Tuesday, January 31, 2012

Liberty, Part XIV

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

“Self preservation is at least one of the first duties. It nevertheless, sometimes, becomes the duty of one man to expose his own life, to a certain degree, to save the life of another in imminent danger. There are other instances, in which it may be the duty of one man to make no inconsiderable sacrifices to relieve the necessities of others. Such instances will readily occur, and must be left to every man's conscience.”

“The first rule for the attainment of this end, is that rule of the civil law,—‘so use your own right, that you injure not the rights of others.’ This is not only a rule of the civil law, but I is a general rule of the law of nature, subordinate to the more general rule, which requires that all the actions of individuals be so directed as to promote the good of the whole. Each individual is supposed best to understand what will contribute to his own interest and happiness, and the individuals of any society, what will most contribute to the interest and prosperity of their society, and they will pursue their own interest with more alacrity as well as knowledge. All have an equal right to the pursuit, and to make use of the proper means; but if no limits are set to the manner of pursuit, some may usurp or monopolize the means to the deprivation of others. They may, temporarily, increase their own enjoyments, but are constantly exposed to the same deprivation by a more powerful usurper.”

“The law of nature furnishes a remedy for this state of things, in the application and observance of the general rule above mentioned,—‘so use your own right, that you injure not the rights of others.’ A general observance of this rule affords to every one the liberty of pursuing, by all just means, his own interest, in the way he judges most suitable to his situation, and in that peace and security which constitutes no inconsiderable portion of individual happiness. It is, however, a mere rule of forbearance, and embraces only that prudence, which is required by the municipal law. But to fulfil the plan of nature something further is necessary, and that is benevolence, which augments and gives a peculiar zest to social and individual happiness. To unite benevolence with prudence, which is the consummation of the law of nature, that all the actions of man be directed in their tendency to general utility, or in other words, to promote the happiness of his species, becomes indispensable; and, as the happiness of the whole, consists in the happiness of all its parts, this rule is emphatically expressed in that command,—‘Thou shalt love thy neighbor as thyself.’ It was said that the rule of forbearance, above mentioned, is a subordinate part of this more general rule; and it may be added that it is preparatory to it, as the forbearance of injuries, in the order of things, precedes acts of benevolence.”

“It was, indeed, before observed that general rules, although very important in forming a system of ethics, do not come in immediate contact with human action. To explain this more clearly, it is a rule that every man be holden to perform his agreements with others; it is also a rule that he shall make reparation for injuries. These may be called specific rules of immediate application; and although they tend to the same end,—the general utility; yet a man, in fulfilling his agreement, or making a reparation for injuries, may have no regard to the general utility, nor respect for the common good; but may yield to compulsion, or act solely from a regard to his own private interest, under present circumstances. But although general rules are not the immediate rules of action, yet they are intended to have an important and extensive influence on human conduct.”


“The external law considers those duties, only as man is accountable to his fellow men for their performance. In this view, duties are distinguished into two classes,—perfect duties, or duties of perfect obligation, and imperfect duties. To every duty there is a corresponding right, that is, if one person owes a duty to another, that other has a corresponding right to demand the performance. In all cases of perfect duties, he, to whom the duty is owing, has a perfect right, aright to constrain him who owes the duty, to perform it. This class comprehends all the duties and rights of justice, which are the great objects of all civil institutions and laws. If one owes to another an imperfect duty, that other may ask as a favor, but has no right to compel the performance. This class comprehends all the duties of benevolence. The rules of the external law exempt this class of duties from the jurisdiction of all civil laws and human tribunals. No man is holden accountable in the sense of being amenable to any of his fellow men or to society, for their neglect or performance. This distinction is founded in the highest reason and utility. It was before observed to be a general rule of natural law, ‘that each should do for others what their necessities require, and they are capable of doing, without neglecting what he owes to himself,’ which includes his natural and necessary connexions in society. As far as relates to his fellow men, each is by the law of nature constituted on this subject the sole judge; he is amenable only to God and his own conscience. It is a case, in which from the very nature of the thing, others are incompetent to judge. The law of nature has therefore denied to man the right of enforcing these duties by constraint. Were it otherwise, natural liberty would no where be found among men. Indeed it would change the nature of the duties, and reduce; acts of benevolence, from the rank which they now hold among the highest virtues, to the grade of necessary actions. This we constantly see exemplified in those laws, by which the community make provision for the necessitous and the relief of the unfortunate. The individuals who are called to contribute to the relief, act under the constraint of law, and however cheerfully they may contribute, it is a necessary act of obedience to the law. The benevolent act is the act of the community, which being composed of moral beings, sustains the character of a moral person, and is a subject of moral obligation.”

