Wednesday, February 29, 2012

Liberty, Part XLIII

“XX. As they were perpetually divided by contentions, the strongest oppressed the weakest; they possessed nothing with tranquility; they enjoyed no repose: and what we ought particularly to observe is, that all these evils were owing chiefly to that very independence which mankind were possessed of in regard to each other, and which deprived them of all security of the exercise of their liberty; insomuch that by being too free, they enjoyed no freedom at all; for freedom there can be none, when it is not subject to the direction of laws.” -Jean-Jacques Burlamaqui

This is true in that unbounded freedom (but not rightful freedom) tends to negate freedom, including rightful freedom.

Tuesday, February 28, 2012

Liberty, Part XLII

Jean Jacques Burlamaqui:

“This supposes naturally the three following conditions. 1. That the things ordained by the law be possible to fulfil; for it would be folly, and even cruelty, to require of any person, under the least commination of punishment, whatever is and always has been above his strength. The law must be of some utility; for reason will never allow any restraint to be laid on the liberty of the subject, merely for the sake of the restraint, and without any benefit or advantage arising to him. 3. In fine, the law must be in itself just; that is, conformable to the order and nature of things, as well as to the constitution of man: this is what the very idea of rule requires, which, as we have already observed, is the same as that of law.”

“To these three conditions, which we may call internal characteristics of law, namely, that it be possible, just, and useful, we may add two other conditions, which in some measure are external; one, that the law be made sufficiently known; the other, that it be attended with a proper sanction.”

Monday, February 27, 2012

Liberty, Part XLI

Algernon Sydney:

“Is it possible that he who is instituted for the obtaining of justice, should claim the liberty of doing injustice as a privilege?”

“The creature having nothing, and being nothing but what the Creator makes him, must owe all to him, and nothing to any one from whom he has received nothing. Man therefore must be naturally free, unless he be created by another power than we have yet heard of.”

“This liberty therefore must continue, till it be either forfeited or willingly resigned. The forfeiture is hardly comprehensible in a multitude that is not entered into any society; for as they are all equal, and ‘equals can have no right over each other,’ no man can forfeit any thing to one who can justly demand nothing, unless it may be by a personal injury, which is nothing to this case...”

“’Tis agreed by mankind, that subjection and protection are relative; and that he who cannot protect those that are under him, in vain pretends to a dominion over them. The only ends for which governments are constituted, and obedience render’d to them, are the obtaining of justice and protection; and they who cannot provide for both, give the people a right of taking away such ways as best please themselves, in order to their own safety.”

Sunday, February 26, 2012

Liberty, Part XL

Algernon Sydney, continued:

“[T]he law, which being, as I said before, Sanctio Recta, must be founded upon that eternal principle of reason and truth, from whence the rule of justice which is sacred and pure ought to be deduced, and not from the depraved will of man, which fluctuating according to the different interests, humours, and passions that at several times reign in several nations, one day abrogates what had been enacted the other. The sanction therefore that deserves the name of a law, ‘which derives not its excellency from antiquity, or from the dignity of legislators, but from an intrinsic equity and justice’ ought to be made in pursuance of that universal reason to which all nations at all times owe an equal veneration and obedience.”


“The usurpation of them can be no less than the most abominable and outrageous violation of the laws of nature that can be imagined: the laws of God must be in the like measure broken; and of all governments, democracy, in which every man’s liberty is least restrained, because every man hath an equal part, would certainly prove to be the most just, rational, and natural; whereas our author represents it as a perpetual spring of disorder, confusion, and vice.”


“He that inquires more exactly into the matter may find, that reason injoins every man not to arrogate to himself more than he allows to others, nor to retain that liberty which will prove hurtful to him; or to expect that others will suffer themselves to be restrained, whilst he, to their prejudice, remains in the exercise of that freedom which nature allows. He who would be exempted from this common rule, must shew for what reason he should be raised above his brethren; and, if he do not, he is an enemy to them.”

Saturday, February 25, 2012

Liberty, part XXXIX

Algernon Sydney:

“No man comes to command many, unless by consent or by force.”


“Tis hard to comprehend how one man can come to be master of many, equal to himself in right, unless it be by consent or by force. If by consent, we are at an end of our controversies; Governments, and the magistrates that execute them, are created by man. They who give a being to them, cannot but have a right of regulating, limiting, and directing them as best pleaseth themselves; and all our author’s assertions concerning the absolute power of one man, fall to the ground; if by force, we are to examine how it can be possible or justifiable.”


“No man can justly impose any thing on those who owe him nothing.”


“All mankind must inherit the right [to rule], to which every one hath an equal title; and that which is dominion, if in one, when ‘tis equally divided among all men, is that universal liberty which I assert.”

Friday, February 24, 2012

Liberty, Part XXXVIII

To help to conclude this series on liberty, here are a few relevant lines from Young Americans for Freedom's Sharon Statement, from 1960:

"THAT foremost among the transcendent values is the individual's use of his God-given free will, whence derives his right to be free from the restrictions of arbitrary force;

"THAT liberty is indivisible, and that political freedom cannot long exist without economic freedom;

"THAT the purpose of government is to protect those freedoms through the preservation of internal order, the provision of national defense, and the administration of justice;

"THAT when government ventures beyond these rightful functions, it accumulates power, which tends to diminish order and liberty...."

Thursday, February 23, 2012

Liberty, Part XXXVII

I have now posted most of the quotes from my collection concerning the concept of liberty.  Generally, they either tend to define its rightful scope or its rightful limits (or how far government can rightfully act against it), but I occasionally included related information concerning, for example, the historic importance of liberty to the laws of England (at least as a goal).

I admit, if it qualifies as an admission, that my collection of quotes is, in some way, selective.  In reading these books, I only took notes on parts that I thought were of value.  More senseless views of freedom than those that I have reported to you over this past month have been omitted.  However, I think that together, they communicate something other than simply my own bias toward a certain perspective on freedom.  This was no narrow, carefully-picked selection of obscure authors.  Most of these authors were well-known and influential not only in their own times but in later times, as well, or were otherwise well-established, in matters of philosophy, government, and law.  A few could well be described as "legendary," without hyperbole.  Their ideas about liberty varied, somewhat, but the similarity provides whatever demonstration was needed that liberty is a particular, definite thing, not something either subjective or mysterious.

