The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction to the Third Edition.
• On Civil Liberty and Self-government.
• Chapter I.: Introductory.
• Chapter II.: Definitions of Liberty.
• Chapter III.: The Meaning of Civil Liberty.
• Chapter IV.: Ancient and Modern Liberty.—Ancient, Medieval, and Modern States.
• Chapter V.: Anglican Liberty.
• Chapter VI.: National Independence—Personal Liberty.
• Chapter VII.: Bail.—Penal Trial.
• Chapter VIII.: High Treason.
• Chapter IX.: Communion.—Locomotion, Emigration.
• Chapter X.: Liberty of Conscience.—Property:—Supremacy of the Law.
• Chapter XI.: Quartering Soldiers.—The Army.
• Chapter XII.: Petition.—Association.
• Chapter XIII.: Publicity.
• Chapter XIV.: Supremacy of the Law.—Taxation.—Division of Power.
• Chapter XV.: Responsible Ministers.—Courts Declaring Laws Unconstitutional.—Representative Government.
• Chapter XVI.: Representative Government, Continued.—Basis of Property.—Direct and Indirect Elections.
• Chapter XVII.: Parliamentary Law and Usage.—The Speaker.—Two Houses.—The Veto.
• Chapter XVIII.: Independence of the Judiciary.—The Law Jus, Common Law.
• Chapter XIX.: Independence of Jus, Self-development of Law, Continued.—Accusatorial and Inquisitorial Trials.—Independence of the Judge.
• Chapter XX.: Independence of Jus, Continued.—Trial By Jury.—The Advocate.
• Chapter XXI.: Self—Government.
• Chapter XXII.: American Liberty.
• Chapter XXIII.: In What Civil Liberty Consists, Proved By Contraries.
• Chapter XXIV.: Gallican Liberty.—Spreading of Liberty.
• Chapter XXV.: The Institution.—Its Definition.—Its Power For Good and Evil.
• Chapter XXVI.: The Institution, Continued.—Institutional Liberty.—Institutional Local Self-government.
• Chapter XXVII.: Effects and Uses of Institutional Self-government.
• Chapter XXVIII.: Dangers and Inconveniences of Institutional Self-government.
• Chapter XXIX.: Advantages of Institutional Government, Farther Considered.
• Chapter XXX.: Institutional Government the Only Government Which Prevents the Growth of Too Much Power.—Liberty, Wealth, and Longevity of States.
• Chapter XXXI.: Insecurity Op Uninstitutional Governments.—Unorganized Inarticulated Popular Power.
• Chapter XXXII.: Imperatorial Sovereignty.
• Chapter XXXIII.: Imperatorial Sovereignty, Continued.—Its Origin and Character Examined.
• Chapter XXXIV.: Centralization.—Influence Of Capital Cities.
• Chapter XXXV.: Vox Populi Vox Dei.
• Appendix.
• Appendix I.: A Paper On Elections, Election Statistics, and General Votes of Yes Or No.
• Appendix II.: A Paper On the Abuse of the Pardoning Power.
• Appendix III.: A Paper On Subjects Connected With the Inquisitorial Trial and the Laws of Evidence.
• Appendix IV.: Magna Charta of King John, Fifteenth Day of June, In the Seventeenth Year of the King's Reign, A.d. 1215.
• Appendix V.: The Petition of Right. 1
• Appendix VI.: An Act For the Better Securing the Liberty of the Subject, and For Prevention of Imprisonments Beyond the Seas, Commonly Called “the Habeas Corpus Act.” 1
• Appendix VII.: Bill of Rights, Passed 1 William and Mary, Sess. 2, Ch. 2, 1689.
• Appendix VIII.: A Declaration By the Representatives of the United States of America In Congress Assembled.
• Appendix IX.: Articles of Confederation and Perpetual Union Between the States.
• Appendix X.: Constitution of the United States of America.
• Appendix XI.: The French Constitution, Adopted and Proclaimed On the Twenty-fourth of June 1793. the First Republican Constitution
• Declarations of the Rights of Man and of Citizens.
• Constitution of the Twenty-fourth of June, 1793.
• Appendix XII.: French Charter of Louis XVIII. And That Adopted In the Year 1830.
• Appendix XIII.: Constitution of the French Republic. Adopted November, 1848.
• Appendix XIV.: The Present Constitution of France.
• Appendix XV.: Report of the French Senatorial Committee On the Petitions to Change the Republic Into an Empire, In November, 1852, 1 and the Senatus-consultum Adopted In Conformity With It.
• Appendix XVI.: Letter of the French Minister of the Interior, Mr. De Morny, Addressed to the Prefects of the Deparments In the Year 1852.

chapter ix.

communion.—locomotion, emigration.