“When it is said that man is not accountable to his fellow men for the performance or neglect of these duties, it is meant only he is not amenable to them or to any human tribunal; yet from the deep interest which every one feels in his own character, from the irrepressible desire of the approbation and dread of the censure of his fellow men, which nature has implanted in the breast of every human being, there still remains a strong sense of accountability; but it is a moral, not a legal accountability. From this view of the subject it will be readily perceived that the rules of the external, do not in any way operate as an exception to the obligation of the internal law, or in any way to diminish its force. The laws of nature and the obligations which they impose, are as immutable as the Supreme Being by whom they are ordained.”

Monday, January 30, 2012

Liberty, Part XIII

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

“That man, on entering into civil society sacrifices a part of his natural liberty, has been very generally asserted, or taken for granted, by all political writers. They speak of it as a necessity arising from the very nature of all civil institutions, even the best as well as the worst, differing in degree only. This notion of a sacrifice must have been adopted from a very indefinite and, indeed, very absurd notion of natural liberty; what this notion was has been already noticed; but we will take it from the Marquis Beccaria in his admirable work on crimes and punishments. He there tells us, that man, on entering into society, makes a sacrifice of that liberty of action common to all sensible beings, and limited only by our natural powers. What sort of liberty is that which is common to man, to the lion, and the tiger? Man is allowed by all to be a moral being. The laws of nature applicable to him, as such, are of the moral kind—when we speak of the liberty common to man, liberty, and a right to act are convertible terms.”

“Man indeed, has a natural, that is, a physical power to injure both himself and others. But is a right to do this conceded to him by the laws of his nature? That is, a right to transgress those laws: power and liberty are not synonymous. Power is here, that by which we exercise our liberty, not the liberty itself, when considered as a right. In a larger sense liberty comprehends both the power and the right. Civil liberty is generally taken in this sense. It will not, I presume, be suggested that the natural liberty of man, a moral being, is at variance with moral obligations; it therefore follows, that the liberty common to man is limited by his natural powers, by the obligations of morality, in a word, by the laws of his nature. For a moral being to forbear the performance of any action, that is forbidden by the laws of moral and social nature, can never be deemed a sacrifice, and is no more a duty in civil society than out of it.”

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.”

Saturday, January 28, 2012

Liberty, Part XI

From Political Disquisitions, of which a copy was owned by John Adams, by Anonymous:

“That government only can be pronounced consistent with the design of all government, which allows the governed the liberty of doing what, consistently with the general good, they may desire to do, and which only forbids their doing the contrary. Liberty does not exclude restraint; it only excludes unreasonable restraint. To determine precisely how far personal liberty is compatible with the general good, and of the propriety of social conduct in all cases, is a matter of great extent, and demands the united wisdom of a whole people. And the consent of the whole people, as far as it can be obtained, is indispensably necessary to every law, by which the whole people are to be bound; else the whole people are enslaved to the one, or the few, who frame the laws for them.”

“All lawful authority, legislative, and executive, originates from the people. Power in the people is like light in the sun, native, original, inherent and unlimited by any thing human. In governors, it may be compared to the reflected light of the moon; for it is only borrowed, delegated, and limited by the intention of the people, whose it is, and to whom governors are to consider themselves responsible, while the people are answerable only to God; themselves being the losers, if they pursue a false scheme of politics.”

“As the people are the fountain of power, and object of government, so are they the last resource, when governors betray their trust. And happy is that people, who have originally so principled their constitution, that they themselves can without violence to it, lay hold of its power, wield it as they please, and turn it, when necessary, against those whom it was entrusted, and who have exerted it to the prejudice of its original proprietors.”

Friday, January 27, 2012

Liberty, Part X

From Observations on the American Revolution, published by the Second Continental Congress in 1779, and written by Gouverneur Morris:

“The great principle therefore is and ever will remain in force, that MEN ARE BY NATURE FREE. As accountable to him that made them, they must be so; and so long as we have any idea of divine justice, we must associate that of human freedom. Whether men can part with their liberty is among the questions which have exercised the ablest writers; but it is conceded on all hands, that the right to be free can never be alienated. Still less is it practicable for one generation to mortgage the privileges of another. The right of a state over its own members hath also been brought into question; and there are not wanting authorities to shew, that citizens who renounce allegiance and protection may fly from the territories of the state, and erect new independent governments in new countries. Be this as it may, the point is clear that when the consent of government is obtained, the individuals are again in a state of nature; alike free either to submit to a society existing or to establish one, as their interest or their inclination may prompt. Here then is the situation of those who wearied with the contentions and oppressions of the old world, boldly threw themselves upon the protection of Providence to explore the new, and traversed the ocean to inhabit a wilderness amid nations of barbarous foes.”


