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know good from evil . . . . are usually summed up in one general appellation, and denominated, the natural liberty of mankind.” What then gives one man or body of men the right to abridge this liberty Blackstone goes on to say that man, “when he enters into society, gives up a part of his natural liberty as the price of so valuable a privilege.” I am inclined, nevertheless, to think that this, though true in the main, is not the exact definition which we require, either of rights or of their limitation. For we shall find that this natural liberty never has existed, from the time that a child was born into the world, since its weakness and inexperience necessarily place it under the control of its parents; and what right can be natural which is not inherent from the first? We should laugh at any one who talked of the natural liberty of an infant, unable even to walk. We must seek then for some other definition of right than this of mere liberty, and we shall probably find it by an inquiry into the state of this very infant. It is born by no choice of its own; then the Will by which it is constituted as it is, has some design in so constituting it: some aim and end of existence are assigned to it: for I am not here to argue the existence of a Creator; that has been done elsewhere. If the being, be it what it may, have some end of existence assigned to it, then the accomplishment of that end is its natural right, and so far as liberty of action is needful to this end, it will form a part of the claim of natural right, but no farther. Man being an intellectual animal, the end of his existence can be attained only by the complete development of his nature in both its parts; and he who abridges him of any means by which this is to be effected, does him a wrong; but the parent who abridges the natural liberty of the child so far as to prevent him from maiming or destroying himself, does him no wrong, but the contrary: and this relation of parent and child being universal, and from the beginning, it is plain that unrestrained liberty is not the complete summing up of the natural rights of mankind. But the infant has the natural right of arriving at the due development of the two parts of his nature, corporeal and intellectual, and from this other rights are derived: he has a right to food, to shelter, to protection from violence, to instruction. These, whilst helpless, it is the parent's duty to bestow, and these, when grown to an age that enables him to make his own claim, and seek his own perfection, he endeavors to obtain, because he feels them to be absolute conditions of animal and intellectual existence. A right cannot be withheld without doing a wrong: if a man have by his industry provided himself with food and raiment, and another attempts by violence to deprive him of it; the first, possessing a natural right to these things, has also a natural right to resist the being dispossessed of them: if he be not strong enough himself, he seeks the aid of others to make the resistance effectual; and hence arises the first rude notion of social law, as we find it practised among simple tribes, in patriarchal times. Thus, when Lot and his property were carried away, his uncle Abraham armed his servants, and with the aid of three of his neighbors, pursued and rescued his nephew and his effects. War is only another form of this rude justice, continued to our day: it is the repelling violence y violence where the party cannot be made to submit to law. The right then of abridging the liberty of our fellow men by the establishment of social law, springs out of the very constitution of our nature, which, having a certain end to accomplish, has the right to fulfill it, and consequently to resist any attempt to impede this fulfillment. Man's wants are the same; all need food, shelter, &c.; but the physical strength of the different members of the great human family is very unequal: numbers therefore unite to effect what, singly, would be beyond their power; and some rude form of legal jurisdiction is at last devised to remedy the state of warfare which necessarily arises out of individual violence and individual self-defence. The form of parental rule is that which man is earliest and best acquainted with, and thus in early times the transition from patriarch to prince was easy. In Asia that form still exists, and the magistrate for the most part is guided by no law save that which is supposed to exist in the heart of every man: but in more northern countries,
where the greater difficulties of soil and climate kept men more dependent on each other for assistance, and consequently in nearer neighborhood to each other, the fathers or elders of the tribe formed a kind of council, and their decisions were held binding on the whole, or if resisted by one or two, were enforced by the rest: and this for the most part was the origin of our unwritten or common law: since among the German nations, from whom we are derived, though there might be one chief for war, who performed the functions more of a general than a king, his decisions as to right were never given merely on his own authority, but were made valid by the consent of his council of old men. And such a decision was likely to be satisfactory where the people were simple, and the relations of society very little complicated; for it was that of men of competent experience and integrity, who were past the age of passion, and not personally interested in the sentence; so that, on the whole, the German tribes, if we take the testimony of Tacitus, were not ill-ruled. This state of things, however, necessarily ceases along with the simple state of society to which it belongs, and then the people usually call for a written code which may meet their new exigencies, and be less liable to doubt than mere verbal decisions handed down by tradition: and thus arises statute law.
