in that case he has not advanced the discussion, for he does not say in what they consist.

If, on the other hand, the penal law, in which it must be supposed Montesquieu included the penal trial, be made the chief test of liberty, we cannot help observing that a decent penal trial is a discovery in the science of government of the most recent date. The criminal trials of the Greeks and Romans, and of the middle ages, were deficient both in protecting the accused and society, and, without trespassing, we may say that in most cases they were scandalous, according to our ideas of justice. Must we then say, according to Montesquieu, that liberty never dwelt in those states ? 1

2

To pass from a great writer to one much his inferior, I shall give Dr. Paley's definition of civil liberty. He says: "Civil liberty is the not being restrained by any law but what conduces in a greater degree to the public welfare." I should hardly have mentioned this definition, but that the work from which it is taken is still in the hands of thousands, and that the author has obviously shaped and framed it with attention. Who decides on what public welfare demands? Is that no

That a writer of Montesquieu's sagacity and regard for liberty should have thus insufficiently defined so great a subject, is nothing more than what frequently happens. No man is always himself, and Bishop Berkeley, on Tar Water, represents a whole class of weak thoughts by strong minds. I do not only agree with what Sir James Mackintosh says in praise of Montesquieu, in his Discourse on the Study of the Law of Nature and Nations, but I would add, that no person can obtain a correct view of the history through which political liberty has been led in Europe, or can possess a clear insight into many of its details, without making himself acquainted with the Spirit of Laws. His work has doubtless been of great influence.

2

Beginning of the fifth chapter of Paley's Political Philosophy.

important item of civil liberty? Who makes the law? Suffice it to say that the definition may pass for one of a good government in general, that is, one which befits the given circumstances; but it does not define civil liberty. A Titus, a benevolent Russian Czar, a wise dictator, a conscientious Sultan, a kind master of slaves, ordain no restraint but what they think is required by the general welfare; yet to say that the Romans under Titus, the Russian, the Asiatic, the slave, is on that account in the enjoyment of civil liberty, is such a perversion of language that we need not dwell upon this definition, surprising even in one who does not generally distinguish himself by unexceptionable definitions.

The first (monarchical) French constitution of September 3, 1791,' says: "Liberty consists in the right to do everything that does not injure others. Therefore, the practice of the natural rights of each man has no other limits than those which secure the other members of society in the enjoyment of the same rights. These limits can only be determined by law." The last sentence makes all depend on the law; consequently we must ask again, Who makes the law, and are there no limits necessary to the law itself?

Nothing is more striking in history, it seems to me, than a comparison of this declaration and of the "Rights of Men" with the British Petition of Right, whether we consider them as fruits or as seeds.

The second (republican) constitution of June 24, 1793,' says: "Liberty is that faculty according to which it belongs to man to do that which does not interfere with the rights of others; it has for its basis, nature; for its rule, justice; for its protection, the law; its moral limit is the maxim, Do not to another that which thou dost not wish him to do to thyself.

This definition sufficiently characterizes itself.”

The Constitution of the United States has no definition of liberty. Its framers thought no more of defining it in that

2

Paragraph four.

• Paragraph six of the Declaration of the Rights of Men.

instrument, than people going to be married would stop to define what is love.

We almost feel tempted to close this list of definitions with the words with which Lord Russell begins his chapter on liberty. He curtly says: "Many definitions have been given of liberty. Most of these deserve no notice."

I

Whatever the various definitions of civil liberty may be, we take the term in its usual adaptation among modern civilized nations, in which it always means liberty in the political sphere of man. We use it in that sense in which freemen, or those who strive to be free, love it; in which bureaucrats fear it and despots hate it; in a sense which comprehends what has been called public liberty and personal liberty; and in conformity with which all those who cherish and those who disrelish it distinctly feel that, whatever its details may be, it always means a high degree of untrammeled political action in the citizen, and an acknowledgment of his dignity and his important rights by the government which is subject to his positive and organic, not only to his roundabout and vague influence.

This has always been felt; but more is necessary. We ought to know our subject. We must answer, then, this question: In what does civil liberty truly consist?

