The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832
PART I. OF GENERAL RIGHTS.
CHAPTER I. Of the rights of Man, as derived from his nature and condition.
Division I. Of natural rights in general. Sec. I. Of the right of self-preservation.—Sec. II. Of liberty, or freedom of action.—Sec. III. Of natural equality.—Sec. IV. Of freedom of opinion and the rights of conscience.—Sec. V. Of the right of property.—Sec. VI. Of the right of self-defense.—Sec. VII. Of the right of protecting property.—Sec. VIII. Of the right to redress or reparation for wrongs and injuries.— Sec. IX. Of the pretended right of war.—Sec. X. Of the right to form associations and organize society.
Though man is a being evidently designed for society, and the greater part both of his various rights as well as duties, depends upon the relations which he contracts through the medium of social intercourse; yet, it will facilitate a distinct understanding of those rights and duties, to examine what rights he must necessarily be considered as having in relation to the rest of mankind, without any reference to those which result from organized society.
The only sure foundation of all right, is the will of the great Creator. Independently of this, men could have no ground to complain of wrong or oppression in any case, because their relation to each other would be that of brute animals, among which the strong and ferocious devour the timid and weak, without pity or remorse. It would be the same with men; because, having no other aim than self-gratification, and knowing no other restraint upon their actions than the want of power, whatever each individual found himself able to do, he would do without regard to any other consideration, than his own advantage. And thus the world would be filled with antediluvian violence. Such is the direct tendency of Atheism; and it is on account of this tendency, as well as its impiety, that, it is held in the utmost detestation among reflecting men. Those persons, therefore, who having no settled or distinct notions on religious subjects, affect Atheism, in order to give themselves importance with the rest of mankind, by a pretended disbelief of the evidence of their own senses, if they were capable of understanding it, as well as of other evidence, which they have never examined sufficiently, err greatly to their own prejudice. For, they expect to excite admiration for the strength of their understandings, which, as simple people believe, sets them above vulgar prejudices, and frees them from the bugbears and restraints of what they term priestcraft, bigotry and superstition. But, the real consequences are, that, if sincere, they are pitied for the imbecility of their minds; but, if insincere, they are despised for their hypocrisy. If they boast of such opinions, their vanity is laughed at; if they attempt to make proselytes of simple persons, the ignorant, and novices, they are abhorred by people of principle. What, perhaps, is of much greater consequence in their own opinion, their oath is rejected as unworthy of belief in a court of justice, and they are trusted by nobody. Not by a prudent man, because honor is a base currency not by any means at par with religious principle; not by each other; because they know each other too well. Since there is nothing to deter them from anything which they think for their interest, but the fear of detection, exposure and loss of character.
The following particulars, derived from the sacred scriptures, which contain satisfactory evidence of divine revelation, constitute, as it is believed, a sufficient foundation for all the rights and duties of mankind, whether towards the great Creator, or towards each other. 1. That man was created a rational and accountable being, and that the dominion over the earth and all things in it, was given him. 2. That the whole human race are derived from the same first parents, and consequently, however various in stature, complexion, intellect, morals or civilization, they are all brethren of the same family. 3. That the Creator has given men a conscience to distinguish between good and evil; as also, certain moral and religious precepts for the regulation of their conduct, as well with regard to themselves as towards each other; the substance of all which is, to do justice to all men; to walk humbly before God; to be holy, and avoid every species of impurity and excess.
From this concise statement of so much of revelation as immediately relates to the subject of the present chapter, it is apparent, that all the rights, which men may justly claim to exercise or enjoy, and all the duties which they are bound to perform in relation to each other, are derived from the will of their Creator, either as necessarily to be inferred from the nature which he has bestowed upon them, and the condition in which he has placed them; or, as manifested in those express declarations of his will, which are contained in the revelation or dispensation, to which reference is made.
Some of the more important natural rights, i. e. such as a man may claim in relation to the rest of mankind, but independently of organized society, or any of its positive regulations, may be found in the following enumeration.
Sec. I. The right of self-preservation. As men have their existence from their Creator, as his gift, it follows that he alone has a right to deprive them of it. Consequently no man or body of men, whether organized into a society, or living in a state of nature, without any regular government, has any right to deprive any individual of his life, unless in obedience to the will of the Deity; whether it consist in some particular express command, like that given to Joshua, by virtue of which the different nations of Canaan were destroyed by him; or, in some general direction given to men, requiring them to punish certain crimes with death as often as they occur. Except in these two cases, therefore, every individual of mankind, has a natural right, to defend his life against all who may attack it; and in his own defence, it seems, may use any means whatever, which may be necessary for that purpose, even to the destruction of the lives of his assailants, if he can save his own life in no other way. But, it will be difficult to make out any pretense of right in any person, even for the preservation of his life, to inflict any injury, however small, upon an innocent individual. For, necessity has no dispensation to commit injustice. The proverb, ‘necessity knows no law,’ seems therefore to be misapplied, when it is used to justify whatever a man may do for the preservation of his life, though accompanied with the greatest injury to a third person. The true doctrine on the subject, is believed to be, that such extremity, though it may be urged in palliation of the wrong, can never be considered as a complete justification where the necessity is merely moral. Where the necessity is physical, it is admitted, that there can be no guilt or accountability, either in ethics or at law, in the immediate agent; but the person imposing the necessity is alone answerable. What a man does for the preservation of his life, is done under a moral necessity. This can be no excuse therefore for any injury done to a third person. Still, if such injury is inconsiderable, and admits of compensation, the person under such moral necessity, may so far presume upon the benevolence of others, as to suppose that they will be willing the act should be done for the preservation of human life. But this is true, only where there is no opportunity of asking permission; for the act cannot be justified if expressly forbidden. For, though self-preservation is the first instinct or dictate of nature, it must always remain in subjection to the will of its great author. The true construction of the expression, ‘necessity knows no law,’ seems to be, that, where a man’s life is in danger, the fear of immediate destruction takes possession of his imagination so entirely, that all distinctions of right and wrong, are wholly forgotten; and whatever the instinct of self-preservation prompts him to do, he performs, regardless of every thing else. In any other sense, the expression is only true in part. The true distinction would then be, that with regard to things, which in their own nature are indifferent, but which the laws of organized society have prohibited, from motives of mere policy or expediency, a man may do them, if it is necessary for the preservation of his life. But, with regard to those things which are wrong in their own nature, whether prohibited by the laws of society or not, this proverb affords no just criterion; because no necessity which is merely moral, can justify their commission.
Sec. II. Of liberty or freedom of action. As man is endowed with certain powers and faculties, by his Creator, who has also laid certain express or implied restrictions upon their use and exercise, it may reasonably be inferred, that, subject to these restrictions, a man has a right to do agreeably to natural law, whatever he has a power to do. But, as the meaning of this brief expression may be mistaken, to guard against any misapprehension that might arise on this subject, it may be stated more precisely, that, in a state of nature, a man may rightfully do whatever he has it in his power to do, provided that it is not inconsistent with the dictates of religion or morality, i. e. incompatible with his duty to God, or to any of the human race.
