CONSTITUTIONAL LAW

CHAPTER 1

INTRODUCTION

1. Political Science should be based upon principles es- tablished by the use of the Inductive Method. When spec- ulative theories yield to facts, this science will become philosophic, and will have practical value. It is a practical science and not a theory. The relations involved are infinite, and the social machinery needed for their regulation is too intricate to be constructed upon any other foundation than experience.

2. Politics or the Science of the State, deriving its name from polis (city), or politeia (constitutional government of a state),1 which has its root in polus, the many, is the Philoso- phy of the Corporate Unity of the many, bound together in society. This incorporate being, e pluribus unum, we call the State, the Commonwealth, the Nation, the Body-politic. The same root is probably found in the Roman populus, per- haps in the Res publica. There is also another word, civitas, which is more restricted, importing the whole body of citi- zens, and is in contrast with Aristotle's "pletos politun", or mass of citizens governing the State; involving a distinction hereafter to be noticed specially.

Cicero defines populus thus: "Populus autem non omnis hominum coetus, quoque modo conjugatus, sed coetus multitu- dinis juris consensu et utilitatis communione sociatus." 2 It is not an aggregation casually brought about but a coetusg a going together of the many; sociatus, companioned

1 Aristotle's Politics B.3, Ch.1. 2 De. Rep., Lih 1, 25.

2 CONSTITUTIONAL LAW

and allied; jus consensu, by the sanction of law; and utili- tatis communione, with a community of benefit, making thus a commonweal or Res-publica.

This definition is valuable, while not in accord fully with modern thought. It defines the civil body politic, a generic term, which best describes that which is often called State (Stare) from its territoriality as distinct from a nomadic body; - or nation (nascor-natus) because evolved from the family nucleus; or a common-wealth because constructed for the common weal. It is a political body of citizens united for one social life; not the pl polit ? of Aristotle, which meant only the mass of voters in the state -but the whole body of citizens organized into a state.1

3. And let it be noted here that the Body-politic is not the Government, nor the persons admitted to participate in the functions of Government-but it is the whole body of persons politically associated. The organic force of the Body-politic, that social power which controls persons and things, for peace, order and the common weal, is what we call Government. The expression of that force is Law. This distinction between the Body-politic and the gov- ernment is fundamental and essential; especially in Amer- ica, where it has been asserted and maintained with peculiar emphasis, though germinally it may be traced in older in- stitutions.

4. A Body-politic may then be defined to be the organ- ism in unity of the many human beings, associated by jural bond for the objects of the social state in which is vested all rightful political power over its members for the common good of all. This rightful political power so vested, we call Sovereignty, or Supremacy over men and things. In this definition there are two qualifying words as to the political power of the Body-politic: vested and rightful. The one indicates the derivation, the other the limitation, of this supremacy or sovereignty.

These two words introduce us to the discussion of man's

1 Aristotle's Politics, B. 3, ch. 6

3 INTRODUCTION

relation to the Body-politic, which is rather a branch of Sociology, but is properly preliminary to the consideration of the relation between the Body-politic and the govern- ment, which belongs to the science of Constitutional Law. Both questions are embraced in Political Science, and the latter question cannot be understood until the first is fully comprehended.

5. The only religious creed which will be assumed as true in this discussion will be that there is a God, who is the Creator and the Governor of the Universe. The principles established, while they will accord with the Christian sys- tem, are not deduced from it as an hypothesis, but will result from independent reasoning.

6. What is the proper relation of the Individual to the Body-politic? This is the primal question in our inductive process as applied to Political Science. A condensed ans- wer to this question will be attempted, without going into details, and without much reference to the dissentations of authors.

Many writers, abroad and in America, have held the theory of the Social Compact between men as the basis of Society, and as the fundamental postulate of all political philosophy. This theory is fiction, and as an hypothesis is unsound, and must lead to error.

