RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two

PrecedentThe 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.

Division II. Of those natural rights which are usually retained in organized society. Sec. I. Of self defence in cases of extreme urgency.— Sec. II. Of qualified liberty, under which is considered, 1, the right of expatriation; 2, the rights of conscience and freedom of inquiry; 3, the right of property; 4, the right of equality; 5, the right of freely discussing public measures; 6, the right of petition and remonstrance; 7, the right to reform the Government.

Sec. I. Self-defense in cases of extreme urgency. The first and most important of these rights, is that of self-defense. This right is reserved to every individual, in all cases, where there is not time sufficient to apply to the government for protection. So that, if a man is assaulted, and his life is in extreme danger, and he has no opportunity to apply to the police, because his case will admit of no delay, he will be excused by the law of society as well as by the law of nature, if he takes the life of his assailant, supposing always that he has no other way to save his own. For, in any such case as this, society cannot afford him that protection, which was one of the principal motives, which led him to unite with others in the formation of it. His natural right to protect himself in any such extremity, is therefore always reserved to him. But, where the aggression is threatened previously to its being actually made, no individual has a right to make preparations for his own defence, personally, if such preparations constitute a disturbance of the public peace. In any such case, the individual threatened ought to apply to the proper officers of the society for that protection, which it is their duty to afford him.

Bill of RightsSec. II. Of qualified liberty of action; freedom from unnecessary restraints, requisitions and exactions, &c. Where the people form a social compact, contained in a written constitution, the extent of the powers granted to the government, may be defined with precision. But, where there is no written constitution, the extent of such powers is ascertained by usages and precedents, that is to say, by the practice of the rulers, sanctioned by the silent acquiescence of the people, in peaceable and quiet times. In different societies and under different governments, the powers of the rulers, and the consequent restraint on the natural liberty of the subjects, vary greatly.

Civil liberty consists in not being restrained from acting, and not being constrained to act, by any law which does not conduce to the general welfare. But, it may be asked, how shall it be ascertained whether a law conduces to the general welfare or not? The answer is, this is submitted to the wisdom and discretion of the rulers. But, it may be asked again, is there no restraint upon the exercise of this discretion? The answer is, that they are restrained from enacting laws, or adopting any public measures which are inconsistent with the constitution, whether ascertained by usage or contained in a written document or compact. But, it may be asked again, who shall determine whether a law is or is not agreeable to the constitution or social compact? The answer must be, the tribunal (if any) provided in the constitution, for the determination of such questions, must decide. But, if none is provided, then that person or persons in whom the power is vested in the last resort, by the frame of government, whether a monarchy, an aristocracy, or a democracy, will have the constitutional right to determine. But, where the act in violation of the constitution, is committed by the very person or persons, to whom the supreme power of the government is given by the constitution; there is no peaceable remedy, if the illegal laws or measures are persisted in, after petition and remonstrance by the subjects; for the truth is, the frame of government is defective, and the conduct of the rulers or ruler is so far oppressive and tyrannical.

As the degree of restraint upon natural liberty or freedom, may vary under different constitutions or forms of government, it is obvious, that it may also vary greatly under the same constitution at different times, owing to the various interpretations and constructions put upon it, by persons of greater or less integrity and intelligence.

america-do-we-have-rights-or-privilegesThe definition of the freedom, which men have in a state of nature, of consulting their own happiness in all they do, so as they offend against- neither religion nor morality, that is, provided they transgress no divine law, and do no injury to the rest of mankind, is sufficiently intelligible and plain. But, in a state of society, this single right branches out into a great variety of rights, each of which has received a distinct appellation. The first division of this natural liberty or freedom, is into a freedom from restraint, and a freedom from exactions or requirements. By relinquishing the first, we become liable to be restrained by the laws of society, from doing many things which, in a state of nature, we are at perfect liberty to do, without committing any wrong or injustice. By relinquishing the second, we become liable to be bound to do, by virtue of our social compact, and the laws made under it, many things, which, in a state of nature, we were under no such obligation to do, and which, from the general maxim of the natural equality of all mankind as to their rights, no man or body of men could have any right to compel us to do, without some previous consent or other act of our own.

Under the former of these branches of natural liberty, viz: freedom from restraint upon the right of action, may be comprehended,
1. The right of expatriation. That a citizen of any community, in ordinary cases, has a right to leave its territory at pleasure, and reside in some other country, and cast off his native allegiance to his own, seems to follow of course, from the preceding view of the natural rights of mankind, and the origin of governments. It is true, that this right has been absolutely denied by some, who hold that a man can never shake off the allegiance which may be claimed by his native country. This, however, seems something like setting up an idol, and is entirely contrary to the principles acknowledged in the constitution of the United States. For, if a foreigner cannot become an American citizen, without committing a crime, or at least doing a manifest injustice to the country of his birth, why is the naturalization of aliens permitted among us? Why is it thought worth while to inquire into the character of an individual, who, by the very act of applying for naturalization, which renders such inquiry necessary, shows that he is not fit to be a citizen of any other country, since he must first throw off his allegiance to his native land? But, though this may furnish an excellent theme for declamation, which will be omitted here, such opinion seems not to be sufficiently well grounded to stand the test of a close examination. For, what is a man’s country? Is it the place of his birth or residence? This would be a very unreasonable supposition, unless taken in connexion with its inhabitants, its frame of government, and its laws and institutions. For, a man cannot owe allegiance to inanimate nature, as mountains, rivers, and groves, whatever poets may imagine. Neither can it consist in the government, laws, and institutions; for, if so, then to change them in a material point, would deprive a man of his country. It must then consist in the inhabitants forming a society, the identity of which is preserved, like that of a river, by perpetual succession under the government to which he has either expressly or tacitly agreed, on the territory subject to that government, and belonging to its citizens.

