 | |
Chapter III
The Natural Laws Governing Freedom
3.1 The Rights Of Man And The Elements Of Freedom
Having shown that individual freedom is the overriding need and desire of all men and should therefore be regarded as the controlling purpose of government we will now undertake to formulate those natural laws which must be obeyed to reach this universal goal. It is believed that such laws will be more readily recognized as such if stated as rules which must be followed to protect human rights. The doctrine that men have a set of unalienable natural rights provides a familiar and sound basis upon which to erect a political structure.
We shall build on this foundation by first pointing out that these celebrated rights of man are nothing more and nothing less than his rights to the four elements of freedom — life, liberty, property and knowledge. We shall then demonstrate that such rights exist only when the duties which correspond and relate thereto are enforced. And finally we shall show that by enforcing such duties (but no others) the natural laws governing freedom are complied with.
Those who established the American Constitutional system of government did so under the assumption that each individual possesses certain unalienable rights and that governments are formed to secure them. The essence of this “rights of man” philosophy is expressed in the Declaration of Independence in these words:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, governments are instituted among men ... [p. 20]
While this statement specifically identifies some of man’s rights, by its very wording it does not presume to list them all. However, the fact that life and liberty are named necessarily implies that the other two elements of freedom — knowledge and property — are among them. This is so because the four elements are indivisible and inseparable. Not one of them is usable unless the other three are also present. Since the main arguments supporting this conclusion were advanced earlier, they will not be repeated here. However, additional evidence of its truth lies in the fact that it is impossible for government to protect one of these rights without protecting the other three. This is particularly true with respect to life, liberty and property. Affording protection to liberty and property is of no value if life goes unprotected. Nor can one derive much benefit from the protection of life and property without his liberty. And finally, even though there is a current political philosophy which pretends that mankind can enjoy the protection of life and liberty while being denied the right of private property, this is one of the most easily exposed of all falsehoods. Let us observe why life and liberty are largely unusable unless the right of private property is protected.
The primary purpose for which men use life and liberty is to obtain and dispose of property as they desire. When left free to do so, they spend their entire productive lives in acquiring property so that they may use it to sustain themselves and exercise freedom by carrying out other purposes. Therefore, unless men are free to enter the occupation of their choice so that they may obtain property, and unless they are free to utilize the fruits of their labors to sustain life and achieve their goals, neither life nor liberty is protected. These latter two elements of freedom are denied to the same extent that the right of private property is denied. Moral man has always regarded the protection of property as one of the most important functions of government. The English philosopher, John Locke, took the position that this is its primary purpose. According to him:
The great and chief end, therefore, of men uniting into commonwealths, and putting themselves under government, is the preservation of their property... (2nd Essay on Govt., Par. 124)
That those who founded the American system of government regarded the protection of property equally as important as the protection of life and liberty seems apparent from the following provision in the Constitution: [p. 21]
No person shall be ... deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation. (5th Am.)
It should be apparent to all that if a person has a right to life, he of necessity must have a right to acquire that property without which life cannot a sustained. If he has a right to liberty, he must have a corresponding right to obtain and utilize that property without which liberty cannot be exercised. And if he has a right to knowledge, he has a right to acquire property with which to gain and utilize knowledge. The unalienable rights of man which the American system of government was formed to protect consist then of the right to the four elements of freedom — life, liberty, knowledge and property.
3.2 Rights Exist Only If Represented By Duties
If it is assumed that all men are endowed by their Creator with a set unalienable rights to the four elements of freedom, it must also be assumed that all men are burdened with a corresponding set of undelegable duties respecting those rights. Basic to an understanding of a right is the realization that it cannot exist without a matching duty; for what can a right consist of other than the enforcement of a duty concerning it? By very definition a right cannot exist in one person unless there is a corresponding duty in another. Unless there is someone who can be compelled to do or refrain from doing something to give the right meaning, it has no substance.
