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.”