Blackstone is by no means alone in the error to which we have alluded. By one of the clearest thinkers and most beautiful writers of the present age,[137] it is argued, "that as government implies restraint, it is evident we give up a certain portion of our liberty by entering into it." This argument would be valid, no doubt, if there were nothing in the world beside liberty to be restrained; but the evil passions of men, from which proceed so many frightful tyrannies and wrongs, are not to be identified with their rights or liberties. As government implies restraint, it is evident that something is restrained when we enter into it; but it does not follow that this something must be our natural liberty. The argument in question proceeds on the notion that government can restrain nothing, unless it restrain the natural liberty of mankind; whereas, we have seen, the law which forbids the perpetration of mischief, or any other wrong, is a restriction, not upon the liberty, but upon the tyranny, of the human will. It sets a bound and limit, not to any right conferred on us by the Author of nature, but upon the evil thoughts and deeds of which we are the sole and exclusive originators. Such a law, indeed, so far from restraining the natural liberty of man, recognizes his natural rights, and secures his freedom, by protecting the weak against the injustice and oppression of the strong.
The way in which these authors show that natural liberty is, and of right ought to be, abridged by the laws of society, is, by identifying this natural freedom, not with a power to act as God wills, but with a power in conformity with our own sovereign will and pleasure. The same thing is expressly done by Paley.[138] "To do what we will," says he, "is natural liberty." Starting from this definition, it is no wonder that he should have supposed that natural liberty is restrained by civil government. In like manner, Burke first says, "That the effect of liberty to individuals is, that they may do what they please;" and then concludes, that in order to "secure some liberty," we make "a surrender in trust of the whole of it."[139] Thus the natural rights of mankind are first caricatured, and then sacrificed.
If there be no God, if there be no difference between right and wrong, if there be no moral law in the universe, then indeed would men possess a natural right to do mischief or to act as they please. Then indeed should we be fettered by no law in a state of nature, and liberty therein would be coextensive with power. Right would give place to might, and the least restraint, even from the best laws, would impair our natural freedom. But we subscribe to no such philosophy. That learned authors, that distinguished jurists, that celebrated philosophers, that pious divines, should thus deliberately include the enjoyment of our natural rights and the indulgence of our evil passions in one and the same definition of liberty, is, it seems to us, matter of the most profound astonishment and regret. It is to confound the source of all tyranny with the fountain of all freedom. It is to put darkness for light, and light for darkness. And it is to inflame the minds of men with the idea that they are struggling and contending for liberty, when, in reality, they may be only struggling and contending for the gratification of their malignant passions. Such an offense against all clear thinking, such an outrage against all sound political ethics, becomes the more amazing when we reflect on the greatness of the authors by whom it is committed, and the stupendous magnitude of the interests involved in their discussions.
Should we, then, exhibit the fundamental law of society, and the natural liberty of mankind, as antagonistic principles? Is not this the way to prepare the human mind, at all times so passionately, not to say so madly, fond of freedom, for a repetition of those tremendous conflicts and struggles beneath which the foundations of society have so often trembled, and some of its best institutions been laid in the dust? In one word, is it not high time to raise the inquiry, Whether there be, in reality, any such opposition as is usually supposed to exist between the law of the land and the natural rights of mankind? Whether such opposition be real or imaginary? Whether it exists in the nature of things, or only in the imagination of political theorists?
§ III. No good law ever limits or abridges the natural liberty of mankind
By the two great leaders of opposite schools, Locke and Burke, it is contended that when we enter into society the natural rights of self-defense is surrendered to the government. If any natural right, then, be limited or abridged by the laws of society, we may suppose the right of self-defense to be so; for this is the instance which is always selected to illustrate and confirm the reality of such a surrender of our natural liberty. It has, indeed, become a sort of maxim, that when we put on the bonds of civil society, we give up the natural right of self-defense.
But what does this maxim mean? Does it mean that we transfer the right to repel force by force? If so, the proposition is not true; for this right is as fully possessed by every individual after he has entered into society as it could have been in a state of nature. If he is assailed, or threatened with immediate personal danger, the law of the land does not require him to wait upon the strong but slow arm of government for protection. On the contrary, it permits him to protect himself, to repel force by force, in so far as this may be necessary to guard against injury to himself; and the law of nature allows no more. Indeed, if there be any difference, the law of the land allows a man to go further in the defense of self than he is permitted to go by the law of God. Hence, in this sense, the maxim under consideration is not true; and no man's natural liberty is abridged by the State.
Does this maxim mean, then, that in a state of nature every man has a right to redress his own wrongs by the subsequent punishment of the offender, which right the citizen has transferred to the government? It is clear that this must be the meaning, if it have any correct meaning at all. But neither in this sense is the maxim or proposition true. The right to punish an offender must rest upon the one or the other of two grounds: either upon the ground that the offender deserves punishment, or that his punishment is necessary to prevent similar offenses. Now, upon neither of these grounds has any man, even in a state of nature, the right to punish an offense committed against himself.
First, he has no right to punish such an offense on the ground that it deserves punishment. No man has, or ever had, the right to wield the awful attribute of retributive justice; that is, to inflict so much pain for so much guilt or moral turpitude. This is the prerogative of God alone. To his eye, all secrets are known, and all degrees of guilt perfectly apparent; and to him alone belongs the vengeance which is due for moral ill-desert. His law extends over the state of nature as well as over the state of civil society, and calls all men to account for their evil deeds. It is evident that, in so far as the intrinsic demerit of actions is concerned, it makes no difference whether they be punished here or hereafter. And beside, if the individual had possessed such a right in a state of nature, he has not transferred it to society; for society neither has nor claims any such right. Blackstone but utters the voice of the law when he says: "The end or final cause of human punishment is not by way of atonement or expiation, for that must be left to the just determination of the supreme Being, but a precaution against future offenses of the same kind." The exercise of retributive justice belongs exclusively to the infallible Ruler of the world, and not to frail, erring man, who himself so greatly stands in need of mercy. Hence, the right to punish a transgressor on the ground that such punishment is deserved, has not been transferred from the individual to civil society: first, because he had no such natural right to transfer; and, secondly, because society possesses no such right.
