The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to Volume Ii
• Preface to Part Iv (when First Issued Separately)
• Part IV.: The Ethics of Social Life: Justice
• Chapter 1.: Animal Ethics
• Chapter 2.: Subhuman Justice
• Chapter 3.: Human Justice
• Chapter 4.: The Sentiment of Justice
• Chapter 5.: The Idea of Justice
• Chapter 6.: The Formula of Justice
• Chapter 7.: The Authority of This Formula
• Chapter 8.: Its Corollaries
• Chapter 9.: The Right to Physical Integrity
• Chapter 10.: The Rights to Free Motion and Locomotion
• Chapter 11.: The Rights to the Uses of Natural Media
• Chapter 12.: The Right of Property
• Chapter 13.: The Right of Incorporeal Property
• Chapter 14.: The Rights of Gift and Bequest
• Chapter 15.: The Rights of Free Exchange and Free Contract
• Chapter 16.: The Right to Free Industry
• Chapter 17.: The Rights of Free Belief and Worship
• Chapter 18.: The Rights of Free Speech and Publication
• Chapter 19.: A Retrospect With an Addition
• Chapter 20.: The Rights of Women
• Chapter 21.: The Rights of Children
• Chapter 22.: Political Rights–so-called
• Chapter 23.: The Nature of the State
• Chapter 24.: The Constitution of the State
• Chapter 25.: The Duties of the State
• Chapter 26.: The Limits of State Duties
• Chapter 27.: The Limits of State Duties–continued
• Chapter 28.: The Limits of State Duties–continued
• Chapter 29.: The Limits of State Duties–concluded
• Part V.: The Ethics of Social Life: Negative Beneficence
• Chapter 1.: Kinds of Altruism
• Chapter 2.: Restraints On Free Competition
• Chapter 3.: Restraints On Free Contract
• Chapter 4.: Restraints On Undeserved Payments
• Chapter 5.: Restraints On Displays of Ability
• Chapter 6.: Restraints On Blame
• Chapter 7.: Restraints On Praise
• Chapter 8.: The Ultimate Sanctions
• Part VI.: The Ethics of Social Life: Positive Beneficence
• Chapter 1.: Marital Beneficence
• Chapter 2.: Parental Beneficence
• Chapter 3.: Filial Beneficence
• Chapter 4.: Aiding the Sick and the Injured
• Chapter 5.: Succor to the Ill-used and the Endangered
• Chapter 6.: Pecuniary Aid to Relatives and Friends
• Chapter 7.: Relief of the Poor
• Chapter 8.: Social Beneficence
• Chapter 9.: Political Beneficence
• Chapter 10.: Beneficence At Large
• Appendices
• Appendix A.: the Kantian Idea of Rights
• Appendix B.: the Land Question
• Appendix C.: The Moral Motive
• Appendix D.: Conscience In Animals
• Appendix E.: Replies to Criticisms
• References

CHAPTER 10.

The Rights to Free Motion and Locomotion

289. As direct deductions from the formula of justice, the right of each man to the use of unshackled limbs, and the right to move from place to place without hindrance, are almost too obvious to need specifying. Indeed these rights, more perhaps than any others, are immediately recognized in thought as corollaries. Clearly, one who binds another's limbs, chains him to a post, or confines him in a dungeon, has used greater liberty of action than his captive; and no less clear is it that if, by threatened punishment or otherwise, he debars him from changing his locality, he commits a kindred breach of the law of equal freedom.

Further, it is manifest that if, in either of these ways, a man's liberty of action is destroyed or diminished, not by some one other man but by a number of other men acting jointly–if each member of a lower class thus has his power of motion and locomotion partially cut off by the regulations which a higher class has established, each member of that higher class has transgressed the ultimate principle of equity in like manner if in a smaller degree.

290. We have already seen that the instinct prompting flight, as well as the desire to escape when captured, shows us in subhuman beings, as well as in human beings, the presence of that impulse which finally emerges as a conscious claim to free motion and locomotion. But while this positive element in the sentiment corresponding to the right, deep-rooted as it is, early manifests itself, the negative element in it, corresponding to the imposed limits, has to await the discipline of sociality before it can reach any considerable development.

