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chapter ii.: definitions of liberty. - Francis Lieber, On Civil Liberty and Self-Government 
On Civil Liberty and Self-Government, 3rd revised edition, ed. Theodore D. Woolsey (Philadelphia: J.B. Lippincott & Co., 1883).
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definitions of liberty.
A distinguished writer has said that every one desires liberty, but it is impossible to say what it is. If he meant by liberty, civil liberty, and that it is impossible to give a definition of it, using the term definition in its strictest sense, he was right; but he was mistaken if he intended to say that we cannot state and explain what is meant by civil liberty in certain periods, by certain tribes, and that we cannot collect something general from these different views. Civil liberty does not fare worse in this respect than all other terms which designate the collective amount of different applications of the same principle, such as Fine Arts, Religion, Property, Republic. The definitions of all these terms imply the use of others variable in their nature. The time, however, is passed when, as in the age of scholastic philosophy, it was believed that everything was strictly definable, and must be compressed within the narrow limits of an absolute definition before it could be entitled to the dignity of a thorough discussion. The hope of being able absolutely to define things that belong either to the commonest life1 or the highest regions, betrays a misconception of human language, which itself is never absolute except in mathematics. It misleads. Bacon, so illustrious as a thinker, has two dicta which it will be well for us to remember throughout this discussion. He says: “Generalities are barren, and the multiplicity of single facts present nothing but confusion. The middle principles alone are solid, orderly, and fruitful;” and in another part of his immortal works he states that “civil knowledge is of all others the most immersed in matter and the hardliest reduced to axioms.” We may safely add, “and expressed in definitions.” It would be easy, indeed, and correct, as far as it would go, to say: Civil liberty is the idea of liberty, which is untrammeled action, applied to the sphere of politics; but although this definition might be called “orderly,” it would certainly neither be “solid” nor “fruitful,” unless a long discussion should follow on what it means in reality and practice.
This does by no means, however, affect the importance of investigating the subject of civil liberty and of clearly presenting to our minds what we mean by it, and of what elements it consists. Disorders of great public inconvenience, even bloodshed and political crimes, have often arisen from the fact that the two sacred words, Liberty and People, were freely and passionately used without a clear and definite meaning being attached to them. A people that loves liberty can do nothing better to promote the object of its love than deeply to study it; and in order to be able to do this, it is necessary to analyze it, and to know the threads which compose the valued texture.
In a general way, it may here be stated as an explanation—not offered as a definition—that when the term Civil Liberty is used, there is now always meant a high degree of mutually guaranteed protection against interference with the interests and rights held dear and important by large classes of civilized men or by all the members of a state, together with an effectual share in the making and administration of the laws as the best apparatus to secure that protection, and constituting the most dignified government of men who are conscious of their rights and of the destiny of humanity. We understand by civil liberty not only the absence of individual restraint, but liberty within the social system and political organism—a combination of principles and laws which acknowledge, protect, and favor the dignity of man. But what are these guarantees, these interests and rights? Who are civilized men? In what does that share consist? Which are the men that are conscious of their rights? What is the destiny of humanity? Who are the large classes?
I mean by civil liberty that liberty which plainly results from the application of the general idea of freedom to the civil state of man, that is, to his relations as a political being—a being obliged by his nature and destined by his Creator to live in society. Civil liberty is the result of man's twofold character, as an individual and social being, so soon as both are equally respected.
All men desire freedom of action. We have this desire, in some degree, even in common with the animal, where it manifests itself at least as a desire for freedom of motion. The fiercest despot desires liberty as much as the most ardent republican; indeed, the difficulty is that he desires it too much—selfishly, exclusively.1 He wants it for himself alone. He has not elevated himself to the idea of granting to his fellows the same liberty which he claims for himself, and of desiring to be limited in his own power of trenching on the same liberty of others. This is one of the greatest ideas to which man can rise. In this mutual grant and check lies the essence of civil liberty, as we shall presently see more fully, and in it lies its dignity. It is a grave error to suppose that the best government is absolutism with a wise and noble despot at the head of the state. As to consequences it is even worse than absolutism with a tyrant at its head. The tyrant may lead to reflection and resistance; the wisdom and brilliancy, however, of the government of a great despot or dictator deceive and unfit the people for a better civil state. This is at least true with reference to all tribes not utterly lost in despotism, as the Asiatics are. The periods succeeding those of great and brilliant despots have always been calamitous.1 The noblest human work, nobler even than literature and science, is broad civil liberty, well secured and wisely handled. The highest ethical and social production of which man, with his inseparable moral, jural, æsthetic and religious attributes, is capable, is the comprehensive and minutely organic self-government of a free people; and a people truly free at home, and dealing in fairness and justice with other nations, is the greatest, unfortunately also the rarest, subject offered in all the breadth and length of history.