Of such compact history makes no record; and none could have existed. Man-right in Society is not derived from, nor secured by, any contract between men. Such contracts of men already in social union have been formed, and constitu- tions and governments have been established by quasi agree- ments, after Society had long existed; but men have never, when out of Society, entered into it by any compact or agree- ment. Upon the institutions of Society, as un fait accompli, men have engrafted a formal constitution for the Body-pol- itic, which by consent express, or implied from acquiescence, has been recognized as based on their consent: but institu- tions historically have always preferred constitutions. The theory predicates an independent isolation of men, and then

4 CONSTITUTIONAL LAW

assumes an exodus from isolation into social union upon the terms of a compact, by which the Body-Politic is created, and its authority is made legitimate.

This theory was the revolt of liberty against the claims of the advocates of despotism, and sought to justify the subver- sion of established systems of government by the hypothesis of a compact originally made, of which, when broken on the one part, the repudiation by the other was justified. This motive, however it may excuse the fallacy, cannot justify us in adhering to it, especially when, as will be shown, it may be displaced by a more effective doctrine in behalf of free institutions, based upon undoubted and historic foundations.

7. If we suppose the race began with a single pair,1 man and woman, they were bound in social relations by quasi con- sent, and this pair constituted the dual-unit of humanity. Their union is the ordination by God, and the impulse of natural instincts.2 Every man (except this primal pair) en- tered society by birth, not under contract. He came without his own volition, by the will of his parents, and under the order of nature. At his coming, he is without will, incapable of contracting, weak and the most helpless offspring in the animal kingdom.

A canon of this School of thought, and perversive of that embodied by Mason in the Bill of Rights of Virginia, June 12, 1776, and by Jefferson in the Declaration of Independence, July 4,1776, is thus formulated: "All men are born free and equal."

This is utterly untrue - in form and substance. The human being is born not in manhood, but in feeble infancy. He is not free, when born, but subject to a power he cannot resist or abridge; and freed from which, he would perisb. Nature ushers him into life under this imperative condition, and as- signs him to this subjection, as essential to his life and well- being. To him, this despotism is a blessing, and freedom would be a curse.

1 Humboldt, Cosmos, 865, etc. 2 Aristotle's Politics, B.1, ch 2,
Aristotle's Economics, B.1, ch 2, 3

5 INTRODUCTION

He comes not isolate, but into a social state, to which he did not consent, constituted ky others, and from which he cannot fly. Pillowed on a mother's heart, and protected by a father's thrift and courage, he is born at once the sub- ject of their authority and the dependent object of their care. The want of a social compact is well supplied in the provision of Nature for him;-for under parental control, he is secured from parental tyranny by the instinct of pa- rental love. He is safe in infancy, and under the nurture which God provides, he expands into matured manhood. 8. The canon above quoted asserts that men are born not only free, but equal. Equal to what? and in what? In physical, mental and moral nature? At birth he is equal in neither to any adult, nor to other infants in either of these. Infants are notoriously unequal in heredity and en- vironment.

Inequality continues at the maturity of manhood. The sexes are diverse in gifts and functions. Races of men dif- fer widely.1 Men of the same race are unequal. In physique, we have giants and dwarfs - athletes and cripples - a Her- cules and a hunchback: in mind, we have a Napoleon and a Louis - a Newton and an idiot: in morals, a Washington and an Arnold - a La Fayette and a Marat. In music, we find a genius for harmony, and another who cannot distin- guish one air from another: and so in poetry, art, science, philosophy and statesmanship.

God, in derision of the human dogma, stamped the law of inequality upon all his works. There is likeness, but no sameness. Nullum simile est idem. Infinite wisdom is mani- fest in the infinite variety of creation. Organic and inor- ganic kingdoms have, in each, innumerable genera and species. Vegetable and animal organisms present a mass of beings in the innumerable steps of an ascending scale from the sponge to the highest type of man. It is in this plan of the all-wise God that we find spheres of utility adapted to the several capacities of every organic atom and

1 Bluntschli, Theory of the State, Bk. I, ch. 1.

6 CONSTITUTIONAL LAW

every organic life. Each has its function; to each is assigned its mission; and to all moral beings, their duty. Inequality in such a plan is essential, and is the fundamental law of the system. Equality would be out of place, because if established it would destroy the system.

