"Civil liberty," says Blackstone, "is no other than natural liberty so far restrained as is necessary and expedient for the general advantage." This definition seems to have been borrowed from Locke, who says that, when a man enters into civil society, "he is to part with so much of his natural liberty, in providing for himself, as the good, prosperity, and safety of the society shall require." So, likewise, say Paley, Berlamaqui, Rutherforth, and a host of others. Indeed, among jurists and philosophers, such seems to be the commonly-received definition of civil liberty. It seems to have become a political maxim that civil liberty is no other than a certain portion of our natural liberty, which has been carved therefrom, and secured to us by the protection of the laws.
But is this a sound maxim? Has it been deduced from the nature of things, or is it merely a plausible show of words? Is it truth—solid and imperishable truth—or merely one of those fair semblances of truth, which, through the too hasty sanction of great names, have obtained a currency among men? The question is not what Blackstone, or Locke, or Paley may have thought, but what is truth? Let us examine this point, then, in order that our decision may be founded, not upon the authority of man, but, if possible, in the wisdom of God.
§ II. Examination of the commonly-received definition of civil liberty.
Before we can determine whether such be the origin of civil liberty, we must first ascertain the character of that natural liberty out of which it is supposed to be reserved. What, then, is natural liberty? What is the nature of the material out of which our civil liberty is supposed to be fashioned by the art of the political sculptor? It is thus defined by Locke: "To understand political power right, and derive it from its original, we must consider what state all men are naturally in; and that is a state of perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave or depending upon the will of any other man."[136] In perfect accordance with this definition, Blackstone says: "This natural liberty consists in a power of acting as one thinks fit, without any restraint or control, unless by the laws of nature, being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endowed him with the faculty of free-will." Such, according to Locke and Blackstone, is that natural liberty, which is limited and abridged, as they suppose, when we enter into the bonds of civil society.
Now mark its features: it is the gift of God to man at his creation; the very top and flower of his existence; that by which he is distinguished from the lower animals and raised to the rank of moral and accountable beings. Shall we sacrifice this divine gift, then, in order to secure the blessings of civil society? Shall we abridge or mutilate the image of God, stamped upon the soul at its creation, by which we are capable of knowing and obeying his law, in order to secure the aid and protection of man? Shall we barter away any portion of this our glorious birthright for any poor boon of man's devising? Yes, we are told—and why? Because, says Blackstone, "Legal obedience and conformity is infinitely more valuable than the wild and savage liberty which is sacrificed to obtain it."
But how is this? Now this natural liberty is a thing of light, and now it is a power of darkness. Now it is the gift of God, that moves within a sphere of light, and breathes an atmosphere of love; and anon, it is a wild and savage thing that carries terror in its train. It would be an angel of light, if it were not a power of darkness; and it would be a power of darkness, if it were not an angel of light. But as it is, it is both by turns, and neither long, but runs through its Protean changes, according to the exigencies of the flowing discourse of the learned author. Surely such inconsistency, so glaring and so portentous, and all exhibited on one and the same page, is no evidence that the genius of the great commentator was as steady and profound as it was elegant and classical.
The source of this vacillation is obvious. With Locke, he defines natural liberty to be a power of acting as one thinks fit, within the limits prescribed by the law of nature; but he soon loses sight of this all-important limitation, from which natural liberty derives its form and beauty. Hence it becomes in his mind a power to act as one pleases, without the restraint or control of any law whatever, either human or divine. The sovereign will and pleasure of the individual becomes the only rule of conduct, and lawless anarchy the condition which it legitimates. Thus, having loosed the bonds and marred the beauty of natural liberty, he was prepared to see it, now become so "wild and savage," offered up as a sacrifice on the altar of civil liberty.
This, too, was the great fundamental error of Hobbes. What Blackstone thus did through inadvertency, was knowingly and designedly done by the philosopher of Malmesbury. In a state of nature, says he, all men have a right to do as they please. Each individual may set up a right to all things, and consequently to the same things. In other words, in such a state there is no law, exept that of force. The strong arm of power is the supreme arbiter of all things. Robbery and outrage and murder are as lawful as their opposites. That is to say, there is no such thing as a law of nature; and consequently all things are, in a state of nature, equally allowable. Thus it was that Hobbes delighted to legitimate the horrors of a state of nature, as it is called, in order that mankind might, without a feeling of indignation or regret, see the wild and ferocious liberty of such a state sacrificed to despotic power. Thus it was that he endeavoured to recommend the "Leviathan," by contrasting it with the huger monster called Natural Liberty.
This view of the state of nature, by which all law and the great Fountain of all law are shut out of the world, was perfectly agreeable to the atheistical philosophy of Hobbes. From one who had extinguished the light of nature, and given dominion to the powers of darkness, no better could have been expected; but is it not deplorable that a Christian jurist should, even for a moment, have forgotten the great central light of his own system, and drawn his arguments from such an abyss of darkness?
Blackstone has thus lost sight of truth, not only in regard to his general propositions, but also in regard to particular instances. "The law," says he, "which restrains a man from doing mischief to his fellow-citizens diminishes the natural liberty of mankind." Now, is this true? The doing of mischief is contrary to the law of nature, and hence, according to the definition of Blackstone himself, the perpetration of it is not an exercise of any natural right. As no man possesses a natural right to do mischief, so the law which forbids it does not diminish the natural liberty of mankind. The law which forbids mischief is a restraint not upon the natural liberty, but upon the natural tyranny, of man.