6.The freedom of communion is one of the most precious and necessary rights of the individual, and one of the indispensable elements of all advancing humanity—so much so, indeed, that it is one of those elements of liberty which would have never been singled out, had not experience shown that it forms invariably one of the first objects of attack when arbitrary power wishes to establish itself, and one of the first objects of conquest when an unfree people declares itself free.

I have dwelt on the primordial right of communion in the Political Ethics at great length, and endeavored to show that the question is not whether free communion or a fettered press be conducive to more good, but that everything in the individual and in nations depends in a great measure upon communion, and that free communion is a pre-existing condition. The only question is, how to select the best government with it, and how best to shield it, unless, indeed, we were speaking of tribes in a state of tutelage, ruled over by some highly advanced nation.

In this place we only enumerate freedom of communion as one of the primary elements of civil liberty. It is an element of all civil liberty. No one can imagine himself free if his communion with his fellows is interrupted or submitted to surveillance; but it is the Anglican race which first established it on a large scale, broadly and nationally acknowledged.1

Free nations demand and guarantee free communion of speech, the right of assembling and publicly speaking, for it is communion of speech in this form which is peculiarly exposed to abridgment or suppression by the public power; they guarantee the liberty of the press, and, lastly, the sacredness of epistolary communion.

It is a very striking fact that, although the Constitution of the United States distinctly declares that the government of the United States shall only have the power and authority positively granted in that instrument, so that, in a certain respect, it was unnécessary to say what the government should not have the right to do, still, in the very first article of the Additions and Amendments of the Constitution, congress is forbidden to make any “law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The reader will keep in mind that the framers of our constitution went out of their way and preferred to appear inconsistent, rather than omit the enumeration of those important liberties, that of conscience, as it is generally called, that of communion, and of petitioning; and the reader will remember, moreover, that these rights were added as amendments. They must then have appeared very important to those who made our constitution, both on account of their intrinsic importance, and because so often attacked by the power-holders. Let the reader also remember that, if it be thus important to abridge the power of government to interfere with free communion, it is at least equally important that no person or number of men interfere, in any manner, with this sacred right. Oppression does not come from government or official bodies alone. The worst oppression is of a social character, or by a multitude.

The English have established the right of communion, as so many other precious rights by common law, by decisions, by struggles, by revolution. All the guarantee they have for the unstinted enjoyment of the right lies in the fact that the whole nation says with one accord, as it were: Let them try to take it away.

It is the same with our epistolary communion. The right of freely corresponding is unquestionably one of the dearest as well as most necessary of civilized man; yet our forefathers were so little acquainted with a police government, that no one thought of enumerating the sacredness of letters along with the freedom of speech and the liberty of the press. The liberty of correspondence stands between the two; free word, free letter, free print. The framers did not think of it,—as the first law-makers of Rome are said to have omitted the punishment of parricide.

The sacredness of the letter appears the more important when it is considered that in almost all civilized countries the government is the carrier of letters and actually forbids any individual to carry sealed letters.1 So soon as the letter, therefore, is dropped into the box, where, as it has just been stated, the government itself obliges the correspondent to deposit it, it is exclusively entrusted to the good faith and honorable dealing of government If spies, informers, and mouchards are odious to every freeman and gentleman, the prying into letters, carried on in France and other countries with bureaucratic system, is tenfold so, for it strikes humanity in one of its vital points; and had the mail acquired as great an importance in the seventeenth century as in ours, as an agent of civilization, and had Charles I. threatened this agent as he invaded the right of personal liberty, the Petition of Right would have mentioned the sacredness of letters2 as surely as it pointed out the billeting of soldiers as one of the four great grievances of which the English would be freed before they would grant any supplies to the government.3

In all the late struggles for liberty on the continent of Europe, the sacredness of letters was insisted upon, not from abstract notions, but for the very practical reason that governments had been in the habit of disregarding it. Of course, they now do so again. The English parliament took umbrage, a few years ago, at the liberty a minister had taken of ordering the opening of letters of certain political exiles residing in England, and, although he stated that it had been the habit of all administrations to order it under certain circumstances, he promised to abstain in future. In the United States there is no process or means known to us, not even by writ of a court, we believe, by which a letter could be extracted from the post-office, except by him to whom it is addressed; and as to the executive unduly opening letters, it would be cause for instant impeachment.

