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FREEDOM, AND RIGHTS OF FREEDOM - John Joseph Lalor, Cyclopaedia of Political Science, Political Economy, and of the Political History of the United States, vol. 2 East India Co. - Nullification 
Cyclopaedia of Political Science, Political Economy, and of the Political History of the United States by the best American and European Authors, ed. John J. Lalor (New York: Maynard, Merrill, & Co., 1899). Vol 2 East India Co. - Nullification
Part of: Cyclopaedia of Political Science, Political Economy, and of the Political History of the United States, 3 vols.
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FREEDOM, AND RIGHTS OF FREEDOM. I. Nature of Freedom. When we examine into the essence of freedom, and seek to understand that sacred blessing which man prizes higher than all besides, we must pass beyond the bounds of law and of the state, and seek its roots in nature and in God. In the microcosmic world of organic beings, the freedom of these beings rises, by degrees, to a fuller meaning. Even the plant which is fixed to its place, and is essentially not free, shows some faint advances toward freedom, when, following the instinct of self-preservation, it pushes its roots where nourishment most readily comes to it, and fastens its tendrils where it may best receive protection and insure its growth. The beast is freer, that moves its body about according to its instincts, and moves its limbs according to changing necessity. It chooses its place of rest and arranges it; it seeks its nourishment with discrimination; it practices the tricks of the hunter; it courts sexual union and cares for its young. The word instinct, which means the endowment of the race and the moving necessity of present impulse, is not adequate to explain these phenomena. The freedom of the beast is also manifest in this, that it does not move with mathematical or mechanical necessity, but according to its feelings, desires or apprehensions. Bodily, physical freedom is plainly met with even here; indeed, here the first advances toward a higher, moral freedom appear, and we can, without doing violence to language, speak of the fidelity of the dog, of the spirit of the horse, of the majesty of the lion, and of the industry of the bee. But first with man as a person do moral freedom and intellectual freedom attain their full development. In the beast the instinctive nature predominates still, but man rises to self-conscious action. The distinction between good and evil, truth and error, here, for the first time, gets its definite meaning. In consequence of this higher will and freedom of the mind, man can struggle against the power of natural impulse.
—Tocqueville (Ancien Régime, p. 278) asks the question, in what is the love of the nations for freedom, which inspires to the greatest deeds, grounded? and answers, that it was not alone in the hatred of oppression, for the freest people willingly submit to a dictator appointed for a time; neither in their material interests, for sometimes people abandon everything to defend freedom. He replies: "Freedom has in herself her own charm. He who seeks in freedom anything else than freedom herself, is bowed in bondage." I think the deepest ground lies in the fact that freedom is the most godlike quality of man, that it is voluntary and self-conscious life of a higher order. The highest degree of freedom is revealed in a creative act, in self-culture and in the improvement of the world.
—Necessity and freedom are antithetical but not contradictory. They are joined in unity in a person, for to the person both belong. The necessity of being is the condition precedent of his freedom. When Raphael painted a Madonna, he was bound to the necessity of his esthetic nature, while he painted with the true freedom of the artist. So Shakespeare, when he wrote his plays. It is the same in politics. In the acts of Julius Cæsar or Frederick II. of Prussia, we recognize the nature of Cæsar or Frederick as necessary, but we likewise plainly discern the marks of individual freedom. Freedom, on its positive side, implies choice, but it does not on that account become caprice or arbitrariness. Free moral choice must have regard to its own nature, and its connection with the laws of the system of the world and with the destiny of mankind.
—It is the province of politics both to promote freedom, and to bring to development what still lies dormant in the intellectual endowment of man. It has to do with the collective life of the people.
