Essays on human rights, and their political guaranties

Front matter

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CHAPTER I. THE ORIGIN OF HUMAN RIGHTS Page7to27

Rights are not created by the law. — It cannot prescribe a duty or declare a right except in consonance with the Natural Laws. — The law ought to be merely declaratory of Natural Rights and Wrongs.— The necessity of a Mental Philosophy to a proper understanding of Human Rights. — Phrenology adopted as the true Philosophy of Mind. — Mr. Bentham's error in denying Natural Rights. — Theory of Human Rights based on the innate powers and dispositions of the mind. — The fundamental rights of man are, the Right to Existence and the Right to Happiness. — The Argument stated. — The Natural Depravity of Man denied. — The faculties of Mankind considered in reference to the Social State. — The Argument. — Right to live in Society inferred. — And such being the right of mankind, the State cannot require the surrender of any Natural Rights from the Social Man.

CHAPTER II. THE TRUE FUNCTION OF GOVERNMENT p. 28— 46

Government is a thing of Moral Necessity, arising from inferior intellectual and Moral organizations in a portion of Mankind. — The doctrine of Equality considered. — What degree of moral restraint may be imposed by Government. — A good man needs no coercion from the law. — The true idea of Civil Liberty. — The adaptation of the Laws to the Constitution of the Human Mind. — The laws ought to be general, equal, and impartial. — Privileges at war with Rights. — The usurpation and injustice of Special Legislation.

CHAPTER III. THE CONSTITUTION OF GOVERNMENT p. 46— 61

The people as Sovereign by the Constitution delegate the' power of government to their representatives or agents. — In a pure Democracy there is no necessity for a written Constitution. — Reasons for a written Constitution in a Representative Government. — The office of the Constitution. — It is not irrevocable — but may be* altered or changed at the pleasure of the majority of tht people. — The people cannot bind themselves irrevocably to any form of Government or mode of administration. — The distribution of the powers of Government by the Constitution. — Appointment of officers — Their choice by the people. — Reflections upon American imitations of the British Constitu* 4 >ju

IV CONTENTS.

CHAPTER IV. CONSTITUTIONAL LIMITATIONS AND PROHIBITIONS p. 62— 86

The tendency of Government to overact— Necessity of guarantiee against the oppressions of the State. — The Constitution ought to be replete with prohibitions upon State authority. — Objections to the phraseology of some of the present prohibitions — These enumerated and reasons for more. — The Rights of Man require that the leading principles of Criminal Jurisprudence should be settled in the fundamental law of the State. — The State cannot take vengeance upon a prisoner — It can only restrain a criminal from doing further wrong. — Theory of criminal restraint and treatment briefly stated. — The right to inflict the Punishment of Death denied. — Infringements upon the Rights of Opinion to be guarded against by the Constitution. — Religious Liberty is not well secured by the American Constitutions. — The observance of Sunday. — Enfranchisement of the Clergy.

CHAPTER V. CONSTITUTIONAL LIMITATIONS CONTINUED p. 87—106

Public Debt. — The Constitution of a State ought to guard against an unjust public debt by limiting the Expenditures of a State to its necessities. — What are the legitimate expenses of b State i — Except for these, the majority cannot bind the minority. — The "People's Resolution" — Legislative action upon it in the State of New-York. — The right of Eminent Domain — The necessity of defining the limits of its exercise.— Laws affecting the relation of Debtor and Creditor. — Proposed reforms to the New-York Constitution.

CHAPTER VI. THE ELECTIVE FRANCHISE p. 107—123

The basis of popular Suffrage — The proper relation of the individual man to the State. — Reflections on the Constitutional Provisions of New-York relative to the Elective Franchise. — Qualifications of an Elector — The Property Qualification. — What persons may not vote ? — Reasons for and against the Exercise of the Elective Franchise by Women. — Conclusion upon them.