“From what hath already been said it must appear, that as a free people we could not be bound by arbitrary edicts of the prince, that by still stronger reasons we could not be bound by the more arbitrary edicts of our fellow subjects; and of consequence, that altho' the prince and our fellow subjects should join against us whatever force they might acquire, they could acquire no right by the union. But it will appear also, that we had on every principle a right to become independent, particularly if the crown should violate those contracts which formed the basis of an union.”

Thursday, January 26, 2012

Liberty, Part IX

More from Nathaniel Chipman's Sketches of the Principles of Government:

“To the security of this right, certain regulations, as to the modes and conditions of enjoying the secondary rights, or in other words, of holding property, are necessary. Not, indeed, as to the quantity, but the freedom of acquisition, use, and disposal. To give to any individual, or class of men, a monopoly, an exclusive right of acquisition in those things, which nature has made the subjects of property, to perpetuate, and render them unalienable in their hands, is an exclusion of the rights of others. It is a violation of the equal rights of man.”

“If we make equality of property necessary in a society, we must employ force, against both the industrious and the indolent. On the one hand, the industrious must be restrained, from every exertion, which may exceed the power, or inclination of common capacities; on the other hand, the indolent must be forcibly stimulated to common exertions. This would be acting the fable of Procrustes, who, by stretching, or lopping to his iron bedstead, would reduce every man to his own standing and length.”

“If this method should be deemed ineligible, the only alternative will be, either by open violence, or the secret fraud of the law, to turn a certain portion of the well-earned acquisitions of the vigilant and industrious, to the use of the indolent and neglectful.”

“Guarantee to every man, the full enjoyment of his natural rights. Banish all exclusive privileges; all perpetuities of riches and honors. Leave free the acquisition and disposal of property to supply the occasions of the owner, and to answer all claims of right both of the society, and of individuals. To give a stimulus to industry, to provide solace and assistance, in the last helpless stages of life, and a reward for the attentions of humanity, confirm to the owner the power of directing, who shall succeed to his right of property, after his death; but let it be without any limitation, or restraint upon the future use, or disposal. Divert not the consequences of actions, as to the individual actors, from their proper course. Let no preference be given to any one in government, but what his conduct can secure, from the sentiments of his fellow citizens. Of property, left to the disposal of the law, let a descent from parents to children, in equal portions, be held a sacred principle of the constitution. Secure but these, and every thing will flow in the channel intended by nature. The operation of the equal laws of nature, tend to exclude, or correct every dangerous excess. Thus industry will be excited; arts will flourish, and virtuous conduct meet its just reward, the esteem and confidence of mankind. Am I deceived? Or are these the true principles of equality in a democratic republic? Principles, which will secure its prosperity, and, if any thing in this stage of existence can be durable, its perpetual duration.”

Liberty, Part VIII

Nathaniel Chipman (a Justice of the Supreme Court of Vermont, active in the legal profession for approximately the first forty years of the United States Constitution's existence), from his Sketches of the Principles of Government:

“That Man, on entering into civil society, of necessity, sacrifices a part of his natural liberty, has been pretty universally taken for granted by writers on government. They seem, in general, not to have admitted a doubt of the truth of the proposition. One feels as though it was treading on a forbidden ground, to attempt a refutation of what has been advanced by a Locke, a Beccari, and some other eminent writers and statesmen.”