Out of this infinitude of diverse creatures, diverse in struct- ure, in functions and endowments, springs that law of human activity, denoted by the economist as "the division of labor," which is only practicable where there are laborers unequal in capacities, and which makes, under the laws of production and exchange, each creature participate in the productive qualities of every other, and, by combining the labor of all, contribute to the happiness and the common good of all mankind.1

9. In the Virginia Bill of Rights adopted June 12,1776, drawn by George Mason, the dogma referred to is presented in a form less open to criticism. It declares2 "that all men are by nature equally free and independent." This state- ment is made of "men;" and asserts their equality by nature in freedom and independence, without averring the extent of their freedom or independence, or of any equality except in freedom and independence. In this form, it is not very different from the doctrine we shall state hereafter. In the Declaration of Independence the statement is, "that all men are created equal; that they are endowed by their Creator with certain inalienable rights," etc. This avers a creation by God of men in a relation of equality, but with- out averring in what the equality consists except as it may be implied in the endowment of each with inalienable rights, which are then designated to be: "life, liberty and the pur- suit of happiness." Taking this whole statement, it will be found to be very much in accord with the views now to be presented.

10. Pursuing our induction, the question arises: What freedom, if any, and what equality, if any, may properly be

1 See this illustrated in Rep of 2 Bill of Rights, Art. I.

Plato, B 2, ch. II.

7 INTRODUCTION

asserted for men? Is all freedom and equality desired? Let our induction winnow the truth from the error.

11. The germ of manhood enters by birth into the family (which is the germ of all society), in subjection to the father, the patria potestas (the germ of all government); and all this is by Divine ordination.

The whole economy of this entrance upon life is conclu- sive evidence of the truth, that the parental government was designated for the good of the child; for his nurture under the best conditions to his maturity. He is placed under a power, upon which the Divinely implanted instinct puts the most potent limitation, that it shall be exercised in justice and love for the highest interest of its subject. It is not autocratic, it is Divinely derived -it is not absolute, but vested in trust for the protection and development of the in- fant. The Divine injunction to the parent is to keep this child, and foster in him the gifts which God has bestowed upon him: the very fact that power and love are linked in this primal government of the family chief, proves that the Divine institution of Government in its germinal form was limited and confined by the paramount duty to the child, the performance of which was insured by the tender relation between parent and child. The power was entrusted to love, in order to secure the well-being of the child.

While therefore we find in the family the evidence of the fundamental truth, that "the powers that be are ordained of God,"1 we find the qualification of this ordination, "for he is the minister of God to thee for good."2 The first shows that power in government lies in grant, and is not autocratic; and the second, that it is invested, not for the benefit of the ruler, but for the good of the subject.

This is the constitution for the family government, written upon the living table of the parental heart.

12. The subject of this family government is a helpless human being, a creature of God, gifted with facilities, which are his own exclusively, to which a duty is annexed in their

I Romans, ch 13, 1 2 Romans, ch. 13,4.

8 CONSTITUTIONAL LAW

use, with responsibility therefor to the Giver of them-a responsibility personal and exclusive. He holds his endow- ments by exclusive title in trust for God. In order to per- form this trust duty, his use and direction of his powers must be by his own will, because of this sole and exclusive respon- sibility. This is the dogma of self-consciousness, as well as of Divine authority; for with the gift of talents to each, the injunction follows: "Occupy till I come." The endow- ments are not equal, but diverse; but the duty of each, the trust imposed upon, and the responsibility exacted from, each, are equal and exclusive. The right of each to self-use, for the discharge of his trust and to meet his responsibility, must therefore be exclusive, because the trust and the responsi- bility are personal and independent. The gifts are unequal in amount, but the right of each to his several endowments is equal to that of every other being, because each holds his right under equal and exclusive trust and responsibility to his Creator.

Lord Bacon and his menial servant were wholly unequal in their respective endowments. But the right of each to his own life, limb and liberty was equal to that of the other. The objects of rights may be unequal, but the right of each to those several objects must be perfectly equal. The cot- tage of the poor is not equal to the mansion of the rich; but the title to the hovel home is as impregnable as to the princely palace.