Quite recently, in the month of April, 1853, it appeared in the prosecution of several persons of distinction at Paris, for giving wrong and injurious news to foreign papers, that their letters had not only been opened at the post-office, but that the originals had been kept back, and copies had been sent to the recipients, with a postscript, written by the government officer, for the purpose of fraudulently explaining the different handwriting. It stated that the correspondent had a sore hand.

When the counsel for the accused said that the falsifying officer ought to be on the bench of the accused, the court justified the prefect of the police, on the ground of “reasons of state.” No commentary is necessary on such self-vilification of governments; but this may be added, that these outrages were committed even without a formal warrant from any one, but on the sole command of the police. Are we, then, wrong in calling such governments police governments? It is not from a desire to stigmatize these governments. It is on account of the prevailing principle, and the stigma is a natural consequence of this principle.1

England, as may be supposed, has not always enjoyed liberty of the press. It is a conquest of high civilization. It is, however, a remarkable fact, that England owed its transitory but most stringent law of a censorship to her republican government.

On September 20, 1647, it was decreed by the republican government in England that no book henceforth be printed without previously being read and permitted by the public censor, all privileges to the contrary notwithstanding. House searches for prohibited books and presses should be made, and the post-office would dispatch innocent books only. All places where printing-presses may exist should be indicated by authority. Printers, publishers, and authors were obliged to give caution-money for their names. No one was permitted to harbor a printer without permission, and no one permitted to sell foreign books without permission. Book-itinerants and ballad-singers were imprisoned and whipped. We are all-acquainted with Milton's beautiful and searching essay on the liberty of the press against this censorship.1

The reader who pays attention to the events of his own days will remember the law against the press, issued immediately after the coup d'état of Louis Napoleon, which puts the sale of printing and lithographic presses, copying machines, as well as types, under police supervision, and which, in one word, intercepts all public communion.

I suppose it will be hardly necessary to treat, in connection with the liberty of communion, of the “liberty of silence,” as a French paper headed an article, when, soon after the coup d'état, it was intimated to a Paris paper, by the police, that its total silence on political matters would not be looked upon by government with favor, should the paper insist on continuing it.

It would be, however, a great mistake to suppose that governments alone interfere with correspondence and free communion. Governments are bodies of men, and all bodies of men act similarly under similar circumstances, if the power is allowed them. All absolutism is the same. I have ever observed, in all countries in which I have lived, that, if party struggle rises to factious passion, the different parties endeavor to get hold of the letters of their adversaries. It is, therefore, of the last importance, both that the secret of letters and the freedom of all communion be legally protected as much as possible, and that every true friend of liberty present the importance of this right in the clearest possible manner to his own mind.

7. The right of locomotion, or of free egress and regress, as well as free motion within the country, is another important individual right and element of liberty.

The strength of governments was generally considered, in the last century, to consist in a large population, large amount of money, that is specie, within the country, and a large army founded upon both. It was consistent, therefore, that in countries in which individual rights went for little, and the people were considered the mere substratum upon which the state, that is the government, was erected, emigration was considered with a jealous eye, or wholly prohibited. Nor can it be denied that emigration may present itself in a serious aspect. So many people are leaving Ireland, that it is now common, and not inappropriate, to speak of the Irish exodus, and it has been calculated, upon authentic data, both in Germany and the United States, that for the last few years the German emigrants have carried not far from fifteen millions of Prussian dollars annually into the United States.1 The amount of emigrating capital may become greater even; but freemen believe that governments are for them, not they for governments, and that it is a precious right of every one to seek that spot on earth where he can best pursue the ends of life, physical and mental, religious, political, and cultural.2

If, under peculiar circumstances, a country should find itself forced to prohibit emigration, the measure would, at any rate, so far as this right goes, be an abridgment of liberty.3 We can imagine many cases in which emigration should be stopped by changing those circumstances which cause it, but none in which it ought to be simply prohibited. The universal principle of adhesiveness, so strong in all spheres of action, thought, and affection, and which forms one of the elementary principles of society and continuity of civilization, is sufficiently strong to keep people where they are, if they can remain; and if they leave an over-peopled country, or one in which they cannot find work or a fair living, they become active producers in the new country, and consequently proportionate consumers in the great market of the world, so that the old country will reap its proportionate benefit, provided free exchange be allowed by the latter.