“The abovementioned writers, and after them, the learned Judge Blackstone, have asserted, that man, on entering into society, sacrifices a part of his natural rights, a part of his natural liberty, the better to secure the remainder. They speak of it as arising from the original laws of his nature, and the necessary nature of civil institutions. The position sounds very harsh, that, to the enjoyment of civil society, man must give up a part of his natural liberty; but it is always closed with this consolation, that, he, thereby, gains a greater security for the remainder, and is, in point of happiness, a great gainer by the exchange. The pursuit and attainment of happiness, is agreeable to the laws of man’s nature, and dictated by them. If this be true, is it not sufficient to suggest a doubt, whether the state, in which that end is most perfectly answered, be not the true state of nature? Whether those natural rights, which are said to be given up, the principal of which, are, the right of judging in his own cause, and of taking satisfaction, or rather revenge, at his pleasure, are rights, which any man is qualified to exercise, in all cases, consistently with his own happiness, or that of others? Whether, in an unimproved state of society, the infancy of the human powers and faculties, an incapacity of developing the whole laws of his nature, and consequently, of carrying them into full effect, these rights are not given to man, as a temporary provision of necessity? And that, when he is arrived at a maturity to be capable of civil combinations, and a better provision for carrying into effect the laws of his social nature, as far as such provision can be made, they cease to the individual of course? It surely affords a much more agreeable reflection to suppose, that, arising from human nature, taking in a capacity for improvement, which makes a part of the constitution, there is no such opposition between natural and civil rights. That, in some governments, men are deprived of their natural rights, is true; but it is equally true, and equally comprehensive to say, they are deprived of their civil rights. Such governments, either in their constitution, or administration; from weakness on the one side, corruption or wickedness on the other, have deviated from the true principles of nature.”

“The Americans should know, from experience, that little more is necessary to the discovery of the coincidence of natural and civil rights, than the removal of ancient prejudices, or to their reconcilement in practice, than the removal of powers and biasses not warranted by the laws of nature. From the progress, which has already been made, they have good reason to believe, that the weaknesses only, which are incident to human nature, not any opposition of principles, prevent the attainment of this end in the highest perfection.”

“When we speak of the liberty common to man, liberty, and a right to act, are convertible terms. Man has a natural, that is, a mere physical power, to injure both himself and others. But is liberty to do this accorded to him by the laws of his nature? That is, a right to do wrong. Power, and liberty, are not of equal extent in signification. Power is, in a strict sense, that, by which we are enabled to exercise our liberty; not the liberty itself, when considered as a right. In a larger sense, it comprehends, both the right, and the power. Civil liberty is generally taken in this sense. It will not be suggested, that liberty and moral obligation are at variance. I think, therefore, it will be more just to say, that, liberty of action, common to sensible beings, is limited by their natural powers, by the obligations of morality, in a word, by the laws of their whole nature. To give up the performance of any action, which is forbidden by the laws of moral and social nature, cannot be deemed a sacrifice.”

“It may be said, that all men have a right, individually, to pursue their own interest and happiness; and that, in the commerce of civil society, there will arise oppositions, which will, frequently, oblige one to sacrifice his interest, or happiness, to that of another. I answer, 1. The more men are found in a state of individual independence, and the less they direct their conduct by mutual laws, the more frequently, will such oppositions arise, and sacrifices necessarily be made, and that under circumstances of violence. – 2. Man, as a being, sociable by the laws of his nature, has no right to pursue his own interest, or happiness, to the exclusion of that of his fellow men. – 3. The laws resulting from the reciprocal social relations of men, dictate, that, when, from a want of foresight, or from the nature of the objects of the pursuit, an opposition arises, there should be an amicable compromise. Beyond this, nature may have given power, but she has accorded no liberty, no right to man.”

“Rights may be divided into general, or primary, and particular, or secondary rights. General rights are, first, those which purely the rights of the mind, or intellectual rights. These can never justly be subject to civil regulations, or to the control of external power. Secondly, a right to use our own powers and faculties, natural and acquired for our own convenience and happiness. The use, however, must be in a just compromise with the convenience and happiness of others, agreeably to the laws of social nature, and such combinations and regulations, as are clearly derived from those laws. Under the last head, comes the general right of making acquisitions. The exercise of this right, therefore, is subject to particular modifications. Particular rights are found in certain relations to something external. They are the title, which a man derives from the exercise of his powers and faculties, in any just and lawful mode of appropriation, to the exclusive enjoyment of those things, which he has brought within his general right of acquisition. The general right of acquisition, is the foundation of particular rights. The latter are derived from the former. They do not stand in opposition, but in perfect harmony. Without the particular right, by which men are secured in the enjoyment of their several acquisitions, a general right to acquire would be of no avail. The general rights, however a part of them, to render them universally reciprocal in society, may be subjected to certain modifications, can never be abridged, or suffer any diminution, either directly or by consequence. Particular rights exist in certain relations between a man and particular subjects. These relations are liable to various alterations and modifications.”

“Some of the most eminent writers on government, have supposed an equality of property, as well as of rights to be necessary in a republic. They have, therefore, prescribed limits to individual acquisition. The Reason given is, that riches give power to those who possess them, and that those who possess power, will always abuse it to the oppression of others. If this be a good reason for limiting the acquisition of riches, there is equal reason for limiting the improvement of bodily strength and mental abilities. Such a step would be an abridgement of the primary rights of man, and counteract almost all the laws of his nature.”