With relation to the rest of mankind, a man has therefore a natural right to the free and unmolested use of all his powers and faculties, so far as they may be exercised without infringing the equal rights of others. But, where no individual can set up a peculiar right to a thing, exclusive of that, which others may equally claim, he will have no right to do any thing, by which the exercise of their rights may be taken away without their consent. In any such case, mutual forbearance is the single alternative of mutual concession.
Of this natural liberty or freedom of action, subject to the limitations just suggested, no man, while living in a state of nature, can justly be deprived by any other man or body of men whatever. For, that cannot properly be called a right, of which a person may be deprived by others, without his consent. Besides, no man can have any right to control another, unless it is given by nature; as, in the case of a parent and child, where a parent has a right to control the child until it is old enough to provide for and protect itself, at which time it seems to be set free by nature; or, unless the submission to the control of another, is voluntary in the first instance, as, in the case of a female, who by marriage puts herself in subjection to her husband, and under his protection. This natural liberty arises necessarily from—
Sec III. The natural equality of men as to their rights. All men are by nature equal as to their rights. For, they are all of the same family; and, though they differ in their natural qualities and endowments; yet, there is no evidence that it is the will of the Creator that one should rule over another, unless the mere happening of a thing can be used as an argument to justify it, which would equally justify every species of acknowledged wrong. It will be difficult, therefore, to make out any natural right, by which the strong, the beautiful, the fair complexioned, or even the wise, may justly compel the subjection of the weak, the ugly and deformed, the dark colored, or the ignorant and foolish. For, among men, right always depends upon justice, equity and equality; and never upon force, fraud or cunning, or wisdom perverted to a selfish purpose. If no superiority of natural endowments can confer a right to subject others to its control, no casual concurrence of circumstances can afford the slightest pretense for any such right. It is not intended, however, to deny that a man, for such consideration as he thinks proper, may voluntarily relinquish to another individual, or to any body of men, whether formed into an organized society or not, any portion of his natural freedom, and consequently may abandon his natural right to equality with them in this respect. For, there appears no sufficient reason to doubt, that, in a state of nature, a man may bind himself to serve another, either for a certain length of time, or even during his life, and in this way come under an obligation to obey all his master’s commands in all things within the agreement for service, unless they involve the performance of some act of injustice. And, in general, though possibly there may be some few exceptions, the slave will be justified in doing, by his master’s orders, whatever the master would have a right to do in person.
For similar reasons, by the law of nature, a father may justly bind his son to service to a third person, if he makes proper stipulations for the son’s support and education, and the son will be bound to serve such person, as long as he would have been bound to submit to and obey his father; i. e. until he is old enough to provide for and protect himself, at which time the father’s natural right to control his son ceases, and the son is set free; and at that time being old enough to have a family of his own to provide for, he is no longer bound by the law of nature to submit to his father or. to any body else. But, from the duties of gratitude, respect and reverence to his parents, the child is not released by any lapse of time.
Sec. IV. Rights of conscience and freedom of opinion. From the natural equality of men as to their rights, it follows, that no man, or body of men, has any right to control another’s belief or opinion in religious matters, or to forbid the most perfect freedom of inquiry in relation to them, by force or threats, or by any other motives than arguments or persuasion. Suppose, for instance, a missionary were to be so absurd as to attempt to compel a conversion to the Christian faith by establishing an inquisition among a heathen people, and punishing with death all those who refused to make a profession of faith; this would be no less an infringement of the natural rights of the natives, than it would be disgraceful to the great and most praiseworthy cause of heathen conversion. For, nature has given no man a commission to inquire into and control another’s belief in this respect; and the divine revelation authorizes the use of no other measures to bring the unconverted to a right belief, than those of instruction and persuasion.
Yet, in a state of nature, a man might justly expel from his household, any person who entertained a different opinion from himself on religious or any other subjects, on the supposition that he was under no other obligation to retain him in his family than the imperfect duty of hospitality. Is there any christian, that would consider himself as doing wrong, if he excluded from his family, an Atheist, a Mahometan, or an open scoffer at revealed religion, though such person to all appearance possessed a fair character and irreproachable morals? Certainly not. For, to wait and see if the guest attempted to spread his own false doctrine, or corrupt or undermine the principles of his host’s family, would be merely gratuitous, and the guest could have no just cause of complaint, if such an opportunity were withheld. Since the attempt might be successful in the first instance, and after the contagion were once spread the mischief might be irreparable. For a similar reason, in a state of nature, every man has a perfect right, however illiberal the exercise of it may be, to choose to employ such individuals only as entertain opinions on any subject in accordance with his own. And any individual, who may be rejected from such employment on account of his opinions, will have no just cause of complaint; because the other is under no obligation to employ him at any rate, unless he has agreed to do so. But, it is obvious that no agreement can justly be dissolved for any such cause, unless it forms part of the agreement itself.
What natural right, then, it may be asked, does a heathen prince infringe, who refuses to permit a Christian missionary to reside within his territory, because he ignorantly supposes that the diffusion of the Christian religion may be injurious to his people? Certainly none. The guilt he incurs is that of rejecting the gospel, for which he is answerable to its great author from whom it proceeds, but to no earthly tribunal. But the missionary, personally, has no just cause of complaint, if compelled to leave the country, without other ill usage, because it is presumed, he is not on his own errand, but, in a qualified sense, is a messenger of his divine master.
Sec. V. Right of appropriation, and property. The foundation and true origin of the right of property seem to be, that the usufruct [A Civil Law term referring to the right of one individual to use and enjoy the property of another, provided its substance is neither impaired nor altered] of the earth, and its various products and contents, was originally given to mankind in general; but, with the exception of certain grants made to one or two particular nations or tribes of men, which are mentioned in the Old Testament, no particular territory appears to have been assigned by the great Creator, to any particular individual or nation. It seems to follow, that every individual as well as nation, has by nature, a right to appropriate to his or their use, so much land or territory, wherever it may be found not appropriated by others, as the individual or nation has occasion for, and can actually occupy, without any other right or title, than what arises from the mere act of appropriation, by taking possession and keeping it in actual occupation. For, if any person could have any right to turn out of possession a prior occupant, it would infer some natural superiority of right in such person over the occupant; but this would obviously be an unfounded pretension, unsupported by any evidence whatever. But, if, by taking possession, an individual excludes the rest of mankind, so long as he retains it; then, it is evident, that if he should always retain the possession, he will always be entitled to the usufruct of the land exclusive of others; which limited property seems to be all that ever was intended by nature. And therefore if he should abandon the possession of the land, it would be again reduced to a state of nature, and consequently would, in like manner, again become the property of the next occupant in succession, and the former occupant would lose all right to resume the possession. This however would hold good in those cases only, where the first occupant intentionally abandoned the possession, or voluntarily relinquished it to another.