Rights and duties are as inseparable as are the concepts of light and darkness, positive and negative, good and evil. One term standing alone is meaningless because it can neither be comprehended nor explained without considering its opposite with which it must be contrasted. Once this fact is recognized it becomes apparent that if all men have been endowed with a right to the four elements of freedom, all men have had imposed upon them a set of duties concerning those rights. And what is the nature of these reciprocal rights and duties? Each member of society is entitled to have all others refrain from injuring or taking his life, liberty, property or knowledge and each is obligated in turn to refrain from invading or violating these endowments of his fellow men. [p. 22]
3.3 Natural Rights And Duties
Let us denominate the rights and duties just described as “natural” because we are born with them. They are conferred upon us and imposed upon us without any conscious action on our part. Every member of society is endowed with a set of natural rights and the corresponding duties are an indispensable part of them. We may regard the duties here described as being negative in nature because they obligate us to refrain from acting. We are required to abstain from that conduct which will cause harm to others. Only when we have violated this negative duty by committing a wrong are we obligated to take affirmative action and make amends for the injury inflicted.
3.4 Acquired Rights And Duties
In addition to the “natural” rights and duties just described, there is another set which do not arise automatically but come into existence as a result of our voluntary action. These are acquired or assumed as a result of a deliberate and premeditated intent that they do so. The most common and familiar type of such rights and duties arises out of the business contract. In the typical case two parties enter into a binding agreement under the terms of which one party assumes an obligation to deliver goods or perform services in exchange for the right to receive money. The other party assumes the duty to pay the money and acquires the right to compel delivery of the goods or performance of the services.
Another type of acquired rights and duties arises out of the family relationship. Under the marriage contract each party acquires legally enforceable rights against the other and assumes obligations in exchange therefor. The rights and duties between parents and children are different in some respects from those created by the ordinary agreement but are nonetheless real. Even though no formal agreement is entered into between the parties, when parents bring a child into the world they voluntarily assume the duty to support and care for that helpless infant until he is able to fend for himself. In exchange for such benefits, the child owes the parents obedience and also the duty to provide for their needs if their positions become [p. 23] reversed with the parents becoming helpless and the child able to sustain them.
It is observed that the rights and duties which we acquire concern the elements of freedom just as those we have called natural. The rights acquired under a business contract or because of a family relationship entitle the holder thereof to have his life or liberty maintained or his property or knowledge increased while the performance of the duty requires an expenditure or utilization of these possessions. Whether the right is natural or acquired the owner thereof is entitled to have others observe a duty respecting the elements of freedom — either refrain from injuring them or take some affirmative action concerning them.
In our discussion of natural duties we noted that they are negative, in nature because the obligation imposed is to refrain from acting. The duty is to avoid committing any act which inflicts an injury. The corresponding right to compel action arises only after there has been affirmative conduct which violates it. But duties which are assumed or acquired are ordinarily affirmative in nature because the obligations here are to act rather than to refrain from acting. The right to compel action comes into existence when the business contract is entered into or the family relationship is formed. In these cases the right is denied and the injury caused by a failure to perform the duty assumed rather than by affirmative conduct which breaches the duty.
3.5 Rights And Duties Without Substance Unless Enforced
Just as a right does not exist without a duty, neither rights nor duties exist unless enforced. Unless the person who violates a right is compelled to atone for the wrong and make restitution for the injury, it is a misuse of the term to call it a right. The substance of a right consists of the power to compel the wrongdoer to make restitution and the substance of a duty consists of being compelled to perform it. Unless the performance of the duty is enforced, the right is without a remedy and the failure to perform the duty without a penalty. It is the enforcement which brings both into existence and gives them substance. [p. 24]
The doctrine of the rights of man then necessarily includes the use of force on humans for without such violence and the threat thereof, they do not exist.
3.6 Government Necessary For The Enforcement Of Rights
We believe that governments were instituted of God for the benefit of man; and that he holds men accountable for their acts in relation to them, both in making laws and administering them, for the good and safety of society.