If a man owes allegiance to any of these, let it be first supposed that it is to the government. But if it is owed to the government, independently of the inhabitants, then it must be due to the persons of the rulers for the time being. For the government in any other sense, is a mere abstraction. In monarchies, it is admitted, allegiance is due to the king, as the feudal head of the nation, and who is acknowledged to be the lawful political master and lord of his subjects. But such allegiance can be claimed only in monarchies and aristocracies. In our republic, to whom is allegiance due? The answer must be, that no such allegiance is due to any one. But, with regard to the state of which he is a citizen, each one’s allegiance is limited by the terms of the constitution made by the citizens of that state, and to which he has either expressly or tacitly assented. The same remark applies to the constitution of the United States, to which we must, resort, if we would know precisely the kind of allegiance which is to be considered as due from the citizens of the Union.

As nothing is said in restraint of this natural right of going where he pleases, or expatriation, in either of those compacts, it follows that a man may rightfully expatriate himself, and throw off his supposed natural allegiance to his own country, whenever he pleases, provided he was not personally a party to the original compact, and has never taken any oath of allegiance, either to the state of which he is a citizen, or to the United States. For, obligations like these, whatever the common practice may be, are not to be assumed and cast off again at pleasure.

But, perhaps it will be urged, that a man’s country consists properly in the succession of inhabitants in the territory and under the government of which he is a resident native citizen; and that, it is to these inhabitants in a body and in their political capacity as a nation, that allegiance is properly due. But, it may be replied, if he is under an obligation of this kind to them, every other citizen is also under a reciprocal obligation to him, as well as a similar obligation to each other. This supposition would gratuitously and unnecessarily impose reciprocal obligations upon every one of the citizens of a country, to remain in it subject to its allegiance, however adverse it might be to his interest or happiness; when, on the contrary, it would be much more agreeable to natural freedom, to consider every individual as having a right to expatriate himself, and form new connections at discretion. Whether an American citizen can throw off his allegiance or not, without an act of Congress to authorize him, seems not to be judicially settled. 7 Wheat. 283.

Further, if a man is under obligations to any one, it must be to his parents; yet nature sets him free from all ties but those of gratitude, affection and reverence, as soon as he arrives at maturity. If then he becomes free from them, there is certainly but little reason, why he should be under any higher obligations, in the ordinary course of events, to his countrymen, unless he has entered into some express, voluntary engagements to them.

It is not intended, however, to palliate or excuse, the conduct of any individual, who should see fit to exercise this right at a time when his country is in a state of peril or distress from hostile aggression, and has need of his assistance in its defence. The gratitude, which would be due to it, from him, on account of the protection it has afforded him during his youth, and the advantages which he has derived from its various laws and institutions, and the civilities and kindnesses which he has received from his fellow-citizens, would render his conduct deserving of the same reprehension as that of a son, who should refuse to relieve the necessities of his parents, on the ground, that gratitude is a duty of imperfect obligation, and that he had a natural right to do as he pleased in relation to the subject.

Neither is it intended to deny the perfect right of the government of the country, to adopt such measures, as may be necessary to protect itself against any of its citizens, who, not satisfied with renouncing their allegiance, should take up arms against their country, and abuse their knowledge of the weak points in its defenses, to insure its overthrow.

2. The rights of conscience, and freedom of inquiry. In a state of nature, these rights, as well as others of a similar kind, are derived from the natural freedom from the control of others, to which all men are entitled; while again this natural freedom results from the natural equality of all men as to their rights. If these rights are relinquished on the formation of society, it must be by virtue of the constitution or social compact of the society or government. But, if not so relinquished, either expressly or by tacit acquiescence, they remain unimpaired to the members of the society or body politic, and the rulers have no right to do any thing to infringe them.

It is not necessary, however, in order to authorize the government of a country to legislate on these subjects, that a power for that purpose should be expressly given in the constitution. It will be sufficient, if the constitution imposes no restraint on the government, to prevent the exercise of such authority, and that a particular emergency has arisen, requiring such legislative interposition. For, unless expressly prohibited, their general authority to provide for the public welfare, would be amply sufficient for this purpose. These remarks, however, can apply only to open acts, opinions promulgated, and doctrines openly taught and inculcated. For, under a general power to provide for the general welfare, to institute a scrutiny into private opinions, and to require men to avow or disavow them, whether in relation to religious, moral or political subjects, would be an act of mere usurpation, and grossly tyrannical. Yet, a government, it is obvious, may be authorized by the citizens who frame and adopt it, to exclude from the rights of citizenship, or naturalization, all foreigners, who refuse to disclose their sentiments, whether religious or political. And, for the same reason, may be authorized by their citizens, to impose a test whether religious or political, on the citizens themselves, the refusal to take which, should be considered as a disqualification for office, whenever the public good requires such a measure. But, in most cases, the adoption of any such course would be highly odious. For the same reason, if it were part of the constitution, that no individual, though born within the country, should have the rights of citizenship, if he should profess any other religion than that of the state, such person would be a mere resident alien. And if the legislature, being authorized for that purpose by the constitution, should deem it expedient to exclude from its territory, all persons, who were not of the same religion with that of the government, there would seem to be no absolute violation of natural right in this, though it would seem to be an act of gross intolerance, not to be justified but by circumstances of great urgency. To express this doctrine in a few words;—as every man* in a state of nature, has a right to exclude from his household and family, every individual of bad character, notorious for bad principles or corrupt practices, it cannot be doubted, that, in organizing a society, the constituent members may confer a similar power on their government by using express terms for that purpose. A general authority to take care of the public welfare, would also be sufficient for that purpose, unless the exercise of this general power were expressly restrained in this particular instance.

