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James Wilson asks if man exists for the sake of government, or is government instituted for the sake of man? (1791)

James Wilson (1742-1798), one of the signers of the Declaration of Independence and one of the original justices appointed by George Washington to the United States Supreme Court, delivered some Lectures on Law in 1790-91 in which he argued that the function of government was to protect and enlarge an individual’s existing natural rights, not to subvert or restrain them:

I here close my examination into those natural rights, which, in my humble opinion, it is the business of civil government to protect, and not to subvert, and the exercise of which it is the duty of civil government to enlarge, and not to restrain. I go farther; and now proceed to show, that in peculiar instances, in which those rights can receive neither protection nor reparation from civil government, they are, notwithstanding its institution, entitled still to that defence, and to those methods of recovery, which are justified and demanded in a state of nature.

Does man exist for the sake of government? Or is government instituted for the sake of man? …

What was the primary and the principal object in the institution of government? Was it—I speak of the primary and principal object—was it to acquire new rights by a human establishment? Or was it, by a human establishment, to acquire a new security for the possession or the recovery of [1054] those rights, to the enjoyment or acquisition of which we were previously entitled by the immediate gift, or by the unerring law, of our all-wise and all-beneficent Creator?

The latter, I presume, was the case: and yet we are told, that, in order to acquire the latter, we must surrender the former; in other words, in order to acquire the security, we must surrender the great objects to be secured. That man “may secure some liberty, he makes a surrender in trust of the whole of it.”—These expressions are copied literally from the late publication of Mr. Burke (Refl. on Fr. Rev. 47.). …

And must we surrender to government the whole of those absolute rights? But we are to surrender them only—in trust:—another brat of dishonest parentage is now attempted to be imposed upon us: but for what purpose? Has government provided for us a superintending court of equity to compel a faithful performance of the trust? If it had; why should we part with the legal title to our rights?

After all; what is the mighty boon, which is to allure us into this surrender? We are to surrender all that we may secure “some:” and this “some,” both as to its quantity and its certainty, is to depend on the pleasure of that power, to which the surrender is made. Is this a bargain to be proposed to those, who are both intelligent and free? No. Freemen, who know and love their rights, will not exchange their armour of pure and massy gold, for one of a baser and lighter metal, however finely it may be blazoned with tinsel: but they will not refuse to make an exchange upon terms, which are honest and honourable—terms, which may be advantageous to all, and injurious to none.

The opinion has been very general, that, in order to obtain the blessings of a good government, a sacrifice must be made of a part of our natural liberty. I am much inclined to believe, that, upon examination, this opinion will prove to be fallacious. It will, I think, be found, that wise and good government—I speak, at present, of no other—instead of contracting, enlarges as well as secures the exercise of the natural liberty of man: and what I say of his natural liberty, I mean to extend, and wish to be understood, through all this argument, as extended, to all his other natural rights. …

I here close my examination into those natural rights, which, in my humble opinion, it is the business of civil government to protect, and not to subvert, and the exercise of which it is the duty of civil government to enlarge, and not to restrain. I go farther; and now proceed to show, that in peculiar instances, in which those rights can receive neither protection nor reparation from civil government, they are, notwithstanding its institution, entitled still to that defence, and to those methods of recovery, which are justified and demanded in a state of nature.

The defence of one’s self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law. This principle of defence is not confined merely to the person; it extends to the liberty and the property of a man: it is not confined merely to his own person; it extends to the persons of all those, to whom he bears a peculiar relation—of his wife, of his parent, of his child, of his master, of his servant: nay, it extends to the person of every one, who is in danger; perhaps, to the liberty of every one, whose liberty is unjustly and forcibly attacked. It becomes humanity as well as justice.

About this Quotation:

In a chapter in his Lectures on Law, “Of the Natural Rights of Individuals,” Wilson provides what is in effect an extended critique of Edmund Burke’s widely held view (one that Wilson regarded as “feudal”) that it is government, or rather tradition, which created the rights which individuals enjoy in society. He also rejects the idea that one must surrender some or all of one’s pre-existing natural rights when one enters society. Wilson dismisses this idea as “another brat of dishonest parentage (which) is now attempted to be imposed upon us”. Instead, he believed that it was the prime duty of a good government to provide security so individuals could enjoy the natural rights to “which we were previously entitled”. A further duty of government was to “enlarge” or “extend ” this protection to “all his other rights” relating to his person or property which had been acquired in the meantime. Far from creating rights the real danger of government according to Wilson was the tendency of governments to “subvert” or “restrain” an individuals' natural rights.

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