Thomas Paine:
Architect of Cooperative Individualism
PART TWO
Edward J. Dodson
THE RIGHTS OF MAN
The role of government established -- namely, to protect the natural
state of society from disruption by individual acts of license -- the
task of the citizenry is to specifically identity by positive law
which actions are by definition within the realm of liberty and which
are not. Only when proper principles are applied to the formation of
posit ive law is government in a position to carry out its assigned
responsibilities. Paine's first principle is equality, by which he
means that "
men are all of one degree and consequently that all men are born
equal, and with equal natural rights, in the same manner as if
posterity had been continued by creation instead of generation."
Paine is guided by a moral sense of right and wrong. The philosophy
of cooperative individualism he espouses is based on moral law and a
doctrine of human rights:
The duty of man ... is plain and simple, and consists but
of two points. His duty to God, which every man must feel; and with
respect to his neighbor, to do as he would be done by. ...
Mankind are not universally agreed in their determination of right
and wrong; but there are certain actions which the consent of all
nations and individuals hath branded with the unchangeable name of
meanness. In the list of human vices we find some of such a refined
constitution, they cannot be carried into practice without seducing
some virtue to their assistance; but meanness hath neither alliance
nor apology.
Our moral sense, reasons Paine, directs us to recognize the
appropriate limits to freedom of action. That countless individuals
exceed the boundaries of liberty, thereby exercising license at the
expense of others, is sufficient reason why "it ought not to
be left to the choice of detached individuals whether they will do
justice or not." Positive law, enforced by government, is
just the extent to which the civil rights guaranteed and protected
fully encompass the individual's natural rights. "Every civil
right has for its foundation some natural right pre-existing in the
individual," Paine tells us, observing further that the power
of the individual to enjoy these rights "is not, in all cases,
sufficiently competent." By this he means that an imbalance in
power between those who would violate the liberty of others and their
intended victims directs government to prevent or punish the
perpetrators in the name of justice.
Paine's doctrine of natural rights is, of course, a synthesis,
although a synthesis that represents a radical departure from earlier
and more conservative pronouncements of rights. His sincerity need not
be doubted, although one must grant that his purpose in writing was to
excite debate, to provoke action against socio-political arrangeme nts
and institutions he unhesitatingly condemned:
When we survey the wretched condition of man under the
monarchical and hereditary systems of government, dragged from his
home by one power, or driven by another, and impoverished by taxes
more than by enemies, it becomes evident that those systems are bad,
and that a general revolution in the principle and construction of
governments is necessary.
Reason dictates that the right to change one's form of government is
among the collective rights of man in society. For, "[m]an
did not enter into society to become worse than he was before, nor to
have fewer rights than he had before, but to have those rights better
secured." Paine does not, on the other hand, attempt to
assign a hierarchy to our natural rights; nor is his list long. He is
concerned with fundamental relationships: between man and man, man and
nature, and man and the State. Of man and man, he writes, "Man
has no property in man; neither has any generation a property in the
generation which are to follow." As the quest to survive
requires that the individual have access to land (and other natural
opportunities), Paine calls for "[e]quality of natural
property," meaning that "[e]very individual in the
world is born therein with legitimate claims on a certain kind of
property, or its equivalent." More specifically, he declares:
It is wrong to say God made rich and poor; He made only
male and female; and He gave them the earth for their inheritance.
It is a position not to be controverted that the earth, in its
natural, uncultivated state was, and ever would have continued to
be, the common property of the human race. In that state every man
would have been born to property. He would have been a joint life
proprietor with the rest in the property of the soil, and in all its
natural productions, vegetable and animal.
Then, there are the intellectual rights (i.e., "rights of the
mind") attached to man as a being capable of rational thought. Of
these, Paine singles out the rights to free speech and to one's
spirituality.
RIGHTS OF THE NATION AGAINST GOVERNMENT
Government is nothing more than the agency of society (i.e., "
a national association") created to "[act] on
the principles of society." Real power is held by the
collective citizenry, who -- as the nation -- possess "the
right of forming or reforming, generating and regenerating
constitutions and governments," while the "operation
of government is restricted to the making and the administering of
laws." As the legitimate expectation of the individual in
society is "to pursue his occupation, and enjoy the fruits of
his labors, and the produce of his property, in peace and safety,"
With this in mind, Paine asserts that "a government which
cannot preserve the peace is no government at all."
