Page:Harvard Law Review Volume 4.djvu/383

367 the nature and meaning of liberty, as that term is used in a broad and general sense to denote the great object of all free governments, —as it is used, for example, in the preamble of the Constitution of the United States. There are, however, a few general principles which it will be well to notice at this point.

Liberty, or civil liberty, as it is often called, has been defined by a hundred eminent writers, one of whom has remarked that "most of these definitions are not worthy of notice." As the term is used by philosophical writers, it does not appear to have any very definite meaning. As used by jurists, it is more capable of definition, because it signifies not so much a theory as a condition, not so much an ethical conception as a concrete existence. In this sense it is defined by Blackstone to be the "liberty of a member of society," and "no other than natural liberty so far restrained by human laws (and no farther), as is necessary and expedient for the general advantage of the public." With "natural liberty," or, as Cicero phrased it, "the power of living as thou willest," writers who are concerned with facts have nothing to do. Such persons deal only with liberty as it does or may exist, that is, in a state of society and in a body politic. A state of nature is a fiction. In this view the term is obviously a relative one, and it is, accordingly, proper to speak of modern and ancient, of Pagan and Christian, of English, of French, and of American liberty. Each of these systems has peculiar features, but they are all alike in one respect, in that they each and all represent the number and kind of important individual rights which have been secured in the social state under different forms of government. They all differ, in that no two of them afford precisely the same degree of right or liberty to those living under them. In England and the United States the number of rights and remedies which have been secured is very large. In Russia it is very small. Consequently, it is correct to say that Anglican liberty has reached a very high stage of development, while Russian liberty is, if the term were used in a more ethical sense, hardly worthy of the name. We are apt to connect the term with the particular form of government under which we enjoy that for which the term stands. So it was with the ancients, —the Greeks and Romans,— who identified it with a republican form of government. So also Americans are apt to connect it with the same form of government, as represented by the Constitution of the United States.