13. Herein we find the true equality between men. It is the sole, exclusive and personal right of each man to the endowments each receives from his Maker. Inter homines, each man's title to these is absolute; between himself and God, he holds as trustee for his Creator. Every man for himself in absolute self-use against all intrusive control by any other man. "Who art thou, that judgest another man's servant? to his own master he standeth or falleth."1 How can any man Interfere with the exclusive right of another to do his personal duty and meet his sole and exclusive responsi-

1 Romans, ch. XIV, 4.

9 INTRODUCTION

bility to the Divine Being? How can we lawfully control another in discharging his duty to God? In the attempt, he invades the sacred precincts of the Divine Government. No man can allow another to do so and be guiltless for it would be treason to his trust, and destruction of his duty. He must resist this attempt, because only in freedom of action can he fulfill his Divinely appointed mission. His defense of this personal liberty, therefore, is a religious duty to God. It is not a mere right he may waive, but an imperative duty he must perform.

When this personal trust in self-use to the Divine Being is fully apprehended, it will embrace all human action, whether called secular or religious. All self-use will be regarded as religious duty. The liberty of self-use, or, in other words, the liberty of our life, will be seen to be a Divine gift to each man with which to do a Divinely imposed duty, under ac- countability to the Divine King. To surrender this gift of liberty, is religious treason; to defend it, religious duty.

14. Liberty, which comprehensively means this exclus- sive right of each man to self-use -that is, the exclusive use of the Divine gifts to him, under trust and responsibility to God, does not come, therefore, through any social compact of men, or as a gift from society or from government. It is the gift of God! It is a liberty of self-use, inalienable by himself, because that would be breach of duty and surrender of the trust Divinely vested; and inalienable by any and all others, because a sacrilegious robbery of that with which he is Divinely invested.' Voluntary surrender is personal trea- son to this trust, and to deprive him of it, is to rob God's right in him. Either is destruction of the sacred trust he holds for his Maker.

15. We have thus seen that, by Divine ordination, the family is the germinal society into which is ushered, by Providential methods, the infant germ of manhood, as a sub- ject of the germinal Body-politic, the parental chief of the

1 The language of the Declaration of Independence is in accord with this view.

10 CONSTITUTIONAL LAW

family. We have further seen that this parental government, Divinely ordained, has limits on its powers, in that they must be exerted for the good of the subject; and that this subject, as a creature of God, is endowed with the liberty of life, that is, with the exclusive right of self-use as to these endowments, in discharge of his personal duty and under his exclusive responsibility to God.

It is an obvious consequence of these propositions, that the powers delegated by the Creator to this primal govern- ment, not absolutely but in trust, are limited to such exer- cise of these powers as shall secure to the subject the full self-use of his endowments, for the purpose for which God bestowed them - i. e., to work out his destiny in discharge of his duty in order to meet his religious responsibility to his Creator. The powers so ordained of God were given for the use and benefit of the child -to save life, not to destroy it - to promote his health and happiness - his growth and full development to matured manhood. Society was thus made for him - as a school for his training; and the family government was constituted to secure his liberty and to ad- vance his well-being; and as there might be many children in the family, the rightful exercise of its governmental pow- ers would be in limiting them to such restraints on its mem- hers as would best conserve the right of each to his personal liberty of self-use, free from the intrusion of others, so that each may conform his life to the purposes for which it was given to him by his Maker. And it is a clear corollary from these principles, that the power ordained to protect each of its subjects in their liberty from invasion by others, cannot be so exercised by itself as to destroy or abridge that liberty. The protector cannot assail those he was ordained to protect, and cannot destroy the liberty he was created to secure. The Divine constitution for the personal government of the fam- ily was one which ordained the delegation of limited power to the parent, to be exercised in trust for the good of the child. In it we find the model for free institutions in aU ages and for all mankind.