Wednesday, February 22, 2012

Liberty, Part XXXVI

John Stuart Mill, Continued:

“SUCH being the reasons which make it imperative that human beings should be free to form opinions, and to express their opinions without reserve; and such the baneful consequences to the intellectual, and through that to the moral nature of man, unless this liberty is either conceded, or asserted in spite of prohibition; let us next examine whether the same reasons do not require that men should be free to act upon their opinions—to carry these out in their lives, without hindrance, either physical or moral, from their fellow-men, so long as it is at their own risk and peril. This last proviso is of course indispensable. No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard. Acts, of whatever kind, which, without justifiable cause, do harm to others, may be, and in the more important cases absolutely require to be, controlled by the unfavourable sentiments, and, when needful, by the active interference of mankind. The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people. But if he refrains from molesting others in what concerns them, and merely acts according to his own inclination and judgment in things which concern himself, the same reasons which show that opinion should be free, prove also that he should be allowed, without molestation, to carry his opinions into practice at his own cost. That mankind are not infallible; that their truths, for the most part, are only half-truths; that unity of opinion, unless resulting from the fullest and freest comparison of opposite opinions, is not desirable, and diversity not an evil, but a good, until mankind are much more capable than at present of recognising all sides of the truth, are principles applicable to men's modes of action, not less than to their opinions.”


“In maintaining this principle, the greatest difficulty to be encountered does not lie in the appreciation of means towards an acknowledged end, but in the indifference of persons in general to the end itself. If it were felt that the free development of individuality is one of the leading essentials of wellbeing ; that it is not only a co-ordinate element with all that is designated by the terms civilization, instruction, education, culture, but is itself a necessary part and condition of all those things; there would be no danger that liberty should be undervalued, and the adjustment of the boundaries between it and social control would present no extraordinary difficulty. But the evil is, that individual spontaneity is hardly recognized by the common modes of thinking, as having any intrinsic worth, or deserving any regard on its own account. The majority, being satisfied with the ways of mankind as they now are (for it is they who make them what they are), cannot comprehend why those ways should not be good enough for everybody; and what is more, spontaneity forms no part of the ideal of the majority of moral and social reformers, but is rather looked on with jealousy, as a troublesome and perhaps rebellious obstruction to the general acceptance of what these reformers, in their own judgment, think would be best for mankind.”


“How much of human life should be assigned to individuality, and how much to society? Each will receive its proper share, if each has that which more particularly concerns it. To individuality should belong the part of life in which it is chiefly the individual that is interested; to society, the part which chiefly interests society.”

Tuesday, February 21, 2012

Liberty, Part XXXV

John Stuart Mill:

“The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others.”

“This, then, is the appropriate region of human liberty. It comprises, first, the inward domain of consciousness; demanding liberty of conscience, in the most comprehensive sense; liberty of thought and feeling ; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but, being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it. Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow-creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong. Thirdly, from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived.”

“No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified. The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.”

Monday, February 20, 2012

Liberty, Part XXXIV

This is not what I would consider to be one of the right answers (as excellent as he and his work generally seem to have been), but here is Henry Campbell Black's idea of the "police power" of a state, which is often understood and treated in such a way as to make it a major threat to the right to liberty, instead of the protection that it was meant to be:

“It has sometimes been held that if a statute, in the judgment of the court, was contrary to the principles of natural justice, or the general spirit of the constitution, or the maxims of republican government, or the principles of right and liberty supposed to lie at the base of all institutions in a free country, it was the duty of the court to pronounce it invalid. But the prevailing opinion at the present day is that there is no such power in the courts. The legislature of a state possesses the power to pass any and every law, on any and every subject, which does not amount to an encroachment upon the province of either of the other departments and is not in conflict with the express terms of either the federal or state constitution. Consequently, one who objects to the validity of an act of the legislature must be able to point out the specific prohibition, requirement, or guaranty which it violates. If this cannot be done, the act is valid. Natural justice, the principles of republican government, and the equal rights of men are supposed to be adequately guarantied, in this country, by the express provisions of the constitutions. If they are not, the constitutions are at fault ; but that is no limitation upon the legislative power.”

However, the following tends to demonstrate that natural law (which has nothing to do with a state of nature, other than in that it would have existed even in a state of nature) was not one of Black's areas of expertise:

“It was formerly the custom to use this term as designating certain rights which were supposed to belong to man by the ‘law of nature’ or ‘in a state of nature.’ But clearer modern thought has shown that the ‘state of nature’ assumed by the older writers is historically unverifiable and inadequate to account for the origin of rights. Even in savagery there is a rudimentary state. The law of physical nature recognizes no equality of rights; its rule is the survival of the fittest. In a state of nature, such as was once supposed, there could be no right but might, no liberty but the superiority of force and cunning. In reality, the only true state of nature is a civil state, or at least a social state. But it is permissible to use the phrase ‘natural rights’ as descriptive of those rights which grow out of the nature of man and depend upon personality, as distinguished from such as are created by law and depend upon civilized society. Examples of these natural rights are the right to life, which includes not merely the right to exist, but also the right to all such things as are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual, and the right of liberty, which includes not only freedom from physical restraint, but also the unhindered enjoyment of all his faculties in all lawful ways.”

Presumably, his law dictionary is more reliable.

Sunday, February 19, 2012

Liberty, Part XXXIII

W. B. Odgers, 1920:

“Every citizen enjoys the right of personal liberty; he is entitled to stay at home or walk abroad at his pleasure without interference or restraint from others. Any confinement or detention, for which no legal justification can be shown, is a ‘false imprisonment.’ Ancillary to the right of personal security is the right of self-defence. Every man may repel unlawful force by force; and this whether such unlawful force be directed against himself or against his wife, child or servant, and probably if it be directed against any weak or helpless stranger.

“Again, every one who is inside a house is entitled to use force to prevent the forcible entry into that house of any one who has no right to enter it. ‘Every man's house is his castle.’ This right is not confined to the occupier of the house or even to his family or servants. Any stranger, who is lawfully present in the house, may exercise this right.”

Saturday, February 18, 2012

Liberty, Part XXXII

Thomas Cooley, on liberty and the police power, continued:

“The Police Power. — The authority to establish, for the intercourse of the several members of the body politic with each other, those rules of good conduct and good neighborhood which are calculated to prevent a conflict of rights and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a corresponding enjoyment by others, is usually spoken of as the authority or power of police. This is a most comprehensive branch of sovereignty, extending as it does to every person, every public and private right, everything in the nature of property, every relation in the State, in society, and in private life. The use of the public highways is regulated under it; so are the public fisheries and mines if any, and so are all the occupations of life. The domestic relations are formed, regulated, sustained, and dissolved under the rules it prescribes: the age at which a child becomes emancipated, the terms under which he may be allowed to apprentice himself or be forced by the public authorities to do so, and the measure of independent action in the marriage relation, are all determined by its rules. These rules seldom raise any question of constitutional authority, but it is possible for them to be pushed to an extreme that shall deny just liberty.”