If the origin of the right to control our fellows has been, truly stated, the object of this control will not be difficult to discover. Society generally, in order to avoid petty wars, takes on itself the protection of those who submit themselves to its ordinances, and these ordinances are: therefore directed to the securing those rights which man is justified in defending, because they are indispensable conditions of the development and perfection of his nature. And this right to the development and perfection of his nature is coeval with his very creation; for all things made by an intelligent Will are made with an ob. ject, and that object is not accomplished till the thing made is perfect of its kind. Man therefore may justly claim this perfection as his first great right, and his double nature calls for the means of a double development. The rights derived from this first and great right therefore are 1. Security in life and limb. 2. Security of possessions requisite to his natural wants. 3. Instruction in childhood and freedom in manhood, sufficient for the development of the rational mind. These are the securities which ought to be afforded by the control of social law, and it has no other legitimate object than the affording these securities; for man does not submit himself to control merely to please others, but for the sake of being uninterrupted in the pursuit of the great aims of his existence. . The security of person and property against violence, —for no violation of the right of free thought can take place whilst these are secure, being the great object of social law, it follows that it has no right to inflict penalties for any other purpose than to secure those rights; and its enactments therefore must have in view the prevention rather than the punishment of crime. For it is no benefit to the injured man that he who has injured him should suffer in his person for what he has done, but it is a benefit both to him and to society that the criminal shall be prevented from repeating his offence, and that others shall by his example be deterred from attempting it. On this point Blackstone is very explicit. “The end or final cause of human punishments,” says he, “is not to be considered in the light of an atonement or expiation for the crime committed . . . but as a precaution against future offences of the same kind,” and again he observes that the due measure of punishments will be merely “such as appear best calculated to answer the end of precaution against future offences.” . And this principle is recognized in practice to a certain degree, for since it is evident that a young child is incapable of being deterred from ill-doing by the dread of legal penalties, owing to his inexperience, which prevents him from well knowing that there aré any such, it is not until an infant attains the age of seven years that he is by our English law held at all answerable for his actions to society, and if he commit a felony he is not punishable by any criminal prosecution whatever* It appears therefore that both rational philosophy and English law equally disclaim the idea of vengeance in any procedure of criminal, or, as I have called it, social law; and it may be farther stated that where the crime affects only the individual himself, however deep its dye, social law has no concern with it. The correction of the crimimal, in this case, is cared for by another and higher judg
*But though the principle be thus far acknowledged by English law, it has been strangely confused by the legal practice with regard to the next seven years; for then it is held, that if the attendant circumstances prove that the child had a guilty knowledge that he was doing wrong, he is liable to the penalty of the law; and there is a case in the books of a child between the age of eight and nine years, who was tried and hanged for the crime of arson, committed with feelings of revenge, and executed, it is said, with considerable craft and cunning. But here it is observable that if the object of law be prevention of, not vengeance for crime, the capital punishment of one precocious child which could have no probable beneficial influence on other children, is not justifiable; though some minor penalty, which tended to the reformation of the offender himself, might be not only justifiable but desirable. The want of any acknowledged general principle on this subject, seems to have been felt in another case, which occurred in the year 1748, of a boy aged ten years, who murdered a little girl of five years old, by, according to his own confession, taking her out of bed, and carrying her to some distance, where he killed her with a large knife he had found about the house, cutting and mangling the body in a most barbarous manner. He then buried it in a dung heap, placed the straw which was stained with blood under the body, and covered it up with what was clean. The boy was convicted at the assizes; and a report of the evidence given was submitted to the judges, who unanimously agreed that so many circumstances in the report were undoubtedly tokens of what Chief Justice Hale calls a “mischievous discretion,” that the boy was certainly a proper subject for capital punishment. However, notwithstanding this opinion, the boy was reprieved from time time, and was finally in 1757 pardoned, upon condition of his entering immediately into the sea service.—Wide Russell on Crimes, book i. chap. 1.