We believe that no government can exist in peace, except such laws are framed and held inviolate as will secure to each individual the free exercise of conscience, the right and control of property, and the protection of life. (D&C 134:1, 2)
If it be true that rights do not exist unless enforced, it is also true that they exist incompletely or not at all in the absence of government; this being the only agency which is at once powerful enough and impartial enough to exercise the force required. Government is the supreme physical force in society. To perform its functions it must be supplied with sufficient manpower and means to enforce its will against all persons and groups whatsoever. Only with such power can it adequately enforce human rights.
When government functions properly it enforces rights and duties in a just manner. It is not subject to bias and partisan pressure. It correctly appraises the character of the wrong committed, the restitution required and the punishment deserved. This combination of superior force and impartial judgment is indispensable if human rights are to be properly protected. It is most apparent that if each person had to rely on his own resources to enforce his rights, many would remain unenforced and would therefore not exist. The strong and cunning would prevail over the weak regardless of whose rights had been invaded. Thus, in the great majority of cases, rights and duties would disappear for want of enforcement. In those instances where the strongest happened to be in the wrong there would be little chance of justice since the natural bias of men makes them unfit to be judges in their own cases. In view of these facts we can conclude that the rights of man consist of the right to use the force of government to punish wrong and compel the performance of duties. [p. 25] This is in harmony with the philosophy of the Declaration of Independence which says:
To secure these rights, governments are instituted among men.
3.7 The Duty To Support Government
We believe that all men are bound to sustain and uphold the respective governments in which they reside, while protected in their inherent and inalienable rights by the laws of such governments; and that sedition and rebellion are unbecoming every citizen thus protected, and should be punished accordingly; and that all governments have a right to enact such laws as in their own judgments are best calculated to secure the public interest; at the same time, however, holding sacred the freedom of conscience. (D&C 134:5)
And now, except ye do repent of that which ye have done, and begin to be up and doing, and send forth food and men unto us, and also unto Helaman, that he may support those parts of our country which he has regained, and that we may also recover the remainder of our possessions in these parts, behold it will be expedient that we contend no more with the Lamanites until we have first cleansed our inward vessel, yea, even the great head of our government.
Ye know that ye do transgress the laws of God, and ye do know that ye do trample them under your feet. Behold, the Lord saith unto me: if those whom ye have appointed your governors do not repent of their sins and iniquities, ye shall go up to battle against them. (Alma 60:24, 33)
The list of man’s rights and duties would be incomplete without noting his right to call upon government for protection and his duty to support in performing this function. It has been seen that only the agency of government can properly protect rights. Once it is established and assumes this responsibility, each citizen is entitled to call upon it for his own protection. But no one can lay claim to this right without assuming a corresponding duty and the duty in this instance is to support government. Government cannot operate unless supported and such support must provided by those it protects. [p. 26]
From this it must be concluded that the duty to support government is an integral and indispensable part of the doctrine of the rights of man. Human rights do not exist unless this duty is performed. And let it be recalled that a duty is without substance unless it is enforced; therefore, government must have the power to compel those it protects to pay taxes and perform other necessary duties such as serve in the armed forces.
As long as government restricts itself to the function of protecting the elements of freedom and as long as it apportions the taxes and other essential duties equitably, no one can justly complain about his own duties. Since everyone desires and needs to have his rights protected and since government is the only practical means by which this can be done, everyone should realize that for his own benefit it must be supported. Each should be able to see that it would be unjust and destructive of his own rights if others were permitted to withhold their support; therefore, if he fails to bear his fair share he knows he is shirking a duty which is rightfully his and, therefore, force may properly be used to compel him to perform.
3.8 The Natural Laws Governing The Protection Of Freedom
In the foregoing discussion it has been shown that man has both natural and acquired rights to the four elements of freedom. Government protects freedom by protecting these rights to the elements of freedom. It protects man’s rights to the elements of freedom by enforcing those duties which relate thereto. It enforces these duties in two ways:
(1) by punishing their violation;
(2) by compelling their performance.