“We have just now enquired into the nature of equality among men, and have seen in what it consists; a free and equal enjoyment of the primary rights, which are, the intellectual rights, and the right which men have of using their powers and faculties, under certain reciprocal modifications, for their own convenience and happiness. The equality necessary in a republic, requires nothing more, than this equality of primary rights.”

Wednesday, January 25, 2012

Liberty, Part VII

“[T]he legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them: for all power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security. And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators, whenever they shall be so foolish, or so wicked, as to lay and carry on designs against the liberties and properties of the subject: for no man or society of men, having a power to deliver up their preservation, or consequently the means of it, to the absolute will and arbitrary dominion of another; when ever any one shall go about to bring them into such a slavish condition, they will always have a right to preserve, what they have not a power to part with; and to rid themselves of those, who invade this fundamental, sacred, and unalterable law of self-preservation, for which they entered into society. And thus the community may be said in this respect to be always the supreme power, but not as considered under any form of government, because this power of the people can never take place till the government be dissolved.”

-John Locke

Tuesday, January 24, 2012

Liberty, Part VI

John Locke, concerning even "absolute" power being limited to serving the purposes which make it necessary:

“And to let us see, that even absolute power, where it is necessary, is not arbitrary by being absolute, but is still limited by that reason, and confined to those ends, which required it in some cases to be absolute, we need look no farther than the common practice of martial discipline: for the preservation of the army, and in it of the whole common-wealth, requires an absolute obedience to the command of every superior officer, and it is justly death to disobey or dispute the most dangerous or unreasonable of them; but yet we see, that neither the serjeant, that could command a soldier to march up to the mouth of a cannon, or stand in a breach, where he is almost sure to perish, can command that soldier to give him one penny of his money; nor the general, that can condemn him to death for deserting his post, or for not obeying the most desperate orders, can yet, with all his absolute power of life and death, dispose of one farthing of that soldier's estate, or seize one jot of his goods; whom yet he can command any thing, and hang for the least disobedience; because such a blind obedience is necessary to that end, for which the commander has his power, viz. the preservation of the rest; but the disposing of his goods has nothing to do with it.”

Monday, January 23, 2012

Liberty, Part V

“[W]e must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending on the will of any other man.”

“A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal amongst another without subordination or subjection, unless the lord and master of them all, should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.”

“This equality of men by nature, the judicious Hooker looks upon as so evident in itself, and beyond all question, that he makes it the foundation of that obligation to mutual love amongst men, on which he builds the duties they owe one another, and from whence he derives the great maxims of justice and charity....”

“The state of nature has a law of nature to govern it, which belongs to everyone; and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions...there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for ours.”


“[W]herever violence is used, and injury done, though by hands appointed to administer justice, it is still violence and injury, however coloured with the name, pretences, or forms of law, the end whereof being to protect and redress the innocent, by an unbiased application of it, to all who are under it; wherever that is not bona fide done, war is made upon the sufferers, who having no appeal on earth to right them, they are left to the only remedy in such cases, an appeal to heaven.”

“To avoid this state of war...is one great reason of men’s putting themselves into society, and quitting the state of nature: for where there is an authority, a power on earth, from which relief can be had by appeal, there the continuance of the state of war is excluded, and the controversy is decided by that power...”

“The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule. The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the common wealth; nor under the dominion of any will, or restraint of the law, but what that legislative shall enact, according to the trust put in it.”

“[F]reedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature.”

“This freedom from absolute, arbitrary power, is so necessary to, and closely joined with a man’s preservation, that he cannot part with it, but by what forfeits his preservation and life together: for a man, not having the power of his own life, cannot, by compact, or his own consent, enslave himself to any one, nor put himself under the absolute power of another, to take away his life when he pleases. No body can give more power than he has himself; and he that cannot take away his own life, cannot give another power over it.”


“So that, however it may be mistaken, the end of law is not to abolish or restrain, but to preserve and enlarge freedom: for in all the states of created beings capable of laws, where there is no law, there is no freedom: for liberty is, to be free from restraint and violence from others; which cannot be, where there is no law: but freedom is not, as we are told, a liberty for every man to do what he lists: (for who could be free, when every other man’s humour might domineer over him?) but a liberty to dispose, and order as he lists, his person, actions, possession, and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.”