“Employment. — The general rule is that every person sui juris has a right to choose his own employment, and to devote his labor to any calling, or at his option to hire it out in the service of others. This is one of the first and highest of all civil rights, and any restrictions that discriminate against persons or classes are inadmissible. The right to reside in a country implies the right to labor there, and therefore if by treaty with a foreign country its people are given the liberty to reside in this, no State can have the right to forbid their employment, as this would be in conflict with the rights given by the treaty.

“Employments are nevertheless subject to control under the state power of police, and may be regulated in various ways, and to some extent restricted."

Again, I do not agree with everything that Cooley wrote, particularly concerning the police power, but I do think that what he wrote is informative and contributes something of value to a complete view of the nature and operation of the right to liberty.

Friday, February 17, 2012

Liberty, Part XXXI

Thomas Cooley:

“The comprehensive word is liberty; and by this is meant, not merely freedom to move about unrestrained, but such liberty of conduct, choice, and action as the law gives and protects. Liberty is sometimes classified as natural liberty, civil liberty, and political liberty. The first term is commonly employed in a somewhat vague and indeterminate sense. One man will perhaps understand by it a liberty to enjoy all those rights which are usually regarded as fundamental, and which all governments should concede to all their subjects; but as it would be necessary to agree what these are, and the agreement could only be expressed in the form of law, the natural liberty, so far as the law could take notice of it, would be found at last to resolve itself into such liberty as the government of every civilized people would be expected by law to define and protect. Another by natural liberty may understand that freedom from restraint which exists before any government has imposed its limitations. But as without government only a savage state could exist, and any liberty would be only that of the wild beast, in which every man would have an equal right to take or hold whatever his agility, courage, strength, or cunning could secure, but no available right to more, it is obvious that a natural liberty of the sort would be inconsistent with any valuable right whatever. A right in any valuable sense can only be that which the law secures to its possessor, by requiring others to respect it, and to abstain from its violation. Rights, then, are the offspring of law; they are born of legal restraints; by these restraints every man may be protected in their enjoyment within the prescribed limits; without them possessions must be obtained and defended by cunning or force.”

I do not think that Cooley was entirely right about this -- the actual freedom of a person may extend to whatever he can get away with, but that is not to say that every person does not have an equal right in his freedom, bounded by the just rights of others, which are themselves bounded in the same way -- but he is right to point out that liberty extends to more than simply freedom of movement.

Thursday, February 16, 2012

Liberty, Part XXX

Christopher Tiedeman, 1886:

“This is the subject of the present work, viz.: The legal limitations upon the police power of American governments, national and State. Where can these limitations be found and in what do they consist? The legislature is clearly the department of the government which can and does exercise the police power, and consequently in the limitations upon the legislative power, are to be found the limitations of the police power. Whether there be other limitations or not, the most important and the most clearly denned are to be found in the national and State constitutions. Whenever an act of the legislature contravenes a constitutional provision, it is void, and it is the duty of the courts so to declare it, and refuse to enforce it. But is it in the power of the judiciary to declare an act of the legislature void, because it violates some abstract rule of justice, when there is no constitutional prohibition? Several eminent judges have more or less strongly insisted upon the doctrine that the authority of the legislature is not absolute in those cases in which the constitution fails to impose a restriction; that in no case can a law be valid, which violates the fundamental principles of free government, and infringes upon the original rights of men, and some of these judges claim for the judiciary, the power to annul such an enactment, and to forbid its enforcement. Judge Chase expresses himself as follows: ‘I cannot subscribe to the omnipotence of a State legislature, or that it is absolute and without control, although its authority should not be expressly restrained by the constitution or fundamental law of the State. The people of the United States erected their constitutions or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. The purposes for which we enter into society, will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it. The nature and ends of of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free republican governments, that no man should be compelled to do what the laws do not require, nor to refrain from acts which the laws permit. There are acts which the Federal or State legislature cannot do, without exceeding their authority. There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law, or to take away that security for personal liberty or private property for the protection whereof the government was established. An act of the legislature (for I cannot call it a law), contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments, established on express compact and on republican principles, must be determined by the nature of the power on which it is founded. ... The legislature may enjoin, permit, forbid and punish; they may declare new crimes, and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong, but they cannot change innocence into guilt, or punish innocence as a crime; or violate the right of an antecedent lawful private contract, or the right of private property. To maintain that our Federal or State legislature possesses such powers, if they had not been expressly restrained, would in my opinion be a political heresy, altogether inadmissible in our free republican governments.’ But notwithstanding the opinions of these eminently respectable judges, the current of authority, as well as substantial constitutional reasoning, is decidedly opposed to the doctrine. It may now be considered as an established principle of American law that the courts, in the performance of their duty to confine the legislative department within the constitutional limits of its power, cannot nullify and avoid a law, simply because it conflicts with the judicial notions of natural right or morality, or abstract justice.’”

“While it is true that the courts have no authority to override the legislative judgment on the question of expediency or abstract justice in the enactment of a law, and if a case, arising under the statute, should come up before them for adjudication, they are obliged by their official oaths to enforce the statute notwithstanding it offends the commonest principles of justice, it is nevertheless true that a law which does not conform to the fundamental principles of free government and natural justice and morality, will prove ineffectual and will become a dead letter. No law can be enforced, particularly in a country governed directly by the popular will, which does not receive the moral and active support of a large majority of the people; and a law, which violates reason and offends against the prevalent conceptions of right and justice, will be deprived of the power necessary to secure its enforcement. The passage of such statutes, however beneficent may be the immediate object of them, will not only fail of attaining the particular end in view, but it tends on the one hand to create in those who are likely to violate them a contempt for the whole body of restrictive laws, and on the other hand, to inspire in those, from whom the necessary moral support is to be expected, a fear and distrust, sometimes hate, of legal restraint which is very destructive of their practical value. And such is particularly the case with police regulations. When confined within their proper limits, viz.: to compel every one to so use his own and so conduct himself as not to injure his neighbor or infringe upon his rights, police regulations should, and usually would, receive in a reasonably healthy community the enthusiastic support of the entire population. There have been, however, so many unjustifiable limitations imposed upon private rights and personal liberty, sumptuary laws, and laws for the correction of personal vice, laws which have in view the moral and religious elevation of the individual against his will, and sometimes in opposition to the dictates of his conscience, (all of which objects, however beneficent they may be, do not come within the sphere of the governmental activity), that the modern world looks with distrust upon any exercise of police power; and however justifiable, reasonable and necessary to the general welfare may be a particular police regulation, it often meets with a determined opposition, and oftener with a death-dealing apathy on the part of those who are usually law-abiding citizens and active supporters of the law.”