The manner in which property would be transferred to a purchaser, or transmitted to a descendant or other kinsman, so as to make him an heir, may easily be deduced from this view of the subject. For, in a sale of land, the occupant or owner would merely deliver to the purchaser, that possession, upon which alone his right of property depended, and the purchaser from that time, would have a right to retain the possession against all the rest of mankind. If the owner of land was desirous, that his son should inherit it after his death, he would take care that his son should be the first occupant after that event took place; for, otherwise the son could have no natural right to what had been in his father’s possession when he was alive. The obvious reason is, that the son could have no greater right than his father had, whose right would have ceased when his occupation ceased. Consequently when the father died, if the possession were then vacant, it would go to the next occupant; or, if the father had put the son in possession previously to his own decease, the son as occupant and owner would have a right to retain it.
It has been supposed by some, that, while living in a state of nature, an individual, having occasion to make use of any natural product, not previously appropriated by any other person, could not rightfully appropriate it to his own use, without the express or tacit consent of the rest of mankind. For, they consider the earth and all its products and contents, as intended by nature, as a joint stock for the general sustenance or other benefit of the whole human race. But, this opinion, it is believed, is erroneous, and such as if traced through its necessary consequences, would lead to great absurdity. For, if this opinion were well founded, then every person born, or to be born, would have a right to claim a portion or proportional part of all property on the face of the earth, on the ground that by nature, he had a rightful interest or share in it, which he had never relinquished. A further consequence would be, that no one could justly claim an exclusive property in any thing; and thus men would derive little or no benefit from the bounty of their Creator. But, in fact, there never was any such general community of properly among all mankind. The true views of the subject, it is believed, may be illustrated, by considering the natural products of the earth, as well as the surface of the earth itself, in the same situation in this respect, as the waters of a river, which, though intended by the bounty of the Creator, as a joint provision for the necessities of all mankind, indeed of all creatures, living near enough to have access to it; yet, is by no means to be considered as a joint stock; because no individual that does not make use of its waters can have any interest in it. But, it would be quite otherwise, if it were a joint stock. And therefore, in a state of nature, where a man goes to the bank of a river with a vessel to draw water, and takes out such a quantity as he has occasion for, as soon as he has separated it from the rest of the water in the river, it becomes his, by this simple act of appropriation. For this purpose, it is not necessary, that he should ask the consent or permission of any individual, or of the rest of mankind. Because though every one has a right to take what he wants; no one has a right to forbid others to do the same. Consequently, in any such case, no one has a right to interfere and deprive another of what he has thus appropriated to himself, without some better ground than because the appropriation was made without the consent of the rest. For, the only ground for the right of property in relation to things furnished by the bounty of nature, is the mere act of taking and keeping possession, taken in connexion with the circumstance, that no one else has a better right, and consequently can have no right to defeat that possession. For, the mere act of one man cannot deprive another of any right that he has. To illustrate; when A dips his vessel in the river, B has no right to prevent him from drawing up water; because, though B has an equal right, he has no exclusive right to the water of the river. A therefore interferes with no right of B, because B when he pleases, may do the same. Yet A has no right to any particular portion of the water, before he appropriates it by filling his vessel; for, if he had, then B would have no right to take that particular portion, supposing it possible to distinguish it beforehand, though A did not. But, each having an equal right, and neither an exclusive right, he who first fills his vessel with it, obtains a right of property in it. But this right has no other foundation, than the want of right in any other person, to deprive him of what he had thus appropriated.
It would be a false deduction from these principles however, to infer that an individual has a right to appropriate to himself by the mere act of taking possession, the whole of what was intended by nature for the common use of mankind, or of so many as might from nearness of situation, derive an advantage from it. For, in any such case, no man has a right to appropriate any more than he has occasion for. It is true, as long as the supply is abundant for all, no one would have a right to complain, that another engrossed or consumed more than his occasions required. But, as soon as there was a deficiency, any one having occasion for a supply, would have just cause to consider himself injured, if the supply should be prevented by such wrongful appropriation. To illustrate; by the law of nature, any one would have a right to take from the river whatever quantity of water his occasions required; but he would have no right to divert the channel, because, in this way, he would do a general wrong to all those who were thus deprived of the use of its waters. And in general, where a thing is intended by nature for the general use of mankind, the attempt or claim of an individual to appropriate the whole of it to his own use, is wholly unjustifiable, and if he compels others to submit to it by force, will be an act of mere usurpation. For, in any such case, by the law of nature, every individual, previous to the organization of society, who has occasion for a supply, will have a right to disregard this act of appropriation, and take to himself, out of what is thus so unjustly engrossed, so much as he has occasion for, but no more.
This view of the subject wholly sets aside the right of necessity, which is supposed by some to supersede the right of property. For this right of necessity rests, as it is pretended, on the principle that no man can appropriate any thing, without the consent, express or tacit, of all mankind; and that, as no man would have given such express consent, if he should thereby reduce himself to a state of extreme necessity, there can be no ground to infer a tacit consent in any such case. The case of extreme necessity must therefore always be excepted, it is pretended, in all cases, where an individual seems to acquiesce in silence in any such appropriation by others. The necessary consequence of such doctrine, however, would be, that in any case of such extreme necessity, a person would have a right to demand, that those things which have thus been appropriated by others, and which are necessary to relieve his necessities, should be thrown into a state of nature again; or, agreeably a phrase of proverbial use in the law, should be brought into hotchpot, [Legal term meaning: The gathering together of properties to ensure an equal division of the total for distribution, as among the heirs of an intestate parent.] so that he may have a share, or, at least, so much as may be absolutely necessary to preserve his life.
But as a person, subject to the restriction before suggested, that he does not engross the whole of any thing of a general nature, may appropriate to himself, without any one’s consent, any thing not previously appropriated, this foundation for the pretended right of necessity, wholly fails; and, it is believed, a single case cannot be put, in a state of nature, where a man has a right to demand a portion of another’s property, on the mere ground of extreme necessity in himself. A little consideration will plainly show that no such right can exist. For, if when a man falls into want, he would by the law of nature, have a right to appropriate to himself, the goods of others, so far as his wants should require, without asking permission, the essential nature of property would be entirely destroyed. For, property consists in exclusive appropriation. But there can be no such appropriation, if the things appropriated are always liable to be taken away by the claims of the necessitous, not as matters of charity, but as yielding to a superior or paramount claim, which cannot be resisted or denied without injustice, and which the necessitous may make with propriety, and without shame or modesty. If this were so, the virtues of benevolence and charity would wholly cease; and there would remain no room for the exercise of any other virtues in this respect, than justice and equity, which, consisting in the exact fulfillment of all duties of perfect obligation, are rather strict duties than virtues.