Under any such authority, whether express or implied, the government would have a right to banish from its territory, any individual who should undertake to teach or disseminate opinions dangerous to the peace or welfare of society. And on this subject, the rulers or constituted authorities alone, would be the proper judges. It will make no difference, in this respect, of what nature such opinions or principles may be, or whether they relate to religion, morals or politics, if they lead, or, by the constituted authorities are thought to lead, to injurious consequences. For, erroneous opinions on the subjects of religion and politics, are found by experience to be a fruitful source of public troubles and disturbances, with their bloody concomitants, tortures, rapine, murder, massacre and civil war: while erroneous opinions in relation to morals, may soon sap the foundation of innocence and virtue, and raise on their ruins, a temple dedicated to vice, corruption, abomination, Dagon and Moloch. Can it be doubted then, that the open teaching, promulgation and inculcation of false and dangerous opinions, should immediately be stopped? The government, supposing them to have full authority from the people on this subject, should exercise a sound discretion in relation to it. If they merely punish crimes and immorality when they occur, they perform only half of their duty; since they ought to stop the sources of corrupt practices at the fountain head, in vicious principles.

Yet, on the other hand, the most perfect freedom of inquiry should be allowed, for the sake of informing the conscience. For, it cannot be supposed, that any individual, by coming under the obligations of society, intended to surrender his liberty of conscience, or his natural right of worshiping God according to the dictates of his own reason, to the mere opinions of other men as fallible as himself. Still, no christian government can be under any obligation to tolerate any grossly immoral or indecent practices, under the pretense of indulging religious freedom. For, such practices constitute a disturbance of the public peace, and are an offence or nuisance to all the orderly citizens. For similar reasons, the public teaching of a false religion, or the open inculcation of doctrines, professedly aiming at the subversion of all religion, should be silenced by public authority. For, the government acting on the behalf of the people, have a perfect right to adopt such measures as they may judge necessary for this purpose, provided they do not interfere with the right of free inquiry for the private satisfaction of each individual’s own conscience.

It may be objected here, if these observations apply equally to all forms of government, where is the freedom, which is so much boasted of under democratic or republican forms of government? The answer is, that as, under a monarchy, it was never intended to deprive the people of the power of doing good; so under a republic or a democracy, it was never intended that the people should be free to do evil; and, if there is less power and opportunity of doing good under a monarchy, and greater liberty as well as temptation to do ill under a republic or democracy, it is no part of the design of the framers of such governments; but such consequences naturally attend the greater or less degree of freedom enjoyed under each, respectively. To restrain the introduction of dangerous opinions among the people, is no infringement of their liberties; on the contrary, it is the most effectual method of preserving what the people have in view, in the exercise of their liberties, viz: their tranquility and happiness.

Here it may be objected again, if this doctrine is true, then the rulers for the time being, will be the sole judges of the truth as well as the tendency of all avowed opinions, and open practices. Consequently if they chance to be in an error, the truth will be kept from the people. The answer is, it is no part of the duty of the government to regulate the consciences of individuals; but every person should be left at perfect liberty to form his opinions as he pleases, provided he does not disturb others with them. But, where the people and the government are agreed in the general grounds of their religious faith, it would be very extraordinary, if they had not a perfect right to exclude from their territory, any persons, who should disturb the public peace by attempting to introduce a new one.

These remarks, however, so far as they respect opinions on religious subjects, are not intended to apply to any organized society or government, where, on account of the great number of religious opinions, universal toleration is one of the fundamental articles of the constitution or social compact. Nor will they apply to persons, who profess to come as divine ambassadors, provided only they are furnished with those divine credentials, which furnish the only safe criterion, by which uninspired persons, can, in every case, distinguish between enthusiasm, fanaticism, or imposture, and true inspiration. But if, having no other evidence or assistance than other men, they undertake to disturb and revolutionize society, with the visions of their own imaginations or the mere deductions of their own understandings, without any other sanction or authority than enthusiastic reveries, or supported alone by the self-blandishing but fallacious supposition of their own intellectual superiority, and the ignorance and delusion of others, the government, having sufficient authority from the people for that purpose, will do no more than their duty in gently sending them out of the country without further molestation.

Neither are these remarks designed to apply in the slightest degree to missionaries, as if it were intended to deter them from what they consider their duty, in attempting to spread the divine revelation among the heathen. On the contrary, this most benevolent intention, this attempt to comply with or fulfill the divine command, ‘Go preach the gospel to all nations,’ cannot in the fallible view of our narrow understandings, be too much applauded. Still, they should be careful not to disseminate as divine truths, any mere opinions or inventions of men. If unfortunately they should propagate error, what thanks can they deserve? Certainly nothing more than the praise of good intentions, accompanied with the discouraging abatement, of having done harm instead of good. In this case, it is obvious, there is ample room for an apparent conflict of rights and duties. For, the missionary may possibly mistake the peculiar tenets of the sect to which he belongs, for the only essential part of divine revelation, and esteem it his duty to spread them even at the risk of his life. On the other hand, the government of the country may consider those peculiar tenets, as nothing more than pernicious errors, and consider it their duty to put a stop to the dissemination of them.

