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INTRODUCTORY REMARKS VIEWS AND PRINCIPLES, AND FUNDA
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Sec. 1. Man was created with numerous wants and with various faculties to supply them. His constitution nature and faculties are adapted to the material world, of which his physical nature constitutes a part; and such is the plastic character of his constitution and nature, that they tend to change, and to become adapted to his modes of living, food, action and industry, and to the climate and condition in which he is placed. This tendency produces what we call habit. In the progress of events, it substantially changes the constitution and nature of man; and hence, we properly call habit a second nature. not for this tendency, it would be impossible for a majority of mankind to enjoy even a tolerable degree of health and happiness, and life would be insupportable.
SEC. 2. NATURAL RIGHTS. Every adult of sound mind, (criminals and dangerous persons excepted,) has a natural and inherent right to the enjoyment of life and personal liberty; to the control of his own person and faculties; to a field of employment to enable him to supply his wants; to the products of his own industry ; to acquire, hold, enjoy and transfer property; and to exercise his faculties and use his property in accordance with the dictates of his own judgment; provided he acts in such a manner as not to infringe the rights, nor to mislead and corrupt the morals of others. It is absurd to claim, that the natural right of personal liberty includes a right to infringe the rights, endanger the
bealth or safety, corrupt the morals, destroy the good character, or otherwise prejudice the general welfare of others.
Children, idiots, and persons of unsound mind, who are not entitled to personal liberty, and even criminals, have their natural rights ; which are subordinate to the safety and general welfare of the community.
The earth and all its spontaneous products in their natural state, were given to mankind in common, as fields of employment, to enable them to supply their wants. In its natural state, the earth produces but little food for man. He must improve it and cultivate it by labor, industry, and attention, to increase its products, and enable him to supply his wants.
It is impossible for mankind to occupy, improve and cultivate the earth in common, and hence the necessity of individuals, families, communities and peoples, appropriating to themselves particular portions of the earth, as a field of employment, to occupy, improve and cultivate, to enable them to supply their wants, and promote their own welfare and happiness. This is the origin of the rights of national dominion, and of individual property in lands. They originate in appropriation and its necessity, and are consummated by occupancy and improvements thereon.
Every person has an absolute perfect and individual right to the products of his own industry, and but a qualified right to some extent a right in common) to the earth itself; but so long as nations do not appropriate an unreasonable share of the earth's surface to their exclusive use, (or if they have too large a proportion, do not exclude immigrants from other countries, from settling and living with them, and participating in its benefits), no injustice is done to the people of other nations and countries. The appropriation of lands by individuals and families, for their exclusive use, before the organization of governments, should be regulated by the same rules of necessity and propriety; and after the organization of society andof government, it should be regulated by law. All lands should be held by individ. uals subordinate to the general welfare of the community and of the pation.
National dominion over lands and countries, as well as individual property in lands, being ultimately based on necessity, as the only means of enabling man to supply his wants, the proper exercise of that dominion should be limited to the necessity on which it is found. ed. Hence, it would be unjust and contrary to the laws of nature for any people or nation to appropriate to their own exclusive use three, five or ten times their proper portion of the earth's surface, required by their relative numbers, and refuse to allow immigrants from over peopled, or more densely peopled countries, to settle with them, and participate in the occupancy of the country so appropriated. Natural justice, the principles of equity, and the laws of nature, require that the earth should be equally divided among the peoples and nations of the earth, in proportion to their respective numbers; 80 that like numbers may participate equally in its natural resources. So long as a nation enjoys more than its equal share of the natural resources of the earth in proportion to its numbers, it cannot justly refuse to admit immigrants to a participation in its advantages; but whenever it becomes densely peopled, and has more than its average population in proportion to its natural resources, no principle of natural justice or equity requires them to admit immigrants from foreign countries, except a few in the seaports, who may be engaged in foreign commerce.
The conclusions from these propositions are obvious; that nations or tribes of hunters, few in numbers, (like our indian tribes), have not a natural right to exercise exclusive dominion over large extents of country, to roam over and use only for hunting grounds; and that the States of this Union have not a natural right to exclude honest peaceable and industrious inhabitants from the more densely peopled countries of Europe, from settling in them and becoming purchasers, occupants, and owners of real estate.