The challenge for the citizens of any society, it seems, is to
somehow provide government with sufficient power to protect the
maximum extent of freedom consistent with individual liberty, such
power checked in ways that minimize the inevitable tendency toward
corruption and usurpation of ever more power. In the ideal
circumstance, where the spirit of cooperation is spread throughout a
citizenry (i.e., "[t]he more perfect civilization is"),
"the less occasion has it for government, because the more
does it regulate its own affairs, and govern itself."
However, Paine acknowledges the necessity for a measured degree of
coercive power to be exercised in defense of liberty. Along with this
need is also the parallel cost of paying for the services performed:
[W]ere the impulses of conscience clear, uniform and
irresistibly obeyed, man would need no other lawgiver; but that not
being the case, he finds it necessary to surrender up a part of his
property to furnish means for the protection of the rest.
The political economist in Paine would appreciate that the
observation that aggregate production of wealth is certainly benefited
by a peaceful and orderly society. Confident that the wealth produced
by their labor will be neither confiscated by those in government or
by others, the productivity of the individual cannot but be enhanced.
To protect against the usurpation of power and the violation of
natural rights, "a nation has at all times an inherent
indefeasible right to abolish any form of government it finds
inconvenient, and establish such as accords with its interests,
disposition, and happiness." Attached to this right is what
Paine declares as the true exercise of sovereignty. Tyranny might
reign, as it had for so very long in the Old World, but eventually the
mass of people will no longer tolerate oppression:
[T]he strength of government does not consist in any
thing within itself, but in the attachment of a nation, and the
interest which the people feel in supporting it. When this is lost,
government is but a child in power; and though ... it may harass
individuals for a while, it but facilitates its own fall.
Rebellion, however, is not an end but only a means. The culmination
of the full process of reform is the adoption of a written
constitution, with which all other positive law must be consistent.
When these conditions have been met (and Paine believed they had been
met within and among the united states), then "every
difficulty retires, and all the parts are brought into cordial unison.
...[T]he poor are not oppressed, the rich are not privileged. Industry
is not mortified by the splendid extravagance of a court... Their
taxes are few, because their government is just." As Paine
experiences in France would show, however, the adoption of such a
written constitution means little if the fundam ental principles upon
which the words are based do not reach deep into the heart of a
society.
After the reign of terror passed and his subsequent release from
prison, Paine continued to cling to his view that only a written
constitution blocks the path between anarchy and tyranny. In his Dissertation
on First Principles of Government, Paine offered his
interpretation of why events had gone so far astray from the ideals of
the revolution in France:
Had a Constitution been established two years ago (as
ought to have been done), the violences that have since desolated
France and injured the character of the revolution, would, in my
opinion, have been prevented. The nation would then have had a bond
of union, and every individual would have known the line of conduct
he was to follow. But, instead of this, a revolutionary government,
a thing without either principle or authority, was substituted in
its place; virtue or crime depended upon accident; and that which
was patriotism one day, became treason the next. All these things
have followed from the want of a Constitution; for it is the nature
and intention of a Constitution to prevent governing by party, by
establishing a common principle that shall limit and control the
power and impulse of party...
What is all the more amazing is Paine's unshaken confidence in the
constitution adopted by the united states. He found, upon his return
to North America in the early years of the nineteenth century, a
leadership absorbed by disagreement and diverse interests, and of the
rise of opposing parties. Moreover, in the words of Moncure Conway,
there was "a lingering dislike and distrust of the common
people."
After having his citizenship challenged at the voting booth, he
reflected on the state of the nation, writing to then Vice-President,
George Clinton:
As it is a new generation that has risen up since the
declaration of independence, they know nothing of what the political
state of the country was at the time the pamphlet 'Common Sense'
appeared; and besides this there are but few of the old standers
left...
Indeed, events within the young united states had moved beyond
questions of how the governments should or should not be formed. A
written constitution was set in place, and people were going about the
business of securing a livelihood. Another of Paine's biographers,
Samuel Edwards, observes that "[t]he principles that Thomas
Paine held dear were no longer argued about; they had been
incorporated into the American system and were taken for granted."