These are the only two means government has of performing its functions. Consequently the natural laws which govern the protection of freedom are those rules government must obey in using these two methods. Those rules or natural laws which government must obey in enforcing duties may be stated as follows: [p. 27]
Government must,
(1) punish the intentional violation of duties;
(2) punish nothing except the intentional violation of duties;
(3) stand ready to compel the performance of all duties when petitioned to do so;
(4) compel the performance of no duties except those which are natural or acquired.
Let us briefly consider why the protection of freedom requires that government obey each of these four laws.
3.9 Law Number One: Government Must Punish The Intentional Violation Of Duties
We believe that the commission of crime should be punished according to the nature of the offense; that murder, treason, robbery, theft, and the breach of the general peace, in all respects, should be punished according to their criminality and their tendency to evil among men, by the laws of that government in which the offense is committed; and for the public peace and tranquility all men should step forward and use their ability in bringing offenders against good laws to punishment. (D&C 134:8)
And now, behold, I speak unto the church. Thou shalt not kill; and he that kills shall not have forgiveness in this world, nor in the world to come.
And again, I say, thou shalt not kill; but he that killeth shall die:
Thou shalt not steal; and he that stealeth and will not repent shall be cast out.
Thou shalt not lie; he that lieth and will not repent shall be cast out. (D&C 42:18–21)
And it shall come to pass, that if any persons among you shall kill they shall be delivered up and dealt with according to the laws of the land; for remember that he hath no forgiveness; and it shall be proved according to the laws of the land.
And if a man or woman shall rob, he or she shall be delivered up unto the law of the land.
And if he or she shall lie, he or she shall be delivered up unto the law of the land. [p. 28]
And if he or she do any manner of iniquity, he or she shall be delivered up unto the law, even that of God. (D&C 42:79, 84, 86, 87)
Nevertheless, they durst not lie, if it were known, for fear of the law, for liars were punished; therefore they pretended to preach according to their belief; and now the law could have no power on any man for his belief.
And they durst not steal, for fear of the law, for such were punished; neither durst they rob, nor murder, for he that murdered was punished unto death.
But if he murdered he was punished unto death; and if he robbed he was also punished; and if he stole he was also punished; and if he committed adultery he was also punished; yea, for all this wickedness they were punished.
For there was a law that men should be judged according to their crimes. Nevertheless, there was no law against a man’s belief; therefore, a man was punished only for the crimes which he had done; therefore all men were on equal grounds. (Alma 1:17–18; 30:10-11; See Also: Exodus Ch. 21, 22)
The experience of mankind has uniformly demonstrated that the intentional violation of duties must be punished or human freedom is forfeited. This has been found to be the only effective means of protecting life, liberty, property and knowledge against criminals who would otherwise injure and destroy them. Unless those who deliberately destroy the rights of their fellow man are jailed, fined and executed, violence goes unrestrained and the exercise of freedom is largely denied. Throughout history moral man has regarded the intentional and unjustified denial of the elements of freedom as an evil which must be punished.
The necessity of punishing crime is more apparent when it is realized that even though the criminal element in society may be relatively small, the capacity of this minority to destroy freedom is all out of proportion to their number. A person’s ability to tear down is many times greater than his ability to create. While it takes years of tender care to nurture a child to the maturity of a full-grown man, it takes only a few seconds of crude violence to extinguish that life. And property which has required many lifetimes of ingenuity, skill and painstaking effort to construct, can be destroyed almost instantaneously by a criminal who has no more knowledge or skill than that required to light a match or explode a bomb. Only when government [p. 29] seeks out, punishes, and thereby restrains such intentionally destructive acts can the members of society pursue their activities without fear and in an atmosphere of freedom.
