Sunday, January 29, 2012

Liberty, Part XII

Nathaniel Chipman, Principles of Government, a Treatise on Free Institutions, Including the Constitution of the United States:

“Liberty, applicable to man, in the general sense of the term, consists in the free exercise and enjoyment of his rights, and is natural, civil, or political liberty, according as reference is had to one or the other of those rights. Of natural liberty Judge Blackstone says, ‘The absolute rights of man considered as a free agent, endowed with discernment to know good from evil and with the power of choosing those measures, which appear to him most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists, properly, in a power of acting as one thinks fit, without any constraint or control, unless by the laws of nature, being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free will.’ Notwithstanding the little inaccuracy to be found in this passage, in making liberty to consist in the rights themselves, instead of the exercise and enjoyment of those rights, it might have been admitted as a just exposition of natural liberty had he said, ‘without any restraint or control, unless by the laws of social nature.’ It would then have been liable to no misconception; but instead of including, the author has, perhaps inadvertantly, excluded the notion of social from his law of nature; for he immediately adds, ‘But every man, on entering into society, gives up a part of his natural liberty, as the price of so valuable a purchase, and in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws which the community have thought proper to establish.’ The author, here, has evidently confounded the natural liberty of man, with that range of action permitted to all animals of the brute creation, even the most ferocious; a range of action, for it cannot claim the appellation of liberty, not permitted to man by the laws of his nature. On this subject, Mr. Christian has very justly observed that ‘the libertas quidlibet faciendi, or the liberty of doing every thing which a man's passions urge him to attempt, or his strength enables him to effect, is savage liberty, the liberty of a tiger and not of a man.’”

“Burlemaqui has given us a definition of natural liberty, which is free from this objection. ‘Moral or natural liberty is the right which nature gives to all mankind of disposing of their persons, and property, after the manner they shall judge most consonant to their happiness; on condition of their acting within the limits of the laws of nature, and that they do not any way abuse it to the prejudice of other men.’ The author of this definition has, with the utmost propriety, considered natural liberty as of the moral, that is, of the social kind. Such are the rights of man, and such to him are the laws of nature. These laws not only prohibit the doing of what is prejudicial, but enjoin many things to be done, that are beneficial to individuals, as well as to society; they enjoin positive acts as well as restraints. The definition, therefore, leaving out all the active moral duties, appears to me to be materially deficient. To correct this, and a small inaccuracy in the forepart, I would express it thus. Moral or natural liberty consists in the free exercise and enjoyment of that right which nature gives all mankind, of disposing of their persons and property in the manner they judge most consonant to their happiness, on condition of their getting within the limits of the laws of nature, and that they observe towards others, all the moral duties enjoined by that law. Such limitation is necessary, unless we admit that the natural liberty of a moral and social being may dispense with moral obligation.”

“Civil liberty consists in the secure exercise and enjoyment of all civil rights, which comprehend the natural rights, and the subordinate rights which in the civil state flow from these, and in a strict sense, limited only by the necessary, equal, and expedient laws of the community; but in a more general sense, limited also, by moral obligation. This definition agrees very nearly with the concise definition of Judge Blackstone. ‘Civil liberty, which is that of a member of society, is no other than natural liberty so far restrained—and no farther—as is necessary and expedient for the general advantage of the public,’ and with that of Mr. Paley which is, ‘civil liberty is the not being restrained by any law, but what contributes in a greater degree to the public advantage,’—and we may here add, that civil liberty can be enjoyed only under an upright and impartial administration of just, equal, and expedient laws.”

“Political liberty consists in the exercise and enjoyment of those rights which we have distinguished by the denomination of political rights, rights reserved to the people, by the fundamental laws, the constitution of the state, in such manner and under such regulations only, as are provided and authorized by those laws.”

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