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it may command what is wrong, and prohibit what is right; which is the case with all laws that violate liberty of conscience, by commanding a hypocritical conformity to outward rites of religion, and prohibiting the free performance of religious duties.
Dismissing from consideration the terms right and wrong, as denoting the moral qualities of actions, let us examine the substantive right, which is itself used with a latitude that becomes a source of ambiguity. The following is Mr. Lewis's definition of the term.
· When the sovereign power commands its subject to do or forbear from certain acts, the claim for such performances or forbearances which one person thereby has upon another, is called a right; the liability to such performances or forbearances, is called a duty; and the omission of an act commanded to be done, or the doing of an act commanded to be forborne, is called a wrong.
• All rights, therefore, must be subsequent to the establishment of government, and are the creatures of the sovereign power; no claim upon another, which may not be enforced by process of law, i. e. by calling in the assistance of the sovereign, however recommended by moral justice, can, without an abuse of language, be termed a right. The existence of a moral claim may often be a matter of doubt when the facts are ascertained, and one party may demand what the other may not think himself bound in conscience to yield; but, the facts being given, the existence of a right, or a legal claim, can never admit of dispute, as it is defined and conferred by a third party, who will, if required, step in to enforce it.
Properly, therefore, right signifies a claim conferred or sanctioned by the sovereign power, i. e. a legal right. Sometimes, however, it is used to mean a claim recommended by the practice, analogy, or doctrines of the constitution, i. e. a constitutional right; and, sometimes, a claim recommended by views of justice or public policy, i. e. a moral right.
• By the first and proper sense, is meant a claim which may be enforced in a court of law, or by the proper authorities, and which actually exists: by the two last, a claim which cannot be enforced by any public authority, and which does not exist. Thus, in the first senze, it is said that a man has a right to his own property, reputation, &c., meaning that he has an available claim which can be enforced by process of law. It is also said that, constitutionally, every British subject who pays taxes, has a right to vote for a member of the House of Commons; meaning that such a claim is supported by the practice or doctrines of our constitution. It is also said, that all the people have a right to be represented; that they have a right to choose their own governors, to cashier their governors for misconduct, and to frame a government for themselves; that the poor have a right to be maintained by the rich; that the poor have a right to spoil the land-owners, and divide their lands; that the poor have a right to spoil the rich, and divide their property, &c. In the latter cases, the persons who use these expressions mean that, in their opinion, there is a claim founded in justice and expediency, which they call a right; though, in truth,
what they mean to express is, that it ought, by the sanction of the legislature, to be made a right.' pp. 7–9.
We hear of original rights, natural rights, indefeasible rights, inalienable rights, imprescriptible rights, hereditary rights, indestructible rights, inherent rights, &c., where there is no pretence of legislative sanction: indeed, the only object of using these names is to induce the legislature to convert these supposed rights into real rights, by giving them the sanction of law. The phrase, natural right, takes its origin from the doctrine of a state of nature, which will be more fully explained below. It appears to signify a claim recommended by natural law, or by those rules which were recognised by common consent, when mankind were in a state of nature. An indefeasible right is a right which man enjoyed in a state of nature, and which he only surrendered conditionally at the making of the social compact; so that nothing has since been able to defeat or destroy it, and it is ready to be revived at any time. An imprescriptible right is a right which was prior to the social compact, and which continues to exist without being subject to prescription or failure by lapse of time. An inalienable right is a right which cannot be alienated from a man. Indestructible rights, inherent rights, hereditary rights, birthrights of liberty, &c., appear to have nearly the same meaning: viz. that they are dormant rights, never exercised by the possessors, and not extinguishable by any law. In fact, however, these imprescriptible, inalienable, indefeasible rights, in most cases never have been rights, or, if they have, long since were alienated and defeated by the sovereign power. These various expressions have all taken their origin from the theory of the state of nature and the social compact; but they are frequently used by persons who have never heard of this absurd and mischievous doctrine, and would perhaps reject it if they knew it. All that those persons mean is, that, in their opinion, the claims which they call rights ought, in sound policy, to be sanctioned by law. It is the duty of such persons to shew that sound policy requires what they require; but as this would require a process of reasoning, and as reasoning is often both hard to invent and to understand, they prefer begging the question at issue by employing some of the high-sounding phrases just mentioned.' pp. 23–24.