Lord John Russell's History of the English Government and Constitution, second ed., London, 1825. This prominent and long-tried statesman distinguishes, on page 15, between civil, personal, and political liberty; but even if he had been more successful in this distinction than he seems to me actually to have been, it would not be necessary to adopt it for our present purpose.

CHAPTER III.

THE MEANING OF CIVIL LIBERTY.

LIBERTY, in its absolute sense, means the faculty of willing and the power of doing what has been willed, without influence from any other source, or from without. It means selfdetermination; unrestrainedness of action.

In this absolute meaning, there is but one free being, because there is but one being whose will is absolutely independent of any influence but that which he wills himself, and whose power is adequate to his absolute will-who is almighty. Liberty, self-determination, unrestrainedness of action, ascribed to any other being, or applied to any other sphere of action, has necessarily a relative and limited, therefore an approximative sense only. With this modification, however, we may apply the idea of freedom to all spheres of action and reflection.'

* It will be observed that the terms Liberty and Freedom are used here as synonymes. Originally they meant the same. The German Freiheit (literally Freehood) is still the term for our Liberty and Freedom; but, as it happened in so many cases in our language where a Saxon and Latin term existed for the same idea, each acquired in the course of time a different shade of the original meaning, either permanently so, or at least under certain circumstances. Liberty and Freedom are still used in many cases as synonymous. We speak of the freedom as well as the liberty of human agency. It cannot be otherwise, since we have but one adjective, namely Free, although we have two nouns. When these are used as distinctive terms, freedom means the general, liberty the specific. We say, the slave was restored to freedom; and we speak of the liberty of the press, of civil liberty. Still, no orator or poet would hesitate to say freedom of the press, if rhetorically or metrically it should suit better. As in almost all cases in which we have a Saxon and a Latin term for the same main idea, so in this, the first, because the older and original term, has a fuller, more compact, and more positive meaning; the latter a more pointed, abstract, or scientific This appears still more in the verbs, to free and to liberate. The Ger

sense.

If we apply the idea of self-determination to the sphere of politics, or to the state, and the relations which subsist between it and the individual, and between different states, we must remember that the following points are necessarily involved in the comprehensive idea of the state:

The state is a society, or union of men-a sovereign society and a society of human beings, with an indelible character of individuality. The state is, moreover, an institution which acts through government, a contrivance which holds the power of the whole, opposite to the individual. Since the state then implies a society which acknowledges no superior, the idea of self-determination applied to it means that, as a unit and opposite to other states, it be independent, not dictated to by foreign governments, nor dependent upon them any more than itself has freely assented to be, by treaty and upon the principles of common justice and morality, and that it be allowed to rule itself, or that it have what the Greeks chiefly meant by the word autonomy. The term state, at

man language has but one word for our Freedom and Liberty, namely Freiheit; and Freithum (literally freedom) means, in some portions of Germany, an estate of a Freiherr (baron). In Dutch, the word Vryheid (literally freehood) is freedom, liberty; while Vrydom (literally freedom) means a privilege, an exemption from burdens. This shows still more that these words meant originally the same. [The greater part of this note, relating to the derivation of several words signifying free, and a note a little farther on, relating to the connection between frei and friede (free and peace in German), have been omitted, since much of what is said is not sanctioned by etymologists of the highest repute. Dr. Lieber derives the Greek 2ɛú0ɛpoç from the root ɛ20, come, or go—a derivation which J. Grimm and G. Curtius accept, while Benfey, Kirchhoff, and Corssen prefer to connect the Greek word with the Latin liber. Liber, again, seems to have nothing in common with the German leib, body, as Dr. Lieber supposed, but is connected by G. Curtius with up- in nтoμαι, a rare Greek word denoting to long for. There must be a common root, as Grimm thinks, in liber, lībet, l bet, and in German lieben, our love. Frei, free, does not seem to belong to the same root with friede, peace. Comp. Grimm's Deutsch. Wörterb. Whatever the derivation of this word may be, we may well suppose, as Grimm suggests, that the notion of peace is derived from the earlier one of fence, defense, protection. Comp. einfrieden, to fence or hedge in.]

Autonomeia is literally translated Self-government, and undoubtedly suggested the English word to our early divines. Donaldson, in his Greek Dictionary,