The same applies to the capital removed along with emigration. It becomes more productive, and mankind at large are benefited by it.

Besides, it is but a part of the general question, Shall or shall not governments prohibit the efflux of money? It was formerly considered one of the highest problems of statesmanship, even by a ruler so wise as Frederic II. of Prussia, to prevent money from flowing out of the country; for wealth was believed to consist in money. Experience has made us wiser. We know that the freest action in this, as in so many other cases, is also the most conducive to general prosperity. It was stated in the journals of the day that Miss Jenny Lind remitted five hundred thousand dollars from the United States to Europe. Suppose this to be true, would we have been benefited had she been forced to leave that sum in this country?1 Or would we, upon the whole, profit by preventing five million dollars, which, according to the statement of our secretary of state, are now annually sent by our Irish emigrants to Ireland, from leaving our shores?2 Unquestionably not. But this is not the place for further pursuing a question of political economy.

The English provided for a free egress and regress as early as in Magna Charta. As to the freest possible locomotion within the country, I am aware that many persons accustomed to Anglican liberty may consider my mentioning it as part of civil liberty too minute. If they will direct their attention to countries in which this liberty is not enjoyed in its fullest extent, they will agree that I have good reason for enumerating it. Passports are odious things to Americans and Englishmen, and may they always be so.1

[1.]The first fair play was given to a free press in the Netherlands.

[1.]The law of the United States prohibits any private person periodically and regularly to carry letters, and also to carry letters in mail ships.

[2.][The letters publicly transmitted by mail were so few in number that the right was not felt to be very important. Nor had it been systematically invaded.]

[3.]The American states in which slavery exists have not considered the laws or principles relating to letters to apply to public journals, when suspicion exists that they contain articles hostile to slavery. In some cases people have broken into the post-office and seized the obnoxious papers; in other cases the state legislature have decreed punishments for propagating abolition papers. Thus we read in the National Intelligencer, Washington, October 6, 1853, that “Mr. Herndon, postmaster at Glenville, informs the editor of the Religious Telescope, at Circleville, Ohio, that having, according to the laws of Virginia, opened and inspected his papers, and found them to contain abolition sentiments, he has refused to deliver them as addressed, and has publicly burnt them in presence of a magistrate. It appears by his letter that the penalty for circulating such papers is imprisonment in the penitentiary for not less than one nor more than five years.”

Such is the law, and its lawfulness, wisdom, and dignity must be judged of by the laws and principles by which other measures are judged; but it cannot be denied that a freeman feels himself circumscribed so far as he is denied to read what he chooses. If a government or a set of men were to forbid a man to read an atheistic paper, though he might be a fervent Christian, his liberty would be undoubtedly circumscribed pro tanto.

That the seizure of English papers on the continent is of frequent occur rence, is well known by every reader of the daily papers.

[1.]In the decision of the appellate court in the same case we find this to be the chief argument, that government establishes post-offices, and cannot be expected to lend its hand to the promotion of mischief, by carrying letters of evil-doers. This is totally fallacious. Government does not establish post-offices, but society establishes them for itself, though it may be through government. The mail is no boon granted by government.

If it did, it is not a benefit done by a second party, as when A makes a present to B, but government is simply and purely an agent; and, what is more, the right of establishing post-offices is not an inherent attribute of government, such as the administration of justice or making war. Government merely becomes the public carrier, for the sake of general convenience. There are many private posts, and governments without government post-offices, for instance, the republic of Hamburg.

The opening of letters without proper warrant is a frightful perversion of power, and though government should be able to get at secret machinations, the secret of letters is a primordial condition. Government might, undoubtedly, know many useful things if the sacredness of Catholic confession were broken into; but that is considered a primordial and pre-political condition. So, many codes do not force a son to testify against a father; the family affection is considered a primordial condition. The very state of society, for which it is worth living, is invaded, if the correspondence is exposed to this sort of government burglary.

The argument is simply this. Man is destined to live in society, united by converse and intercommunion; this is a basis of humanity. If you open letters, you seriously invade this primary condition. Men are individuals, and social beings, destined for civilization and united progress, and the question is not whether they may be dispensed with, but how to govern with them. Governments too frequently act as though the government were the primary condition, and the remaining question only was, how much may be spared by government to be left for society or individuals. The opposite is the truth.

