In the second place, if we consider the other ground of punishment, it will likewise appear that the right to punish never belonged to the individual, and consequently could not have been transferred by him to society. For, by the law of nature, the individual has no right to punish an offense against himself in order to prevent further offences of the same kind. If the object of human punishment be, as indeed it is, to prevent the commission of crime, by holding up examples of terror to evil-doers, then, it is evidently no more the natural right of the party injured to redress the wrong, than it is the right of others. All men are interested in the prevention of wrongs, and hence all men should unite to redress them. All men are endowed by their Creator with a sense of justice, in order to impel them to secure its claims, and throw the shield of its protection around the weak and oppressed.
The prevention of wrong, then, is clearly the natural duty, and consequently the natural right, of all men.
This duty should be discharged by others, rather than by the party aggrieved. For it is contrary to the law of nature itself, as both Locke and Burke agree, that any man should be "judge in his own case;" that any man should, by an ex post facto decision, determine the amount of punishment due to his enemy, and proceed to inflict it upon him. Such a course, indeed, so far from preventing offenses, would inevitably promote them; instead of redressing injuries, would only add wrong to wrong; and instead of introducing order, would only make confusion worse confounded, and turn the moral world quite upside down.
On no ground, then, upon which the right to punish may be conceived to rest, does it appear that it was ever possessed, or could ever have been possessed, by the individual. And if the individual never possessed such a right, it is clear that he has never transferred it to society. Hence, this view of the origin of government, however plausible at first sight, or however generally received, has no real foundation in the nature of things. It is purely a creature of the imagination of theorists; one of the phantoms of that manifold, monstrous, phantom deity called Liberty, which has been so often invoked by the pseudo philanthropists and reckless reformers of the present day to subvert not only the law of capital punishment, but also other institutions and laws which have received the sanction of both God and man.
The simple truth is, that we are all bound by the law of nature and the law of God to love our neighbor as ourselves. Hence it is the duty of every man, in a state of nature, to do all in his power to protect the rights and promote the interests of his fellow-men. It is the duty of all men to consult together, and concert measures for the general good. Right here it is, then, that the law of man, the constitution of civil society, comes into contact with the law of God and rests upon it. Thus, civil society arises, not from a surrender of individual rights, but from a right originally possessed by all; nay, from a solemn duty originally imposed upon all by God himself—a duty which must be performed, whether the individual gives his consent or not. The very law of nature itself requires, as we have seen, not only the punishment of the offender, but also that he be punished acccording to a pre-established law, and by the decision of an impartial tribunal. And in the enactment of such law, as well as in the administration, the collective wisdom of society, or its agents, moves in obedience to the law of God, and not in pursuance of rights derived from the individual.
§ IV. The distinction between rights and liberty.
In the foregoing discussion we have, in conformity to the custom of others, used the terms rights and liberty as words of precisely the same import. But, instead of being convertible terms, there seems to be a very clear difference in their signification. If a man be taken, for example, and without cause thrown into prison, this deprives him of his liberty, but not of his right, to go where he pleases. The right still exists; and his not being allowed to enjoy this right, is precisely what constitutes the oppression in the case supposed. If there were no right still subsisting, then there would be no oppression. Hence, as the right exists, while the liberty is extinguished, it is evident they are distinct from each other. The liberty of a man in such a case, as in all others, would consist in an opportunity to enjoy his right, or in a state in which it might be enjoyed if he so pleased.
This distinction between rights and liberty is all-important to a clear and satisfactory discussion of the doctrine of human freedom. The great champions of that freedom, from a Locke down to a Hall, firmly and passionately grasping the natural rights of man, and confounding these with his liberty, have looked upon society as the restrainer, and not as the author, of that liberty. On the other hand, the great advocates of despotic power, from a Hobbes down to a Whewell, seeing that there can be no genuine liberty—that is, no secure enjoyment of one's rights—in a state of nature, have ascribed, not only our liberty, but all our existing rights also, to the State.
But the error of Locke is a noble and generous sentiment when compared with the odious dogma of Hobbes and Whewell. These learned authors contend that we derive all our existing rights from society. Do we, then, live and move and breathe and think and worship God only by rights derived from the State? No, certainly. We have these rights from a higher source. God gave them, and all the powers of earth combined cannot take them away. But as for our liberty, this we freely own is, for the most part, due to the sacred bonds of civil society. Let us render unto Cæsar the things that are Cæsar's, and unto God the things that are God's.
§ V. The relation between the state of nature and of civil society.