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"On Rights."

When this question comes to mind, viz., what rights do we have -- there should come to mind, the figure, as tradition has it, of a veiled woman who declares, "My name is Duty, turn and follow me."1

I write here not so much of those rights which accrue to those who operate under society's rules, the rights to which Burke referred when he wrote, as follows:

"If civil society be made for the advantage of man, all the advantages for which it is made become his right. It is an institution of beneficence; and law itself is only beneficence acting by a rule. Men have a right to live by that rule; they have a right to do justice, as between their fellows, whether their fellows are in public function or in ordinary occupation. They have a right to the fruits of their industry ... Whatever each man can separately do, without trespassing upon others, he has a right to do for himself; and he has a right to a fair portion of all which society, with all its combinations of skill and force, can do in his favor. In this partnership all men have equal rights, but not to equal things."2
I write, as Jefferson did, of "inalienable rights"; rights which accrue to human existence.3 I have written elsewhere "On Liberty" and "On Property Rights" -- I do not intend to go over that territory again, other than to state this: the right to liberty and the right to possess property are the most important in our hierarchy of fundamental rights.

Fundamental or constitutional rights, as I emphasized in my treatments of the rights to liberty and to property, are not simply just nice things for you and me and other individuals to have; they are fundamental to the existence of harmony and prosperity of the whole of society.4 If fundamental rights are encroached upon to any significant degree -- and this is in their nature -- a peaceful social structure in which we would all like to operate will collapse, and, in the wake of such a collapse will be, for the many: deprivation, misery and death. They are "inalienable," or as the French, in 1789, defined them "natural and imprescriptible" because they are essential to people as they go about caring for themselves and their family. This is particularly so, as I have illustrated, of the right to be free. In many parts of this world, man still wears the shackles of others, even within the most advanced society, such as we might claim exist in the United States and in Canada. No matter that we may think we have come a long way from feudal times when the only rights that existed were those as were possessed by the Lord of the Manor; we are never that far away from those dark times5, though the players may wear different labels.

"Unlike in appearance and names as it may be to the old order of slaves and serfs, working under masters, who were coerced by barons, who were themselves vassals of dukes or kings, the new order wished for, constituted by workers under foremen of small groups, overlooked by superintendents, who are subject to higher local managers, who are controlled by superiors of districts, themselves under a central government, must be essentially the same in principle. In the one case, as in the other, there must be established grades, and enforced subordination of each grade to the grades above. This is a truth which the communist or the socialist does not dwell upon."6 (Herbert Spencer)
Constitutional history is a subject I treat elsewhere. Sufficient to say here at this place that Canada's constitution took on its own identity with the The British North America Act - the first recital of which expressed the desire of the people to be federally united "with a constitution similar in Principle to that of the United Kingdom." We had, in 1867, simply adopted the civil rights for which England was and is known, rights, which Canadians because of their British ancestry have recognized as their own since before confederation. These rights came about only through deep and long struggles culminating in historical declarations, such as: the Magna Carta7 of 1215, the Petition of Right8 of 1628, and the English Bill of Rights9 of 1689.

It is with these declarations, and more importantly, with the development of the English common law, that Englishmen did and do lay claim to rights, the inherent rights of a free people. It was never thought necessary to write these rights down on a piece of paper. Great Britain has not set out their fundamental rights in a written constitution as we have done in Canada and as the United States did long ago. Why should it be done? The classic response was that as was given by James Madison: civil rights must be entrenched in a country's constitution, there, to be an "impenetrable bulwark against every assumption of power in the legislative or executive." Let me emphasize: the listing of these fundamental rights in a written constitution, by that act, does not create these rights. All of these rights were possessed by British citizens before the American Revolution of 1776. Under the English common law -- and this is the basis for its strength and longevity -- we start out as a full vessel, as Locke described; and not empty as Hobbes thought. We are, to begin with: independent and free. Government being but a construct cannot give us a thing; and, certainly cannot give us rights. "Constitutional rights," cannot be created by a country's constitution, though they may well be affirmed in writing by it. The reason for this and the reason for the irrefragable nature of such rights, is that to be human is to have such rights: these rights, these basic human rights existed way before any one dreamt up the idea of writing up a constitution.

