CIVIL LIBERTY, as known in western Europe, consists of (1) freedom of the citizen in regard to personal action and prop erty—not merely from State control but also from private oppres sion by individuals or corporations from which the State should protect him, (2) freedom in regard to religious worship and the expression of opinion and (3) participation in the government of the community in which he lives. Civil liberty is limited by the necessities of public safety, which fluctuate, e.g., between the conditions of peace and war; but it should not be at the mercy of any governing clique which wants to carry out experiments in e.g., what it chooses to call social welfare. Conscription may be neces sary in wartime ; but compulsion to wear digitated socks in peace time is a very different matter.
The idea of civil liberty as a right was un known to the ancient world and is still unknown both in the Near East or the Far East. In China and Japan the individual is insig nificant except as the member of a family or village community. In modern Italy and Russia, and to some extent in Spain, the idea of civil liberty is frankly scouted and suppressed. The first germs of it appeared in the Stoic philosophy and these were developed by Christianity which inspired revolt against the family as well as the State. Individuality found further support in feudalism, for the feudal tie of allegiance at least recognized the rights of the small property owner and the voluntary character of his service. This was particularly the case in England, where the more efficient centralization of government severely controlled private war and developed the proprietary instinct in an atmosphere of peace; for liberty is essentially bound up with property. The Black Death converted many serfs into small property owners.
Mediaeval Europe also developed civil liberty by the differ entiation of Church and State as opposed to the identification of priest and king in the primitive and ancient worlds. The clash of Church and State, as of hammer and anvil, produced sparks which kindled unexpected tinder in the region of liberty. Even in ancient Athens no citizen was allowed any right of private wor ship or approach to the gods of the community; but the mediaeval Catholic had his own little shrines and saints. In England, too, the turbulent islanders kicked against papal control and would not put up with the inquisition.
The Renaissance developed even further the idea of individual liberty tempered by despotism and the growth of national monarchy. The utmost free dom in conduct and speculation prevailed under a system of political repression. The citizen could do much what he liked provided he left politics alone. This kind of liberty prevailed all over Europe in the 18th century and in countries like Russia and Germany up to the time of the World War.
The Reformation was not based on any avowed principle of individuality and nearly all the compromises of the 16th century were repudiated in the i th century ; but it put in motion most of the events which resulted in modern toleration. Thus in France the Edict of Nantes, involving the toleration of Protestant by Catholic, was achieved in 1598, but revoked in 1685. In Germany the principle of cujus regio eius religio was formulated in the Peace of Augsburg in 1555, though not finally established till the end of the Thirty Years' War. The Elizabethan settlement and Cromwellian eclecticism crystallized into the Toleration Act of 1689, under which more than one sect was permitted civic exist ence. Quakers and Catholics, however, were not in a very happy position until the beginning of the 19th century, and atheists were more or less outlawed until the last decade of it, though on the continent the French Revolution accelerated the toleration of free thought. In the aoth century the persecution of Christianity has begun; the expulsion of the monastic orders from France has been followed (by the anti-Christian extravagances of the Russian Soviet.
Direct participation in government has always been fairly impracticable except in small communities e.g., the ancient Greek or mediaeval Italian City State or the Swiss canton or West Indian colony of modern times. The power of insurrection has never been so easy a remedy against despotism for a servile proletariat as it is for a population of small burgesses or yeomen; still in mediaeval Europe the tyranny of the monarch or of the feudal nobility could be and was checked by risings under leaders like Wat Tyler or Etienne Marcel, of a more virile popu lation than the spoon-fed town dwellers of the aoth century. In England the monarchy became impoverished owing to various causes after the Reformation and the power of the great landown ing oligarchy became established in 1688 and remained until it made way for the new industrial oligarchy of the Victorian era and finally for the plutocracy of the present day. In Austria, Germany and Russia monarchy survived until the crash of 1914. In France and Scandinavian countries something more like democ racy was achieved with results fatal to liberty except in France, which has always preserved the traditions of European civilization.
It may safely be said that ultimate sovereignty reposes on the ownership and cultivation of the soil, for the soil cannot be culti vated except by skilled individual labour as the ancient Roman and modern Russian discovered. Thus in England political power rested with the big landowners from Magna Carta in 1215 down to the Great Rebellion and the Revolution of 1688. Modern France has been ruled by the peasant proprietor since 1789. The maltreatment of all agricultural interests in England dates only from the acquisition of political supremacy by the manufacturer and of an industrial proletariat fed on imported corn and meat. Even in Russia Lenin found himself and his complicated schemes defeated by the peasant proprietor.
Generally speaking, however, the most formidable enemy of civil liberty is modern democracy, which standardizes the modern citizen by such means as alleged education and the diffusion of so-called non-controversial informa tion. Democracy in so far as it professes to represent the general will of the modern community is the most formidable enemy to the expression of public opinion.