Wednesday, February 15, 2012

Liberty, Part XXIX

Fortescue (as translated by A. Amos, 1825), Chapter 42:

"Again, that must needs be judged to be an hard and unjust law, which tends to increase the servitude, and to lessen the liberty of mankind. For 'human nature is evermore an advocate for liberty.'  God Almighty has declared himself the God of liberty: this being the gift of God to man in his creation, the other is introduced into the world by means of his own sin and folly; whence it is, that every thing in nature is so desirous of liberty, as being a sort of restitution to its primitive state. So that to go about to lessen this, is to touch men in the tenderest point: it is upon such considerations as these, that the Laws of England, in all cases, declare in favour of liberty."

Tuesday, February 14, 2012

Liberty, Part XXVIII

Coke on Littleton, 116:

“Libertas est naturalis facultas ejus quod cuique facere libet, nisi quod de jure aut vi prohibetor."

Liberty is that rational faculty which permits every one to do what he is not restrained from doing by law or force.

Monday, February 13, 2012

Liberty, Part XXVII

James Otis, from Rights of the British Colonies Asserted and Proved, 1766:

“The end of government being the good of mankind, points out its great duties: it is above all things to provide for the security, the quiet, and happy enjoyment of life, liberty, and property. There is no one act which a government can have a right to make, that does not tend to the advancement of the security, tranquility and prosperity of the people. If life, liberty and property could be enjoyed in as great perfection in solitude, as in society, there would be no need of government. But the experience of ages has proved that such is the nature of man, a weak, imperfect being; that the valuable ends of life cannot be obtained, without the union and assistance of many. Hence it is clear that men cannot live apart or independent of each other: in solitude men would perish; and yet they cannot live together without contests. These contests require some arbitrator to determine them. The necessity of a common, indifferent and impartial judge, makes all men seek one...”

“Government is founded immediately on the necessities of human nature, and ultimately on the will of God, the author of nature, who has not left it to men in general to chuse, whether they will be members of society or not, but at the hazard of their senses if not of their lives. Yet it is left to every man as he comes of age to chuse what society he will continue to belong to.”

“Government having been proven to be necessary by the law of nature, it makes no difference in the thing to call it from a certain period, civil. This term can only relate to form, to additions to, or deviations from, the substance of government: This being founded in nature, the superstructures and the whole administration should be conformed to the law of universal reason. A supreme legislative and a supreme executive power, must be placed somewhere in every commonwealth: Where there is no other positive provision or compact: to the contrary, those powers remain in the whole body of the people. It is also evident there can be but one best way of depositing those powers; but what that way is, mankind have been disputing in peace and in war more than five thousand years. If we could suppose the individuals of a community, met to deliberate, whether it were best to keep those powers in their own hand?, or dispose of them in trust, the following questions would occur - Whether those two great powers of Legislation and Execution should remain united? If so, whether in the hands of the many, or jointly or severally in the hands of a few, or jointly in some one individual?”

“The same law of nature and of reason is equally obligatory on a democracy, an aristocracy, and a monarchy: Whenever the administrators, in any of those forms, deviate from truth, justice and equity, they verge towards tyranny, and are to be opposed; and if they prove incorrigible, they will be deposed by the people, if the people are not rendered too abject.”

“A Power of legislation, without a power of execution in the same or other hands, would be futile and vain; On the other hand, a power of execution, supreme or subordinate, without an independent legislature, would be perfect despotism.”

“By being or becoming members of society, they have not renounced their natural liberty in any greater degree than other good citizens, and if it is taken from them without their consent they are so far inslaved.”

Sunday, February 12, 2012

Liberty, Part XXVI

James Wilson, continued:

“Liberty, as we have seen on former occasions, is one of the natural rights of man; and one of the most important of those natural rights. This right, as well as others, may be violated; and its violations, like those of other rights, ought to be punished, in order to be prevented. Yet these violations are scarcely discernible in our code of criminal law.”

“This we must ascribe to one of two causes. Either this right has been enjoyed inviolably: or the law has suffered the violations of it to escape with shameful impunity. The latter is the truth: I am compelled to add, that the latter, bad as it is, is not the whole truth. Violations of liberty have not only been overlooked: they have also been protected; they have also been encouraged; they have also been made; they have also been enjoined by the law. I speak this not only concerning the statute law; I am compelled to speak it also concerning the common law of England: I speak this not only concerning the law as it was received in the American States before their revolution; I am compelled to speak it also concerning the law as it is received in them still: I speak this not only concerning the law as it is received generally in the other sister states; I am compelled to speak it also concerning the law as it is received in Pennsylvania: nay, I am farther compelled to speak it also of the law as it is recently received in our national government.”

“Our publick liberty we have indeed secured;—esto perpetua—But, notwithstanding all our boasted improvements—and they are improvements of which we may well boast—the most formidable enemy to private liberty is, at this moment, the law of the land.”

“From the disgrace of these enormities against the rights of liberty, I gladly rescue the character and principles of the common law. The history of the several processes of capias, and orders and rules of commitment will show, when we come to it, that this part of our municipal law is of statute original; and that it was produced in the darkest and rudest, though its existence has continued in the most enlightened and the most refined times.”

“With another part of these enormities against the rights of liberty, however, impartiality obliges me to charge the common law. Man is composed of a soul and of a body. To mental as well as to bodily freedom, he has a natural and an unquestionable right. The former was grossly violated by the common law.”

“But legislators should bear in their minds, and should practically observe—and well persuaded I am, that our American legislators bear in their minds, and, whenever the necessary resettlement of things after a revolution can possibly admit of it, will practically observe, with regard to this interesting subject—the following great and important political maxim:—Every wanton, or causeless, or unnecessary act of authority, exerted, or authorized, or encouraged by the legislature over the citizens, is wrong, and unjustifiable, and tyrannical: for every citizen is, of right, entitled to liberty, personal as well as mental, in the highest possible degree, which can consist with the safety and welfare of the state. ‘Legum’—I repeat it—‘servi sumus, ut liberi esse possimus.’”