CHAPTER VII. RIGHTS EMANATING FROM THE SENTIMENTS AND AFFEC- TIONS p. 124—143

The natural right of Self-Defence. — Appeal to Society for redress of Wrongs. — Neither Society nor an individual may take vengeance for a Wrong — But the State is bound to mete out Justice in all cases — and wrongs to the Sentiments and Affections demand remedies which are not now provided by the laws.— The present remedies by affording only a pecuniary recompense are - improper. — Injuries to the Sentiments and Affections arising from slander, libel, seduction and adultery, &c. ought to be treated as Criminal offences — If not, the parties injured will resort with impunity to vindictive self-redress. — The duel can only be avoided by treating the wrongs out of which it arises as Criminal offences,

CONTENTS. T

CHAPTER VIII. THE RIGHTS OF WOMAN: p. 144— 172

The Equality of the Sexes in the eye of Justice. — Rights know no distinction of Sex. — The Rights of Woman inferred from her mental constitution. — The notion of Marriage being a civil contract refuted. — The absurdity and injustice of this idea of the Common Law. — Who may contract Marriage. — Second Marriages. — The right of Divorce. — The test in cases of Divorce should be the moral fitness for marriage of the party complained against. — Divorce ought to be total in all cases. — Marriage a sacred natural ordinance and not the creature of the Law. — The relation of Husband and Wife under the Common Law. — Objections against the legal annihilation of the Wife. — The loss of moral dignity of the Wife under the Common Law — And the sacrifice of her rights of person and property.

Chapter IX

THE RIGHT OF PROPERTY AND ITS MORAL RELATIONS.... p. 172— 198 The origin of this right. — The sense of Property is innate in man, and is shared by him in common with some of the animal tribes — But when guided by the human intellect, and acting under the impulse of the sentiments proper to man, it rises to great dignity and importance. — The natural right of Property. — The views of various writers on this subject considered. — Man's true relation to Property and Wealth. — The abuse of Wealth. — Diversity of the human faculties in reference to the acquisition of Property. — Inequality of Men's Estates the result of their mental constitution. — The laws ought not to interfere to retard or benefit any man in the acquisition of Wealth. — They can only protect his acquisitions. — The evil of Corporations. — Factitious Credit Systems — Nature's Credit System. — Speculation and Paper Money. — Laws affecting Trade and Business. — Right of Eminent Domain and its proper limitation.

CHAPTER X. INTELLECTUAL PROPERTY p. 198— 219

The Natural Right of an Author to exclusive and perpetual property in his copy. This right is not surrendered by publication.— The old Common Law acknowledged and protected this right.— Opinions of Mansfield, Blackstone, and the great English Judges on this subject.— This right at Common Law was impaired by the Statute of Ann.— But this cannot affect the Question in this Country. — In the State of New- York the Common Law is adopted by the Constitution — and by it the right of an author to exclusive and perpetual property in his Copy ought to be upheld, without reference to the Act of Congress. —Foreign Authors ought to be protected against the piracy of their works by American publishers

ESSAYS

ON

HUMAN RIGHTS AND THEIR POLITICAL GUARANTIES.

Chapter I. The Origin Of Human Rights

Since the period of the Revolution, scarcely an attempt has been made by any of our citizens to show the origin, and to define the extent, of human rights. The Declaration of 1776 contained several broad assertions upon this subject, favoring human equality, and the sanctity of natural rights ; but did not attempt much more than to assert the sacred inviolability of human life, liberty, and happiness.

A celebrated political writer of that period discussed at some length the rights of man in opposition to the principles of the British Constitution ; but he rather combated error than asserted truth ; and while he demolished, by his arguments, the structure of European governments, his Essay fell short of establishing the rights which he defended upon the surt foundation of natural truth. He was not armed with the trae philosophy of mind.

While the Constitution of the United States was undergoing discussion prior to its adoption, the Essays of " The Federalist" were presented to the American people by three of the most eminent men of the day ; — and this masterly work contains the only true and complete defence and exposition of the principles of Republicanism, which has ever fallen from an American pen.

