Imágenes de páginas
PDF
EPUB

It appears from what has been said in this chapter, that there is a closer coincidence between those rights which have been denominated natural, civil, and political, than writers on law and government have generally been disposed to allow; and as it is one great end of this work, to refer all necessary civil institutions to such natural and moral principles as may give satisfaction to every serious inquirer, we shall treat the subject a little more at large.

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.

But it is said, that every man has a right to pursue his own interest and happiness, and that in the commerce of civil society, there will arise oppositions, which will oblige one man to sacrifice his interest and happiness, to that of others. I answer-First, The nearer we approach to a state of individual independence, the supposed state of nature, and the less men direct their conduct by mutual laws, the more frequently will such oppositions arise, and sacrifices be necessarily made, and that under circumstances of violence.-Secondly, That a man, 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.— Thirdly, The reciprocal relations of social beings dictate, that when, for want of foresight, or from the nature of the objects of pursuit, an opposition arises, and there is no preference of right, there should be an amicable compromise. Beyond this, nature may have given power; but she has accorded no liberty, no right, to man. This is the true principle of all commerce amongst men; of the accommodation of all claims, natural and civil, and the mutual submission of private opinion to public sentiment. It is true, men in their private intercourse, often lose sight of this principle, and in public bodies, it is too much neglected. The interests of the minority, which, on the principle of mutual compromise, where, in the nature of the case admissible, are entitled to a proportionable regard, are too often neglected, or wholly sacrificed to the more powerful interests of the majority. Still the principle, however neglected, is founded in the immutable relations of nature.

It is further said, there are some rights which are conceded to be natural rights, and which are necessary to be exercised in a state of nature; but are not allowed in any well constituted civil society; one of which is, that every individual shall, in case of injury, be his own judge, and may take satisfaction, or rather, revenge, at his own pleasure. Such right has been, and still is admitted by some savage nations, among whom the law of retaliation, instead of a reparation of injuries, obtains, as mentioned in a former chapter, such as the right of the next of kin to avenge the blood of the slain; and in that state it

is allowed to be natural right. On this we may observe that the right of judging is relative to the rights of justice, and is permitted for the sake of those rights. Men have a reciprocal right to demand justice of each other, and are reciprocally bound to make an adequate satisfaction for injuries. A right of judging amounts to a right of deciding what is right and just between one individual and another-a right of determining what satisfaction ought to be made for injuries, and in what manner. It is the duty of the judge to decide justly; if he decide otherwise, a second injury is committed. But such is the nature of man, we know, as a general rule, that he is incapable of judging justly and impartially in his own cause; and to this we may add, that he must frequently want the power to give effect to his decisions. In matters that depend on a mutual compromise, every man is, under the best regulated government, of right allowed to be the judge of his own interest, and an actor in his own cause. So in a present invasion of his rights by violence, he is his own judge, both of the means and the measure of defence, and this from the necessity of the case; but he must judge rightly, agreeably to the occasion, at the peril of becoming an aggressor; for the right is not independent and without appeal. There is, therefore, a deficiency as well in point of capacity to judge, as of power to execute.

From a little consideration it will be evident, that this right of judging in his own cause is a temporary right, permitted to man from necessity only, until he shall arrive at a maturity to be capable of comprehending and carrying into effect that law of his nature which makes him accountable to the judgment of others, and which dictates in all controversies a submission to an impartial judge. Each one, as well the party injuring as the party injured, has a right to an impartial decision; and the laws of nature have pointed out the means of obtaining it. The right of justice is perpetual; the right of judging is incidental, and comes in, lest there should be a failure of the former. When men become capable of providing for a regular administration of justice in government, that right, which nature designed to be temporary only, ceases of course, so far as such provision is made. It cannot be said to be sacrificed or given up by any act of the individual. Such rights may, as it respects

society, be well denominated, juvenile rights. In the progress of society toward maturity, the same thing happens to them, that happens to the juvenile passions and appetites of an individual. Many little passions and appetites exist in infancy and early youth, which, though necessary and proper for that state, are, nevertheless, unbecoming the state of manhood. These are never given up by any specific act of the mind; but, agreeable to the constitution of nature, give place in the progress of the individual, to passions and appetites proper to an advanced state, and one after another become extinct.

I am apprehensive that the legal notion of the necessity of a consideration to the validity of a contract introduced or has, at least, long supported the opinion that men, on entering into civil society, give up a part of their natural rights, their natural liberty, as a consideration for the security of the ramainder. Writers on government have been anxious to discover, on the part of the people, some consideration given for the right of protection and the right of justice. While government is supposed to be finally established, not by a compact between the individuals of the people, but between the people and the rulers, this appeared to be a matter of great importance; but it can be of no moment, when it is understood that all legitimate government is produced by the people entering into a compact among themselves for that purpose. There is no occasion to look for any consideration for the duty of obedience to the laws on the one part, or a just and equal consideration on the other, but the mutual and inviolable obligations of such compact as enjoined by the laws of social nature.

I am happy to find one authority in favor of the opinion here advocated-the authority of Montesquieu himself, equal to a host. In treating of a subject, which led him to make a comparison between a state of individual independence, the supposed state of nature, and a state of civil government, he says. "Liberty principally consists, in not being forced to do a thing, which the laws do not oblige; people are in this state only as they are governed by civil laws; and because they are governed

* Spirit of the Laws. Book xxvi. Ch. 20.

by civil laws, they are free. Hence it follows, that princes who live not among themselves, under civil laws, are not free; they are governed by force, they may continually force or be forced." Sovereign princes are, in respect to each other, in a state of natural independence. In another place he observes.* "As men have given up their natural independence, to live under political laws; they have given the natural community of good, to live under civil laws; by the first they acquired liberty, by the second property." From these passages it appears that Montesquieu differed from other writers, in his opinion of the liberty to be enjoyed in the two states. He clearly supposes, that man, on entering into civil society, makes an acquisition of liberty, without any sacrifice; that he thereby secures himself, from the danger of deprivation by force, of the common rights of his nature.

Still it may be urged, that if no rights are necessarily sacrificed by men, on entering into the civil state, yet it must be acknowledged that in most of the governments that now exist, or ever have existed, many rights are established which do not originate in any natural principles, the exercise and enjoyment of which, by the few who possess them, is a restraint, and often a violation of the common and natural rights of all others.— This is true of all governments, that have established ranks and privileges, whether hereditary or for life, whether annexed to persons and families, or estates. These factitious rights have been assimilated to the natural rights, particularly to the right of property, and have followed the same laws; but they all have their origin, not in the principles of nature, but in the inventions of men. They have no place in a government founded in true natural principles; and we are treating of natural rights as it respects such governments only.

In every government formed and administered on just and natural principles, all the secondary and subordinate rights, both civil and political, are but species of one or other of the great primary rights; the right of personal liberty, personal security, or of private property, modified and adapted to the state of

*Sp. L. B. xxvi Ch. 15.

« AnteriorContinuar »