—II. Individual Rights of Freedom. 1. The first of these is the acknowledgment of free personality, and, as a logical consequence, the negation of all slavery. Since man is by nature a person, he can not and must not be considered as simply a thing; and never must property, i.e., the dominion of the person over things, be assigned to man over man, to person over person. Slavery is always an unjust subordination. In many respects the authority of the Roman father over the child was similar to the authority of the master over the slave. But there existed a cardinal difference. The child was esteemed as a person, and hence as free (liber); the slave as a thing, and hence under dominion. Slavery even as a penalty, is not admissible, for the culprit does not cease to be a man, and hence a person. 2. The glebæ ad-criptio of the middle ages was in contradiction with the natural right of freedom. It is true it did not entirely deny the personality of the feudal dependents; their marriages were recognized as legal, and certain rights of possession of goods and movables were guaranteed them. But the system nevertheless brought man into the false relation of the dependence of the person upon the thing. 3. Not every dependence of one person upon another is in opposition to freedom. The child, through its helplessness and its wants, is, by nature, dependent upon the guidance and care of its parents. The authority of guardians over children and minors is well founded, just as is the guardianship over weak-minded and insane persons of full age, or over spendthrifts. But the continuation of the Roman patria potestas over sons of manly years, was certainly a mistaken notion and a violation of natural freedom, upon which the young man has a just claim. In the same way, the servant is in many things personally dependent upon his lord, the workman upon the manufacturer, and the journeyman upon the master workman; but this dependence, also, is quite compatible with personal freedom. Free men themselves regulate the relation of work and wages, according to their needs. But labor contracts for service and wages may overstep the bounds of self-determination and damage the rightful freedom of all, when it makes arrangements, which, under the appearance of a free contract, lay the foundation of a virtual lasting slavery. But that very thing is done, and for a lifetime, by those labor contracts which concede to the serving party no power to step out of the relation of servant, if his personal interests should demand it. 4. Protection against false imprisonment. It is not enough to protect the negative side of freedom, i.e., to prevent an undue dependence; the positive side of freedom, also, i.e., a person's self-determined mode of living, his movements and actions, need the protection of law. The transition from the one to the other is formed by the measures of security against arbitrary arrest, developed especially in Anglo-American law. Here belong the following provisions: 1st. No one shall be arrested except upon the written warrant of competent authority, wherein the ground for the arrest and the person of the party arrested and of the party who makes the arrest shall be designated, except in cases of the seizure of a criminal in an overt act. A general warrant, i.e., a warrant to arrest all persons suspected, without specifying individuals, is illegal according to Anglo-American law. 2d. The habeas corpus act, passed in the reign of Charles II., A. D. 1679, secures to the prisoner the right to procure from the judge a writ of habeas corpus, by which all inferior officers, jailers, etc., are required to bring him without delay before the judge, so that he may test the legality of his imprisonment, and if that be not confirmed, release him. 3d. Releasement upon furnishing bail, (called in the old German law trostung). It was a maxim of the middle ages that. "He who gives bail (trostung) must not be imprisoned," except in particularly serious cases. 4th Imprisonment and detention from police considerations, in contrast to arrest for judicial examination and punishment, is only allowed, by way of exception, in rare cases, as especially the confinement of lunatics, or measures in the interest of quarantine regulations or for checking dangerous epidemics; or for the purpose of caring for the dissolute poor, and to protect the public from being annoyed by them. 5th. The abolition of imprisonment for debt, i.e., the imprisonment of the debtor with the intent, by depriving him of his freedom, of forcing him to pay. This advance in modern freedom was only effected in comparatively recent years. 6th. The guarantee of an action for indemnity against officers and employés who had effected an illegal arrest; and 7th. The acknowledgment of the right to resist, with force, an illegal arrest. 5. Freedom of movement is further limited, by restricting a person to the limits of a certain place or district, or even by commanding one to leave a city, village or district, or by banishment from the country. Such restrictions, again, according to the rule, are only admissible when they are judicially decreed as punishments, or when, as a legal exception, they are necessary as a police expedient. 6. The protection of freedom of travel in opposition to prohibition of travel is, in more recent times, even internationally guaranteed; while but a generation ago passports for travelers were frequently required. 7. The highest form of this freedom of movement from place to place is the freedom of emigration. The free man is as little bound to the state as to the soil. It is not worthy of the state to hold him as if he were a serf, if he wishes to leave his home and hopes to find in another state better conditions for his advancement. But it was a long time before freedom of emigration was acknowledged. It is not acknowledged everywhere even to-day. But the state certainly has a right in this matter, viz., that the emigrant shall beforehand fulfill his indispensable duties toward his native country, and shall not, apparently to evade or mock the law of the land, simply step out of his previous allegiance to one government into allegiance to another. 