But these Essays, excellent as they are universally considered to be, fall short of affording a complete political philosphy ; since, supposing them to be well grounded upon natural truth, they discuss only the powers of the General Government, which are limited ; and omit altogether the subject of State legislation, which immediately affects and controls the most important rights of the citizen.

During the half century now past, what discoveries have we made in the principles of legislation ? What have we done toward the establishment of wise and just laws, and in the maintenance of their stability ? Do we not pass laws and repeal them ? — and condemn to-day what we sanctioned yesterday ? Is the American legislator grounded upon any philosophy of mind ? Does he know the certain nature of the beings whom he binds by the laws ? And are those laws in harmony with the law of their nature ?

These are questions of grave importance to the American people, and concern both individual happiness and our national existence. For it is the destiny of every government which outrages humanity, to fall ; and the truly g**eat and noble are the first to transgress unjust laws — faithful as they ever are to their higher allegiance and better destiny.

The duty of the legislator is simply to conform to natural truth. He is the mere " minister and expositor of nature." If Infinite Goodness has ordained the employment of the human faculties for the attainment of happiness, and invited their activity by surrounding them with the means of employment and gratification, human wisdom has but one work to perform, and that is, to reduce the means of happiness to possession according to the natural design. Man, then, must know himself, and his true relation to his fellow-men and to external nature. Ail truth becomes natural truth — all rights, natural rights— and all wrongs, natural wrongs. Our business is to perceive, not to create. Man makes not good nor evil. He cannot confer rights, nor create wrongs. He can only sanction and forbid in consonance with the natural laws.

"Those rights," says Sir William Blackstone, "which God and Nature

I have established, and are therefore called natural rights, such as are life

and liberty, need not the aid of human laws to be more effectually invest-

THE ORIGIN OF HUMAN RIGHTS.

cd in every man than they are ; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall commit some act that amounts to a forfeiture.

" The case is the same as to crimes and misdemeanors that are forbidden by the superior laws, and therefore styled mala in se, such as murder, theft, and perjury, which contract no additional turpitude from being declared unlawful by the inferior legislature ) for that legislature in all these cases acts only in sab ordination to the Great Lawgiver, transcribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all with regard to actions that are naturally or intrinsically right or wrong.

" But with regard to things in themselves indifferent the case is entirely altered. These become either right or wrong, just or unjust, duties or misdemeanors, according as the municipal legislature sees proper for promoting the welfare of society and more effectually carrying on the purposes of civil life. Thus our common law has declared that the goods of the wife do instantly upon marriage become the property and right of the husband, and our statute law has declared all monopolies a public offence ; yet that right and this offence have no foundation in nature, but are merely created by lata for the purpose of civil life. 11

The former part of this extract regarding natural rights is entirely sound, and expresses with great clearness the view which I wish to present — namely, that the law is merely declaratory as to all natural rights. It does not create, but enforces them ; the right depending not upon the law, but the law rather upon the right itself.

The error in this quotation which I wish to combat is, the supposition that the law has anything whatever to do with things " which are in themselves indifferent." " These," says the learned commentator, " become right or wrong, just or unjust, duties or misdemeanors," as the legislature sees fit to declare thern.

This is placing man's destiny in the hands of his fellow-men, rather than in the hand of his Creator. Here is spread wide the grand entrance-door of tyranny. What may not the legislature see fit to declare to be right or wrong, duty or misdemeanor !