Not only must government protect its citizens from criminals within the nation but from foreign aggressor nations as well. It must maintain an army and navy sufficiently strong to prevent destruction by foreign criminals. The protection of life, liberty and property by punishing those who would otherwise intentionally destroy these possessions is the first and most fundamental law which government must obey to protect freedom.
3.10 Law Number Two: Government Must Punish Nothing Except The Intentional Violation Of Duties
We believe that religion is instituted of God; and that men are amenable to him, and to him only, for the exercise of it, unless their religious opinions prompt them to infringe upon the rights and liberties of others; but we do not believe that human law has a right to interfere in prescribing rules of worship to bind the consciences of men, nor dictate forms for public or private devotion; that the civil magistrate should restrain crime, but never control conscience; should punish guilt, but never suppress the freedom of the soul. (D&C 134:4)
Behold, there are many called, but few are chosen. And why are they not chosen?
Because their hearts are set so much upon the things of this world, and aspire to the honors of men, that they do not learn this one lesson -
That the rights of the priesthood are inseparably connected with the powers of heaven, and that the powers of heaven cannot be controlled nor handled only upon the principles of righteousness.
That they may be conferred upon us, it is true; but when we undertake to cover our sins, or to gratify our pride, our vain ambition, or to exercise control or dominion or compulsion upon the souls of the children of men, in any degree of unrighteousness, behold, the heavens withdraw themselves; the Spirit of the Lord is grieved; and when it is withdrawn, Amen to the priesthood or the authority of that man.
Behold, ere he is aware, lie is left unto himself, to kick against [p. 30] the pricks, to persecute the saints, and to fight against God.
We have learned by sad experience that it is the nature and disposition of almost all men, as soon as they get a little authority, as they suppose, they will immediately begin to exercise unrighteous dominion.
Hence many are called, but few are chosen. (D&C 121:34–40)
Now there was no law against a man’s belief; for it was strictly contrary to the commands of God that there should be a law which should bring men on to unequal grounds.
For thus saith the scripture: Choose ye this day, whom ye will serve.
Now if a man desired to serve God, it was his privilege; or rather, if he believed in God it was `his privilege to serve him; but if he did not believe in him there was no law to punish him. (Alma 30:7–9)
Judge not unrighteously, that ye be not judged; but judge righteous judgment.
For with what judgment ye shall judge, ye shall be judged; and with what measure ye mete, it shall be measured to you again.
And again, ye shall shall say unto them, Why is it that thou beholdest the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye? (Matt. 7: 2–4 JST)
The same considerations which require that the elements of freedom be protected from unjustified destruction by men outside of government require that they be protected from those within its framework. History is replete with instances where those in control of government have murdered, plundered and enslaved the citizens of their own nation. While governments are most essential for the protection of freedom, they can be, and ofttimes are, prostituted and used to destroy that which they were established to protect. Having been supplied with means and manpower for the specific purpose of using physical violence, they are horribly efficient in destroying the elements of freedom when used for this purpose.
Therefore, it is of the utmost importance that a precise limit be placed upon the power of government to deprive its citizens of their lives, liberties and properties for the purpose of punishing them. According to this second natural law, that limit has been reached when intentional violations of duty have been punished. Unless a person has undertaken without justification to destroy or injure an element of freedom, he should not be subjected to a penalty. Or to state the matter otherwise, innocent conduct, or conduct motivated [p. 31] by a desire to increase or preserve the elements of freedom should never be punished.
Both humanity and justice dictate obedience to such a law. Logic also requires its observance. The purpose of punishment is to restrain and prevent the evil which almost invariably arises from the attempt to commit evil, not to prevent the good which almost always results from an attempt to do good. When a person undertakes to do good, or in other words increase the elements of freedom, he ordinarily accomplishes this purpose. At least he seldom achieves the opposite result. Therefore, punishing such conduct deprives society of the good which otherwise results when people are left free to engage in beneficial activities. It also destroys freedom by taking from the person punished one of the elements of freedom — either his life, his liberty or his property.