Where a christian missionary goes among the heathen, thus exposing himself to toil, danger, hardships, and privation in the service of the great Master of our religion, there can be but one opinion, as to his merit and his reward. On the other band, can there remain a doubt, that an enlightened christian community may adopt decisive measures, to prevent the propagation of delusion, fanaticism, or any doctrines of sufficient plausibility and having a tendency to disturb the public tranquility, by subverting the true religion in the minds of the weak and defenseless, and introducing in its place, principles productive of confusion and numberless disorders?

Suppose, again, an enthusiast should be so zealous as to go to Rome for the purpose of converting the Pope, a case which history informs us has actually happened; what better treatment could he have a right to expect, than was given in the instance alluded to, viz. to be sent to a mad-house? Might not the Pope very properly answer his exhortation, by saying, ‘Friend, it appears, that you have come hither, for the purpose of converting me to what you believe to be the true doctrine of the christian religion. Your design, though in some measure vainglorious, is filled with benevolence; and if you have any new revelation, of the authenticity of which you can furnish satisfactory proof, I am ready to listen to it with the deepest veneration and humility. But, if you have not, what vanity can actuate you to suppose that I shall substitute your infallibility in the place of that, which is commonly ascribed to my office.

‘If I am sincere in the profession of the Catholic doctrine, can you be so simple as to expect to convert me to your opinions without the advantage of any other revelation, than I have myself, by the superiority of your intellectual powers alone? Or, if I am not sincere, what occasion is there for your kind offices? Would you take up arms against a shadow?’

3. The right of property. As society is organized for the security of property as well as life, this right remains in full force, and cannot be invaded without the grossest tyranny and oppression.

This right however is not infringed by equal taxes for public purposes, imposed by adequate legitimate authority. A misapplication or misappropriation of funds in the public treasury, however, must be considered as a violation of this right, though it is also a great breach of public trust. Any regulations introduced by law, for the transmission of property by descent, or directing the mode of transferring property on a sale, will be free from exception on this account; provided that no estate actually vested under a law, is divested by the operation of a law afterwards enacted. In any case, where an individual fails to receive what he had stipulated for, or what otherwise he would have a just right to expect, from an omission to comply with the laws of society, it must be ascribed to his own imprudence or negligence.

4. Right of equality. As men are naturally equal in their rights, there can be no doubt, as has been already remarked, that no individual would be willing to join in organizing a society, unless he were put on an equal footing with others, as to all the rights secured to him in the social compact, or constitution of the society. It would obviously be no violation of this principle, if, in the constitution itself, it had been stipulated and agreed, that certain classes of persons, which classes should be accessible to all, should have greater powers, or should be exempted from certain public burdens. There is nothing unfair or unequal in this, in reality.

Neither would it be a violation of this principle, if a law should be passed, making men liable to certain common burdens for the benefit of society, as soon as they arrive at a certain age, and to exempt them from such burdens, as soon as they arrived at a certain other age, as in the case of military service. Because the law is general in its application, and the difference of condition occasioned by it, is merely temporary. Since every man, however aged, has once been young; and the young, if they live, will certainly arrive at an age, at which they too will in like manner be exempted. But, it would be a violation of this principle, if the legislature should attempt to alter by law, the requirements of individuals made in the constitution in order to qualify them for the exercise of certain civil rights, either by adding to or taking from them; or, by imposing new conditions, or removing old ones. And therefore a disqualification of individuals by law, grounded on distinctions not recognized in the constitution, is a violation of this principle.

For the same reason, a sacrifice of the interests of particular individuals, or inhabitants of particular districts, either in favor of other individuals or classes, or, even in favor of the public at large, is a violation of this right. But the government is generally considered as having authority to apply private property to public uses, if an adequate compensation is made to the proprietor, especially in cases of great emergency.

Where the operation of a law is, to prefer one class of citizens over another, the question, whether the law is to be considered as a violation of the natural right of equality, will depend upon the previous question, whether this effect is one of the principal inducements to pass the law; in which case it is tyrannical, as emanating from an usurped power; or, whether, without having such inducement, the principal operation or effect of the law, is to give such a preference; in which case, it is unjust because unequal in its operation, and if continued after notice of its effects, is also arbitrary and oppressive; or whether this unequal effect was wholly overlooked by the legislature, and is a necessary attendant upon some great public advantage, the obtaining of which, was the sole object which the legislature had in view in the passing of the law; in which case, it will be no violation of private right. But, as one class of citizens ought not to be sacrificed for the benefit of another, or, even of the public, the latter, out of the great advantage which they derive from the law, ought to make satisfactory compensation to those persons, who are sufferers by its enactment; the loss to be ascertained by impartial appraisers or assessors. If the public are not willing to make this compensation, the wrong to the property of the suffering class or individuals, is neither more nor less than a robbery under pretense of law. But, if the public cannot afford, out of the benefit which they derive from the passage of such law, to make such compensation, it is conclusive proof, that the law is inexpedient as well as unjust; since it will occasion more disadvantage than benefit. Where the principal operation of a law is to give a preference to one class of citizens over another, this is not a cause for compensation; but is a direct violation of the right of equality, to be waived by the injured class alone. As soon as this effect is ascertained, therefore, the law should be immediately repealed.