Self-confessed monarchy, aristocracy or oligarchy at least pays homage to the duty of representing to some extent public opinion. Perhaps the simplest form of oligarchy is the governing body which rules the islanders of Barbados and which submits all legis lative and executive measures to the vote of an assembly which either accepts or rejects it like an ordinary debating society. The vote is of course controlled to some extent by respect for the pub lic opinion of the islanders as a whole and represents public opinion far more effectively than the resolutions of a democratic caucus forced on an electorate which usually has to choose between two equally distasteful proposals and is now in some countries threatened by penalties to enforce compulsory voting. The more virile population of France has in the 2oth century protested by a general agreement not to vote either for or against the unpopu lar and often corrupt proposals of the modern politician.
The exploitation of the herd instinct by modern democracy is to some extent rein forced by modern exponents of physical science; who are content to regard mankind in the mass as suitable subjects for scientific experiments, so that nowadays there is a growing danger of anyone who displays unusual individuality being condemned by a magis trate to undergo some crazy kind of hypnotism by the latest exponents of what passes under the name of social welfare. This tendency is also supplemented by the Calvinistic tendencies of modern industry by reason of which the individual worker becomes involved on the political side in what Mr. Belloc calls the servile State and in his private life in the social conventions which his employer considers necessary to mass production. For such a person any unfortunate matrimonial quarrel or entanglement with a policeman on the prowl is sufficient to destroy all prospect of continuing his present employment or of becoming anyone else's hired man while the spoon-fed eh: racter of his training from early youth destroys the sort of virility which enabled the French to build houses for themselves after the World War without State subsidies or supervision.
Artists of every sort may always be expected to defend civil liberty, and in so far as the press has any political influence it may be expected that doctrines of civil liberty will be propagated by journalists even when they are repudiated by politicians. Again, the peasant proprietor and the small investor are the firmest bulwark against Socialism, for it must never be forgotten that civil liberty is bound up with property and responsibility. One cannot ignore the possibility of Communism ultimately succeeding in Russia and something very like it in Japan. In that case it might easily spread to the rest of the world and Communism is to-day as formidable a factor in the world as the counter-Reformation and Jesuit movement were at the end of the i6th century.
One is forced to admit that the traditions and existence of civil liberty can only be the result of a mature civilization and are therefore frail in the sense that any mature civilization is frail. Any student of history must be painfully aware of the ease with which the crude and bestial instincts of the mob all through the ages succeed in destroying the delicate achievements of human intelligence and no nation can consider itself immune from ever present danger. The respect for civil liberty is the touchstone of everything for which any civilization worthy of the name stands; it is a capital example of all those values which civilization has taught us to consider essential to the art of living and which are highly disinterested in the sense that they are divorced from all vulgar appetites for power or territory or loot. It is this appetite which breaks out from time to time among the lower orders of mankind, and when it succeeds in destroying the old traditions for any long period of time the resurrection of such a sentiment as that of civil liberty becomes fairly hopeless. (E. S. P. H.) The Constitution of the United States did not create civil lib erty. The American code expressed traditions which had existed for centuries in Anglo-Saxon life. The Puritan Congregationalism enlarged its Church democracy into a State democracy as it then was unable to do in England. In the 13 colonies the shades of civil liberties varied greatly. Freedom of speech, press, public assem blage and the liberty of religious worship had different connota tions in each State. The antecedents were the Magna Carta, 1215, the Statutes of Westminster, 1275, the Petition of Right, 1628, Bushell's Case, 167o (trial by jury), the Habeas Corpus Act, 1679, the Bill of Rights, 1688, and the Act of Settlement, 1701. In many respects the American Constitution merely copied words and phrases from these historic documents. The rights of the Amer ican Constitution were of English origin, but the principles were the opposite to the . English. The English statutes did not recog nize general rights of man and they had neither the power nor the intention to establish principles for f uturp legislation. The Amer ican theory created the myth of natural rights for a mythical man in a state of nature and then allowed this mythical man to cede certain of his powers to the common interest. At the time of the formation of the Government of the United States there was a real clash of opinion on the question of intellectual freedom, a clash much influenced by the French Revolution, and exemplified by the fact that Jefferson, who wrote the Declaration of Inde pendence, was not a member of the convention that framed the Constitution. Hamilton, typifying the philosophy of Government control and popular suppression of thought, dominated the situ ation. Contrary to the general belief in the United States, the Constitution itself is barren of any declaration of civil liberty. In fact, the adoption of the Constitution (1788) was bitterly opposed in many States because of such omission.
In 1791 civil liberties were impressed in the Constitution by the first ten amendments known as the Bill of Rights. But even after the adoption of the Bill of Rights, it must be noted that civil liberty, as there enunciated, had its own contemporary and peculiar definitions. The course of changes in the various spheres of liberty can be separately traced.