To a degree, this was true. Paine was becoming increasingly concerned
that even if, in fact, his principles had been incorporated into the
American system they were far from secure. In a series of letters
published in the Republican newspaper, the Washington Intelligencer,
he struck out at Federalist rhetoric and charged them with pursuing "government
as a profitable monopoly, and the people as hereditary property."
A curious thing then occurred. Jefferson's election to the Presidency
and the nation's accompanying resurgent democratic spirit removed
whatever doubts Paine might have harbored in the power of the
Constitution to positively direct the actions of individuals even
under circumstances of party stress. To the French he had written "[t]he
American Constitutions were to liberty, what a grammar is to language:
they define its parts of speech, and practically construct them into
syntax." Again, the collective wisdom of the nation had come
through to purge from power those who were determined to violate the
spirit of the Constitution.
Citizen involvement, so vital to Paine's thesis, is encouraged by
provisions in the state and federal constitutions that allow for
amendment when circumstances and the nation's support warranted.
Principle, not expediency, had to serve as the nation's guide when
considering any such amendment. Of these principles, one that stands
out as fundamental to the formation of just government is that of the
origin of power:
A constitution is not a thing in name only, but in fact.
It has not an ideal, but a real existence; and wherever it cannot be
produced in a visible form, there is none. A constitution is a thing
antecedent to a government, and a government is only the creature of
a constitution. The constitution of a country is not the act of its
government, but of the people constituting a government.
The laws which are enacted by governments, control men only as
individuals, but the nation, through its constitution, controls the
whole government, and has a natural ability so to do. The final
controlling power, therefore, and the original constituting power,
are one and the same power.
In the struggle to secure and protect the rights of individuals as
members of society, Paine argues this might not be achieved even with
a written constitution but certainly cannot be achieved without one.
He goes further. Only a representative form of government, with "a
large and equal representation" provided, prevents the
corruption of governm ent in the service of vested interest. While the
result of this type of representative government is the enactment of
positive law consistent with moral principles, the justification for
representative government is found in principles discovered by
scientific method:
The representative system takes society and civilization
for its basis; nature, reason, and experience for its guide ...
[and] is calculated to produce the wisest laws, by collecting wisdom
where it can be found.
While championing the cause of representative government, Paine is
quick to acknowledge mankind's lack of experience with its
peculiarities. He reminds the nation that the "[s]imple democracy
... of the ancients" degenerated under numerous internal and
external pressures and urges patience on the part of generations who
must struggle to perfect the new system of representative democracy,
constructed (he is confident) on sound principles but largely untested
by the complexities attached to a pluralistic society:
The case is, that mankind (from the long tyranny of
assumed power) have had so few opportunities of making the necessary
trials on modes and principles of government, in order to discover
the best, that government is but not beginning to be known, and
experience is yet wanting to determine many particulars.
More than anything else, education is necessary to bring about the
perfection in government toward which Paine sees Americans heading. By
this he means far more than the formal schooling all citizens should
have access to. The value of this type of education is, he writes, "like
a small capital, to put [a person] in the way of beginning learning
for himself afterwards." Mastering the arts of reading and
writing, of language and its use, is not learning in the sense felt
most important by Paine; rather, learning consists "in the
knowledge of things to which language gives names." One's
moral sense and rason and powers of observation combine in the
acquisition of knowledge. Paine's own intellect drew him to
conclusions that shook the foundations of conventional wisdom and
vested interest. Although he defended the rights of individuals to
practice their own customs without interference, his position was not
a defense of what today is thought of as cultural relativism. Neither
tradition, nor even unanimous consent, could bring license into the
realm of liberty. A nation might foolishly sanction license falsely
under the guise of liberty, but this to Paine was an aberration in
need of correction:
The error of those who reason by precedents drawn from
antiquity, respecting the rights of man, is that they do not go far
enough into antiquity. They do not go the whole way. They stop in
some of the intermediate stages of an hundred or a thousand years,
and produce what was then done as a rule for the present day. This
is no authority at all.