In a moral point of view, it obviously can make no difference, whether the necessitous individual has sufficient power to enforce his claim or not. For, if it is his right, the person having a superabundance will be morally bound, to furnish the necessitous person with a sufficient supply, as a debt, and not as an act of benevolence or humanity, though he may have sufficient power to resist such demand.
The following imaginary cases may serve for the further illustration of what is believed to be the true doctrine in relation to this subject.
1. When Abraham separated himself from Lot, suppose that he had traveled with his flocks and herds to an extensive valley, one tenth part of which he could not actually occupy, with all his shepherds and herdsmen, and his and their possessions; now, if any other individual had found it for his interest to remove into the same valley, it cannot be doubted, that he would have had a perfect right to appropriate to himself any land not previously appropriated, notwithstanding any claim that the patriarch might set up to the whole of it, unless he had some higher title to it, than such as he might derive from his mere act, or rather attempt, of taking possession of the whole. Because, as has been already suggested, no individual has a right to appropriate to himself the whole of what was designed by nature for the use of mankind in general, unless he has a real occasion for the whole.
2. Suppose a person to be in a state of extreme want, and without any fault of his own, is unable to earn or beg sufficient food for his sustenance; can it be believed for a moment, that these circumstances throw all property into common stock, so far that he has by the law of nature, a right to take sufficient from any one however superabundant his store, to supply his necessities, without permission, and though it is expressly denied? If distress has a right to relieve itself in this manner, whenever relief is denied by others, the request to be relieved becomes a mere ceremony, and where then is the virtue which is supposed to be shown in granting relief? Indeed, in such case why is necessity to be considered an object of pity at all, since it must be merely voluntary, if an individual may relieve himself from it, when he pleases, at the expense of others? It follows, that, even in the case of a man famishing with hunger, he has no absolute right, to appropriate the food of others against their will; whatever mitigation of criminality, extreme distress may furnish.
3. Suppose the inhabitants of some island to be suffering with famine, and a ship arrives with a cargo of flour. In such a case, the rulers of the island will be perfectly justified in taking the cargo into their possession, giving a proper profit to the owner, and leaving with him a proper supply for his own occasions. This right however they will derive from their general power and duty, to provide for the public welfare on all occasions, which this extreme emergency will warrant them to exercise in this way. For, no wrong is done to the inhabitants, because it is presumed the government have authority from them to take all necessary steps for their relief in times of distress. No injury is done to the owner of the flour, both because all property as well as persons coming to another country, are presumed to subject themselves voluntarily to all the laws and regulations of that country, and because, it is taken for granted, that such owner is paid a proper price for his flour. He will have no right to complain, if the government will not permit him, by a detestable monopoly, to extort enormous prices from the suffering inhabitants. For, this would be as unreasonable and unjust, as it would be, if the ship had touched at the island in distress for want of water, and the islanders should refuse to furnish a supply, unless upon a delivery of the whole cargo in payment for it.
Sec. VI. The right of self-defense. The right of self defense against unjust aggression, may be considered as one subdivision of the general head of self-preservation, and has already been slightly touched upon as such, under Sec . I. A view of it somewhat more extensive, will here be taken. Whenever one person unlawfully assaults another, in a state of nature, for the purpose of taking his life, depriving him of his limbs, or maiming, mutilating or disfiguring him, or doing him any injury, from its nature, wholly irreparable, it seems to be generally agreed, that, by the law of nature the person thus assaulted may defend himself to the last extremity, and for this purpose, may resort to any measures of defence, which he may believe to be necessary to defeat the assailant’s purpose even to the destruction of his life. Nor is the person assaulted bound to know the precise extent of the injury, which the assailant really intends. It is sufficient for his justification, by the law of nature, that he believes himself to be in danger of irreparable injury, and that the assailant puts him in apparent jeopardy, and that he has no other known resource by which he can protect himself or escape from the assailant, but by taking his life. For, wrong being infinite in its own nature, until its extent is ascertained by its actual commission, it may not be possible for the imagination of the party assailed, to set limits to the extent of injury, intended by the assailant. And, therefore, if A should draw a sword on B, and make an offer or attempt to kill him, and B cannot escape by flight, or any other obvious expedient, it seems by the law of nature, B will be excusable, if he takes the life of A. And it will not vary the case, in this respect, if in fact A was merely in jest, and only intended to terrify B, if B believed him to be in earnest, and killed him under the mistaken supposition, that he had no other way to save his own life. The reason is, is, that B could not know what limits A had set to his unlawful design. In case of such disastrous consequences, therefore, it would seem, that B must be excused; and A’s blood must rest on his own head for his folly.
For a similar reason, if A should make any such dangerous assault on B’s family, or one of the persons, whom by the law of nature he is bound to protect, B, by that law will have a right to make use of any force, which may he necessary for the defence or protection of such person; and if A is slain in the conflict, and the assault could no otherwise be repelled, and the perpetration of his intended crime could, in no other way be prevented, it would seem by the law of nature, B must be excused. The reason is, that nature does nothing imperfectly; and therefore no other limits can be set to this right and duty of protection, but those which are set by the exigency of the case. For, those persons whom nature has set under the protection of others, she has given them a right to protect effectually; and, if the right to protect, ceases before coming to such extremity, then it would cease at the time when the assailant was most desperate, and consequently when protection would be most needed. But this is obviously absurd. And therefore, by the law of nature, a person may protect to the last extremity, those whom nature has placed under his or her protection.
Sec. VII. The defence of.property. A similar train of reasoning will lead to the conclusion, that, in a state of nature, before the organization of civilized society, every individual will have a right to protect his property; and, for this purpose may proceed to any extremities, that such protection may require. It is true, that the loss of property is not an injury, in its own nature, irreparable, but, as there is no tribunal of justice, in a state of nature, to which an injured party may apply for redress, it must follow of course, that he has a right to prevent the commission of the wrong, by any measures, which are necessary for that purpose, provided always that he does no wrong to an innocent third person. But, because a party injured will have a right to reparation after the injury is committed, which however he will be unable to compel without the use of force, to infer, that he has not a right to use the same force, to prevent the injury, would be unreasonable, especially as there is no certainty, that he will be able to obtain reparation by any means whatever, if he patiently suffers it to be committed. If therefore, one person should attempt to rob another, it cannot be doubted, that, by the law of nature, the party assaulted may resist, and repel force by force, to any extremity that may be necessary to defend his property. And, for the same reason, that a man may repel an assault upon his person, made for the purpose of committing a robbery, he may also, by natural right, make use of any force, that may be necessary, to prevent another from destroying his house or carrying off his cattle by open and direct violence. For, in a state of nature, he has no tribunal to apply to, either for protection or reparation, and must therefore either protect himself, or remain unprotected, and be liable to be plundered without any chance of redress. But, it seems, he would have no right to proceed to such extremities with an unresisting thief, whom he detected in the act of theft.