All of the Fathers of the country were opposed to control of intellectual thought through the use of the post office, and to prevent this Washington urged that the snails be carried without postal charges. By 184o, in spite of the oppo sition of Clay, Calhoun and Webster, postal censorship had started to creep in as an aid to the slave States in the battles against the Abolitionists. The Federal Government, in the '7os, also adopted the power of censoring the morals of the people by the so-called Comstock Act, forbidding the use of the mails to obscene matter. The dwindling church power had transformed obscene blasphemy to blasphemous obscenity, and the obscenity laws were soon used for political ends. After the Civil War the press was molested to such an extent by the Federal Government that many papers were forced to suspend and even a paper like the Christian Observer was taken over by the Government. This power developed ulti mately to such an extent that during the World War the post office became a real censor of the press. Public opinion in opposition to the war or even in opposition to the view of the party in power was barred from the mails—in spite of the fact that the Federal Government as such was deemed to rest upon the theory that as a Federation it had no concern with the morality of the people.
The constitutional provisions provided equality only between the Christian sects. Agnostics, Catholics, Jews, Mohammedans and all other minority religious groups were sub ject to admitted discriminations. For a period of more than 5o years in various States, Jews or Catholics were unable to hold public office, and non-Christians in large areas of the country were prevented from giving court testimony against Christians. The Mormon persecutions were founded on religious and marital grounds. The recent weakening of ecclesiastic powers has caused the growth of religious political tolerances, even to non-believers.
It required the Civil War to give real meaning to the idea of freedom as affecting the black people. Lynchings in the United States between 1889 to 1918 totalled 3,024 victims of whom 2,522 were coloured people. Of this number, 219 were in the North, 156 in the West, 15 in Alaska, 2,834 in the South. Since the war the lynchings are diminishing in number, and the violent impairment of Chinese liberties in California has been controlled, although President Taft cited that 5o Chinese were killed by mobs and 120 wounded or robbed from 1885 to 191o. The denial of the franchise to negroes has continued in open violation of the constitutional amendments. Attempts to limit the residences and property ownership of negroes and orientals proceed (1928) in spite of declarations of the courts.
The rights of conscientious object ors were toyed with in the Civil War by the establishment of a money value—$3oo being needed to buy one's way out of the army. At that time Quakers were given a preferential position which they maintained even during the World War. In this latter war men were incarcerated as conscientious objectors even though serious attempts were made by the Government to provide non combatant service for those whose religious scruples led them to oppose killing by war.
The impairment of civil liberties for labour became acute in about 187o when the use of the injunction in labour dis putes developed as an advantageous weapon to prevent picketing, assemblage and free speech. In the realm of industrial disputes martial law has been used very frequently and in one State, Colo rado, it was invoked 11 times between 1894 and 1928.
In this realm the Supreme Court of the United States has declared illegal the attempts of the States to drive out the parochial schools or to prevent the teaching of German in public schools. On the other hand when the law excluding the theory of evolution from public institutions came up as a test case in Tennessee in the Scopes case, a higher court evaded the question by reversing the conviction without declaring the statute unconstitutional.
Until after the World War, the United States was a glorious haven for political outcasts who had left their lands because of political suppression. Since the war, Kar olyi, the former president of Hungary, and many other eminent Europeans have been excluded merely because they held certain political philosophies. The immigration and deportation statutes have been directed against anarchists and communists because of their philosophical concepts even in the absence of overt acts.
Reaching back to the Alien and Sedition Acts of 1797 as examples, 34 States since 1917 have enacted similar laws and between 1917 and 1928 more than 35o persons were sent to jail for mere beliefs—no overt acts being committed.
At various times plays, pictures . and books have been suppressed on grounds of obscenity even though the real attack was against some heretical or seditious idea. The pre censorship of motion pictures is in line with this theory. In the United States as elsewhere minority groups have always had to struggle for their civil liberties—the combat becoming severe only when the new ideas endangered the old. The Supreme Court of the United States has whittled away the Jeffersonian ideology of civil liberty but always in the loth century against the dissent ing voices of Judges Holmes and Brandeis. To protect all minor ities in their rights of speech, press, assemblage and religion, the American Civil Liberties Union was organized with nation-wide membership. The comment in the press indicates a feeling that England exceeds the United States in civil liberties in political fields, France in personal individualisms; while on the other hand Russia, Italy, Hungary and other present dictatorships have far less civil liberty than exists in America.
Chafee Jr., Freedom of Speech in Wartime Bibliography.-Z. Chafee Jr., Freedom of Speech in Wartime (1919) ; J. E. Cutler, Lynch-Law (19o5) ; E. Freund, The Police Power (1904) ; A. V. Dicey, Introduction to The Study of the Law of the Constitution (1915) ; American City Government (1912) and Government Research (1926) ; C. A. Beard, Readings in American Government and Policies (1909) ; H. W. Laidler, Boycotts and Labor Struggle (1914) ; H. Taylor, The Origin and Growth of the American Constitution (191I) ; American Sociological Society Papers and Pro ceedings of the Annual Meeting (1914) and American State Papers Miscellaneous compiled by W. Lowrie and W. S. Franklin 0789-1823).
(M. L. E.)