We have instances showing that where governmental control does not exist, or is very feeble, the tacit claim to unhindered movement is strongly pronounced; whether the nature be of a savage kind or of a gentle kind. Of the one class may be named the Abors, who are 50 self-asserting that they cannot live together, and the Nagas to whom the notion of restraint is so foreign that they ridicule the idea of a ruler. Of the other class I may instance the before-named Lepchas, who, mild as they are, fly to the woods and live on roots rather than submit to coercion; and the Jakuns, who are greatly valued as servants because of their virtues, but who disappear at once if authority is injudiciously exercised over them. Having in common a strong sense of personal liberty, these types of men differ in the respect that while, in the warlike type, this sense is egoistic only, it is, in the peaceful type, altruistic also–is joined with respect for the personal liberties of others.

Out of primitive unorganized groups, or groups of which the organization is very slight, the progress to large and organized groups is effected by war. While this implies little regard for life, it also implies little regard for liberty; and hence, in the course of the process by which nations are formed, recognition of the claim to liberty, as well as of that to life, is subordinated: the sentiment is continually repressed and the idea is rendered vague. Only after social consolidation has made great progress, and social organization has become in large measure industrial–only when militancy has ceased to be constant and the militant type of structure has relaxed, do the sentiment and the idea become more marked.

Here we have to glance at some of the steps through which the claim to freedom of motion and locomotion is gradually established, ethically and legally.

291. It has been remarked with truth that the rise of slavery was practically a limitation of cannibalism, and in so far a progress. When the prisoner of war was allowed to live and work instead of being cooked and eaten, the fundamental principle of equity was no longer absolutely negatived in his person; for the continuance of his life, even under the imposed conditions, made possible some maintenance of the relation between conduct and consequence. Where the enslaved prisoners and their descendants, fed and sheltered to the extent required for making use of them as working cattle, are also liable at any time to be made into food, as until lately among the Fijians, this mitigation of cannibalism is relatively small; but where, as among many of the uncivilized, the slave is treated in large measure as a member of the family. the restraints on his freedom are practically not much greater than those to which the children are subject.

To specify the different forms and qualifications of bondage which have existed among various peoples at different times and under changing social conditions, would be needless for our purpose here, even were it practicable. Such facts only must be named as indicate how the conception of individual liberty grew up, alike in law and in ethics. We may note that among the Hebrews, while persons of foreign blood might be bought and, with their children, inherited as possessions, those of Hebrew blood who sold themselves, either to men of their own race or to strangers sojourning among them, were subject to a slavery qualified alike in respect of length and rigor: the reason given being that, as servants of God, they could not be permanently alienated. But there was neither recognition of any wrong inflicted by enslavement, nor of any correlative right to freedom. This lack of the sentiments and ideas which, in modern times, have become so pronounced, continued to the time when Christianity arose, and was not changed by Christianity. Neither Christ nor his apostles denounced slavery; and when, in reference to freedom, there was given the advice to “use it rather” than slavery, there was manifestly implied no thought of any inherent claim of each individual to unhindered exercise of free motion and locomotion. So was it among the Greeks; as, indeed, it has been among most peoples during early stages. In Homeric times, captives taken in war were enslaved and might be sold or ransomed; and throughout Greek civilization, accompanying warfare that was practically chronic, slavery was assumed to be a normal part of the social order. Lapse into bondage by capture, debt, or otherwise, was regarded as a misfortune; and no reprobation attached to the slave-owner. That is to say, the conception of freedom as an inalienable right of each man, had little or no place in either ethics or law. Inevitably. indeed, it was suppressed in relation to slaves, literally so-called, when even those who were nominally free were in reality slaves of the state–when each citizen belonged not to himself but to his city. And it is noteworthy that in the most warlike Greek state, Sparta, not only was the condition of the helot more abject than elsewhere, but the Spartan master himself was deprived in a greater degree than elsewhere of the power to order his own movements as he pleased.

Indeed we may recognize, generally, the fact that in states which have grown considerably in size and structure, it has naturally happened that since they have thus grown by external aggression and conquest, implying, as it always does, internal coercion, individuality has been so greatly repressed as to leave little trace in law and usage.

292. To illustrate the growth in morals and legislation of that conception of human freedom which has now become established among the leading civilized races, it will suffice if we glance at some of the chief steps traceable in our own history.