Sec. VIII. The right to redress or reparation. Where a person has suffered an injury from the wrongful act of another, which is completely terminated, the injured party, by the law of nature is entitled to reparation for the injury, which he has thus sustained. If this is withheld by the wrong doer, he may resort to force to obtain it, doing no injury which is unnecessary for that purpose, and which has no tendency to repair the loss. Thus, in a state of nature, suppose A attempts to take away B’s horse by force, and convert it to his own use, it is obvious that, by natural right, B may justly resist the unlawful act of A, even to the last extremity of taking his life, if he can in no other way repel A and prevent the robbery. But, after A has forcibly taken away the horse, B has no right to take the life of A, because the act is already committed; and taking A’s life, has no tendency to repair the injury or loss, which B has sustained. But B will have a right by the law of nature, to retake the horse from A’s possession, whenever he finds it, and, for this purpose, may proceed to the last extremity, if A should resist, while both are living in a state of nature. The reason is, that the horse still remains the property of B, notwithstanding A’s robbery For, it is obvious, that A can gain no property in the horse, by his own mere wrongful act. A’s possession of the horse being wrongful, B, who has the right of property, may deprive him of it, and may use any measures which may be proper for that purpose, and which A’s obstinacy may render necessary, since A’s wrongful possession can neither confer on A any new right to the property thus obtained; nor take away any former right from B. But, if B cannot find his horse, he will have a right to take A’s horse, or any other property of A, to hold as a species of distress, until A restores the horse, or makes other satisfaction for the wrong, to B’s acceptance. If B can find no property of A, which he can take, he has a right, by the law of nature, to restrain A’s person, -until he makes compensation, if A has it in his power to do so. But, if he has not, then B may justly compel A, if he can without taking his life, to labor for him, until compensation is made. But, though A should absolutely refuse to labor for B, or otherwise make such satisfaction as he has in his power, B has no right by the law of nature to deprive A of life, or mutilate his limbs, or do him any irreparable injury, because this has not the slightest tendency to repair the injury which B has sustained. But B has a right to restrain his person, until he is willing to make full satisfaction, or, at least, all the reparation which he has in his power. Again;—
Where A has done an injury to B, irreparable in its nature, B has the same right of enforcing all the reparation, which A is able to make; but, under no circumstances whatever, has B a right to deprive A of life, or mutilate his limbs, for the reason before assigned, that no such act has the slightest tendency to repair the injury which B has sustained. Again; so long as B is merely enforcing satisfaction, A has no right to resist, until he has voluntarily made, or until B has compelled him to make reparation or satisfaction, either complete, or to B’s content, or all that the circumstances of the case admit. But, after either of these has been obtained, B has no right to proceed to further extremities, and if he should, A’s right to resist will commence, precisely where B’s right to compel or coerce, terminates or ceases.
From these considerations, it is apparent, that where a person has been wronged or injured, whether the injury be capable or incapable of reparation, in its own nature; or whether, from a concurrence of circumstances, he is able or unable to obtain redress, he has no right whatever to inflict any injury on the wrong-doer, either by way of avenging his own wrong, or punishing him; and whether it be done to deter the offender, from a repetition of the offence, or as a warning to others. These various positions will be examined separately. And first, in relation to the right of avenging injuries, and the lex talionis or right to retaliate, it may be remarked, that, by the law of nature, a party injured has no right to demand any higher redress, than complete reparation, which consists in being put in the same condition be was in, before the injury took place. To do a similar injury to the wrong-doer, has not the slightest tendency to this object; and instead of doing himself right, which, in a state of nature, the party wronged is permitted to do, merely because there is no earthly tribunal to which he can apply for justice, he merely commits another wrong himself. The particular direction in Leviticus ‘breach for breach, eye for eye, tooth for tooth,’ it is believed, is not to be considered as a part of natural law, or, as declaring a natural right in the injured party, to retaliate an injury, but is rather to be considered as a direction for the legislator of the Jews, as to the punishments to be prescribed in their laws for certain crimes; or, as a law to be enforced by the judges of that nation, on the offenses comprised within the intent of such command or direction. For, in this way, the offender could never complain of the injustice or inequality of his punishment, when the judgment pronounced against him was, that he should suffer the same evil which he had caused to another. There is therefore no such right at all as that of revenge or retaliation; and to attempt it, seems to be a presumptuous infringement of that prerogative, which the great Creator has reserved to himself, when he says, ‘ Vengeance is mine.’
2. With regard to the supposed right of an injured party to punish his wrong-doer, a similar train of reflections will show that no such right exists. For, all that the party injured can claim in a state of nature, and by natural right, is reparation, which, as has been just suggested, he may compel by force, subject to certain restrictions. The reason is, that all men are by nature equal; but the right to punish, implies superiority on the part of the party punishing; for, otherwise, he could have no jurisdiction over the offence. And though nature, from the necessity of the case, constitutes an injured party the judge of the extent of the injury, for the purpose of obtaining redress, so far as the satisfaction of his own conscience is concerned; yet, the wrong-doer is not bound by his decision even here; and certainly far less when the question of punishment is brought up. As the injured party, therefore, has no power or rightful authority to determine the extent of punishment to be inflicted on the offender, he can have no right to punish at all. The power and authority to punish, must belong to some tribunal, having jurisdiction, which it is very clear can never result to an injured party, from the injury itself alone; since the right to enforce reparation, or to obtain redress, is totally distinct from an authority to inflict punishment.
Whence then, it may be asked, can society derive its right to inflict punishments for crimes? To many persons, it will be a sufficient answer, that all regular, established governments, however liable to commit occasional errors and mistakes, are God’s vicegerents on earth, and therefore have sufficient authority to punish crimes. Others may be reminded, that government is grounded on an express or tacit compact, made by the constituent members of the society or nation, to obey the laws made by it, and to submit to such sentences, as the courts of the government may award agreeably to the laws, as a penalty for the violation of them. But, here it may be replied, that this answer is not satisfactory, where the sentences involve the sacrifice of human life; because, if, agreeably to the opinion of the greater number of pious and religious men, no person has a right to take away his own life, it follows, that he cannot confer any such right upon society, by any compact which he may form for that purpose. For this excepted case, therefore, as society can derive no authority from consent expressly or tacitly given in the formation of government, a different source of lawful power must be sought. This, however, will readily be found in the natural right of self-preservation, or self-defense. This right each individual has from nature; and however it may be modified in the organization of society, by the compact of its members, or by the various laws made by virtue of that compact, is by no means either given up or abandoned. The various individuals of society, therefore, by constituting their rulers their defenders and protectors, may, and without doubt do, confer on them the right to use any means necessary for their protection, which the several individuals possess themselves. The right, which society has, to punish with death, a murder committed within its territory, seems to follow. Because, though no single individual of the society would have any such right to punish, while in a state of nature; nor, even after the formation of the society, could have any such right, unless it were conferred on him by the rulers; yet, the society itself, and their rulers, as their delegates, would have such lawful power, because the society itself could not subsist, if they had not authority to deprive of life an offender, whose crime showed that he was an enemy of mankind, a disorganizer not to be restrained by law; and one who would destroy the life of every individual who was obnoxious to his malice, as often as the case occurred, if he could do it with impunity. As therefore nature has formed man for society, for mutual protection and benefit, and as it is impossible that society can subsist in security without an authority to deprive of life, those offenders, whose crimes strike at its foundation, it seems to follow, that society possesses this right over such capital offenders, as necessary to its self-preservation.