Even though a person who undertakes to do good, inadvertently causes harm, it is still illogical to punish him. A well-meaning person need not be punished to induce him to try to avoid injuring others. This he does voluntarily. And if he has unintentionally caused harm and has failed to make restitution, the injured party may recover in a civil suit. A criminal action is not brought for that purpose. Punishment in this, as in every other case where there is no intent to violate a duty, is not only unnecessary, but is cruel, barbarous and contrary to the plainest dictates of common sense. When a party who is innocent of an evil intent negligently causes harm, it is proper to compel him to make restitution, but this is all the force which is either necessary or proper to protect the right which has been denied.
3.11 Law Number Three: A Government Must Stand Ready To Compel The Performance Of All Duties When Petitioned To Do So
WE believe that governments were instituted of God for the benefit of man; and that he holds men accountable for their acts in relation to them, both in making laws and administering them, for the good and safety of society.
We believe that no government can exist in peace, except such laws are framed and held inviolate as will secure to each individual the free exercise of conscience, the right and control of property, and the protection of life. (D&C 134:1, 2) [p. 32]
Now if a man owed another, and he would not pay that which he did owe, he was complained of to the judge; and the judge executed authority, and sent forth officers that the man should be brought before him; and he judged the man according to the law and the evidences which were brought against him, and thus the man was compelled to pay that which he owed, or be stripped, or be cast out from among the people as a thief and a robber. (Alma 11:2; See also Exodus Ch. 21, 22)
Having considered those natural laws which determine when a violation of duty should and should not be punished, let us now examine those which determine when government should use force to compel performance of duties. Once it is assumed that an individual has a right to the elements of freedom, it is also assumed he has a right to recover damages from anyone who injures those elements. The one causing the injury has violated his duty to refrain from doing so. But unless the duty can be enforced, the right which it represents does not exist. Therefore, government must be available to compel the performance of every legally enforceable duty whether natural or acquired and whether the breach is intentional or due to negligence.
In the situation where the breach of the duty is intentional, compelling the criminal to make restitution is in addition to inflicting a penalty on him under the criminal law. If government does no more than punish such breaches, the victim suffers a loss which remains unredressed. Therefore, he must be able to recover damages in the case where the injury is intentional as well as where it is negligently caused.
There are several types of laws under which government compels the performance of duties. They are as follows:
(1) tort laws;
(2) contract laws;
(3) family relations laws;
(4) tax laws and laws providing for military conscription.
The tort laws provide for restitution in the cases where the rights violated and the duties breached are “natural” rather than “acquired”. The injuries inflicted in these instances are generally due to the intentional or negligent conduct of the wrongdoer and the tort laws provide for redress in either case.
If the rights injured and the duties breached are “acquired” [p. 33] rather than “natural”, relief is available under either the law of contracts or that of family relations. In these cases the breach of the duty usually consists of a failure to act rather than affirmative conduct. If one fails to discharge the duties he has assumed under a business contract or a family relationship, the party injured may obtain the aid of government to compel performance or recover damages.
Duties owed to government are enforced under tax laws, and laws providing for military conscription, jury duty, etc.
In the foregoing discussion we have treated “punishment” and “compelling performance” as though they are two distinctly different methods of protecting the elements of freedom. While it is true that punishment is used almost exclusively in those cases where there has been an affirmative act causing injury, whereas compelling performance is usually limited to those instances where there has been a failure to perform, there are instances where punishment is appropriate in the latter situation. If a person who is obligated to perform deliberately refuses to do so even though able, punishment may be necessary. But let it be recognized that in such a case the violation of the duty is intentional and therefore properly punishable.
3.12 Law Number Four: Government Must Compel The Performance Of No Duties Except Those Which Are Natural Or Acquired
Thou shalt not be idle; for he that is idle shall not eat the bread nor wear the garments of the laborer.