If the law forbid that which nature allows, it restrains human liberty. If it enjoin a duty which nature does not impose, it inflicts an act of tyranny upon man. If it confer a right which nature has not ordained, it robs some one or many of that which it confers, and works injustice among men. The instance quoted by the writer, where the law gives the goods of the wife instantly upon the marriage to the husband, is a most apt illustration of this species of injustice. Here the law creates a right arbitrarily, and without a shadow of foundation in nature. But this right conferred upon the husband implies a right taken from the wife ; and hence an actual wrong to her, which the law ought not to inflict. > What I design to contend for is, that the laws shall be merely declaratory of natural rights and natural wrongs, and that whatever is indifferent to the laws of nature shall be left unnoticed by human legislation ; that all rights and duties are natural ; and that legal tyranny arises wherever there is a departure from this simple principle.

How then can we avoid this tyranny ? What need we to know in order to arrive at justice and safety, in the work of human legislation ? I answer, that we must know man's mental constitution and its relation and adaptation to the external world.

.Nature outraged appeals from human to the divine laws. We have but to know ourselves and our natural relations, and we may be redressed at once.

But can we know the true nature of man ? Is the natural man and the man of society one and the same being ? Has not education changed his character, and luxury disordered his mind ? Have the civilized and the savage man one common nature, which can be ascertained, and upon which we can base a speculation as to human rights ? I answer, that the state of civilization is the true natural condition of the human race. It is in this state only that the true nature of man can be fully exhibited. He is endowed with faculties which inevitably tend to high civilization and improvement. A faculty improved is still the same faculty. A sentiment enlightened does not lose its original character. But if we need to see man in a primitive state in order to detect his natural characteristics, the means are always at hand — for every human being begins life a savage. In the nursery of human infancy are betrayed the true natural desires, emotions, and faculties of all human beings. We need not go back to the traditions of the early ages of the world, for the cradle presents us with the early age of every man — of savage man in the bosom of civilized life.

Tyranny has no excuse. It cannot any longer affect un certainty and doubt as to the true and certain mental characteristics of mankind.

Man is at length demonstrated. The universal man stands forth to modern view with his mental forces well defined and well known. Modern discovery has given to each native desire, to each emotion and faculty of the human mind, " a local habitation and a name," and presented to the philanthropist and statesman the means of defining human rights, and of conforming human legislation to the eternal standard of truth and nature. I allude to the discoveries of the great Gall, and to that system of intellectual and moral philosophy which has thence resulted, and which one of the greatest of his disciples has justly denominated " the last and best of human sciences." .

Dr. Gall and his disciples have demonstrated, by observation upon a world of facts, that the brain is the medium through which all human passion, sentiment, and intellect, are manifested, — that the force and degree of these manifestations depend (other things being equal) upon the size of that organ, — that the size of the brain, or any particular portion of it, can in general be accurately determined, during life, from an outward examination of the human scull, — that the brain is composed of a congeries of organs, having each its peculiar function, namely, the manifestation of a peculiar faculty, sentiment, or passion, and having that office alone. Assuming, therefore, that they have, after more than forty years of patient labor and investigation, discovered the peculiar function of each portion of the brain, they declare that they have demonstrated, by physiological facts, the true natural faculties and dispositions of the human mind.

These conclusions are not derived from an examination of any peculiar people. All human kind have passed under their observation — from the rude Tartar to the most enlightened European — the children of the sun, and the inhabitants of earth's frozen regions — the educated and the ignorant — all colors, all classes and conditions of men — the ancients, from their decayed sepulchres, and the moderns in the midst of life— both sexes and all ages — have passed under their most rigid examination ; and the same natural faculties and dispositions have been found in all.

Their conclusions, therefore, embrace all human kind. — Produce a man, and to them you exhibit a being endowed with the sum of those faculties and dispositions which they have demonstrated as pertaining to humanity. The idea of Man, to them, is but the embodying of certain known and well-defined powers, sentiments, and passions, in a living being. They know his desires, emotions, and faculties — what he wants, what he wills, and what he suffers. No distance renders his case uncertain. Color clouds not their observation, nor does time outlaw his claims. He is a Man — that suffices to define his certain nature, and his ultimate destiny. Climate, country, distance, government, the distinctions of society, can neither change his nature, nor annihilate his rights. The king, the subject, the master, and the slave — each is a man ; no more nor less than a man ; and in the eye of this philosophy, each is bound to acknowledge the other to be a man, with all the rights pertaining to humanity.