Sec. IX. Of the pretended right to make war. Under the law of nature, it will be difficult to point out an instance, where an individual has a right to make war on another, if it is to be considered, as affording a justification for offering violence to him, in any other circumstances than those already suggested under the heads of ‘the right of self-preservation.’ ‘the right of self-defense,’ &c. &c. For, a war for the purpose of retaliation, of punishing a wrong-doer, of setting an example, or giving a warning to others, it is believed, is wholly unauthorized by natural right. Suppose, in a state of nature, that A has slain the son of B, yet, by the law of nature, B has no right to deprive A of life, because A’s crime is finished and can no longer be prevented, since B’s son cannot be restored to life. B can derive no authority or right from the pretense, that he means to protect the rest of mankind, because it does not appear, that they are in any immediate or unavoidable danger, nor that he has any authority to act as their ruler or protector. Neither has he any authority, as judge, to punish a crime, when he has no lawful jurisdiction to determine on the merits of the case. For, it is possible that B’s son may have been slain on a justifiable occasion. The reader may be referred to the case narrated in the Bible, where Abner slew Asahel in self-defense, yet was treacherously murdered for it by Asahel’s brother Joab. In the case supposed, the principal injury is done to the person slain. This injury the father has no natural right to avenge, because this authority belongs to the Supreme Being alone. If, therefore, the father arrogates to himself this office, the assumption seems obnoxious to the charge of impiety, because, it seems to imply, a disbelief in the existence of a God, or a distrust in his justice. Yet, if the father should sustain any peculiar loss or damage from the death of his son, it cannot be doubted, that, by the law of nature, he will have a right to enforce reparation, in the same manner, as, if the damage arose from any other wrongful act. But, in a state of nature, the punishment of the principal crime must be left to the Ruler of the Universe. Why then, it may be asked, may not the punishment of murder be left to him, if committed in organized society? The answer is, that God has given an express command to punish willful murder with death. This command, it is supposed, is addressed to the rulers of every organized society, who, in this respect, must consequently be considered as invested by him with the necessary authority to try and punish the crime. For, it is much more reasonable to suppose, that this power is confided to an impartial tribunal, than to consider it as left to be exercised by the partiality and violence of private feeling. In the former case, guilt must be proved before it is punished; in the latter, innocence itself, might not always be able to obtain even a hearing.
Sec. X. Of the right to form associations, and organize society. The true doctrine on this subject, it is believed, will be best illustrated by the following imaginary case. Let it be supposed, then, that five thousand families are living peaceably, though in a state of nature, on a territory of sufficient extent, each family residing on its separate district. Let it be supposed, further, that some few of them, who are scattered among the rest, are desirous of forming a society, for their mutual protection, but that the greater number, disliking the restraints of society, and preferring their natural liberty and independence, refuse to join in this project. Here, it cannot be doubted, that the smaller number have a perfect right to form such a society, notwithstanding the refusal of the others to unite in it. Because man is formed for society, and has a natural right to provide for his security and happiness, in any way that he has a physical power to do, so that he violates no duty of religion, and infringes no right of the rest of mankind. It follows, therefore, that the dissenting families have no right to prevent the formation of the society. For, though they may be apprehensive of ill-consequences from the neighborhood of such a society, they have no right on that account to interfere with the freedom of action of its members; because their fears may be ill-grounded. The dissentients, consequently, will have no right to molest the society or any of its members, until some injury has actually been offered by them. When this happens, the individual injured by the society will retain his natural right to demand and enforce reparation in the manner already suggested in a preceding section. On the other hand, it is clear that, the society would have no right to compel any of the dissentients to come under its regulations or obey its laws; because, in relation to them, the constituent members of the society gain no new rights or powers by forming their association and agreeing upon a government. Their laws therefore will not bind those who refuse to enter into the society, as respects whom, the members of the society will retain the same rights which they had before its formation, though the power and authority to enforce those rights will probably be entrusted to the rulers of the society, and not be enforced by the members individually. This, however, will depend on the terms of the association, or the constitution of the society. It is thus apparent, that the smaller number of families, derive no right to control the majority, from the mere act of forming a society. Let us consider, then, whether if the society had been formed by the greater number, they would have a right to control the smaller number, and compel them to join in it, or submit to its laws and regulations. To determine this question, it will be sufficient to suppose the society to be formed by the precise number of 499 families, and that there are 501 dissentients [dissidents]. Now, it is obvious, that if two of the dissentients alter their opinions and join the society, the dissentients will then become the smaller number. But, can it be supposed for a moment, that, by the law of nature, where there is no previous agreement to that effect, the change of opinion in two persons, shall take away the right of refusing to join the society, which 499 independent families previously had? This would be absurd; for, where there is no previous agreement in restraint of a natural right, it never can be taken away by the mere act of a third person. If it could, it would be improperly called a right, since its existence would depend on such person’s discretion. It is thus evident, that there is no natural right, in the major number of the inhabitants of a territory, while living in a state of nature without any government, to control the smaller number, either by compelling them to join in the formation of a government, or by making laws for the regulation of their conduct. Each individual therefore, in strictness, has a right to refuse to join in the original formation of the society, and yet retains all his natural rights entirely unimpaired.
Two important consequences follow from the doctrine just stated. 1. As each individual has a right to refuse to join the society, he may stipulate for what terms he pleases, as the conditions on which he is willing to join in forming the association. And, if those terms are agreed to, and he accordingly joins the society, those terms must be kept, for, if they are violated, he will have a right to return to his state of independence. Suppose, for example, that the smaller number should stipulate, that it should be part of the social compact, that no law should be enacted, unless by the voice of two thirds of the members; this would be binding upon the whole society, and could never be altered, without the consent of all. If this stipulation were infringed, the constitution would be violated, the compact would be broken, and consequently would cease to be binding, and the society would be dissolved so far as concerned the dissenting members. This is sufficient to show, that the right of the majority to govern, however fair and equal, has no other foundation, than the agreement of the original members of the social compact, not being at all grounded on any natural right; this subject however will be examined more at large in another place.