If we travel still further into antiquity, we shall find a directly
contrary opinion and practise prevailing; and, if antiquity is to be
the authority, a thousand such authorities may be produced,
successively contradicting each other; but if we proceed on, we
shall at last come out right; we shall come to the time when man
came from the hand of his Maker. What was he then? Man. Man was his
high and only title, and a higher cannot be given him.
We have now arrived at the origin of man, and at the origin of his
rights. As to the manner in which the world has been governed from
that day to this, it is no further any concern of ours than to make
a proper use of the errors or the improvements which the history of
it presents. Those who lived a hundred or a thousand years ago, were
th en moderns as we are now. They had their ancients, and those
ancients had others, and we also shall be ancients in our turn.
PRESERVING NATURAL RIGHTS UNDER POSITIVE
LAW
In practicing his science while espousing a socio-political
philosophy, Paine made sure to distinguish between the use of natural
law and natural rights as descriptive terms. His distinctions were
nonetheless more subtle than what is warranted by the confusion then
(and now) prevalent with respect to their usage. Contained within his
definition of the "
immutable laws of nature" were not merely the laws
governing the physical universe but "the great laws of
society" as well. His reasoning is based, at least in part,
on his acceptance of the ultimate creator; if only man will learn to
live in harmony with natural law, the result will be (as God designed)
peaceful co-existence in an atmosphere of plenty:
All the great laws of society are laws of nature. Those
of trade and commerce, whether with respect to the intercourse of
individuals, or of nations, are laws of mutual and reciprocal
interest.
Paine is certainly correct that we possess a considerable and
instinctive desire to be cooperative with one another in the
production and exchange of goods and services. He adds that we do so
because cooperation is in our self-interest. Yet, he is too willing to
attribute conflict almost wholly to factors separate from man's
character and free will. "Man is not the enemy of man,"
he writes, "but through the medium of a false system of
government." Remove the institutional impediments to moral
duty and moral action will naturally follow. Remove monarchy and
aristocracy and state religion -- each, agents of tyranny -- and
replace them with institutions based on principles of natural law and
cooperation will flourish:
[G]overnment in a well constituted republic ... requires
no belief from man beyond what his reason can give. He sees the
rationale of the whole system, its origin and its operation; and as
it is best supported when best understood, the human faculties act
with boldness, and acquire, under this form of government, a
gigantic manliness.
Once representative democracy has been perfected, Paine has an
unending faith in its citizens -- functioning as the nation -- to
decide wisely and justly on all matters of importance. His bench marks
for judging where a society is on the path to perfection are concrete
and useful:
When it shall be said in any country in the world, "My
poor are happy; neither ignorance nor distress is to be found among
them; my jails are empty of prisoners, my streets of beggars; the
aged are not in want, the taxes are not oppressive; the rational
world is my friend, because I am a friend of its happiness": --
when these things can be said, then may that country boast of its
constitution and its government.
Thus, a government free of corruption and operating in the true
interests of the nation is also in conformity with natural law by
virtue of the protection provided for the natural rights of all its
citizens. This satisfies Paine the moral philosopher; as scientist, he
is more cautious and proposes a system of checks and balances to
forestall any temptations individuals might have to usurp power from
the nation for themselves. One such safeguard is to require that all
laws have scheduled dates of expiration. Even more deeply felt than
his adherence to set principles is Paine's belief in the ultimate
wisdom of the nation. He is willing to risk the possibility of
temporary departures in posit ive law from moral law -- and thereby
jeopardize the protection of natural rights -- in order to protect
what he feels is the greatest of those rights:
That which may be thought right and found convenient in
one age, may be thought wrong and found inconvenient in another. In
such cases, who is to decide, the living, or the dead?
Every age and generation must be as free to act for itself, in all
cases, as the ages and generations which preceded it. The vanity and
presumption of governing beyond the grave, is the most ridiculous and
insolent of all tyrannies.
Only by affirmative and decisive action on the part of the nation
will expiring laws become renewed. Laws that do not live up in their
administration to their promise will, therefore, be cast aside. Of
this, Paine is quite confident. "It is always the interest of
a far greater number of people in a nation to have things right,"
he declares , "than to let them remain wrong; and when public
matters are open to debate, and the public judgment free, it will not
decide wrong, unless it decides too hastily."