Saturday, February 11, 2012

Liberty, Part XXV

James Wilson, largely quoting Edmund Burke:

“In the Analysis of his Commentaries, he mentions ‘the right of personal security, of personal liberty, and of private property’—not as the natural rights, which, I confess, I should have expected, but—as the ‘civil liberties’ of Englishmen. In his Commentaries, speaking of the same three rights, he admits that they are founded on nature and reason; but adds ‘their establishment, excellent as it is, is still human.’ Each of those rights he traces severally and particularly to magna charta, which he justly considers as for the most part declaratory of the principal grounds of the fundamental laws of England. He says indeed, that they are ‘either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to publick convenience; or else those civil privileges, which society has engaged to provide, in lieu of the natural liberties so given up by individuals.’ He makes no explicit declaration which of the two, in his opinion, they are; but since he traces them to magna charta and the fundamental laws of England; since he calls them ‘civil liberties;’ and since he says expressly, that their establishment is human; we have reason to think, that he viewed them as coming under the latter part of his description—as civil privileges, provided by society, in lieu of the natural liberties given up by individuals. Considered in this view, there is no material difference between the doctrine of Sir William Blackstone, and that delivered by Mr. Burke.”

“If this view be a just view of things, then the consequence, undeniable and unavoidable, is, that, under civil government, the right of individuals to their private property, to their personal liberty, to their health, to their reputation, and to their life, flow from a human establishment, and can be traced to no higher source. The connexion between man and his natural rights is intercepted by the institution of civil society.”

“If this view be a just view of things, why should we not subscribe the following articles of a political creed, proposed by Mr. Burke.

“‘We wished, at the period of the revolution, and we now wish to derive all we possess, as an inheritance from our forefathers. Upon that body and stock of inheritance, we have taken care not to innoculate any cyon alien to the nature of the original plant. All the reformations we have hitherto made, have proceeded upon the principle of reference to antiquity; and I hope, nay I am persuaded, that all those, which possibly may be made hereafter, will be carefully formed upon analogical precedent, authority, and example.’

“‘Our oldest reformation is that of magna charta. You will see that Sir Edward Coke, that great oracle of our law, and indeed all the great men who follow him, to Blackstone, are industrious to prove the pedigree of our liberties.’

“‘They endeavour to prove, that the ancient charter, the magna charta of King John, was connected with another positive charter from Henry the first: and that both the one and the other were nothing more than a reaffirmance of the still more ancient standing law of the kingdom. In the matter of fact, for the greater part, these authors appear to be in the right; perhaps not always: but if the lawyers mistake in some particulars, it proves my position still the more strongly; because it demonstrates the powerful prepossession towards antiquity, with which the minds of all our lawyers and legislators, and of all the people whom they wish to influence, have been always filled; and the stationary policy of this kingdom in considering their most sacred rights and franchises as an inheritance.’


“Government, in my humble opinion, should be formed to secure and to enlarge the exercise of the natural rights of its members; and every government, which has not this in view, as its principal object, is not a government of the legitimate kind.”


“Those rights result from the natural state of man; from that situation, in which he would find himself, if no civil government was instituted. In such a situation, a man finds himself, in some respects, unrelated to others; in other respects, peculiarly related to some; in still other respects, bearing a general relation to all. From his unrelated state, one class of rights arises: from his peculiar relations, another class of rights arises: from his general relations, a third class of rights arises. To each class of rights, a class of duties is correspondent; as we had occasion to observe and illustrate, when we treated concerning the general principles of natural law.”


“In his unrelated state, man has a natural right to his property, to his character, to liberty, and to safety. From his peculiar relations, as a husband, as a father, as a son, he is entitled to the enjoyment of peculiar rights, and obliged to the performance of peculiar duties. These will be specified in their due course. From his general relations, he is entitled to other rights, simple in their principle, but, in their operation, fruitful and extensive. His duties, in their principle and in their operation, may be characterized in the same manner as his rights. In these general relations, his rights are, to be free from injury, and to receive the fulfilment of the engagements, which are made to him: his duties are, to do no injury, and to fulfil the engagements, which he has made. On these two pillars principally and respectively rest the criminal and the civil codes of the municipal law. These are the pillars of justice.”

Friday, February 10, 2012

Liberty, Part XXIV

James Wilson:

“In a former part of these lectures, I had occasion to describe what natural liberty is: let us recur to the description, which was then given. ‘Nature has implanted in man the desire of his own happiness; she has inspired him with many tender affections towards others, especially in the near relations of life; she has endowed him with intellectual and with active powers; she has furnished him with a natural impulse to exercise his powers for his own happiness, and the happiness of those for whom he entertains such tender affections. If all this be true, the undeniable consequence is, that he has a right to exert those powers for the accomplishment of those purposes, in such a manner, and upon such objects, as his inclination and judgment shall direct; provided he does no injury to others; and provided some publick interests do not demand his labours. This right is natural liberty.’”

“If this description of natural liberty is a just one, it will teach us, that selfishness and injury are as little countenanced by the law of nature as by the law of man. Positive penalties, indeed, may, by human laws, be annexed to both. But these penalties are a restraint only upon injustice and over-weening self-love, not upon the exercise of natural liberty.”

“In a state of natural liberty, every one is allowed to act according to his own inclination, provided he transgress not those limits, which are assigned to him by the law of nature: in a state of civil liberty, he is allowed to act according to his inclination, provided he transgress not those limits, which are assigned to him by the municipal law. True it is, that, by the municipal law, some things may be prohibited, which are not prohibited by the law of nature: but equally true it is, that, under a government which is wise and good, every citizen will gain more liberty than he can lose by these prohibitions. He will gain more by the limitation of other men’s freedom, than he can lose by the diminution of his own. He will gain more by the enlarged and undisturbed exercise of his natural liberty in innumerable instances, than he can lose by the restriction of it in a few.”

Here, “liberty” and “freedom” are not synonymous. Rightful freedom is liberty, as used by Wilson.

Thursday, February 9, 2012

Liberty, Part XXIII

More from Wilson:

“What was the primary and the principal object in the institution of government? Was it—I speak of the primary and principal object—was it to acquire new rights by a human establishment? Or was it, by a human establishment, to acquire a new security for the possession or the recovery of those rights, to the enjoyment or acquisition of which we were previously entitled by the immediate gift, or by the unerring law, of our all-wise and all-beneficent Creator?”