11 INTRODUCTION

In 4, ante, we defined Sovereignty to be "the rightful political power vested in the Body-politic." In what we have ascertained by our inductive method, we are pre- pared to see in the primal body-politic, the family, the mean- ing of these terms. For we have found that power in the family over the children is Divinely vested, and is not auto- cmtic: -it is derived from God, and is not original. And we have further seen, it is only rightful when it is limited to the purpose of preserving the liberty of its members in the self-use of their respective faculties under their separate and exclusive responsible duty to God.

In this germ of society and of government, we find the organic social force restrained by Divine limitation to the exercise of only such powers as will conserve the personal liberty of its individual members, and promote their good. This is a cardinal canon of the Divine constitution of the family, the germinal society and the germinal government, ordained for men by their Creator.

Neither revelation nor reason conflicts with this canon; but both uphold it. Society and government were made for man: man was not made for them. Society was ordained as the school of our race; and government was ordained to preserve society. This Divine ordination of both for the use of man involves the negation of power in either to mis- use or abuse his personal rights or his individual liberty. To do this would defeat the Divine purpose in the ordination of both. It would violate the right of God in man; and thus perpetuate a wrong, not only on man, but on his Creator. Hence when the patria potestas, ordained of God for the family government, invested with authority limited by the right of man to his personal liberty of self-use (free from all external intrusion), with which the man is as distinctly in- vested by Divine ordination as the power itself transcends this limit and invades the domain of individual freedom, it usurps an authority never vested in it, and violates the rights, the protection of which was the only purpose for which it was created.

12 CONSTITUTIONAL LAW

While therefore it is clear that the patria potestas is or- dained of God, the ordained limits on its powers are as clear, growing out of the rights of its subjects, to conserve which is the trust purpose for which those powers were conferred. The fact of ordination of the powers that be must not be held to give Divine sanction to the claim of unlimited an- thority by those "powers," nor to save from condemnation the tyranny of despotic governments, which have destroyed the liberty of the individual man, which those "powers were ordained to protect and secure.

The power of government is ordained of God, but so is the right of the man, and the "power " of the one is lim- ited to the conservation of the other - in the primal constitu- tion of society. This Revelation teaches, Reason sanctions and Consciousness confirms.

17. It is equally illogical, and wholly contrary to reason, to infer that the patriarchal form of government which was evolved from that of the family, and all other systems of government which have grown from these, have any un- limited authority, or any power to destroy the individual liberty of their subjects. The limitations on the germinal form of government according to its original constitution, which have been indicated, follow governments in every form they may assume, and bind each and all of them to obedience to the fundamental canon already stated, to-wit: that no authority is rightful which does not conserve the personal liberty of the man and promote his individual good.

18. These considerations suffice to show that, while the Body-politic is Divinely ordained to exercise power over men, yet the individual man is created by God with inalien- able rights, for the security and conservation of which the Body-politic holds its powers in trust; and that these are vested not for the sole purpose of protecting the man in his self-use, but of securing to him the liberty of self-develop- ment, as well as the fruits of his self-use, embracing life, property and the pursuit of happiness.

In this view the language of Jefferson in the memorable

13 INTRODUCTION

Declaration of Independence is essentially true: "We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness; that, to secure these rights, gov- ernments are instituted among men, deriving their just pow- ers from the consent of the governed; that, whenever any government becomes destructive of these ends, it is right of the people to alter or to abolish it, and to insti- tute a new government, laying its foundation on such prin- ciples, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happi- ness."

The Body-politic is the means Divinely ordained to secure the inalienable rights of men, and is only legitimate when it promotes and is not destructive of these ends. This fixes the true relation between man and the Body-politic. It was made for his good; he was not made for its benefit. Magis- trates are the trustees and servants of the people; and men can never be jurally deprived of their essential liberties by the power of government.1 Political power and man-right stand related as trustee and beneficiary - not as master and subject. God delegated the power to govern, but he vested the right in the man. The right is primal and essential; the power is secondary and auxiliary. The right is the end; the power the means to secure it.