In the definitions of civil liberty which philosophers or publicists have, nevertheless, endeavored to give, they seem to have fallen into one or more of the following errors. Some have confounded liberty, the status of the freeman as opposed to slavery, with civil liberty. But every one is aware that while we speak of freemen in Asia, meaning only non-slaves, we would be very unwilling to speak of civil liberty in that part of the globe. The ancients knew this distinction perfectly well. There were the Spartans, constituting the ruling body of citizens, and enjoying what they would have called, in modern language, civil liberty, a full share in the government of the polity; there were Helots; and there were Lacedæmonian people, who were subject, indeed, to the sovereign body of the Spartans, but not slaves. They were freemen, compared to the Helots; but subjects, as distinguished from the Spartans. This distinction is very plain, but the confusion has not only frequently misled in times past, but is actually going on to this day in many countries.
Others have fallen into the error of substituting a different word for liberty, and believed that they had thus defined it; while others, again, have confounded the means by which liberty is secured in certain communities, with liberty itself. Some, again, have been led, unawares, to define an idea wholly different from civil liberty, while imagining that they were giving the generics and specifics of the subject.
The Roman lawyers say that liberty is the power (authority) of doing that which is not forbidden by the law. That the supremacy of the law and exclusion of arbitrary interference is a necessary element of all liberty, every one will readily admit; but if no additional characteristics be given, we have, indeed, no more than a definition of the status of a non-slave. It does not state whence the laws ought to come, or what spirit ought to pervade them. The same lawyers say: Whatever may please the ruler has the force of law.1 They might have said with equal correctness: Freeman is he who is directly subject to the emperor; slave, he who is subject to the emperor through an intermediate and individual master. It settles nothing as to what we call liberty, as little as the other dictum of the civil law, which divides all men into freemen and slaves. The meaning of freeman, in this case, is nothing more than non-slave; while our word freeman, when we use it in connection with civil liberty, means not merely a negation of slavery, but the enjoyment of positive and high civil privileges and rights.1
It is remarkable that an English writer of the last century, Dr. Price, makes the same simple division of slavery and liberty, although it leads him to very different results.2 According to him, liberty is self-determination or self-government, and every interruption of self-determination is slavery. This is so extravagant, that it is hardly worth our while to show its fallacy. Civil liberty is liberty in a state of society; that is, in a state of union with equals; consequently, limitation of self-determination is one of the necessary characteristics of civil liberty.
Cicero says: Liberty is the power of living as thou willest.3 This does not apply to civil liberty. It would apply to savage insulation. If it was meant for political liberty, it would have been necessary to add, “so far as the same liberty of others does not limit your own living as you choose.” But we always live in society, so that this definition can have a value only as a most general one, to serve as a starting-point, in order to explain liberty if applied to different spheres. Whether this was the probable intention of a practical Roman, I need not decide.
Libertas came to signify, in the course of time, and in republican Rome, simply republican government, abolition of royalty. We have advanced beyond this idea. The most sanguinary pages of history have taught us that a kingless government is not, on that account alone, a republic, if the term republic is intended to comprehend the idea of self-government in any degree. France had as absolute and as stringently concentrated a government under her so-called republics, as under any of her kings. To classify governments, with reference to liberty, into monarchies and republics, is an error in principle. An Englishman who lives under a monarchy, for such certainly his royal republic is called, enjoys an amount of self-government and individual liberty far greater than the Athenian ever possessed or is established in any republic of South America.
The Greeks likewise gave the meaning of a distinct form of government to their word for liberty. Eleutheria, they said, is that polity in which all are in turn rulers and ruled. It is plain that there is an inkling of what we now call self-government in this adaptation of the word, but it does not designate liberty as we understand it. For it may happen, and indeed it has happened repeatedly, that although the rulers and ruled change, those that are rulers are arbitrary and oppressive whenever their turn arrives; and no political state of things is more efficient in preparing the people to pass over into despotism, by a sudden turn, than this alternation of arbitrary rule. If this definition really defined civil liberty, it would have been enjoyed in a high degree by those communities in the middle ages, in which constant changes of factions and persecutions of the weaker parties were taking place. Athens, when she had sunk so low that the lot decided the appointment to all important offices, would at that very period have been freest, while in fact her government had become plain democratic absolutism, one of the very worst of all governments, if, indeed, the term government can be properly used of that state of things which exhibits Athens after the times of Alexander, not like a bleeding and fallen hero, but rather like a dead body, on which birds and vermin make merry.