“The latter, I presume, was the case: and yet we are told, that, in order to acquire the latter, we must surrender the former; in other words, in order to acquire the security, we must surrender the great objects to be secured. That man ‘may secure some liberty, he makes a surrender in trust of the whole of it.’—These expressions are copied literally from the late publication of Mr. Burke.”

“And must we surrender to government the whole of those absolute rights? But we are to surrender them only—in trust:—another brat of dishonest parentage is now attempted to be imposed upon us: but for what purpose? Has government provided for us a superintending court of equity to compel a faithful performance of the trust? If it had; why should we part with the legal title to our rights?”

“After all; what is the mighty boon, which is to allure us into this surrender? We are to surrender all that we may secure ‘some:’ and this ‘some,’ both as to its quantity and its certainty, is to depend on the pleasure of that power, to which the surrender is made. Is this a bargain to be proposed to those, who are both intelligent and free? No. Freemen, who know and love their rights, will not exchange their armour of pure and massy gold, for one of a baser and lighter metal, however finely it may be blazoned with tinsel: but they will not refuse to make an exchange upon terms, which are honest and honourable—terms, which may be advantageous to all, and injurious to none.”

“The opinion has been very general, that, in order to obtain the blessings of a good government, a sacrifice must be made of a part of our natural liberty. I am much inclined to believe, that, upon examination, this opinion will prove to be fallacious. It will, I think, be found, that wise and good government—I speak, at present, of no other—instead of contracting, enlarges as well as secures the exercise of the natural liberty of man: and what I say of his natural liberty, I mean to extend, and wish to be understood, through all this argument, as extended, to all his other natural rights.”

“’The law,’ says Sir William Blackstone, ‘which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind.‘ Is it a part of natural liberty to do mischief to any one?”

Wednesday, February 8, 2012

Liberty, Part XXII

James Wilson, Lectures on Law:

“But however great the variety and inequality of men may be with regard to virtue, talents, taste, and acquirements; there is still one aspect, in which all men in society, previous to civil government, are equal. With regard to all, there is an equality in rights and in obligations; there is that 'jus aequum,' that equal law, in which the Romans placed true freedom. The natural rights and duties of man belong equally to all. Each forms a part of that great system, whose greatest interest and happiness are intended by all the laws of God and nature. These laws prohibit the wisest and the most powerful from inflicting misery on the meanest and most ignorant; and from depriving them of their rights or just acquisitions. By these laws, rights, natural or acquired, are confirmed, in the same manner, to all; to the weak and artless, their small acquisitions, as well as to the strong and artful, their large ones. If much labour employed entitles the active to great possessions, the indolent have a right, equally sacred, to the little possessions, which they occupy and improve.

“As in civil society, previous to civil government, all men are equal; so, in the same state, all men are free. In such a state, no one can claim, in preference to another, superiour right: in the same state, no one can claim over another superiour authority.

“Nature has implanted in man the desire of his own happiness; she has inspired him with many tender affections towards others, especially in the near relations of life; she has endowed him with intellectual and with active powers; she has furnished him with a natural impulse to exercise his powers for his own happiness, and the happiness of those, for whom he entertains such tender affections. If all this be true, the undeniable consequence is, that he has a right to exert those powers for the accomplishment of those purposes, in such a manner, and upon such objects, as his inclination and judgment shall direct; provided he does no injury to others; and provided some publick interests do not demand his labours. This right is natural liberty. Every man has a sense of this right. Every man has a sense of the impropriety of restraining or interrupting it. Those who judge wisely, will use this liberty virtuously and honourably: those, who are less wise, will employ it in meaner pursuits: others, again, may, perhaps, indulge it in what may be justly censured as vicious and dishonourable. Yet, with regard even to these last, while they are not injurious to others; and while no human institution has placed them under the control of magistrates or laws, the sense of liberty is so strong, and its loss is so deeply resented, that, upon the whole, more unhappiness would result from depriving them of their liberty on account of their imprudence, than could be reasonably apprehended from the imprudent use of their liberty.

“The right of natural liberty is suggested to us not only by the selfish parts of our constitution, but by our generous affections; and especially by our moral sense, which intimates to us, that in our voluntary actions consist our dignity and perfection.

“The laws of nature are the measure and the rule; they ascertain the limits and the extent of natural liberty."

Tuesday, February 7, 2012

Liberty, Part XXI

From James Wilson, a Founder and a contributor to the United States Constitution (although this passage predates the United States Constitution):

“But if these reasonable and joyful hopes should fatally be disappointed, it will afford us at least some satisfaction to know, that the principles on which we have founded our opposition to the late acts of parliament, are the principles of justice and freedom, and of the British constitution. If our righteous struggle shall be attended with misfortunes, we will reflect with exultation on the noble cause of them; and while suffering unmerited distress, think ourselves superiour to the proudest slaves. On the contrary, if we shall be reinstated in the enjoyment of those rights, to which we are entitled by the supreme and uncontrollable laws of nature, and the fundamental principles of the British constitution, we shall reap the glorious fruit of our labours; and we shall, at the same time, give to the world and to posterity an instructive example, that the cause of liberty ought not to be despaired of, and that a generous contention in that cause is not always unattended with success.”

“All men are, by nature, equal and free: no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it: such consent was given with a view to ensure and to increase the happiness of the governed, above what they could enjoy in an independent and unconnected state of nature. The consequence is, that the happiness of the society is the first law of every government. This rule is founded on the law of nature: it must control every political maxim: it must regulate the legislature itself. The people have a right to insist that this rule be observed; and are entitled to demand a moral security that the legislature will observe it. If they have not the first, they are slaves; if they have not the second, they are, every moment, exposed to slavery. For ‘civil liberty is nothing else but natural liberty, devested of that part which constituted the independence of individuals, by the authority which it confers on sovereigns, attended with a right of insisting upon their making a good use of their authority, and with a moral security that this right will have its effect.’”

Monday, February 6, 2012

Liberty, Part XX


“For of all the questions on which our philosophers argue, there is none which it is more important thoroughly to understand than this, that man is born for justice, and that law and equity are not a mere establishment of opinion, but an institution of nature. This truth will become still more apparent if we investigate the nature of human association and society.”