“Thus we are born free, as we are born rational; not that we have actually the exercise of either: age, that brings one, brings with it the other too.”


“First, it is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person, or assembly, which is legislator, it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community: for no body can transfer to another more power than he has in himself; and no body has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. A man, as has been proved, cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature has given him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the common-wealth, and by it to the legislative power, so that the legislative can have no more than this. Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power, that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects. The obligations of the law of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to inforce their observation. Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men’s actions, must, as well as to their own and other men’s actions, be conformable to the law of nature, i.e. to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction can be good, or valid against it.”

-John Locke

Liberty, Part IV

“XV. Natural liberty is the right which nature gives to all mankind of disposing of their persons and property, after the manner they judge most convenient to their happiness, on condition of their acting within the limits of the law of nature, and of their not abusing it to the prejudice of other men. To this right of liberty there is a reciprocal obligation corresponding, by which the law of nature binds all mankind to respect the liberty of other men, and not to disturb them in the use they make of it, so long as they do not abuse it.”

“XVI. The laws of nature are therefore the rule and measure of liberty; and in the primitive and natural state, mankind have no liberty but what the laws of nature give them; for which reason it is proper to observe here, that the state of natural liberty is not that of an intire independence. In this state, men are indeed independent with regard to one another, but they are all in a state of dependance on God and his laws. Independence, generally speaking, is a state unsuitable to man, because by his very nature he holds it of a superior.”

“XVII. Liberty and independence of any superior, are two very different things, which must not be confounded. The first belongs essentially to man, the other cannot suit him. And so far is it from being true, that human liberty is of itself inconsistent with dependence on a sovereign and submission to his laws, that, on the contrary, it is this power of the sovereign, and the protection which men derive from thence, that forms the greatest security of their liberty.”

“XVIII. This will be still better understood when recollecting what we have already settled, when speaking of natural liberty. We have shewn that the restrictions which the law of nature makes to the liberty of man, far from diminishing or subverting it, on the contrary constitutes its perfection and security. The end of natural laws is not so much to restrain the liberty of man, as to make him act agreeably to his real interests; and moreover, as these very laws are a check to human liberty, in whatever may be of pernicious consequence to others, it secures, by these means, to all mankind, the highest, and the most advantageous degree of liberty they can reasonably desire.”


“XXIII. Civil liberty is therefore, in the main, nothing more than natural liberty, divested of that part of it which formed the independence of individuals, by the authority which they have conferred on their sovereign.”

“XXIV. This liberty is still attended with two considerable advantages, which natural liberty is not. The first is, the right of insisting that their sovereign shall make a good use of his authority, agreeable to the purposes for which he was intrusted with it. The second is the security which prudence requires that the subjects should reserve to themselves for the execution of the former right, a security absolutely necessary, and without which the people can never enjoy any solid liberty.”

“XXV. Let us therefore conclude, that to give an adequate definition of civil liberty, we must say, that it is natural liberty itself, divested of that part, which constituted the independence of individuals, by the authority which it confers on sovereigns, and attended with a right of insisting on his making a good use of his authority, and with a moral security that this right will have its effect.”

-Jean-Jacques Burlamaqui

Liberty, Part III

“In the first place, Right is frequently taken for a personal quality, for a power of acting or faculty. It is thus we say, that every man has a right to attend to his own preservation; that a parent has a right to bring up his children; that a sovereign has a right to levy troops for the defence of the state, &c. In this sense we must define Right, a power that man hath to make use of his liberty and a natural strength in a particular manner, either in regard to himself, or in respect to other men, so far as this exercise of his strength and liberty is approved by reason. Thus, when we say that a father has a right to bring up his children, all that is meant hereby is, that reason allows a father to make use of his liberty and natural force in a manner suitable to the preservation of his children, and proper to cultivate their understandings, and to train them up in the principles of virtue. In like manner, as reason gives its approbation to the sovereign in whatever is necessary for the preservation and welfare of the state, it particularly authorises him to raise troops and bring armies into the field, in order to oppose an enemy; and in consequence hereof we say he has a right to do it. But, on the contrary, we affirm, that a prince has no right, without a particular necessity, to drag the peasant from the plough, or to force poor tradesmen from their families; that a father has no right to expose his children, or to put them to death, &c, because these things, far from being approved, are expressly condemned by reason.”


“We must not therefore confound a simple power with right. A simple power is a physical quality; it is a power of acting in the full extent of our natural strength and liberty: but the idea of right is more confined. This includes a relation of agreeableness to a rule which modifies the physical power, and directs its operations in a manner proper to conduct man to a certain end.”


