seem most expedient for the welfare of society, to consider, that the members of the community in forming a government, for the purpose of enacting laws and establishing tribunals of justice, had agreed to submit to the legislature, or to the Judges of the courts to determine, whether any grievance or injury complained of is of such a nature, or of sufficient importance to demand the aid of the court, and if it be not in their opinion, had agreed to pass it over in silence, until the legislature should alter such opinion, and see fit to interpose and provide a remedy.

2. In relation to natural liberty or freedom of action, it may be remarked, that it is with a view to this right, that governments are usually esteemed to be more or less free, precisely as this freedom is more or less trenched upon by the laws of such governments respectively. On entering into a social compact, the members might very naturally stipulate for the reservation of certain particular liberties or exemptions, which reservation ought to be strictly observed and complied with by the rulers or constituted authorities. If they are slighted or trampled upon, the power of the rulers will so far be usurped, and their government tyrannical.

But, with the exception of those reserved rights, the members of the society would be considered as agreeing to relinquish to the government so much of their natural freedom of action as should become necessary, from time to time, to obey and observe such laws and regulations, as the rulers, within their constitution or social compact, should think expedient to enact and promulgate for the general good. It would not be, therefore, so much the rights themselves, of liberty and freedom of action, which they relinquish for the good of society; as it would be a power to limit, restrain or wholly take away the exercise of those rights, which they would confer on the rulers, with a stipulation express or tacit, that such power should never be exercised except for the general and equal good of all. For the true idea of government seems to be, that it is established by the people, for the preservation of their natural rights in general, by a partial sacrifice of a few particular ones.

But, it is not merely the freedom of action, which each

individual relinquishes in a greater or less degree to the control of government; but he agrees also to do whatever the rulers shall judge expedient for the general good of the whole, with a stipulation, express or tacit, that legislation shall be general, and comprehend all the individuals of the society to whose circumstances it may be equally applicable.

As men, in relation to their rights, are by nature equal, no man can justly be subjected to the control of another, or any number of others, without his consent; or, unless he has committed some crime, or has come under some obligation. As, therefore, it cannot be supposed that any individual would originally have agreed to join with others in organizing a society, where he would not stand on equal ground with the rest, any law which would tend to degrade him below the rest, must be inequitable and in violation of an implied understanding. For, in strictuess, no law can be binding, if inconsistent with the restrictions contained in the social compact or constitution of the society, and beyond the powers intended to be granted in it.

Having stated in very general terms, though with as much distinctness as the necessary limits of this chapter, and the nature of the case, would conveniently permit, the rights which men have in a state of nature previously to the organization of society, and touched slightly upon the inconveniencies of a state of nature, and the consequent inducements which men had to unite and form a government; having also briefly considered some of the natural rights, which it is necessary, that men should relinquish in a greater or less degree, according to circumstances, to the government of the society, in order to obtain the objects of its organization, this chapter will conclude with a few remarks upon those natural rights, more or less of which are usually retained by the members of society, notwithstanding their entering into such an organized union.

DIVISION. 2. Of those rights which are usually retained in organized society.

SEC. I. Self-defence in cases of extreme urgency. The first and most important of these rights, is that of self-defence. This right is reserved to every individual, in all cases, where

there is not time sufficient to apply to the government for protection. So that, if a man is assaulted, and his life is in extreme danger, and he has no opportunity to apply to the police, because his case will admit of no delay, he will be excused by the law of society as well as by the law of nature, if he takes the life of his assailant, supposing always that he has no other way to save his own. For, in any such case as this, society cannot afford him that protection, which was one of the principal motives, which led him to unite with others in the formation of it. His natural right to protect himself in any such extremity, is therefore always reserved to him. But, where the aggression is threatened previously to its being actually made, no individual has a right to make preparations for his own defence, personally, if such preparations constitute a disturbance of the public peace. In any such case, the individual threatened ought to apply to the proper officers of the society for that protection, which it is their duty to afford him.