Militant as were the successive swarms of invaders who, now subjugating and now expelling the previous possessors of the soil, peopled the country in old English days, it of course happened that slaves existed among them–a class of the unfree, originally captives, the size of which was from time to time augmented by the addition of debtors and criminals. Along with the growth of population and accompanying advance of political organization, those who, under the original Mark system, had formed a class of free men, gradually lost much of their liberty: occasionally by conflicts within groups, in the course of which some members gained predominance, but mostly in the course of external conflicts, leading to subjugations and establishments of lordships. Peasants became subject to thegns and thegns to higher nobles; so that “by Alfred's day it was assumed that no man could exist without a lord”: implying deprivation of freedom not only in members of the lowest rank (the slaves who were bought and sold) but in members of all higher ranks. Amid the changes which followed the Conquest, this limitation of liberty implied by sworn fealty continued; or rather, indeed, was increased, save in the partial abolition of trade in slaves. With the growth of towns during the 11th century, the accompanying development of industrial institutions, the implied replacing of relations of status by relations of contract, and the development of a “new moral sense of man's right to equal justice,” came a “transition from pure serfage to an imperfect freedom.” A century later the Great Charter put restraints on arbitrary rule, and the consequent losses of freedom by citizens. The growing influence of the trading classes was shown by the concession of liberty of journeying to foreign merchants. And then when, after another hundred years, the attachment of the serf to the soil, gradually weakened, had been broken, the fully free laborer acquired the right of unhindered locomotion. Though he partially lost this right when the Black Death caused so large a decrease of population, and consequent great rise in wages, that there was prompted a statute fixing the price of labor, and tying the laborer to his parish; yet these restraints, by the violent resistance they caused, led to a violent assertion of equality, not only in respect to right of locomotion but in respect to other things. But how little the claim to freedom was then recognized by the ruling classes, was shown when, after the subjugation of the revolting peasants, the king suggested enfranchisement; and when the landowners, asserting that their serfs were their goods, said that consent to emancipation “we have never given and never will give, were we all to die in one day.” As increase of industrial activity and organization had produced increase of liberty, so, conversely. the twenty years of militant activity known as the Wars of the Roses, destroyed much of the liberty which had been obtained: not, however, the detachment of the peasant from the soil, and consequent ability to wander about, which, in the disturbed social state left by the collapse of feudalism, entailed an industrial disorganization that was remedied by again putting the laboring class under partial coercion, and partially attaching them to their localities, without otherwise restraining their movements. The freedom thus obtained had, however, still to be safeguarded; and the provisions against arbitrary imprisonment, dating from the Great Charter but often broken through, were strengthened, towards the end of the 17th century, by the Habeas Corpus Act. Save slight interferences caused by temporary panics, personal liberty in England thereafter continued intact; while such minor restraints on freedom of movement as were involved in the laws forbidding artisans to travel in search of work, were formally abolished in 1824.

And now let us not omit to note that, along with the slow legal establishment of personal liberty there has gone a growth of the responsive sentiment; and that with the egoistic assertion of liberty has been eventually joined the altruistic assertion of it. Those changes which, in the course of many centuries, have advanced social arrangements from a condition of complete slavery of the lowest, and qualified slavery of those above them, to a state of absolute freedom for all, have, towards their close, produced both sentiment and law asserting this freedom, not in English citizens only but in aliens under English rule–beginning with the emancipation of slaves who set foot on English soil, and ending with the emancipation of all who inhabited English colonies: since which time abolition of slavery elsewhere has been a constant aim.

293. Unless by those who think that civilization is a backward movement, it must, then, be admitted that induction justifies this deduction from the fundamental principle of equity. Those who think that ancient societies were of higher types than our own, and human welfare better achieved by them–those who think that feudal organization with its grades of vassalage superposed on villenage, produced a greater total of happiness than we experience now–those who, with Mr. Carlyle, yearn for a time like that of Abbot Sampson, and applaud the obedience of the Russians to their Czar; may consistently deny that growth of the sentiment of liberty, and establishment of individual freedom by law afford any support for the abstract inference drawn in this chapter. But those who think that our days are better than those in which nobles lived in castles and wore shirts of mail–those who think that oubliettes and torture chambers were accompaniments of a social state less desirable than that in which princes as well as paupers are subject to the administration of justice–those who think that the regime which brought about peasant revolts was inferior to that which is characterized by multitudinous societies for furthering popular welfare, must admit that the generalization drawn from human experiences at large, is at one with the corollary above drawn from the formula of justice.

But this dictum of absolute ethics has to be qualified by the requirements of relative ethics. From the principle laid down at the outset, that the preservation of the species, or that variety of it constituting a society. is an end which must take precedence of the preservation of the individual, it follows that the right to individual liberty, like the right to individual life, must be asserted subject to qualifications, entailed by the measures needful for national safety. Such trespass on liberty as is required to preserve liberty. has a quasi-ethical warrant. Subject only to the condition that all capable members of the community shall be equally liable to it, that restraint on the rights of free motion and locomotion necessitated by military organization and discipline, is legitimate; provided always that the end in view is defensive war and not offensive war.