2. As no individual, in a state of nature, can justly be compelled to join in the formation of society; so the society, or, those who propose the formation of one, have an absolute right to refuse admission to its rights and privileges, to all those persons whom they dislike, for whatever cause. It follows, that they may justly stipulate for whatever qualifications they think best, of character, abilities, or property; and no person, not possessing such qualifications, will have any just cause of complaint, at being excluded from the society, for the want of them.
But, after these qualifications have been once agreed upon, unanimously, (for the majority have no natural right, in this respect to bind any but themselves,) these qualifications cannot rightfully be altered, so as to disqualify any of the members, without the consent of every one, including even the party thus to be disqualified. If this were not so, it is obvious, that a great fraud might be practiced. For, if they agreed unanimously on certain qualifications at first, and then the majority had a right to alter them, and accordingly did so, it is evident, that all those, who would not have joined the society on the terms contained in the alteration, would be defrauded of their natural right, if they are compelled in this indirect way to submit to the will of the majority. In any such case, their natural right to recede will revive, and, if they should continue to dwell in the territory of the society, they will become merely resident aliens, owing allegiance to the society no longer than while they abide within its boundaries. Having considered some of the principal rights, which men have in a state of nature, previously to the formation and organization of society, and having established as an axiom that no individual can justly be deprived of the exercise of them, unless in consequence of his own assent, expressly or tacitly given, for, otherwise they can hardly be viewed as rights at all, it may not be amiss in this place, to touch very briefly upon the origin of society and the principal objects and inducements, which men probably had in view in both. These inducements and objects will more readily appear, if we consider the inconveniences, which must unavoidably attend any considerable number of families, living in the neighborhood of each other in a state of nature. One of the first inconveniences which would be felt, would be the want of a common tribunal of justice, to determine questions of conflicting claims or rights. For, on the supposition, that all these families at first were living on friendly terms with each other in general, it is impossible that disputes and controversies should not, sooner or later, arise among some of them. The consequence would then be, that, for want of such a tribunal, every individual who considered his rights infringed by another, would immediately make use of all his exertions to obtain reparation; while, on the other hand, the wrong doer, if he were so, would maintain his wrong, if possible, from the same motives which first led him to commit it; and, if he considered himself in the right, would, with still better reason, defend himself to the last extremity, from what he would then consider unlawful aggression. The two parties, in all probability, would soon commence hostilities, each uniting to himself all the other families, whom he could induce to take a part in his cause. The more effective party would prevail in the conflict, and, according to the barbarous practice of early ages, the conquered party would either be slain in battle, massacred after the defeat, or compelled to serve their conquerors as slaves. The leader of the conquering party, who very possibly might be the individual who had induced them to take up arms in the first instance, would very naturally obtain great influence over all his followers and adherents, either by distributing among them the spoils^of the vanquished, or by reason of the good opinion which they would entertain of his military skill or personal prowess, as displayed in this petty warfare. The advantages, which they had derived from acting in concert, and from the organization of their forces, which however imperfect, would be sufficient to enable them to perceive the superiority of a regular force, over a confused and disorderly multitude, would naturally prompt them to continue in society with each other, and their recent success would fix their choice upon their leader. Without descending into minute particulars and details, all of which would vary with circumstances, it is very apparent that the leader would gradually enlarge his powers by usurpation, and in this way would soon render his office, which, in the first instance, being bestowed from merely personal considerations, would unquestionably be elective, hereditary in his own family. The subjects, after they had several times experienced the evils which naturally attend a war for the succession between two or more competitors, would gladly submit to any such arrangement as would permit them to have the benefit of government, without the necessity of involving themselves in a murderous contest, in order to decide who should be the ruler.
This account of the origin of monarchy, it is believed, has often been verified by the experience of nations, and if the history of early times may be trusted, more than one may be traced to beginnings not materially variant from it, in principle.
It may be remarked here, transiently, that though there are three simple forms of government; viz: 1. a Monarchy, where the power of the government in the last resort, is settled in an individual, who has a power to nominate his successor to the throne; 2. an Aristocracy, where the same power is exercised by a certain limited number of individuals, who have the power of keeping their body full, without any interference of the people; 3. a Democracy, where the whole body of the people make the laws and decide on all public measures, and form collectively the fountain of all political power; to which may be added various combinations of these simple forms, such as limited or elective monarchies; republics, &c. &.c. Yet, it is believed, that monarchy alone, naturally succeeds to anarchy, where men live in a state of hostility and violence, without any regular government. Yet, however unlikely, it is very possible that either a democracy or an aristocracy may be established, in the first instance, as a form of government. Thus; to continue the detail of the consequences of the former supposition, let it be supposed further, that, after the establishment of the organized society under the control of a military leader, and which comprised part only of the whole number of families, the neutral party, or those who took no part in the contest, seeing the slaughter or subjugation of those who had been defeated, should entertain a wish to secure themselves, as far as possible, from the chance of a similar catastrophe, (which suggests the other principal inconveniences of a state of nature, viz. insecurity of life, liberty and property). For this purpose, they might form themselves into a society, more or less organized according to circumstances; and, if there were no particular individual among them, conspicuous over the rest, for superior wisdom, military prowess, the number of his family or hired attendants, or great wealth, it is not unlikely that they might agree to be governed by the direction of some small number of warriors or sages, constituting a council or senate, and who appeared to be most able to guide them by their wisdom and experience, and protect them by their military skill and valor. Here, in the mere act of agreeing to submit to the control of these worthies, the heads of the families, who constitute the elements of society, would act as members of a democracy. But, as soon as the agreement was once made, the government agreed upon would be an aristocracy.
But, if, instead of adopting either of these steps, the heads of families should assemble together, and make an agreement with each other, to pursue such measures, and obey such laws and regulations, as they should agree upon, either unanimously, or by a majority of two thirds, or by a simple majority, and should afterwards choose a certain number of officers, either for a certain time, or removable at pleasure, or during good behavior, to enforce obedience to those laws, and distribute justice, they would then constitute a pure democracy. It is not intended in this place to discuss the respective advantages of these various forms of government. But, where there is a large extent of country, containing within it many various nations under distinct governments, none appears to be more safe than an hereditary monarchy. The consequence of being governed by an elective monarchy is seen in the fate of Poland. A simple democracy would immediately fall a prey to a neighboring monarchy. The delay and dissensions of their councils would be such, that without taking into the account the very probable chances of corruption, the monarchy would overrun the democracy, before the members of the latter could agree upon any measures for the general defence. If any one should object here the long continuance of the Roman Republic, surrounded by the most warlike nations, many of whom were governed by kings of great military skill, it may be replied, that Rome was rather an aristocracy, than a democracy from the time of the expulsion of the Tarquins, to that of Julius Caesar,- notwithstanding occasional and partial changes in the government. Yet Rome was saved more than once during that period, by the decisive measure of appointing a dictator, an officer who possessed absolute power for the term of six months, and who could not be called to account for any measures however arbitrary and tyrannical, which he chose to adopt during that time. An aristocracy is a far more effective form of government than a democracy. This is very apparent from the history of Venice. But the inequality of rank would be an insurmountable objection to the adoption of such a form of government, among freemen who acknowledge no natural superiority of right in one man over another. It is greatly to be apprehended, therefore, if hereafter, the Union of the American States should be dissolved, that those States, which attempt to preserve the republican form of government, will easily be overrun by those who adopt a more energetic form.