The laws of nature arise from the nature and constitution of man and of the material world. They constitute the basis of the rights, obligations and duties of man, and of the powers of government.They existed anterior to human government. They prohibit crimes and offences of all kinds. The natural understanding and conscience of man teach him the principles and outlines of the laws of nature. The natural understanding and conscience teach men that murder, robbery, theft, arson, perjury, assault and battery, trespass and injuries to property, are crimes, which should be punished.
The practice of the most enlightened individuals dictated by reason is followed by others, and becomes the origin of usages and customs, which are generally in most respects in accordance with the laws of nature. Usages and customs grow up spontaneously among every people, and become laws by the general acquiescence. Rude customs and usages grow up among savages and barbarians, adapted to their condition and modes of life, and become laws, anterior to the organization of society, and before the establishment of any regular system of government.
Laws as a general rule are developed spontaneously among the people, and are not often originated by lawgivers and legislators. After the establishment of a government, the rude customs and usages of the people are reduced to some order and system by the chiefs, monarch, or legislative council, and some mode of administering justicə devised. As civilization advances, the incongruities of the rude laws customs and usages of the people are corrected from time to time by the courts of justice and by legislators, defects are occasionally supplied by legislative power, and the whole body of the laws more and more reduced to a system. Legislation moulds much law into form and consistency, but originates
As laws mostly originate in usage and custom, cotemporaneous usage is always the best exposition of statute laws and constitutions.
SEC. 4. ORIGIN OF GOVERNMENTS. Usages and customs, as well as natural law having existed prior to human legislation, the first exercise of the powers of government was to determine the law, that is, the law of nature, the principles of natural justice, and the usages and customs of the country, to punish crime and offences, and to administer justice in accordance therewith. This was done during the primitive and middle ages, by patriarchs, military chieftains, and councils, who combined and exercised legislative, judicial, and executive powers. The reason of the great mass of uncultivated minds is
very and their mental visions very limited and imperfect; and hence without law and government to guide, direct and restrain them, they are governed by the impulses of their own appetites and passions. Mankind should live in families and society. The mode of living in society as well as in families, is in accordance with the nature of man, and necessary to his happiness and general welfare.
Order can not exist without law and government; and man can not exist in society without order, law, and government. Hence govrenment has its origin in necessity; and though all free governments are established by, and derive their forms and division of powers from the assent and acquiescence of the people, yet the extent of their powers depends after all, mostly upon the laws of nature; upon the exigencies of socicty; upon the necessity of self-defence and self-preservation.
Another evidence that government is founded in necessity arising from the constitution and nature of man, is furnished by the fact that some degree and kind of government grows up spontaneously among every people, however savage or barbarous they may be. Those imperfect, self-developed governments are mostly of a patriarchal or ecclesiastical character, or the rnle of chieftains elected by tribes. They are essentially modified and changed by successful military monarchs, by councils of military chieftains, councils of ecclesiastics, or conventions of representatives of the people. Sec. 5. SOME NATURAL RIGHTS SURRENDERED TO THE GOVERNMENT
In the establishment of civil governments men surrender some of their natural rights in order to secure and protect others more perfectly. They surrender,
1. The natural right to redress their own wrongs and injuries.
2. They grant power to control their persons to aid in the defence of the state, and to tax their property so far as is necessary to support the government and promote the general welfare.
3. They grant power to regulate, by general laws, trade and commercial intercourse, the sale transfer and transmission of property, contracts, marriages and the domestic relations, education, highways and bridges, crimes, misdemeanors and all matters of police, and the administration of justicc. But they do not surrender to the government the right of self-defence; self-preservation and self-defence are instincts of nature, and the right to use the means and the power necessary to secure them, constitutes the first law of nature. This right is inherent in families, communities, states and nations, as well as in individuals. It is an inalienable right which is never surrendered.
Hence the power to maintain its legitimate authority, to punish