Not wholly dissimilar to this definition is the one we find in the French Political Dictionary, a work published in 1848, by leading republicans, as this term was understood in France. It says, under the word liberty: “Liberty is equality, equality is liberty.” If both were the same, it would be surprising that there should be two distinct words. Why were both terms used in the famous device, “Liberty, Equality, Fraternity,” if the first two are synonymous, yet an epigrammatic brevity was evidently desired? Napoleon distinguished between the two very pointedly, when he said to Las Cases that he gave to the Frenchmen all the circumstances allowed, namely, equality, and that his son, had he succeeded him, would have added liberty. The dictum of Napoleon is mentioned here merely to show that he saw the difference between the two terms. Equality, of itself, without many other elements, has no intrinsic connection with liberty. All may be equally degraded, equally slavish, or equally tyrannical. Equality is one of the pervading features of Eastern despotism. A Turkish barber may be made vizier far more easily than an American hair-dresser can be made a commissioner of roads, but there is not on that account more liberty in Turkey.1 Diversity is the law of life; absolute equality is that of stagnation and death.2
A German author of a work of mark begins it with this sentence: “Liberty—or justice, for where there is justice there is liberty, and liberty is nothing else than justice—has by no means been enjoyed by the ancients in a higher degree than by the moderns.”3 Either the author means by justice something peculiar, which ought to be enjoyed by every one, and which is not generally understood by the term, in which case the whole sentence is nugatory, or it expresses a grave error, since it makes equivalents of two things which have received two different names, simply because they are distinct from one another. The two terms would not even be allowed to explain each other in a dictionary.
Liberty has not unfrequently been defined as consisting in the rule of the majority, or it has been said, Where the people rule there is liberty. The rule of the majority, of itself, indicates the power of a certain body; but power is not liberty. Suppose the majority bid you drink hemlock, is there liberty for you? Or suppose the majority give away liberty, and establish despotism? It has been done again and again: Napoleon III. claims his crown by right of election by the overwhelming majority of Frenchmen, and perpetuates his government by universal suffrage, as he says. Granting, for the sake of argument, that there was what we call a bona fide election, and that there is now existing an efficient universal suffrage, there is no man living who would vindicate liberty for present France. Even the imperial government periodically proclaims that it cannot yet establish liberty, because France is distracted by factions, by “different nations,” as an imperial dignitary lately expressed it in an official speech.
We might say with greater truth, that where the minority is protected, although the majority rule, there, probably, liberty exists. But in this latter case it is the protection, or, in other words, rights beyond the reach of the majority which constitute liberty, not the power of the majority. There can be no doubt that the majority ruled in the French massacres of the Protestants; was there liberty in France on that account? All despotism, without a standing army, must be supported or acquiesced in by the majority. It could not stand otherwise. If the definition be urged, that where the people rule there is liberty, we must ask at once, What people, and how rule? These intended definitions, therefore, do not define.
Other writers have said: “Civil liberty consists in the responsibility of the rulers to the ruled.” It is obvious that this is an element of all civil liberty; but the question, What responsibility is meant? is an essential one; nor does this responsibility alone suffice by any means to establish civil liberty The Dey of Algiers used to be elected by the soldiery, who deposed him if he did not suit; but there was no liberty in Algiers, not even for the electing soldiery. The idea of the best government, repeatedly urged by a distinguished French publicist, Mr. Girardin, is, that all power should be centred in an elective chief magistrate, who by frequent election should be made responsible to the people—in fact, an elective despotism. Is there an American or Englishman living who would call such a political monstrosity freedom, even if the elected despot would allow himself to be voted upon a second time? This conception of civil liberty was the very one which Louis Napoleon published in his proclamation issued after the coup d'état, and in which he tells the people that he leaves their fate in their own hands! Many Frenchmen voted for him and for these fundamental principles of a new government, but those who did so, voted for him for the very reason that they considered liberty dangerous and inadmissible. This definition, then, is peculiarly incorrect.