5. The right of freely discussing public measures, &c. Another right, which, it must necessarily be presumed, the people mean to reserve to themselves in every free elective government, is that of discussing the qualifications and characters of all candidates for public offices, who consent to stand for them, as well as the character, conduct, and general measures of all public officers. This subject will be considered more at large in Part II. Chapters 1 and 2.

But in governments so framed, that misconduct in the chief ruler or magistrate, does not by their constitutions, involve his disqualification for office, or his removal from it, whether it be elective or hereditary, it would be of no advantage to the people, for each citizen to have a right to comment harshly upon him, for the purpose of bringing him into hatred or contempt with the people; since it could have but little tendency to correct public grievances, but might lead to public disorders and disturbances, and thus, instead of removing evils, might aggravate some and occasion others. For, it would be impossible to prevent the right of animadversion on the conduct of a bad prince, from being perverted to an unjust vituperation of the character and conduct of an excellent one. On the contrary, is it not very possible, that under a good prince, there might be thousands of factious demagogues, who, under the pretense of patriotism, the public good, and freedom and the rights of man, and other topics of popular declamation, might asperse and vilify their rulers; while under a cruel and merciless tyrant, whose public life was a disgrace to human nature, and whose administration of public affairs, was impolitic, unjust and ruinous, those same pretended patriots, from fear would have remained in perfect silence and perhaps have been most conspicuous for abject sycophancy and fawning servility? (fn1) Under all arbitrary governments, therefore, seditious speeches and writings are considered but little short of treason, to which they directly tend.

6. The right of petition and remonstrance. Another right retained by the people in all free governments, and which it is believed, is seldom denied under the most arbitrary and tyrannical, is that of representing to the government any particular evil or grievance, which the petitioner suffers from any law or other public measures, and requesting its removal, or that suitable compensation be made him for the damage, which he sustains in consequence of it. It should not be considered any infringement of this right, that the petition should be made in decent and respectful terms, however contrary it may seem to the opinions of those persons, who from a mistaken idea of the true principles of democracy, think there can be no freedom, where the private citizens may not affront and insult with impunity their superiors in office.

7. The right to reform the government. On this critical and dangerous subject, it seems difficult to establish any certain principles of general application, which will not be liable to be abused and misapplied, and which consequently may not involve in their operation, if injudiciously carried into practice, the most lamentable and disastrous results. A profound historian indulging in some reflections upon the American Revolution, makes the following observations. ‘To overset an established government, unhinges many of those principles which bind individuals to each other. A long time and much prudence, will be necessary to reproduce a spirit of freedom, without which, society is a rope of sand. The right of the people to resist their rulers, when invading their liberties, forms the corner stone of American Republics. This principle, though just in itself, is not favorable to the tranquility of present establishments. The maxims and measures, which in the years 1774 and 1775, were successfully inculcated and adopted by American patriots, for oversetting the established government, will answer a similar purpose, when recurrence is had to them by factious demagogues for disturbing the freest governments that were ever devised.’

It should not be overlooked, though it may seem to imply a contradiction in terms, that the strict enforcement or assertion of our most perfect rights, under peculiar circumstances may sometimes constitute a crying sin, as being a violation of some duty, which though of the strongest obligation in a religious and moral point of view, is usually called or defined a duty of imperfect obligation, because those persons who are the objects of it, have no right themselves to compel its performance. This is true in relation to our rights in a state of nature, and towards individuals; and is equally so in relation to our civil and political rights in a state of society, and towards the public. But, in the latter case, the consequences may be infinitely more disastrous, and wholly remediless. The following remarks are to be taken, subject to this qualification.

No government can have any legitimate foundation but in the good of the people; for, the people were not made to be governed for the interest or pleasure of the rulers; but rulers were set up and established to protect the people, and direct them by salutary laws and regulations, in the pursuit of their welfare and true interests. Where the people have good sense, and the virtues of self-denial, and the love of justice, as a nation, so as to know how to redress their wrongs on other nations, if any should be offered, and so as to be contented to do without, what they cannot gain without wrong to others, they have no need of arbitrary rulers, whose powers, in a political point of view, originate with themselves. But, if they have not this good sense and these virtues, they will soon fall a prey to usurpation, as a punishment for their folly and injustice. What nations have, and what nations have not, this intelligence and these virtues to a sufficient extent, may be conjectured, but can only be certainly determined by experience. To think so, and to be able to do it, are different things. To overthrow a monarchy is one thing; to establish a permanent, free, popular government is another. The characteristic qualities of a people, which may lead them to the former, are not of themselves sufficient to enable them to effect the latter. The form of general government established by American sages, though most admirable, is not perfect; and will stand no longer than while a portion of the same wisdom, patriotism and disinterestedness, which actuated them, shall continue to animate the public councils.