8. Freedom of marriage. Matrimony is the most complete life in common of man and wife. Hence it is a question of life for the individual, whether he is to be allowed to follow his own inclination and choice, or is to be compelled to submit to the will of another, or is to be prevented from concluding an intended marriage. Actual coercion to marriage is to-day generally given up, in so far at least as the law demands, under all circumstances, the free personal expression of the will of the parties betrothed, which can not be supplanted by any parental or other authority. No one, according to the prevailing law, is compelled to marry when he does not desire it, or to marry any one whom he does not desire to marry. On the other hand, there existed till the most recent times, and do still in some countries exist, manifold hindrances to marriage, which make the consummation thereof difficult, or even entirely prevent it, notwithstanding the affianced parties wish to marry. The legislation of recent times has shown itself in this matter favorable to freedom, in this, that it has removed a multitude of such hindrances or has modified them, as, for example, the prohibition of marriage between distant relatives, the demanding of a property certificate from the parties betrothed, the permission of the community, etc. For Germany a series of this sort of restrictions was cleared away, especially by the North German law of May 4, 1868. 9. Freedom of property. In the possession of property, i.e., the dominion of the person over things, free personality is preserved. There are a number of legal defenses whose object is to give the best possible protection to this freedom. Among them belong: 1st. The freedom to acquire landed property, which during the middle ages was permitted frequently only to certain classes of the inhabitants, was prohibited to foreigners, and was brought into continual jeopardy through sundry natural rights of neighbors, of relatives, of heirs, of fellow-citizens and natives. 2d. The freedom of the soil from standing burdens, burdens in kind, as, especially, socage, tithes, tributes, which so sorely oppressed landed property, and burdened the free use of the soil. 3d. Free transferability and divisibility of goods, in opposition to the fixedness and indivisibility of the property of fief, family, and much of that of manor and peasant, in the middle ages. 4th. The protection of freedom at home, domestic peace or security, was afforded in full measure in the laws of many of the German cities of the middle ages. But in the last century it has been seriously damaged by the too great control and guardianship of the police. Especially has this freedom been preserved in Anglo-American law. The saying, "My house is my castle," in vogue everywhere in the middle ages, has gradually come to have a specifically English ring. Under this head falls the protection against the illegal quartering of soldiers, which is clearly set forth in the English bill of rights of 1689, and in the constitution of the United States. Freedom of property, may, however, be carried too far. Property is so called because it belongs exclusively to a particular individual, and means, in short, unlimited dominion of the same over his own things, liable, of course, to the danger of a merely selfish use, which disregards and neglects the duties toward the community (of the family, of the municipality and of the state). But since all law is a regulation of the public life, and is made to insure the peaceable dwelling together of men, it has also the task to restrain and moderate the selfish freedom of property, in so far as the interest of the community demands it. 10. Economic freedom. The whole modern system of economy is to be distinguished from the economy of the last century, chiefly from the fact that it has been impregnated with the spirit of individual liberty, and its activity has been freed from a thousand restraints, which formerly made its development difficult. Here belong: 1st. The removal of the restraint of guilds and fraternities, and the introduction of the free choice of his trade by every man. Every one may exercise that trade in which he hopes soonest to conquer in the battle of life, or that to which his inclination leads him. Every one may extend the bounds of his industrial pursuits, and may combine one industrial pursuit with another, as he finds it to his purpose. 2d. Free trade, in opposition to the so-called protective tariff system. As the full development of strength and the highest contentment for the individual comes with this economic freedom, so it is only through freedom that mankind can reach a maximum of economic achievement. But we must not overlook the fact that freedom draws after it an intensity of competition between men, and has likewise the right to take care that the dangers of this bellum omnium contra omnes shall not damage or ruin the proper and insured existence of many. The advance of the human race is marked by an increase of the legal rights of freedom; but only the union of freedom with growing humanity preserves the former from degeneration and abuse. 11. Intellectual freedom. Higher than all other personal freedom is the intellectual freedom of the individual; we notice, 1st. Religious freedom, especially freedom to profess one's belief and in the choice of one's mode of worship, a freedom which mankind, after long and grievous aberrations, has at last, with difficulty, made the portion of all. In his relations to God, man must dare to be true and upright: for God is truth and loves the truth. Nothing is more abominable in holy things than hypocrisy, and all intolerance and oppression of conscience leads to hypocrisy. The reformation broke the power of ecclesiastical authority, and freed the conscience of the church. But the people of the United States first brought the legal security of this freedom to the world in its fullest compass. The crime of heresy had earlier been done away with, but now, for the first time, the principle that one's faith should have no legal effects, and should not be a condition of his rights, came to prevail. This religious freedom certainly destroys the false unity of religious belief. It doubtless promotes the multiplicity of religious creeds and modes of worship; but all nature and the essence of the soul prove that this multiplicity, in which there is truth and life, is more pleasing to God and more fruitful to mankind than that unity, which at last sinks into a stupid absence of thought and empty formality. 