That security is an element of liberty has been acknowledged; that just penal laws, and a carefully protected penal trial, are important ingredients of civil liberty, will be seen in the sequel; but it cannot be admitted that that great writer gives a definition of liberty in any way adequate to the subject. We ask at once, what security? Nations frequently rush into the arms of despotism for the avowed reason of finding security against anarchy. What else made the Romans so docile under Augustus? Those French who insist upon the "necessity" 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

1 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, tha 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.

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 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:3

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

2 Paragraph four.

Paragraph six of the Declaration of the Rights of Man,

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 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."1

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 influ

ence.

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?

1 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.1

1 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 origi

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,

nal term, has a fuller, more compact, and more positive meaning; the latter a more pointed, abstract or scientific sense. This appears still more in the verbs, to free and to liberate. The German 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 subject of liberty will occupy us throughout this work, and is of itself a subject of such magnitude, that we may well allow ourselves the time of reflecting for a moment on the terms which man has employed to designate this great concept.

The Greek word eleutheros, free, properly means, he who can walk where he likes. See Passow ad verbum, 'Ελεύθερος and 'Ερχομαι. The Latin liber is believed to be derived from the same root with the Gothic Lib, (in German Leib, body, connected with the Gothic Liban, our live, the German leben,) so that liber would have meant originally, he who has his own body, whose body does not belong to some one else. It is natural that freedom appeared to the ancients, first of all, as a contradistinction to slavery, or as its negation. This is not quite dissimilar to the fact that most languages designate the state of purity by an adjective, which indicates a negation of the state of guilt. We say innocent, the negation of nocent, guilty; as if we were calling light undarkness. The guilt, the crime, strikes first, and from it are abstracted the negations unguilt, innocence. If all were free, and if freedom had never been violated, we would probably have no word for freedom.

That Body is taken in this instance to designate independence, with which the ideas of individuality and humanity are closely connected, is in conformity with the history of all terms of abstraction. The sensuous world furnishes man with the original term and idea which the advancing intellect refines and distils. Nor can it surprise us who to this day say somebody, everybody, for some person, every man. Who does not think at once of Burns's lovely "Gif a body meet a body," where body is used for human individual? At the time of writing this note, I met with this question in a Scottish penal trial: Was that arsenic for a beast or a body?—Burton's Criminal Trials, vol. ii. page 59.

Here, then, body is taken so distinctly for man, that it is contradistinguished from beast. In the same natural manner, it may come to