It is wisdom in me; therefore, a commandment I give unto you, that ye shall organize yourselves and appoint every man his stewardship;
That every man may give an account unto me of the stewardship which is appointed unto him.
For it is expedient that I, the Lord, should make every man accountable, as a steward over earthly blessings, which I have made and prepared for my creatures.
I, the Lord, stretched out the heavens, and built the earth, my very handiwork; and all things therein are mine.
And it is my purpose to provide for my saints, for all things are mine. [p. 34]
But it must needs be done in mine own way; and behold this is the way that I, the Lord, have decreed to provide for my saints, that the poor shall be exalted, in that the rich are made low. (D&C 42:42; 104:11-16)
And it came to pass on the other hand, that the Nephites did build them up and support them, beginning at the more wicked part of them, until they had overspread all the land of the Nephites, and had seduced the more part of the righteous until they had come down to believe in their works and partake of their spoils, and to join with them in their secret murders and combinations. (Hela. 6:38)
If governments are established only to protect rights, they are established only to enforce duties because every right is represented by a duty. Therefore, when government has enforced all the duties of man whether natural or acquired, it has completed the entire purpose for which it is formed and reached the limit of its powers. This is to conclude that government has no power to either create new rights nor impose new duties, but only to protect those rights and enforce those duties which already exist.
This limit on the civil power is indispensable to the protection of freedom because if government can of its own volition create a right in one person which did not theretofore exist, it must needs have the power to impose a duty on another which theretofore did not exist. But it can enforce such a duty only by compelling the obligor to give up either his life, his liberty or his property, and this it cannot do without depriving him of his unalienable natural rights.
When government takes one of the elements of freedom only to the extent necessary to enforce existing duties, the one from whom it is taken loses nothing to which he is entitled for no one has a right to violate or refuse to perform his duties. The force used in such instances is unavoidably necessary for the very existence of rights — his as well as others.
But if force is used for any purpose other than the enforcement of duties, the effect is to destroy freedom rather than protect it. At that point government crosses that precise line which divides the protection of rights from their destruction and acts directly contrary to the purpose for which it is formed. Those in government have no more authority to arbitrarily impose new duties than do the citizens they represent. If an individual citizen undertook to impose and enforce a duty to which he had no right, his act would be regarded as [p. 35] a crime. It is no less a crime when performed by men acting in the name of government.
Men surrender none of their rights when they establish government. They merely delegate to that agency the power of enforcing their rights. Neither do they assume any new duties. In the absence of government, each man would be under the necessity of enforcing and protecting his own rights — and doubtless at great cost. Upon the formation of government this task is transferred to it along with the cost. Therefore, when we support government we do not perform a new duty. We only discharge in a more effective and economical manner an obligation which already existed — that of protecting our own rights. These fundamental principles underlie the American Constitutional System of Government and are expressed in the Declaration of Independence in the following words:
That to secure these rights, governments are instituted among men ... that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government ...
Jefferson, who is generally regarded as the author of the above words, provided a more complete exposition of these views in a letter written to Francis Gilmer in 1816 which reads in part as follows:
Our legislators are not sufficiently apprized of the rightful limits of their power, that their true office is to declare and enforce only our natural rights and duties, and to take none of them from us. No man has a natural right to commit aggression on the equal rights of another; and this all from which the laws ought to restrain him; every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should enforce on him; and, no man having a natural right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third. When the laws have declared and enforced all this, they have fulfilled their functions, and the idea is quite unfounded, that on entering into society we give up any natural right. The trial of every law by one of these texts, would lessen much the labors of our legislators, and lighten equally our municipal codes. (Works of Thomas Jefferson, Federal Edition, G.P. Putnam & Sons, (1905), Vol. XI, pp. 533-34)
It will be our purpose throughout the remainder of this work to show how the principles expressed in the four laws we have formulated were implemented under the American system of government. [p. 36] Preliminary thereto we shall examine the nature, source and extent of political power under that system and also the constitutional framework within which that power is exercised. [p. 37]
| |
|