“The main point is to distinguish here between physical and moral; and it seems that the word right, as Puffendorf himself insinuates, is fitter of itself than power, to express the moral idea. In short, the use of our faculties becomes a right, only so far as it is approved by reason, and is found agreeable to this primitive rule of human actions. And whatever a man can reasonably perform, becomes in regard to him a right, because reason is the only means that can conduct him in a short and sure manner to the end he proposes. There is nothing therefore arbitrary in these ideas; they are borrowed from the very nature of things, and if we compare them to the foregoing principles, we shall find they flow from thence as necessary consequences.”


“[W]e are to observe, that when reason allows a man to make a particular use of his strength and liberty, or, which is the same thing, when it acknowledges he has a particular right; it is requisite, by a very natural consequence, that in order to ensure this right to man, he should acknowledge at the same time, that other people ought not to employ their strength and liberty in resisting him in this point; but on the contrary, that they should respect his right, and assist him in the exercise of it, rather than do him any prejudice. From thence the idea of obligation naturally arises, which is nothing more than a restriction of natural liberty produced by reason; inasmuch as reason does not permit an opposition to be made to those who use their right, but on the contrary it obliges every body to favour and abet such as do nothing but what it authorises, rather than oppose or traverse them in the execution of their lawful designs.”


“[R]ights are perfect, or imperfect. Perfect rights are those which may be asserted in rigour, even by employing force to obtain the execution, or to secure the exercise thereof in opposition to all those who should attempt to resist or disturb us. Thus reason would impower us to use force against anyone that would make an unjust attack upon our lives, our goods, or our liberty. But when reason does not allow us to use forcible methods, in order to secure the enjoyment of the rights it grants us, then these rights are called imperfect. Thus, notwithstanding reason authorises those, who of themselves are destitute of means of living, to apply for succour to other men; yet they cannot, in case of refusal, insist upon it by force, or procure it by open violence. It is obvious, without our having any occasion to mention it here, that obligation answers exactly to right, and is more or less strong, perfect, or imperfect, according as right itself is perfect or imperfect.”

-Jean-Jacques Burlamaqui

Liberty, Part II

“[W]hat is the political struggle that we witness? It is the instinctive struggle of all people toward liberty. And what is this liberty, whose very name makes the heart beat faster and shakes the world? Is it not the union of all liberties—liberty of conscience, of education, of association, of the press, of travel, of labor, of trade? In short, is not liberty the freedom of every person to make full use of his faculties, so long as he does not harm other persons while doing so? Is not liberty the destruction of all despotism—including, of course, legal despotism? Finally, is not liberty the restricting of the law only to its rational sphere of organizing the right of the individual to lawful self-defense; of punishing injustice?”


“Once and for all, liberty is not only a mere granted right; it is also the power granted to a person to use and to develop his faculties under a reign of justice and under the protection of the law. And this is no pointless distinction; its meaning is deep and its consequences are difficult to estimate. For once it is agreed that a person, to be truly free, must have the power to use and develop his faculties, then it follows that every person has a claim on society for such education as will permit him to develop himself. It also follows that every person has a claim on society for tools of production, without which human activity cannot be fully effective. Now by what action can society give to every person the necessary education and the necessary tools of production, if not by the action of the state?”


Liberty, Part I of Many

One of the difficulties that friends of liberty have had to work to overcome is the idea -- which I believe is a mistake -- that liberty is difficult to definitively define, understand, and communicate.  There seems to be a sense that liberty can refer to a great range of concepts, and that insisting on a right to liberty is no more meaningful than is insisting on a right to "goodness," for example.  While some of us have in mind the idea that I believe is set forth very clearly in the Monticello Statement, below, which I edited together by arranging Thomas Jefferson quotes, other people think that liberty is more or less a synonym for "ability" or "power," and that if a person does not have the resources to do something (to travel, to buy something, to get an education, or anything else), he is not free to do it.  Then, of course, there is former Senator Rick Santorum's well-meaning but grotesque brand of freedom and liberty, which specifically repudiates the idea that they involve the "right to be left alone" or to make choices "irrespective of the choice" -- the false "freedom" to obey him (and people who agree with him, but presumably not people who disagree with him).