The principal inducements, which men, living in a state of nature, would have, to form an organized society, would seem to be, 1. To have a tribunal, to which they might apply for the redress of any infringement of their natural rights, and thus prevent dissensions among those who were desirous of living together on friendly terms, from maturing into broils, outrages, and murderous conflicts, which dissensions, for want of such a tribunal, would necessarily arise from conflicting claims and pretensions; 2. To secure their persons and property from molestation by external enemies.
There are no doubt many other benefits arising from the organization of society, which, if they had been foreseen, might very probably have offered, of themselves, sufficient inducements to adopt that measure; as, for instance, the invention or at least a great improvement in trade or barter, as well as in manufactures, a rapid advancement in art and science in general, as well as every species of practical or speculative knowledge, necessarily accompanied with an increased degree of humanity, civilization, and refined social intercourse. Without mentioning other advantages, which might be enumerated, or wasting time in an unprofitable descant upon these, it should be observed, that these benefits are not to be obtained without a partial relinquishment of some of those natural rights -which pertain to men individually before the organization of society. Among the rights which are thus relinquished in a greater or less degree, the most usual are, 1. the right, which in a state of nature, each individual has of redressing his own wrongs, personally; 2. the right of acting as he pleases, and consulting his own happiness alone, provided that he infringes no duty of piety and religion towards his Maker, and neglects or violates no obligation of justice, charity and humanity towards mankind. With regard to the first of these rights, there appears to be an almost total relinquishment of it to the government, in the first formation of the society. There certainly is with regard to all those wrongs, which come within the jurisdiction of any of the tribunals or courts established, by the government. But; with relation to those wrongs, the redress of which is not thus provided for, it would seem most expedient for the welfare of society, to consider, that the members of the community in forming a government, for the purpose of enacting laws and establishing tribunals of justice, had agreed to submit to the legislature, or to the Judges of the courts to determine, whether any grievance or injury complained of is of such a nature, or of sufficient importance to demand the aid of the court, and if it be not in their opinion, had agreed to pass it over in silence, until the legislature should alter such opinion, and see fit to interpose and provide a remedy.
2. In relation to natural liberty or freedom of action, it may be remarked, that it is with a view to this right, that governments are usually esteemed to be more or less free, precisely as this freedom is more or less trenched upon by the laws of such governments respectively. On entering into a social compact, the members might very naturally stipulate for the reservation of certain particular liberties or exemptions, which reservation ought to be strictly observed and complied with by the rulers or constituted authorities. If they are slighted or trampled upon, the power of the rulers will so far be usurped, and their government tyrannical.
But, with the exception of those reserved rights, the members of the society would be considered as agreeing to relinquish to the government so much of their natural freedom of action as should become necessary, from time to time, to obey and observe such laws and regulations, as the rulers, within their constitution or social compact, should think expedient to enact and promulgate for the general good. It would not be, therefore, so much the rights themselves, of liberty and freedom of action, which they relinquish for the good of society; as it would be a power to limit, restrain or wholly take away the exercise of those rights, which they would confer on the rulers, with a stipulation express or tacit, that such power should never be exercised except for the general and equal good of all. For the true idea of government seems to be, that it is established by the people, for the preservation of their natural rights in general, by a partial sacrifice of a few particular ones.
But, it is not merely, the freedom of action, which each individual relinquishes in a greater or less degree to the control of government; but he agrees also to do whatever the rulers shall judge expedient for the general good of the whole, with a stipulation, express or tacit, that legislation shall be general, and comprehend all the individuals of the society to whose circumstances it may be equally applicable.
As men, in relation to their rights, are by nature equal, no man can justly be subjected to the control of another, or any number of others, without his consent; or, unless he has committed some crime, or has come under some obligation. As, therefore, it cannot be supposed that any individual would originally have agreed to join with others in organizing a society, where he would not stand on equal ground with the rest, any law which would tend to degrade him below the rest, must be inequitable and in violation of an implied understanding. For, in strictness, no law can be binding, if inconsistent with the restrictions contained in the social compact or constitution of the society, and beyond the powers intended to be granted in it.
Having stated in very general terms, though with as much distinctness as the necessary limits of this chapter, and the nature of the case, would conveniently permit, the rights which men have in a state of nature previously to the organization of society, and touched slightly upon the inconveniences of a state of nature, and the consequent inducements which men had to unite and form a government; having also briefly considered some of the natural rights, which it is necessary, that men should relinquish in a greater or less degree, according to circumstances, to the government of the society, in order to obtain the objects of its organization, this chapter will conclude with a few remarks upon those natural rights, more or less of which are usually retained by the members of society, notwithstanding their entering into such an organized union.
Continued in RIGHTS OF AMERICAN CITIZENS: General Rights; Division TwoSee the other parts of this series: RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments RIGHTS OF AMERICAN CITIZENS: The Independence of the States RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers RIGHTS OF AMERICAN CITIZENS: The Rights of Juries RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights These may interest you also: THE DUTY AND VALUE OF PATRIOTISM by John Ireland 1894 The Consequence of Bad Legal Precedent in American Legislation THE COST OF POPULAR LIBERTY by Brooks Adams July 4th 1876 RISE OF CONSTITUTIONAL LIBERTY by Dr. Richard Salter Storrs July 4 1876 AMERICAN CITIZENSHIP! by Colonel Henry A. Gildersleve July 4th 1876 NYC Wide Spread And Growing Corruption In The Public Service Of The States And Nation
AMERICAN FREE INSTITUTIONS; THE JOY AND GLORY OF MANKIND by Dr. J. Sellman 1876 The Practical Advance Of Human Freedom Under The Trumpet Call Made In 1776 by Charles F Adams THE SOURCE AND SECURITY OF AMERICAN FREEDOM AND PROGRESS by Courtlandt Parker 1876 A REPUBLIC! A LIVING BREATHING CONSTITUTION DEFINED! by Alphonse De Lamartine 1790-1869