Again, it has been said, liberty is the power of doing all that we ought to be allowed to do. But who allows? What ought to be allowed? Even if these questions were answered, it would not define liberty. Is the imprisoned homicide free, although we allow him to do all that which he ought to be allowed to do? No despot, if not positively insane, would ask for more power. It is on the very ground that more freedom ought not to be allowed to the subject, for his own benefit and the welfare of the empire, that the greatest despots and even tyrants have asserted their power; nor does a father desire more power over his child, but he does not pretend to confound parental power with the establishment of liberty.
Bodinus, whom every scholar of political science remembers with respect, said that true liberty consists in nothing else than the undisturbed enjoyment of one's goods and the absence of apprehension that wrong be done to the honor and the life of one's self, of one's wife and family.1 He who knows the times of French history when this jurist wrote his work on the republic, sees with compassion what led his mind to form this definition; nor is it denied that undisturbed enjoyment of property, as well as personal safety, constitute very important objects sought to be obtained by civil liberty; but it is the firmly-established guarantees of these enjoyments which constitute portions of civil liberty. Haroun al Rashid may have allowed these enjoyments, but the Arabians had not civil liberty under him. It is very painful to observe that, in the middle of the nineteenth century, a writer could be reduced to declare before the Institute of France, in an elaborate essay, that this definition of liberty by Bodinus is the best ever given.1
Montesquieu says:2 “Philosophical liberty consists in the exercise of one's will, or at least (if we must speak of all systems) in the opinion according to which one exercises his will. Political liberty consists in the security, or at least in the opinion which one has of one's security.” He continues: “This security is never more attacked than in public and private accusations. It is therefore upon the excellence of the criminal laws that chiefly the liberty of the citizen depends.”3
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 “neces 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
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.”2 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, 1791,1 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, 1793,2 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 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 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?
[1.]Is it necessary to remind the reader of Dr. Johnson's definition of the Knife? or of the fact that the greater portion of all law business arises from the impossibility of giving absolute definitions for things that are not absolute themselves? A knife and a dagger are terms sufficiently clear in common life, but it has been found very difficult to define them, in many penal cases, when the law awards different punishments for wounds inflicted by the one or the other.
[1.]I believe that this has never been shown with greater and more truculent naïvetè than by the present King of Dahomey in the letter he wrote to the Queen of England in 1852. Every case in which an idea, bad or good, is carried to a point of extreme consistency is worth being noted; I shall give, therefore, a part of it.
[1.]I have dwelt on this subject at length in my Political Ethics.
[1.]Quod principi placuerit legis habet vigorem.—L. i. lib. i. tit. 4 Dig.
[1.]Summa divisio de jure personarum haec est, quod omnes homines aut liberi, sunt aut servi.—Inst., i. 3.
[2.]Observations on the Nature of Civil Liberty, etc., by Richard Price, D.D., 3d ed, Lond., 1776.
[3.]Quid est libertas? P 'estas vivendi ut velis.—Cic., Parad., 5, 1, 34.
[1.]Since the publication of the first edition of this work, an article on “Mahometanism in Western Asia,” has appeared in the “Edinburgh Review,” October, 1853, in which the Eastern equality as an ingredient of despotism is illustrated by many striking instances from different spheres of life. The writer, who is plainly master of his subject, from personal knowledge, it would appear, agrees with us that liberty is based on individuality. Indeed, it may be said that in a great degree it consists in essential protection of individuality, of personal rights. The present Emperor of the French felt this when he wrote his chapter, De la Liberté individuelle en Angleterre. He was then an exile and could perceive liberty.
[2.]More has been said on this subject in Political Ethics, and we shall return to it at a later period.
[3.]Descriptions of the Grecian Polities, by F. W. Tittmann; Leipsic, 1822.
[1.]De Republica, lib. xii. c. 6. I have mentioned in my Political Ethics that I studied, in the Congress library, the copy of Bodinus which had belonged to President Jefferson, and in which many pencil-marks and notes of the latter are found. It will interest many of my readers to hear that this relic has not perished in the fire which consumed the greater portion of the library.
[1.]Mr. Parry, Séances et Travaux de l'Acad. des Sciences Politiques et Morales, July, 1855.
[2.]Esprit des Lois, xii. 2: “Of the Liberty of the Citizen.”
[3.]He goes on treating liberty in a similar manner; for instance, at the beginning of chapter iv. of the same work.
[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, 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.
[2.]Paragraph six of the Declaration of the Rights of Men.
[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.