So long as those definitions of "freedom" or "liberty" are seen as legitimate alternatives to the correct one, we will find it unnecessarily difficult to assert and successfully defend the Right to Liberty.  People will respond, "Whose idea of liberty?," or they may even suggest that it is too elusive to be insisted upon as a morally or legally binding right.  (In a limited sense, it is acknowledged as a legally binding right, but, of course, legislatures are not generally precluded from intruding upon this right.)  We will get nowhere.

My purpose in posting the following series of posts on liberty is to demonstrate that it is not such difficult idea to definitively and meaningfully define, and that there was substantial agreement on its meaning in the past, particularly within a century (in either direction) of the ordinance and establishment of the United States Constitution, even though this did not always result in the right to liberty being respected.

Tuesday, January 17, 2012

Edmund Burke, Concerning Representation

"When we know, that the opinions of even the greatest multitudes, are the standard of rectitude, I shall think myself obliged to make those opinions the masters of my conscience. But if it may be doubted whether Omnipotence it self is competent to alter the essential constitution of right and wrong, sure I am, that such things, as they and I, are possessed of no such power. No man carries further than I do the policy of making government pleasing to the people. But the widest range of this politic complaisance is confined within the limits of justice. I would not only consult the interest of the people, but I would cheerfully gratify their humours. We are all a sort of children that must be soothed and managed. I think I am not austere or formal in my nature. I would bear, I would even myself play my part in, any innocent buffooneries, to divert them. But I never will act the tyrant for their amusement. If they will mix malice in their sports, I shall never consent to throw them any living, sentient, creature whatsoever, no, not so much as a killing, to torment."

Wednesday, January 4, 2012

An Expanded Monticello Statement

By Thomas Jefferson (paragraph by paragraph)
Collected and arranged by Karl Born, December 15, 2011, updated January 4, 2012

We hold these truths to be sacred & undeniable:

That all Men are created equal & independent; 
That from that equal creation they derive in rights inherent & inalienable, among which are the preservation of life, & liberty, & the pursuit of happiness; 
That to secure these ends, governments are instituted among men, deriving their just powers from the consent of the governed;

That whenever any form of government shall becomes destructive of these ends, it is the right of the people to alter or abolish it, & to institute new government, laying its foundation on such principles, & organizing its powers in such form, as to them shall seem most likely to effect their safety & happiness.
 Prudence, indeed, will dictate that governments long established should not be changed for light & transient causes; and, accordingly, all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed; but when a long train of abuses & usurpations, pursuing invariably the same object, evinces a design to subject them to arbitrary power, it is their right, it is their duty, to throw off such government, & to provide new guards for their future security.

We consider society as one of the natural wants with which man has been created;
That he has been endowed with faculties and qualities to effect its satisfaction by concurrence of others having the same want;  
That when, by the exercise of these faculties, he has procured a state of society, it is one of his acquisitions which he has a right to regulate and control, jointly indeed with all those who have concurred in the procurement, whom he cannot exclude from its use or direction more than they him. …  
That morality, compassion, generosity, are innate elements of the human constitution; 
That there exists a right independent of force; 
That a right to property is founded in our natural wants, in the means with which we are endowed to satisfy these wants, and the right to what we acquire by those means without violating the similar rights of other sensible beings; 
That no one has a right to obstruct another, exercising his faculties innocently for the relief of sensibilities made a part of his nature; 
That justice is the fundamental law of society; 
That the majority, oppressing an individual, is guilty of a crime, abuses its strength, and by acting on the law of the strongest breaks up the foundations of society; [and] 
That action by the citizens in person, in affairs within their reach and competence, and in all others by representatives, chosen immediately, and removable by themselves, constitutes the essence of a republic.
No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him: every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should enforce on him: and, no man having a natural right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third. When the laws have declared and enforced all this, they have fulfilled their functions, and the idea is quite unfounded, that on entering into society we give up any natural right.

Under the law of nature, all men are born free, every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given him by the author of nature, because necessary for his own sustenance.

If we are made in some degree for others, yet in a greater, are we made for ourselves. It were contrary to feeling and, indeed, ridiculous to suppose that a man had less right in himself than one of his neighbors, or indeed, all of them put together. This would be slavery, and not that liberty which the bill of rights has made inviolable, and for the preservation of which our government has been charged. Nothing could so completely divest us of that liberty as the establishment of the opinion, that the State has a perpetual right to the services of all its members. This, to men of certain ways of thinking, would be to annihilate the blessing of existence, and to contradict the Giver of life, who gave it for happiness and not for wretchedness. And certainly, to such it were better that they had never been born.

The God who gave us life gave us liberty at the same time; the hand of force may destroy, but cannot disjoin them.