Governments were established at first, in days of ignorance violence and injustice. In most cases the strong, crafty and bold, reduced the weak, timorous, simple and defenseless to a state of subjection. The latter, in this way, became slaves to the former, in the first instance; and afterwards, by a gradual melioration of their condition became subjects, while the companions of the leader or conqueror, became nobles. This however was not always the, case. For, in some instances, it is probable, where the weak were not immediately overrun in the first invasion, they were .able by uniting and forming themselves into an organized society, adopting an exact military discipline, and inventing armor as well as improved weapons of offence, as shields, darts and swords, to prevail over those, who, relying merely on their gigantic stature and resistless bodily strength, had never felt the necessity, and consequently had never thought of any such expedients, but at best, had never made use of any weapons more effective than the stone, the stake, or the war club. It is most probable, that it was in this way, that Chedorlaomer, the first conqueror on record, subdued the various tribes of giants, enumerated in the holy scriptures. For, he had no divine assistance, and no mention is made of the superior stature of his soldiers or subjects. But they dwelt in cities, and must therefore have made some considerable advances in civilization and the necessary arts. But the nations or tribes whom he conquered, it is apparent, lived in a savage state; and were most of them conspicuous for their lofty stature; viz. the Emims, who are compared to the sons of Anak, of whom it was said, ‘Who can stand before the Anakims,’ the Rephaims, or giants, of whom it is said in the scriptures Og, the King of Bashan, was the last survivor, and whose stature, according to the scripture account, could not have been far from fifteen English feet; the Horims, who dwelt in caves and holes in the ground on Mount Seir, and who, in this respect, were literally Troglodytes. These giants were in a great measure destroyed by Chedorlaomer, and it is most probable without any miraculous aid, by superior weapons, and military skill alone. But, when other nations of gigantic men succeeded, such as the Anakims and the Amorites, who were acquainted with warlike implements and defensive armor, and subject to military discipline, it was impossible for the Israelites to conquer them without divine assistance, and the three sons of Anak, who struck terror into the hearts of the Israelite spies, with the exception of Caleb and Joshua, it is probable from the same account, were not cut off, until they were upwards of fourscore years of age; there being no evidence that, under the divine economy, the ordinary course of nature is ever disturbed by a miracle without necessity.

In later times, governments are chiefly grounded in the first instance on conquest or usurpation. For we see in history, Kings are dethroned and are succeeded for the most part by tyrants; Republics are conquered through delay or dissension, or corruption, and are annexed to the empire of the conqueror; monarchies are subverted and succeeded by anarchy and confusion, until the turbulent authors are cut off, one chief being left to trample on the people’s liberties and reduce them to a more abject state than they suffered before. In a few. instances, the people have rescued themselves from oppression, and have established a mild and free government.

Legitimate governments may be of any form whatever, whether a monarchy, an aristocracy, a democracy, or a combination of these. Where they are not established by divine appointment, they must be grounded, according to natural right, in the will of the people, express or tacit. A people, therefore, it is evident, without any government, when organizing a political society and forming a nation, may adopt any form of government which they think expedient, whether monarchy, aristocracy, democracy, or a republic. Whatever form they adopt, is a legitimate government, and no individuals in any succeeding generation, have a shadow of right to attempt to subvert it, or to excite the people to do so. Yet individuals who are dissatisfied, have a right to consult their happiness and leave the country; but so long as they reside within it, they are bound to obey the laws. But, if the rulers should abuse their legitimate authority, and oppress the people by acts of tyranny and cruelty, the people, after petitioning for redress of grievances in vain, if unanimous, (otherwise not,) will have a natural right to remove their rulers, choose others in their room and reform the government, and adopt a new constitution if they see fit. A bare majority of the people, however, has no such right.

This extreme right, on account of the terrible consequences usually attending its exercise, notwithstanding the most tyrannical and unjustifiable conduct in the rulers, in most cases it would be very wrong, indeed a great sin, to put in force. For, the benefits resulting from revolutions, seldom compensate for the horrors which almost invariably attend them. The risk of violating many duties, which, though of imperfect obligation, cannot be disregarded without incurring a degree of guilt and responsibility, proportional to the calamitous consequences which must necessarily follow, must therefore make every reasonable and conscientious person pause and deliberate long, before he arms himself against his rulers; and it is very probable, that it is in part for such reasons, that we christians are commanded ‘to submit to the powers that be. But, in fact, the people are seldom or never unanimous for a change of their government, even when it is of the most arbitrary form, and their rulers are tyrants. Where they appear to be so, (and especially if the administration is mild, and the people do not stand in awe of it,) it is owing to the dread and fear which the orderly citizens entertain of the threats, outrages and massacres of revolutionists and anarchists, which are greater than the respect or regard, which they entertain for a government, in their opinion no longer capable of protecting either them or itself. Many of these citizens, therefore, in such cases, through mere apprehension, side with the unprincipled and disorderly, in order to escape their violence, (though being suspected, on account of the previous respectability of their characters, their hypocrisy is not always successful in this respect,) when they would prefer to submit to the measured oppressions of any regular government, rather than be exposed to the capricious and illimitable envy and malignity of ignoble and unprincipled disorganizers. There is seldom, therefore, an occasion where such right can be said to exist at all; and it would be a rare case indeed, that would render the exercise of it perfectly justifiable.