In a subsequent section, civil liberty is defined as signifying, in its positive sense, “those rights, the enjoyment of which is
beneficial to the possessor of them', or the possession of certain ' rights by one part over another part of the community.' 'Li'berties, in the plural number, when employed with a political • reference, is always equivalent with rights.' Liberty is also used to denote immunity froin burdensome duties, or exemption from hurtful restraints. In a note, the unsatisfactory character of Blackstone's definition is pointed out.
Blackstone divides rights into absolute and negative; and absolute rights he defines to be “such as would belong to persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it.”-1 Com. 123. He then says, that “the absolute rights of man are usually summed in one general appellation, and deVOL. IX.-N.S.
nominated 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 law of nature.” – Ibid. 125. Thus far it appears, that absolute rights are not positive rights conferred by a legislature, but a mere absence of legal restraint, or natural liberty. Afterwards, he lays it down, that “ the absolute rights of every Englishman, taken in a political and extensive sense, are usually called their liberties” and proceeds to explain how these “ rights and liberties” exist by virtue of certain acts of Parliament.-Ibid. 127. Here, then, liberties are positive rights conferred by the legislature, having no connexion with natural liberty. Finally he says, that “the rights themselves, thus defined by these several statutes, consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other than either that residuum of natural liberty which is not required by the laws of society to be sacrificed to public convenience, or else those civil privileges which society hath engaged to provide, in lieu of the natural liberties so given up by individuals.” – Ibid. 129. At length, we find that these “absolute rights” may be either the immunity from certain legal duties, or the possession of certain legal rights, or perhaps both at the same time. It is, perhaps, difficult to conceive greater confusion and obscurity of thought, than is displayed in this laboured discussion.' p. 204.
The notion which would make political or civil liberty consist in that portion of natural liberty which human laws have spared, is alike fallacious and pernicious. It would, if correct, justify Paine's notion, that all government is a necessary evil. Political
. liberty consists in the possession of those legal rights which are created by law, and secured by government. Law, therefore, instead of being an abridgement of liberty, is the parent of it. No man is free, who is not protected against wrongs; and that protection is afforded by law. To have the full benefit of frank law, is the very definition of civil freedom. In the savage state of natural liberty, might is the only acknowledged right. In such a state of things, the strongest alone can be said to possess any rights, since they alone can protect them. The weak are not free, because unprotected: they possess no rights; for the absence of all restraint is to them the negation of all rights, being the exposure to all wrongs. Hence, liberty is not only, as Sir James Mackintosh remarks, the object of all government', but it is the creature of government. Men ,' remarks the learned Author of the Discourse on the Law of Nature and Nations, ' are more free
under every government, even the most imperfect, than they ' would be, if it were possible for them to exist without any go
vernment: they are more secure from wrong, more undisturbed ' in the exercise of their natural powers, and therefore more free, than if they were altogether unprotected against injury from each other. But, while natural liberty, or the free exercise of our natural powers, is secured by government, which protects against all but itself, civil liberty may more properly be said to be derived from law, which is the protection against arbitrary rule, against the abuses of government, and generally partakes of the character of a concession to the governed. What are our laws, but the title-deeds of our liberties, obtained by gradual concessions, and devised as a remedy against specific wrongs?