Beyond his absolute faith in representative democracy, he withdraws
from offering a detailed plan for departments or attaching limits on
the responsibilities the nation might legitimately expect government
to perform. This, I believe, is what he meant in writing: "I
am not contending for nor against any form of government, nor for nor
against any party...;" remaining consistent with his trust in
the collective wisdom of all citizens, he continues, "[t]hat
which a whole nation chooses to do, it has a right to do." He
is far more concerned that the nation's laws protect natural rights
and foster cooperation. Only by means of representative government can
this be achieved.
The Earth As Our Common Birthright
Irretrievably tied to Paine's hatred of monarchy and aristocracy is
the usurpation of what moral law tells him is the right all man have
to equally access what nature has provided. He is strongly
communitarian (rather than libertarian) in his views on individual
claims to property rights in nature and influenced far more by
Rousseau than by Locke or Smith:
There could be no such thing as landed property
originally. Man did not make the earth, and, though he had a natural
right to occupy it, he had no right to locate as his property in
perpetuity any part of it; neither did the Creator of the earth open
a land-office, from whence the first title-deeds should issue.
The dominant characteristic of civilization, tracing our history as
far back into antiquity as is possible, is the use of institutional
power to deny to those who labor on the land the fruits of their
labor. Paine's main attacks against this form of privilege are
directed against the Aristocracy and the Church:
It is difficult to discover what is meant by the landed
interest, if it does not mean a combination of aristocratical
land-holders, opposing their own pecuniary interest to that of the
farmer, and every branch of trade, commerce, and manufacture.
The aristocracy are not the farmers who work the land,
and raise the produce, but are the mere consumers of the rent; and
when compared with the active world, are the drones, a seraglio of
males, who neither collect the honey nor form the hive, but exist
only for lazy enjoyment. ...
When land is held on tithe, it is in the condition of an estate
held between two parties; the one receiving one-tenth, and the other
nine-tenths of the produce: and, consequently, on principles of
equity, if the estate can be improved, and made to produce by that
improvement double or treble what it did before, or in any other
ratio, the expense of such improvement ought to be borne in like
proportion between the parties who are to share the produce.
But this is not the case in tithes; the farmer bears the whole
expense, and the tithe-holder takes a tenth of the improvement, in
addition to the original tenth, and by this means gets the value of
two-tenths instead of one. That is another case that calls for a
constitution.
With respect to titleholdings granted to individuals, Paine declares
these to be a form of unnatural property or economic license. Justice
demands, therefore, that as compensation for this privilege, "[e]very
proprietor ... of cultivated lands, owes to the community a
ground-rent ... for the land which he holds." The absence of
such provis ions in the laws of civilizations ancient and modern
allowed the powerful to monopolize lands with the best natural
fertility or locations for commerce. Paine makes the connection
between the dismantling of communitarian control generally practiced
by tribal societies with the transition to private titleholdings
accompanying permanent settlement and horticulture. The ability to
confiscate as rent portions of what those who labor produce is the
power inherent in titleholdings. As population increases and the
demand for land grows, the power of the titleholder over the
propertyless grows and grows:
Nothing could be more unjust than agrarian law in a
country improved by cultivation; for though every man, as an
inhabitant of the earth, is a joint proprietor of it in its natural
state, it does not follow that he is a joint proprietor of
cultivated earth. The additional value made by cultivation, after
the system was admitted, became the property of those who did it, or
who inherited it from them, or who pur chased it. It had originally
no owner.
[T]he land monopoly that began with [cultivation] has produced the
greatest evil. It has dispossessed more than half the inhabitants of
every nation of their natural inheritance, without providing for
them, as ought to have been done, an indemnification for that loss,
and has thereby created a species of poverty and wretchedness that
did not exist before.
Poverty is the one common denominator to all nations, caused by "preventing
[the] principles [of civilization]" from freely operating.