This science does not deny that a very great disparity exists among men in regard to their mental constitutions. On the contrary, it asserts that there are vast individual and na tional differences in respect to both intellectual and moral en dowments, and that this difference is mainly dependent upoi_ their physical organization. But each man possesses, nevertheless, the faculties and sentiments peculiar to humanity, although as to each of his natural powers, one man may differ from another, either in the strength, activity, or peculiar combination of his faculties. What the phrenologist asserts is, that no sane man has a faculty which another has not. — He admits a difference in degree, although none in hind.

I beg, therefore, to be allowed the advantage of certain great and fundamental truths derived from phrenology, which I esteem as well established as any truths in natural science.

First. That mankind haye one common nature, which is How ascertained and well defined.

Second. That this common nature is composed of certain well-known intellectual faculties, moral emotions, and desires or passions, which are innate, and spring from the veryexistence of a human being.

Of these innate powers, I need not enumerate more than a part, and such only as may be found essential to the discussion of the topic stated in the title to the present chapter — to wit, the desire of life — the desire of food— the desire of safety — the desire of exclusive property and possession — the innate love of the opposite sex — the faculty to speak and communicate ideas — the sentiment of reverence and awe — the disposition to have faith — to wonder — a love of the beautiful and perfect — a love of praise and commendation — a desire to see others happy — a love of justice, or sense of right — a feeling of self-esteem, or pride.

Now these, and all the other natural faculties of man, are adapted to harmonize with external nature — so that each faculty finds in the world an object upon which to rest for its appropriate exercise and gratification. It would, therefore, seem to be the natural design that every power of the mind should be exercised. Wherever Nature has ordained desire, she has spread before it the means of gratification. — From this we infer the right to its indulgence — and hence, also, the rights of man.

Man has a right to the gratification, indulgence, and exercise of every innate power and faculty of his mind. The exercise of a faculty is its only use. The manner of its exercise is one thing ; that involves a question of morals. The right to its exercise is another thing, in which no question is involved but the existence of the innate faculty, and the objects presented by nature for its gratification.

To my own mind this derivation of rights seems so clearly just, that I would not attempt its further illustration — but that we meet in the works of the most celebrated writers with so much controversy upon this subject.

"Natural law, natural rights/' says Mr. Bentham, in his Theory of Legislation, [p. 104,] " are two kinds of fictions or metaphors, which play so great a part in books of legislation that they deserve to be examined by themselves."

" The word rights, [p. 107,1 the same as the word law, has two senses — the one a proper and the other a metaphorical sense. Rights, properly so called, are the creatures of the law properly so called ; real laws give birth to real rights. Natural rights are the creatures of natural law ; they are a metaphor which derives its origin from another metaphor. . . . There is no reasoning with fanatics armed with natural rights/ &c.

Speaking of the right of property, he says, [p. 137] —

14 There is no such thing as natural property — and that it is entirely the work of the law. Property is nothing but a basis of expectation," &c.

Mr. Bentham's editor, Dumont, explains in a few words

[p. 113] the grounds of his author's errors: —

" The first ray of light," says he, " which struck the mind of Bentham, in the study of the law, was the perception that natural rights, the original pact, the moral sense, the notion of just and unjust, which are used to explain everything, were at bottom nothing but those innate ideas, of which Locke has so clearly shown the falsity. He saw that authors were going round in a vicious circle. Familiar with the method of Bacon and Newton, he resolved to transfer it to the subject of legislation ; he resolved to make jurisprudence an experimental science. He avoided all dogmatic words ; he rejected everything that did not express a sensation of pain or pleasure ; he refused to admit, for example, that property was an inherent right, or a natural right, because these terms explained nothing and proved nothing. When he proposes a law, he docs not xjretend to find a corresponding law in the code of nature ; and by a common piece of legerdemain to present as a thing made already, the very thing he wishes to make."