Since 1982, Canadians need but look to The Charter to see that they have the right to freedom of conscience, religion, thought, belief, opinion and expression; and freedom of peaceful assembly. (Section 2.) In respect to the rights of the citizen in his or her dealings with government, he or she is to be "secure against unreasonable search or seizure," (section 8) "not to be arbitrarily detained or imprisoned," (section 9) to be allowed to "retain and instruct counsel without delay and to be informed of that right," (section 10) to be "informed without unreasonable delay of the specific offence," with which he or she may be charged, to be "tried within a reasonable time," "not to be compelled to be a witness in proceedings against that person in respect of the offence," and to be "presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal." (These last few to be found in section 11.)10

So it is to be, that our constitutional rights, whether written or not, are to be an "impenetrable bulwark" against the power of government. If, however, government does trench upon our fundamental rights -- what recourse is there for the citizen? Here is a quote from an old English decision:

"If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it; and, indeed, it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal. It is no objection to say that it will occasion multiplicity of actions; for if men will multiply injuries, actions must be multiplied too; for every man that is injured ought to have his recompense."11
Here in Canada, The Charter of 1982, notwithstanding its serious flaws (see fn 10), has given a clearly visible platform upon which our judges might take a stand against big government. I have gained the impression that the courts, in spite of great pressures, have by and large taken a conservative approach. Our judges are aware of the great common law principles which underlie our constitution. It is comforting to know that such a body as our judiciary exists; the typical politician is ill-equipped and ill-motivated in coming to grips with the most delicate task of reconciling liberty and order. To the extent we place ourselves under government, we lose, we hope only to the least degree, our freedom. The trade is liberty versus order, individual freedom versus majority rule, the rights of the majority versus the rights of the various minorities; these trades must always be kept in proper balance and cool judicial minds need to do the monitoring.


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1 "Association, however, necessarily creates rights and duties; from rights and duties spring law and government." [Henry Duff Traill (1842-1900), Social England (1893-97), intro.]

2 Reflections On The Revolution In France.

3 Such as those found in the American Declaration of Independence (1776) -- "life, liberty and the pursuit of happiness"; or as may be found in the Canadian Charter (1982) -- "life, liberty and security of the person"; or as may be found in The Universal Declaration of Human Rights as adopted in 1949 by the General Assembly of the United Nations: "That all men are by nature equally free and independent, and have certain inherent rights of which, when they enter into a state of society, they cannot ... deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety."

4 Indeed, freedom is an absolute necessity to life. As I have said elsewhere: "Freedom is not something we have gained through the efforts of our ancestors; but, rather, it is something with which we are born; it comes with life's package. It is, as I have already asserted, something that is necessary to our very evolvement and is necessary to our continued involvement in life." ("On Liberty.")

5 Burke's admonishment comes to mind, "We are just on the verge of Darkness and one push drives us in." (As quoted by Burke's biographer, Russell Kirk in his work, Edmund Burke: A Genius Reconsidered (Arlington House, 1967).

6 "A Plea for Liberty."

7 In 1215 King John signed The Great Charter (The Magna Carta) in which is rooted the right to a jury trial and the right not to be deprived of liberty except by due process of law.

8 That a man cannot be compelled to give evidence against himself is traceable back to The Petition of Right, 1628.

9 The prohibition of excessive bail and of cruel or unusual punishments is traceable back to the English Bill of Rights, 1689.

10 It is, of course, a most difficult job and likely not one that could be completed -- to list "the innumerable rights of an Englishman." In the Canadian listing, the Charter of 1982, one of the most essential rights, the right to possess property was omitted. Though omitted, property rights, nonetheless, exist; and, by virtue of section 26, are preserved: "The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada." Why such an obvious constitutional right was omitted from the listing, was, I think, because the whole exercise was a study in compromise (For further on this, see The Charter, A Political Show). There was then, and there is now, a faction ignorant of basic economics, as they indeed are, who believe that property is a dirty word. That property rights were omitted, was bad enough, but worse, and which made the whole event an exercise in futility, was the inclusion of section 33, which, in effect, allows the Parliament of Canada or any of its provincial legislatures to declare that the listed rights in the Charter might be suspended. These Canadian politicians, by section 33, pretend to give themselves the ability to trample over the rights of Canadians. They do not have that ability; they never did have that ability; nor can they create it by fiat, by their legislation. They have made a joke out of Madison's notion that civil rights must be entrenched in a country's constitution so to be an "impenetrable bulwark."

11 Lord Holt, Ashby v. Aylesbury, 1702.

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Peter Landry

2011 (2019)