The idea of natural liberty in a social state, as derived from an imaginary social compact, is not merely a fiction,--the suppo
sition of a thing which never had any existence '; but, as ex. plained by the advocates of the theory, involves a contradiction. This theory teaches, that mankind, when in the state of nature, made a compact by which the right of self-government was surrendered by the whole community on condition of being well governed. But this very compact supposes a state of civil society, and the pre-existence of social rights, which are never found existing in savage life. Blackstone, however, contends, that such an original contract, though never formally expressed, must be understood and implied in the very act of associating together. In the language of the English law, implication has a meaning nearly equivalent with fiction. Thus, in many cases, a contract is implied, where no contract was made ; it being thereby meant, that the legal consequences are the same as if such contract had been really made, and that their existence may be assumed in argument without proof. But, remarks Mr. Lewis,
• It is evident, that neither on the common nor on the legal explanation of implication, can the assumption of the social contract be supported. It cannot be inferred from the existence of government, or all must admit that government may exist without a previous convention. Nor can it be considered as a legal fiction ; for a legal fiction is a supposition avowedly false, but treated as if it were true, for the imagined convenience of administering the law. A legal fiction without the sanction of law, is a mere absurdity; and therefore it cannot be pretended that the social compact, which serves as the foundation of all law, derives its own force from the existence of law.'
pp. 211, 212.
Yet, the popular notions respecting the natural liberty and equality of mankind rest upon this baseless political theory; although not unfrequently entertained by persons ignorant of the 'polluted source to which these expressions may be traced.'
But, while we agree with our Author in his general definition of legal rights as conferred by law, and as implying correlative social duties in others, (which are the only species of rights that political or juridical science is concerned with,) we are not prepared to admit that there is no such thing as natural rights, anterior to government, independent of human laws and institutions, because springing out of the original natural relations. Mr. Lewis remarks, that Filmer's argument, that men are born in subjection
to their parents, and, being under their authority, are not by nature free, 'is founded on the customary confusion of law and morality; for, though a child, in a savage state, owes a moral duty to his parents, he is bound to them by no legal obligation.' But, if he owes a moral duty to his parents, they must possess a correlative moral right, because rights and duties imply each other. And this right must be regarded as an actual and inherent right, recognised, but not created by law, antecedent to all social institutions, and of which no man can be justly deprived. Granting that there can be no political rights, no legal obligations, anterior to human laws and institutions, morality, as well as law, has its rights, which are neither metaphysical nor supposititious, nor dormant: they belong not to ' a state of nature, but to nature in every state, and are never surrendered. The source of these moral rights and obligations is the law of God and the divine constitution of our nature.
Another term respecting which great confusion of ideas has prevailed, is, sovereign and sovereignty. By many writers, sovereignty is confounded with royalty : by others, the word is used in a vague and half metaphorical sense, as denoting the
a will of the whole community, or the moral influence of the nation, or a part of it, upon the acts of the sovereign. 'In its pro'per sense,' says Mr. Lewis, the word sovereignty means the supreme power of the person or persons who are sovereign in the state, and are legally uncontrolled both from within and with• out. This definition is not very happy. That sovereignty means the power of the sovereign, is obvious, but this throws little light upon the precise import of either term. The truth is, however, that sovereignty, that is irresponsible and uncontrolled power, is an attribute rarely attaching, in fact, to those who are styled sovereign. Absolute sovereignty, and absolute supremacy, can be predicated of God alone. The King of England is usually styled sovereign, and such is his legal and constitutional title, because he is in all things supreme.'
• Nevertheless,' Mr. Lewis remarks, according to the scientific definition of sovereignty, the King of England cannot be considered as sovereign, i. e. as possessing the entire sovereign power; as he is not able to make laws by his sole authority, and it is necessary that the advice and consent of two bodies, irresponsible in a corporate capacity for such advice and consent, should previously be offered and obtained. Hence it is that the King of England is termed a limited monarch, and the government of England is called a limited monarchy; because the power of the King in enacting laws, is limited by the necessity of obtaining the consent of two Houses of Parliament to their enactment. And thus the King of England cannot properly be said to possess the entire sovereign power, because all sovereign power is unlimited and uncontrolled ; and a limited sovereign is a contradiction in terms. The