Here is a giant groping in darkness.

All this error was the offspring of no ordinary mind. A great, a very great mind wandered thus far from natural truth, for the want of a true mental philosophy. This doctrine leaves no foundation whatever for human rights, but the mere will, of the despot or the confused speculations of the metaphysician. According to this view, human laws create and confer the rights of humanity, and one man in one country may have rights to which another is a total stranger. And even if the laws confer no rights whatever, there is no harm done, for man is nothing before the law comes to create him ; and it may breathe into his nostrils precisely such sort of life as the lawmakers please. His duty is to be thankful to the law for even the very smallest favors.

The opposite view of this subject may be thus stated : —

Life is the gift of a beneficent Creator ; but, once bestowed, it becomes a right as against all but the Donor. He who conferred can alone righfully take away. But this gift was for a beneficent purpose ; it would not be a blessing, but a burden, unless it was designed for happiness ; and we may assume, then, that life is bestowed to the end that the being created may be happy. Man has a right to claim that the intention of the Giver of life shall be fulfilled. He has a right, therefore, to happiness. .

The fundamental rights of man are these : —

1. The Right to Existence, and

2. The Right to Happiness.

The Creator may bestow or withhold the former at his pleasure ; but it is inconsistent with his benevolence to bestow the former without the latter.

The fact of existence is one evidence of the right to exist. Rut Man has further evidence from the hand of Nature of his right to life ; since he is endowed with instincts devoted to its preservation. The gift, so to speak, came in a case for its protection.

1. He has the instinctive love of life, which prompts the desire to continue existence.

2. He has an instinctive love of food, whose promptings support life.

3. He has an instinctive dread of danger to life, which impels him to shrink from all harm.

4. He is instinctively watchful to anticipate and avert evil to his existence.

5. He has an innate disposition to combat, oppose, and destroy whatever and whosoever threatens danger or injury to him.

Now, because these are the natural endowments of the man, they prove as plainly as natural revelation can, that the intention of the Giver of life is that man shall enjoy life.

The gift and the accompanying impulses for its preservation establish the right of existence.

But the right of happiness may require further illustration. This is to be inferred — ■

1. From the attributes of the Deity ; and

2. From the organization of man and the works of creation.

Wheresoever the Creator is manifested in his works, we behold evidence of infinite beneficence. He has provided for the necessities of all his creatures. Every want is a source of pleasure, because its means of gratification are abundant. To create a being with wants which could not be gratified, would have argued the absence of benevolence ; but to create a being whose very wants should be a source of happiness, through their abundant gratification, is evidence of a most ingenious goodness. To surround a being with difficulties without the means or intelligence to overcome them, would have been evil ; but to ordain difficulties as the means of exercising the faculties of a created being, and of bringing him to a higher state of perfection, is a blessing emanating from divine wisdom and goodness. To endow man with sensibilities for the purpose of enduring pain, would be evil ; but to ordain those sensibilities for the enjoyment of pleasure, as the antagonist of pain, is good.

There is no general law of nature which opposes the happiness of man ; on the contrary, his constitution is in complete harmony with the laws of matter ; and these may be rendered subservient to his advancement and happiness.

Life, then, is bestowed by the Giver of all good for the purpose of happiness. If so, to live and be happy is our right.

But having a right to happiness, man has also a right to employ the means for its accomplishment. These means will vary according to the constitution of his nature ; for there must be an appropriate adaptation of the means to the end to be obtained. The right to be happy would be vain without the means of becoming so. The Creator, therefore, has endowed man with certain innate desires, emotions, and faculties, the gratification and exercise of which are the means of his happiness. Here is the consummation of man's rights — the right to gratify his natural desires ; to supply his natural wants ; to exercise his natural faculties, as the means of attaining happiness.