SEC. II. Of qualified liberty of action; freedom from unnecessary restraints, requisitions and exactions, &c. Where the people form a social compact, contained in a written constitution, the extent of the powers granted to the government, may be defined with precision. But, where there is no written constitution, the extent of such powers is ascertained by usages and precedents, that is to say, by the practice of the rulers, sanctioned by the silent acquiescence of the people, in peaceable and quiet times. In different societies and under different governments, the powers of the rulers, and the consequent restraint on the natural liberty of the subjects, vary greatly.

Civil liberty consists in not being restrained from acting, and not being constrained to act, by any law which does not conduce to the general welfare. But, it may be asked, how shall it be ascertained whether a law conduces to the general welfare or not? The answer is, this is submitted to the wisdom and discretion of the rulers. But, it may be asked again, is there no restraint upon the exercise of this discretion? The answer is, that they are restrained from enacting laws, or

adopting any public measures which are inconsistent with the constitution, whether ascertained by usage or contained in a written document or compact. But, it may be asked again, who shall determine whether a law is or is not agreeable to the constitution or social compact? The answer must be, the tribunal (if any) provided in the constitution, for the determination of such questions, must decide. But, if none is provided, then that person or persons in whom the power is vested in the last resort, by the frame of government, whether a monarchy, an aristocracy, or a democracy, will have the constitutional right to determine. But, where the act in violation of the constitution, is committed by the very person or persons, to whom the supreme power of the government is given by the constitution; there is no peaceable remedy, if the illegal laws or measures are persisted in, after petition and remonstrance by the subjects; for the truth is, the frame of government is defective, and the conduct of the rulers or ruler is so far oppressive and tyrannical.

As the degree of restraint upon natural liberty or freedom, may vary under different constitutions or forms of government, it is obvious, that it may also vary greatly under the same constitution at different times, owing to the various interpretations and constructions put upon it, by persons of greater or less integrity and intelligence.

The definition of the freedom, which men have in a state of nature, of consulting their own happiness in all they do, so as they offend against neither religion nor morality, that is, provided they transgress no divine law, and do no injury to the rest of mankind, is sufficiently intelligible and plain. But, in a state of society, this single right branches out into a great variety of rights, each of which has received a distinct appellation. The first division of this natural liberty or freedom, is into a freedom from restraint, and a freedom from exactions or requirements. By relinquishing the first, we become liable to be restrained by the laws of society, from doing many things which, in a state of nature, we are at perfect liberty to do, without committing any wrong or injustice. By relinquishing the second, we become liable to be bound to do, by virtue of our social compact, and the laws made under it, many things,

which, in a state of nature, we were under no such obligation to do, and which, from the general maxim of the natural equality of all mankind as to their rights, no man or body of men could have any right to compel us to do, without some previous consent or other act of our own.

Under the former of these branches of natural liberty, viz: freedom from restraint upon the right of action, may be comprehended, 1. The right of expatriation. That a citizen of any community, in ordinary cases, has a right to leave its territory at pleasure, and reside in some other country, and cast off his native allegiance to his own, seems to follow of course, from the preceding view of the natural rights of mankind, and the origin of governments. It is true, that this right has been absolutely denied by some, who hold that a man can never shake off the allegiance which may be claimed by his native country. This, however, seems something like setting up an idol, and is entirely contrary to the principles acknowledged in the constitution of the United States. For, if a foreigner cannot become an American citizen, without committing a crime, or at least doing a manifest injustice to the country of his birth, why is the naturalization of aliens permitted among us? Why is it thought worth while to inquire into the character of an individual, who, by the very act of applying for naturalization, which renders such inquiry necessary, shows that he is not fit to be a citizen of any other country, since he must first throw off his allegiance to his native land? But, though this may furnish an excellent theme for declamation, which will be omitted here, such opinion seems not to be sufficiently well grounded to stand the test of a close examination. For, what is a man's country? Is it the place of his birth or residence? This would be a very unreasonable supposition, unless taken in connexion with its inhabitants, its frame of government, and its laws and institutions. For, a man cannot owe allegiance to inanimate nature, as mountains, rivers, and groves, whatever poets may imagine. Neither can it consist in the government, laws, and institutions; for, if so, then to change them in a material point, would deprive a man of his country. It must then consist in the inhabitants forming a society, the identity of which is preserved,