After this note had been published, the French court of cassation,” all chainbers united,” decided, in the last resort, that in the case of Coëtlogon, Flandin, and others, no illegal act had been committed by the prefect of the police, in opening letters, etc. etc. The decision is given in full in the Courrier des Etais-Unis, New York, December 12, 1853.

[1.][Several corrections are necessary in this and the preceding paragraph. The long parliament-not the commonwealth-passed an ordinance June 11, 1643, for restraining the liberty of the press, and to strengthen some former order? made for that purpose. This led to Milton's Areopagitica, published in November, 1644. Afterwards, September 21, 1647, in consequence of a letter from Gen. Fairfax, complaining of scandalous pamphlets, a new ordinance was passed, which contains several of the particulars mentioned in the text. Comp. Cobbett's Parl. Hist., iii. pp. 131, 132,780. In 1662 a new licensing law was passed under Charles II. In 1695, under William, the Licensing act ceased to have effect, and was not again passed. Comp. Smyth's Lect. on Hist., ii. lect. 22; Macaulay's Hist., iv. 348, et seq., 541.]

[1.]On the other hand, an immense amount of capital annually returns, from successful emigrants in the United States, to Ireland and Germany. Persons who have not paid attention to the subject cannot have any conception how many hard yet gladly earned pounds and thalers are sent from our country to aged parents or toiling sisters and brothers in Europe. A wide-spread and blessed process of affection is thus all the time going on-silent, gladdening, and full of beauty, like the secret and beautifying process of spring. It is curious to observe, in connection with this emigration of coin from Europe, (for a large portion of the emigrating capital consists in European specie,) how the coins are first carried to the distant west in the pouches of the emigrants, and then are sent in large boxes from the western banks, into which they naturally flow, to the New York banks, to be sold to the specie-broker, who sells them for shipment back to France, Germany, or England. The Banks of New York, by T. S. Gibbons New York, 1859.

[2.]In the Prussian constitution of 1850, Tit. ii. Art. ii., it is said, “The right to emigrate cannot be restricted by the state, except with respect to the duty of military service.”

[3.][Penalties for escaping a draft in time of war, or deserting one's country in its perils, may be perfectly just. Comp. the Oration of Lycurgus against Leocrates, e.g. §§ 11, 16.]

[1.]The papers of September, 1853, reported that “the Silby estate, belonging to the Hon. Mrs. Petre, has been sold to Lord Londesborough for £270,000. Mrs. Petre, whose property was left by her husband entirely at her own disposal, has taken the veil in a nunnery in France, which will of course receive the whole of her fortune.”

This emigration of more than a million of dollars, and serving for the purpose of a religious community not favored by the country whence it emigrates, (not to speak of the actual droit d'aubaine in France before the revolution,) indicates a great advance of civilization, and would not be allowed in several countries. [The laws of civilized states, however, may properly limit or forbid the acquisition of property in mortmain or by religious corporations. And if within a country religious bodies were forbidden to hold such property, why should they, if situated in another, have such capacity of acquisition from the foreign country?]

[2.]Hon. Edward Everett's dispatch to Mr. Crampton, on the Island of Cuba, December 1, 1852. The London Spectator of December 17, 1853, said:—

“Not less than £2,972,000 was remitted from Irish emigrants in America to their friends and relatives at home, in 1848, 1849, 1850, and 1851. It is estimated that if the remittances have continued at the same rate, upwards of four millions must have been remitted in the last six years.”

[1.]The primordial right of locomotion and emigration has been discussed by me in Political Ethics, at considerable length. The state of Mississippi declares in its bill of rights, that the right of emigration shall never be infringed by law or authority. The English distaste of passports was severely tried when, after Orsini's attempt to assassinate Napoleon III., stringent passport regulations were adopted in France; but the English found them so irksome (and the money they spend is so acceptable to the continent) that those police regulations were soon relaxed in a very great degree. Napoleon III., when an exile, wrote on the individual liberty in England, and called passports “that invention of the Committee of Public Safety.” See his works. The modern passport was, doubtless, greatly developed in the first French revolution, but not invented. The history of the passport, from the Roman Empire to the modern railroad, which naturally interferes with its stringency, is an interesting portion of the history of our race, but it belongs to what the Germans have carved out as a separate branch under the name of Police Science, (Polizei-Wissenschaft.)