“On the other hand, if we are determined to the practice of goodness, not by its own intrinsic excellence, but for the sake of some private advantage, we are cunning, rather than good men. What will not that man do in the dark who fears nothing but a witness and a judge? Should he meet a solitary individual in a desert place, with a large sum of money about him, and altogether unable to defend himself from being robbed, how would he behave? In such a case the man whom we have represented to be honest from principle, and the nature of the thing itself, would converse with the stranger, assist him, and show him the way. But as to the man who does nothing for the sake of another, and measures every thing by the advantage it brings to himself, it is obvious, I suppose, how such a one would act; and should he deny that he would kill the man or rob him of his treasure, his reason for this cannot be that he apprehends there is any moral turpitude in such actions, but only because he is afraid of a discovery, and the bad consequences that would thence ensue. A sentiment this, at which not only learned men, but even clowns must blush.”

“It is therefore an absurd extravagance in some philosophers to assert that all things are necessarily just, which are established by the civil laws and the institutions of the people. Are then the laws of tyrants just, simply because they are laws?”


“There can be but one essential justice, which cements society, and one law which establishes this justice. This law is right reason, which is the true rule of all commandments and prohibitions. Whoever neglects this law, whether written or unwritten, is necessarily unjust and wicked.”

“But if justice consists in submission to written laws and national customs, and if, as the Epicureans persist in affirming, every thing must be measured by utility alone, he who wishes to find an occasion of breaking such laws and customs, will be sure to discover it. So that real justice remains powerless if not supported by nature, and this pretended justice is overturned by that very utility which they call its foundation.”

“But this is not all. If nature does not ratify law, all the virtues lose their sway. What becomes of generosity, patriotism, or friendship? Where should we find the desire of benefitting our neighbours, or the gratitude that acknowledges kindness? For all these virtues proceed from our natural inclination to love and cherish our associates. This is the true basis of justice, and without this, not only the mutual charities of men, but the religious services of the gods, would become obsolete; for these are preserved, as I imagine, rather by the natural sympathy which subsists between divine and human beings, than by mere fear and timidity.”

“But if the opinions and suffrages of foolish men had sufficient weight to outbalance the nature of things, might they not determine among them, that what is essentially bad and pernicious should henceforth pass for good and beneficial? Or why should not a law able to enforce injustice, take the place of equity? Would not this same law be able to change evil into good, and good into evil?”

“As far as we are concerned, we have no other rule capable of distinguishing between a good or a bad law, than our natural conscience and reason. These, however, enable us to separate justice from injustice, and to discriminate between the honest and the scandalous. For common sense has impressed in our minds the first principles of things, and has given us a general acquaintance with them, by which we connect with Virtue every honourable and excellent quality, and with Vice all that is abominable and disgraceful.”

“Now we must entirely take leave of our senses, ere we can suppose that law and justice have no foundation in nature, and rely merely on the transient opinions of men. We should not venture to praise the virtue of a tree or a horse, in which expression there is an abuse of terms, were we not convinced that this virtue was in their nature, rather than in our opinion. For a stronger reason, it is mainly with respect to the moral nature of things, that we ought to speak of honour and shame among men.”

Sunday, February 5, 2012

Liberty, Part XIX

William Blackstone, Commentaries on the Laws of England:

“II. We are next to consider the violation of the right of personal liberty. This is effected by the injury of false imprisonment, for which the law has not only decreed a punishment, as a heinous public crime, but has also given a private reparation to the party; as well by removing the actual confinement for the present, as, after it is over, by subjecting the wrongdoer to a civil action, on account of the damage sustained by the loss of time and liberty.”

“To constitute the injury of false imprisonment there are two points requisite: 1. The detention of the person; and, 2. The unlawfulness of such detention. Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets. Unlawful, or false, imprisonment consists in such confinement or detention without sufficient authority: which authority may arise either from some process from the courts of justice; or from some warrant from a legal officer having power to commit, under his hand and seal, and expressing the cause of such commitment, or from some other special case warranted, for the necessity of the thing, either by common law, or act of parliament; such as the arresting of a felon by a private person without warrant, the impressing of mariners for the public service, or the apprehending of waggoners for misbehaviour in the public highways."

Saturday, February 4, 2012

Just Me

Last year, while I was collecting all of these quotes, I evidently wrote the following in response to something that James Wilson had written about the power or right of majorities of the people to reshape their constitutions in whatever way they desire:

"I do not think that that is true. How could a mere majority bind the minority in that way – and, if it did, wouldn’t it make the idea that all the people in any way consent to the acts of their representatives utterly chimerical? They would not have agreed to the terms or limits of the powers delegated. They would not have agreed to the selection of representatives. What did they consent to, other than the formation of government, which arguably did not depend upon their consent in the first place (a government can be created without their actual consent, and it can operate on them; they have the right to be a part of it and, collectively, to alter or abolish it, and replace it, but if government is union of our rights to self-defense, why would some of the people need the consent of others in order to commence government? Maybe there is no consent to the existence of government, and no need to consent to it, but the people do have the right to shape and reshape its form, provided that they do not make it into anything that it is not, and which it may not justly become)? The majority has no right to make a constitution that is inconsistent with or unnecessarily dangerous to the rights of anyone.

"Whether a nation has a written constitution or not, therefore, natural law -- the inherent rules of equity and justice -- must be a part of their constitution. It shapes what, precisely, the people ever had the right to institute, and, therefore, what they lawfully may have possibly instituted."

That is absolutely right.  I suppose it is debatable whether the term "constitution" should be understood as including natural law or as referring, instead, to the part which is made by humans (which must nevertheless necessarily be shaped and controlled by natural law) but either way, while there is some importance to the idea that a valid constitution should be established by a majority, rather than a minority, the real issue is the extent to which that whole package of powers, forms, and limitations is consistent with justice.  The majority should have its choice between constitutions which are not inconsistent with the demands of justice.  Additionally, as a practical matter, it should also be the majority (or its representatives) who ascertain the demands of justice and evaluate different arrangements of powers, forms, and limitations as to how they would meet those demands.  However, no majority has a power to make it just for its government to do what is otherwise unjust.  I am not simply saying that a majority should not do this -- I am saying that it is not a possible act.  A majority can cause that kind of system to be established and enforced, but the government's just and legitimate powers will be controlled by natural law, not by popular sovereignty.

Concerning Arrests and Home Entries

I would like to briefly interrupt this series on the definition of liberty to bring you a passage by Blackstone concerning arrests and home entries by police officers:

“An arrest must be by corporal seising or touching the defendant's body; after which the bailiff may justify breaking open the house in which he is, to take him; otherwise he has no such power; but must watch his opportunity to arrest him. For every man's house is looked upon by the law to be his castle of defence and asylum, wherein he should suffer no violence. Which principle is carried so far in the civil law, that for the most part not so much as a common citation or summons, much less an arrest, can be executed upon a man within his own walls.”