In the original formation of a government established by the people, it is their consent which renders it legitimate. But, though the government should commence unjustly, as by conquest or usurpation, yet, if the people afterwards acquiesce in it, no succeeding generation has any greater right to alter it, than if it had been established by the free consent of the people in the first instance. For, the generation which acquiesces, have the same right to adopt the government under which they live, that a people without a government, have to form and establish one. The voluntary acquiescence of the former, is equal in its effects to the free choice of the latter. The contrary supposition would be attended with many inconveniences, if not absurdities. For, suppose a democracy is established by the free choice of the people, what sanction has this government, after the generation has passed away, which first established it? Certainly none but the tacit acquiescence of the people which succeed. In any such case, can we suppose that a political leader has a right to endeavor to persuade the people that their rulers oppress them, and, in this way, induce them to resist, throw off, or dissolve the government? For, without dwelling upon the probable consequences, mobs, riots, insurrections, rebellions, civil war, massacres, and other outrages, with which the overthrow of a settled government is invariably attended; and the anarchy and confusion, and suspension of the distribution of justice, which immediately follow ; and the establishment of a military despotism, which would in all probability be the termination, and the only effectual one, of these horrors; whence could a demagogue derive this right? Can such a pretense owe its origin to any other source, than an abuse of the great liberty which is permitted in a democracy; but which in a stronger government, would well be considered as a crime of the greatest magnitude and atrocity, and which would immediately be punished as it deserved ; or rather would rarely show itself, having no hopes of escaping punishment in case of a failure in the attempt. For, the confident expectation of escaping with impunity, is the chief origin of the fervid and inflammatory declamation against imaginary political evils and abuses, in the pretended patriot and lover of the people, as well as of the lawless violence of an ignorant and debased rabble, under the influence of intoxicating liquors, and in the exercise of, what they affect to believe, some of the rights of man.

When in the first formation of a constitution, a mode of amending the frame of government is pointed out in that instrument or political compact, all amendments and reforms made in the mode prescribed, though not unanimously agreed on, are doubtless as valid and binding, as if they constituted a part of the original compact, to which all the people had unanimously assented in the first instance. And here it will make no difference, whether agreeably to such mode of amendment, the alterations in the constitution are to be made by the rulers themselves, or by the people convened in their primary assemblies. But, as the majority have no natural right to frame a government in the first instance, which shall bind the minority who dissent, though the minority may silently ratify it by their peaceable acquiescence, if they see fit; it follows that a mere majority have no right to alter the constitution, unless it is expressly agreed that they may do so in the mode prescribed for that purpose in the constitution itself. It seems to follow, therefore, that though the people, if unanimous, have a right to change their form of government, even Where there is no provision for any such alteration in their constitution; yet, the rulers may justly enact laws to punish with exemplary severity, any persons who should attempt to excite the people to make radical changes in the government, or to remove, in an irregular and disorderly manner, those who preside over the administration of public affairs. This authority naturally results to the rulers, from the general power which is bestowed on them, either expressly or by implication, to provide for the public safety and welfare; and the exercise of it is justified, not only by the bad motives which usually actuate innovators, such as disappointed avarice, or ambition, envy, vanity, and a desire of self-aggrandizement; but, because of the infinite evils which attend an attempt to overthrow the government, where the people are divided into parties or factions, as they invariably are on such occasions.

Farther; if it were permitted to individuals to excite the people to overthrow their government, or change it in an irregular manner under the plausible pretext of reform, then nothing could ever remain sacred or established among mankind. It can make no essential difference, what the form of government may be, which it is desired to overthrow. Yet, it is certain, that where the form and administration of the government, is most arbitrary and despotic, and consequently where there will be the most just ground of complaint, there will be less of it made, through fear. On the contrary, where the government is most free, and there is consequently less danger of punishment for seditious or treasonable practices, unprincipled demagogues, from a desire of becoming popular, will pretend public abuses where none exist, and exaggerate those which do. Not but that there are tyrannical abuses of authority in democracies and republics, as well as in monarchies; but for the most part, they excite less apprehension and alarm in popular governments; because in them the power, however it may be abused, is supposed to be limited, and the evil consequences of such abuse, are definite and circumscribed. But in monarchies, where the political power exercised by the ruler is either arbitrary, or, at least very great, the abuse of it excites alarm ; because the extent of the abuse, or of the evils that may be occasioned by it, cannot be either distinctly perceived or foreseen, or precisely ascertained. It is for this reason, that, under the government of an arbitrary tyrant, there is no one but must entertain apprehensions for his own personal safety. Yet, for the most part, timid and conscientious persons, are desirous of a strong, though not of an arbitrary government. Because, from its very structure, a strong government is most likely to be permanent, and they consequently feel a greater confidence that they shall be protected from the innovations, abuses, and violence of the turbulent and disorderly. On the other hand, the unprincipled, dissolute and flagitious, always desire a weak government, in order that they may be at liberty to practice wickedness with the greater hope of impunity.

Where the form of government is strong and effective, the just and peaceable therefore, enjoy the highest degree of that rational liberty which consists in the security of their persons and property, and the quiet and undisturbed exercise of all their civil and political rights, free from the molestation of the turbulent and licentious. On the other hand, where the form of government is weak and tottering, and the rulers, from a desire of popularity, neglect a discharge of their duty, and are consequently timeserving and inefficient, the turbulent and unjust enjoy the highest degree of freedom and impunity in their insolent practices of fraud, violence and imposition upon those, who hare not the power to protect themselves, and, whom, the rulers through an apprehension of a loss of popularity, are base enough to leave unprotected. For, flagitious and disorderly persons dislike wholesome laws, because they find their freedom to commit wrongs with impunity, is restrained by them. They therefore make an outcry for liberty, and for a repeal of such laws. But laws to prevent wrong and injustice do not deprive well disposed persons of any freedom; because they would do no wrong and commit no crime, if there were no law against them. They therefore are in favor of such laws, to protect society and themselves against the lovers of such liberty. And as the good, who alone may safely be entrusted with such freedom, i. e. a state of exemption from such laws, never complain for want of it; so, those who do complain, are the very persons in whom such confidence cannot be placed.

