The Liberty of the Citizen

Relative to the constitution, political liberty arises from a distribution of the 3 powers.

Relative to the citizen, political liberty is in security.

• The constitution might be free, but the subject not.
• The citizen might be free, but not the constitution.

When the constitution is free by right and not in fact, the citizen will be free in fact, and not by right.

It is the disposition only of the laws, and even of the fundamental laws, that constitutes liberty in relation to t he constitution.

But, as it regards the subject, manners, customs, or recei ved examples, may give rise to it, and particular civil laws may encourage it, as we shall presently observe.

In most states, liberty is more checked or depressed than their constitution requires. It is proper to treat of the particular laws that, in each constitution, are apt to assist or check the principle of liberty, which each state is capable of receiving.

Chapter 2= The Citizen’s Liberty

PHILOSOPHICAL liberty is the free exercise of the will; or, at least, if we must speak agreeably to all sy stems, in an opinion that we have the free exercise of our will. Political liberty consists in security; or, at least, in the opinion that we enjoy se curity.

This security is never more dangerously attacked than in public or private accusations. It is therefore on the good ness of criminal laws that the liberty of the subject principally depends.

Criminal laws did not receive their full perfection all at once. Even in places where liberty has been most sought after it has not been always found. Aristotle* informs us, that, at CumC3A6, the parents of the accuser might be witnesses.

So imperfect was the law, under the kings of R ome, that Servius Tullus pronounced sentence against the children of Ancus Martius, who were charged with having assassinated the king his father-in-law.

Under the first kings of France, Clotarius made a law, that nobody should be condemned without be ing heard; which shews that a contrary custom had prevailed in some particu lar case, or among some barbarous people. It was Charondas that first estab lished penalties against false witnesses. When the subject has no fence to secure his in nocence, he has none for his liberty.

The knowledge already acquired in some c ountries, or that may be hereafter attained in others, < span class3D"decoration">Edition= current; Page= [242] concerning the sur est rules to be observed in criminal judgements, is more interesting to man kind than any other thing in the world.

Liberty can be founded on the practice o f this knowledge only; and, supposing a state to have the best laws imagina ble in this respect, a person tried under that state, and condemned to be h anged the next day, would have much more liberty than a bashaw enjoys in Tu rkey.

Chapter 3= The Citizen’s Liberty continued

THOSE laws, which condemn a man to death on the deposition of a single witness, are fatal to liberty. In right reas on there should be two; because a witness who affirms, and the accused who denies, make an equal balance, and a third must incline the scale.

The GreeksC2A7 and RomansC2B6 required one voice more to condemn= but our French laws insist upon two. The Greeks pretend that their custom was established by the Gods*; but thi s more justly may be said of ours.