Although this passage (unlike others that I have found and posted) does not directly relate to the central issue in the Barnes decisions of the Indiana Supreme Court, last year, it does show how distant the Court's new doctrine is from the principles and concerns of the common law (which neither the people of this state nor our representatives have ever authorized the Court to replace or destroy).

Liberty, Part XVIII

William Blackstone, from his Commentaries on the Laws of England:

“Next to personal security, the law of England regards, asserts, and preserves the personal security of individuals. This personal liberty consists in the power of loco-motion, of changing situation, or removing one’s person to whatever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law. Concerning which we may make the same observations as upon the preceding article; that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and, that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws.”

“Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practiced by the crown) there would soon be an end to all other rights and immunities. Some have thought, that unjust attacks, even upon life, or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth, than such as are made upon the personal liberty of the subject. To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to goal, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. And yet sometimes, when the state is in real danger, even this may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient. For the parliament only, or legislative power, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing.”

“The confinement of the person, in any wise, is an imprisonment. So that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment.”

“A natural and regular consequence of this personal liberty, is, that every Englishman may claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law.”

Friday, February 3, 2012

Liberty, Part XVII

William Blackstone, from his Commentaries on the Laws of England:

“Hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind: but every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, nobility, or a popular assembly, is a degree of tyranny. Nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of liberty: whereas if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance; by supporting that state, of society, which alone can secure our independence.”


“So that laws, when prudently framed, are by no means subversive but rather introductive of liberty; for (as Mr. Locke has well observed) where there is no law, there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint.”


“The idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, where it falls little short of perfection, and can only be lost or destroyed by the folly or demerits of its owner...”

“And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and so far becomes a freeman, though the master’s right to his service may probably still continue.”


“The absolute rights of every Englishman (which, taken in a political and extensive sense, are usually called their liberties) as they are founded on nature and reason, so they are coeval with our form of government; though subject at times to fluctuate and change: their establishment (excellent as it is) being still human. At some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all. But the vigour of our free constitution has always delivered the nation from these embarassments, and, as soon as the convulsions consequent on the struggle have been over, the balance of our rights and liberties has settled to its proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger.”

Thursday, February 2, 2012

Liberty, Part XVI

From William Blackstone, from his Commentaries on the Laws of England:

“And, first, to demonstrate the utility of some acquaintance with the laws of the land, let us only reflect a moment on the singular frame and polity of that land, which is governed by this system of laws. A land, perhaps the only one in the universe, in which political or civil liberty is the very end and scope of the constitution. This liberty, rightly understood, consists in the power of doing whatever the laws permit; which is only to be effected by a general conformity of all orders and degrees to those equitable rules of action, by which the meanest individual is protected from the insults and oppression of the greatest.”


“By the absolute rights of individuals we mean those which are in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is intitled to enjoy whether out of society or in it. But with regard to the absolute duties, which man is bound to perform considered as a mere individual, it is not to be expected that any human municipal laws should at all explain or enforce them. For the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no business or concern with any but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vitious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like) then they become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws; private sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. But, with respect to rights, the case is different. Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others.”


“For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights if individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple; and, then, such rights as are relative, which arising from a variety of connexions, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.”


“The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be 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 restraint 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. But every man, when he enters 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 has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrificed to obtain it. For no man, that considers a moment, would wish to retain the absolute and uncontroled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power; and then there would be no security to individuals in any of the enjoyments of life. Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public.”

I think that Nathaniel Chipman's comments on this last paragraph are helpful -- a person in society (or, more accurately, under a government) does lose a part of that complete freedom of action, but the right to take every conceivable action never belonged to him, because he was obligated as a matter of right to respect the equal rights of other people.  It is unnecessary for him to surrender his rightful liberty in order to establish government and cause the boundaries between the equal rights of each person to be ascertained, marked, and guarded.

There are a few (of what might be called) exceptions to this, but they develop the principle more than they constitute exceptions to it.  Automobile traffic is a good model to show how there are times when positive law can actually improve upon parts of natural law.  In the first place, it would be fair to say that the first rule of the road is to avoid running into other cars.  That rule does not need to be established by law (which is not to say that it should not be) in order to exist, because everyone knows that it is important to avoid running into other cars, and everyone wants to avoid running into other cars, anyway.  Though some people apparently like to test the limits of what they can do without running into other cars (and, of course, some collisions do happen), everyone tries to maneuver and negotiate in their own action and movement so as to avoid colliding with others.  In some ways, however, positive law assists this "natural law" of the road, in addition to holding those responsible for collisions civilly liable.  At intersections, the first rule of the road still applies, but it provides no preference for the flow of traffic on major thoroughfares, or stoplights, or stop or yield signs.  Without the assistance of positive rules, I assume that all intersections would be a more confusing and dangerous version of a four-way stop.  The establishment of uniform rules for various types of intersections may limit motorists' discretion somewhat, but it assists them in what they were already trying to do, and what they were already obligated to do by the "natural law" of the road.  (I do not mean to suggest that the kind of discretion that governments have with respect to these rules would exist even on private property, however -- actually, most of the situations in which governments could rightly impose these kinds of rules concern public property or resources, or other collisions of right, which governments ought to prevent from turning into collisions of people.)  The other major exception is that there is a duty to support the essential functions of the government, given that it is necessary, as a matter of justice, and that those who benefit from its operation ought to pay for it.  This, of course, is not to say that a person could be justly forced to pay for anything the government does, regardless of how extravagant or unjustified it is.

Wednesday, February 1, 2012

Liberty, Part XV

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

“[W]e have before seen, that in a free government, an absolute, uncontrolled, and unlimited power is not committed to any one of its organs, and that it does not actually subsist in the British legislature, for whom it is so strenuously claimed. Certainly such power does not belong to the legislature of every state. It is not vested in the legislature of the United States, nor in that of any state in the union. Each is limited by the constitution from which it derives its power. The constitution is the supreme law established by the people, the ultimate supreme power in every free country; a law which the legislature is bound to obey in all its acts. Every act not warranted by the constitution is void, and with us is so decided by the courts of law. So far we may, with propriety, apply the definition to the law of the constitution, the fundamental law, that it is a rule of political conduct prescribed by the supreme power in the state; but it wholly fails, when applied to the derivative, to the municipal law. The positive laws enacted by the legislature, are prescribed by a competent authority instituted and limited by the supreme political power.”