2d. The scientific freedom of investigation and research. For centuries this free activity of thought and of intellectual labor was hemmed in and bound by church authority. Science would examine into everything, even religion itself, and it can not allow itself to be ruled, except by the laws of logical thought, which are of quite a different character from the power of faith in the heart. The frequently repeated objection is entirely untenable that (only objective) truth has a natural claim upon protection and to dissemination, but not error. The state has neither the means of distinguishing with any certainty an objective truth from an error, nor the power successfully to impede error, and to defend truth against doubt. History proves that governments have often sought to crush with violence supposed errors, which afterward turned out to be truths, and, on the other hand, undertook by means of punishment to defend against every attack supposed truths, which were only superstitions, both without lasting success, and to the damage of the people. Almost every discovery of a new truth has been suspected and antagonized in the beginning as a great error, and seldom has a thinker found a truth without a previous battle with traditional, and often even with his own errors, which had the appearance of truth. When the state grants freedom, it opens up, likewise, to truth, new ways. If opinions are erroneous, they call out truth, and thus error serves, though against its will, the same end as truth. The external coercion of the government, violence, is never the right means to obtain the victory of truth over error; for truth, which is spirit, can only ground and maintain itself upon its own spiritual power. A just observation of nature has a stronger power, as evidence in the domain of truth, than a hundred thousand bayonets, and the logical power of a just conclusion can not be overcome by the physical power of a hundred cannon. It is very certain that sometimes among nations might has triumphed over truth. A nation may be hindered for centuries in the perception of truth, by a mechanical pressure of state authority upon civilization and the expression of opinion, and be depressed and darkened in its intellectual life. A more rapid dissemination of a truth may, under some circumstances, be secured by the help of the authority of the government. But force is always a false means in the conflict between error and truth, and its employment in most cases works destructively, 3d. Freedom of speech, and especially the so-called freedom of the press, are in part applications of the religious freedom of creed and the scientific freedom of research, and in part a further development of intellectual freedom in general. This freedom was first acknowledged for all classes, not in the English revolution, although Milton's brilliant defense of it made a deep impression, but in 1694, when the censorship of the press was given up. As late as the year 1780 in France, where there was no freedom of the press for political discussion, the plan was seriously considered to make the entire book trade a state affair, and thus make the whole literature and every public expression of opinion dependent upon the state. The French revolution first proclaimed the freedom of the press in France in 1791, a freedom which, it is true, was later restrained. 12. Among the individual rights of freedom, we must mention the freedom which manifests itself in the peculiar manner of living of a person. John Stuart Mill observes with reason that this freedom is less restrained in our time by law than by custom and even fashion. So long as the rights of others are not violated nor public decency disregarded, every one should be allowed to live, dress and outwardly behave according to his inclination.
—III. Political Freedom. We distinguish political freedom from individual freedom. 1. Municipal freedom, i.e., the independent administration of municipal affairs and the autonomy of the municipal organization within the bounds of the state's constitution and legislation, in contrast to the guardianship of the community by the government. 2. Corporate freedom, which is akin to municipal freedom, and protects the independent conduct of legal persons and corporate bodies. 3. Freedom of the state in its proper sense. Here the negative side of freedom of the state signifies the casting off of all unjust domination, whether it be that of a foreign power or of the excessive and hence despotic authority of the state itself. The positive side shows itself in self-determined participation in the life of the community. Ancient nations, especially the Greeks, were inclined to call only those states free states in which the majority of the citizens, i.e., the demos, governed themselves. Free states, in the acceptation of the ancients, are hence, particularly, non-monarchical states—republics, as they are called in modern times. The modern view, on the other hand, cares less whether the majority rules, and more whether it is politically entitled to rule and co-operates in legislation and has the control of the government. The opposite, then, of free states are absolute or despotic states. England is a free state, notwithstanding she has an hereditary dynasty; and the constitutional monarchy of to-day may claim the honorable name of a free form of government, the same as may representative democracy, while direct democracy, if it becomes absolute and oppresses the minority, ceases to be a free form of government. 4. Among the political rights of freedom which deserve special attention are the political rights of assembly and freedom of assemblies from interference. These were first acknowledged and developed in the Anglo-Saxon constitutional law of the English and Americans. Only in the most recent times have they also attained legal value in the free states of Europe.
J. C. BLUNTSCHLI.