Corrupt government unmercifully takes from the poor, protecting the
privileges of the rich, so that "the poor in all countries
are become an hereditary race, and it is next to impossible for them
to get out of that state of themselves." North America, to
repeat an earlier observation, might provide a safety value to relieve
the pressures on the Old World's privileged institutions, but for how
long? The ascent of man depends upon socio-political arrangements and
institutions that promote equality of opportunity. To this end,
criminal licenses must be prevented and economic licenses must yield
just compensation to the nation:
It is not charity but a right, not bounty but justice,
that I am pleading for. The present state of civilization is as
odious as it is unjust. It is absolutely the opposite of what it
should be, and it is necessary that a revolution should be made in
it. The contrast of affluence and wretchedness continually meeting
and offending the eye, is like dead and living bodies chained
together. Though I care as little about riches as any man, I am a
friend to riches because they are capable of good. ...
Mankind being originally equals in the order of creation, the
equality could only be destroyed by some subsequent circumstance:
the distinctions of rich and poor may in a great measure be
accounted for, and that without having recourse to the harsh
ill-sounding names of oppression and avarice. Oppression is often
the consequence, but seldom or never the means of riches; and tho'
avarice will preserve a man from being necessitously poor, it
generally makes him too timorous to be wealthy.
In the Rights Of Man, Paine summarizes what reason tells him are the
fundamental premises of a just society:
First, That every civil right grows out of a natural
right; or, in other words, is a natural right exchanged.
Secondly,That civil power, properly considered as such, is made up
of the aggregate ofthat class of thenaturalrights of man, which
becomes defective in the individual in point of power, and answers
not his purpose, but when collected to a focus, becomes competent to
the purpose of every one.
Thirdly, That the power produced from the aggregate of natural
rights, imperfect in power in the individual, cannot be applied to
invade the natural rights which are retained in the individual, and
in which the power toexecute isas perfectas the right itself.
In Liberating the Early American Dream, Alfred F. Anderson,
codirector of the Tom Paine Institute, hints at the window of
opportunity missed when Paine diverted his attentions from the
philosophical and political to the practical, which took him back to
the European theatre at a time crucial to establishing a foundation of
cooperative individualism in North America:
How different the history of the world might have been
... if Tom Paine had remained to see the American revolution through
its nonviolent phase as he so faithfully had through its violent
one.
One can only speculate what influence Paine might have had as a
delegate to the Constitutional Convention. Would, for example, the
great landowners consent to payment of a ground-rent to the national
government in acknowledgement of the privilege attached to their
titleholdings? Dr. John Witherspoon had made just such a suggestion
during the debate over the Articles of Confederation, observing that "the
value of lands and houses was the best estimate of the wealth of a
nation." Article 8, as subsequently adopted, read as follows:
All charges of war, and all other expenses that shall be
incurred for the common defence or general warfare, and allowed by
the United States in Congress assembled, shall be defrayed out of a
common treasury, which shall be supplied by the several States, in
proportion to the value of all land within each State, granted to or
surveyed for any pers on, as such land, and the buildings and
improvements thereon, shall be estimated, according to such mode as
the United States in Congress assembled shall, from time to time,
direct and appoint.
This same revenue scheme was put forward in 1781 by Pelatiah Webster,
who simultaneously called for a convention to draft a new
constitution. Charles Pinckney would, at the convention, declare that
"[t]he land interest ... is the governing power of America."
The society which Paine hoped would lead mankind into a new era of
liberty and prosperity was, as noted by Alexander Hamilton, still
suffering from the legacy of institutionalized privilege that the
framers could not bring themselves to end:
The difference of property is already great among us.
Commerce and industry will still increase the disparity. Your
government must meet this state of things, or combinations will, in
process of time, undermine your system.
In the end, the written constitution Paine so wanted failed to
protect for future generations their birthright of equal access to
nature. Pelatiah Webster had also proposed a plan for the orderly sale
of public lands that would have required settlement and improvement
within two years, or title would revert to the government. Instead,
the promise of great profits from land speculation subverted the
efforts of those whose motives were guided by principle. Paine's
philosophy of cooperative individualism was destined to languish
during a century-long era of unbridled individualism. Monopoly license
and widespread corruption of public institutions would nurture a small
elite class of industrial-landlords destined to control much of the
land, the commerce and the finance of the United States following the
War Between the States. In the process, the degree of liberty
protected by representative government and the Constitution suffered
dearly. The window of opportunity created by the successful colonial
struggle for independence from Britain had closed.
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