Lastly; though it cannot be doubted, that where all the people are unanimous, they have a natural right to alter their government, whether any provision for such alteration is made in their constitution or not, because the government is intended for their benefit, and, if they had not such right, the most horrible tyranny, cruelty and oppression might be continued from generation to generation, unless there were some miraculous interposition of providence; still the wise and prudent will be very cautious how they engage in any such enterprises; some of which, seem to have been signally marked with the divine displeasure. The reader will readily recollect that the same nation, which dethroned and beheaded Charles I, a legitimate monarch, under pretence that he had made use of an unwarrantable stretch of his regal authority, which however was not well defined, was compelled to submit to a bloody usurper and ruthless tyrant, who died peaceably in his bed. And here the sturdy republicans of parliament, who had deprived the nobles of their constitutional authority, and who made it almost a matter of conscience to withhold due reverence and respect from their lawful sovereign, were compelled by Cromwell, both a republican and a fanatic, and as bloody and ferocious as themselves, but far superior to them in ability and decision of character, to bow their necks before him with servile fear; yet, after all, were thrust out of parliament by him with the utmost scorn and contempt.

What massacres followed the decapitation of the mild and benevolent Louis XVI? What a succession of demons afterwards controlled the public affairs of France, who, deluding the infatuated people with the ceaseless, false and senseless outcry and jargon of liberty, equality, the rights of man, tyranny, priestcraft, aristocrat, democrat, citizen and patriot, never hesitated to violate every precept of religion, every moral duty, and every feeling of humanity, and carried their extravagance to the height of the most blasphemous impiety. Were the horrors, which thus succeeded to the overthrow of this established government, a judgment from heaven, or were they merely the natural consequences, which may always be expected to flow from the prevalence of anarchy, atheism, and unbounded licentiousness? Certainly, no tyranny can occasion such evils, as an intoxication of the intellect, arising from an influx of false principles on the subject of religion, morals and philosophy.

Well-disposed men therefore will hesitate long, before they join in any attempt to overthrow or revolutionize their government, under any pretext whatever. It is true the people may be unanimous in subverting their government, and yet afterwards, they may not be able to agree in forming a new one, and, if so, they will be in a much worse condition, than they were in, under that which they have rejected; because, to destroy is not the same as to reform. Will it not be worse than living under any regular government, to remain in a state of anarchy and confusion, until the different parties and factions, are reduced by battles, massacres and assassinations, under one; and another government is established by force or fraud, ten times more arbitrary and despotic than that which they have been induced to overturn? For, in many cases, revolutions do not result so much from a sense of intolerable oppression, as from a fondness for an idol—a golden calf—a false god—an imaginary degree of liberty, which, if it were real, the frailty, perverseness and folly of mankind, to say nothing of their wickedness, injustice and depravity, wholly disqualify them from enjoying.

Footnote(s):
1. Such conduct is perfectly natural, when it is considered, that demagogues and false patriots are actuated by the same motives, as the courtiers and flatterers of kings. For, it is to power, wherever placed, that each class equally bows. In monarchies, they are induced to pay court to the opinions and wishes of the king, if they would rise to employment in the state. With the same object in view, in democracies, they suffer neither honor, conscience, truth, justice, decency, nor religion, to stand in competition with popular notions, prejudices, or selfish interests. With such, the voice of the people, right or wrong, is the voice of God; and whatever is unpopular, is unpardonable. If they have sagacity enough to foresee in what direction the majority of the people will incline, it is there such persons will always be found, justifying or recommending in advance, measures which the people would blush to commit individually, as private citizens; and, instead of using the information which a superior education has given them, in endeavoring to remove popular errors, mistakes and prejudices, and settling the public opinion on true principles of religion, justice and morality, prostituting their superior advantages and influence, in confirming such errors, opinions and prejudices, rather than incur the risk of the displeasure of the people, by attempting to set them right.

Continued from RIGHTS OF AMERICAN CITIZENS: General Rights; Division One

Continued on CHAPTER II  Of the Social Compact of the Citizens of the different States in the American Union, in the formation of the General Constitution, taken in connexion with the real or supposed compact of the citizens of each State, in the formation of its own Constitution or State Government.

See the other parts of this series:
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 OATH! By Thomas Buchanan Read 1822-1872
The Doctrine of Fascism, Fascism Defined by Benito Mussolini
The Betrayal Of ‘We The American People’ Our Nation! Our Birthright!
George Mason of Virginia the Father of the Declaration of Independence
A RESUME OF AMERICAN HISTORY by Lawrence A. Gobright , Esq., (1816-1881)

4 thoughts on “RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two

  1. Pingback: RIGHTS OF AMERICAN CITIZENS: General Rights; Social Compact | Captain James Davis

  2. Pingback: RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution | Captain James Davis

  3. Pingback: RIGHTS OF AMERICAN CITIZENS: The Independence of the States | Captain James Davis

  4. Pingback: RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States | Captain James Davis

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