19. It will be noted that, with some exceptions, writers on political science concede the existence of man as a creature of God. Rousseau speaks of the "binding obligations he lies under to himself."2 We must regard the "binding obliga- tions he lies under to " his God. This makes his self-preser- vation not only a self-obligation, but a religious duty. As a being endowed with distinct faculties and will, which are the essential of his personality, he must be sole determiner

I Va. Bill of Rights Arts 1,2,3; in other state charters and Consti-
Preamble to Const. of Mass., 1780, tution of United States
Arts V, VII See like declarations 2 Social Compact, Bk. I ch. 5.

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of his destiny. He cannot yield this power, charged with the supreme duty, without peril to himself and treason to God. It follows inevitably, that he cannot permit the Di- vinely constituted guardian of this essential liberty to destroy it. As the ward of the Divine Being he must use every means to prevent government from turning its power, entrusted for his shield, into a sword for his ruin.

20. In this view, the Body-politic is man's trustee - not his master. Man is a cestui que trust,not a slave. His right is God-given. Its power is Divinely intrusted for the con- servation of his right. All the theories of Hobbes and his utilitarian followers, which place his title to liberty in the will of the Body-politic, or by the grace of government (Hobbes' Leviathan), or of Rousseau and others, which deduce them from a real or hypothetical contract made for him by a dead ancestry or by himself, or implied from his acquiescence, are alike false and fatal to his interests. Deriving his title from God, his claim is higher than the power of all governments. His right precedes its power; and power is God-given to guard God-given right. Man is placed by God in wardship to the Body-politic as his guardian - and the guardian's power is legitimate only when it protects, and is ultra vires when it impairs the right of the man.

21. This man-right is coupled with a trust for its use - a trust imposed on him by the Creator. When realized as such, not as a mere possession to use or not use, at the option of the holder, but to be used under the sanction of duty to the Divine Giver, it becomes an impulse to real life, that is, to self-development, to the highest possible degree. Self- direction under dictates of self-conscience is thus an imper- ative duty -and the enlightened human soul will be scru- pulously intent on the exclusion of all external interference with performance of this truly religious duty; for all life, in this view, is strictly religious,- that is, under responsible obligation to God. And in this consideration will be seen the powerful influence of Christianity upon free institu- tions.

15 INTRODUCTION

Before the Christian era, all polity was concentrated upon the construction of the State - without special regard to the right of man. The utility of the ancient systems was in the glory of the commonwealth, which conferred its gifts of right and liberty on the man -whose satisfaction with the order must be found in his membership of the state, honorable and eminent in the family of nations. Its great purpose was the development of the polis, not the security of the man - and his rights were subordinated to the power and glory of the state or the empire. Man was only a frac- tion of the mass.1

Christianity, in its segregation of the man from the mass; in its personal demand upon his conscience; in its isolation of his responsibility; in its holding out immortal rewards for his individual conduct; and all this under a sense of obliga- tion to the Supreme Being,- implant in the man such a pro- found consciousness of his accountability for his destiny as to make it a moral force, which dreads treason to the Al- mighty King more than all the threats of human power- and makes "resistance to tyranny obedience to God." It was this new inspiration of the human soul which has made modern civilization. It put into the man a sense of individual responsibility, which impelled him to a brave self- assertion of his right to liberty, as essential to his duty to God in working out his sublime destiny. This influence must be conceded by all, whether the Divinity of the system be accepted or rejected, as the great moral, social and polit- ical motive in modern progress.

This influence it is which has impelled man to challenge all power over his conscience and will; and to resist the abuse as well as the usurpation of ecclesiastical or political authority over his mind or body. It has demanded freedom of thought, of speech and of action. It has overthrown kingdoms, dethroned monarchs, changed dynasties, and rent asunder empires. These are the results of the doctrine of Christ - that it is not right for man to render to Caesar

1 Bluntschli Theory of the State, ch VI; Spencer's Justice ch 26

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what belongs to God -nor to obey man rather than his Maker.

This view explains the close connection between religious and civil freedom; and how the revolutions which have saved Anglo-Saxon liberty have united the civil rights of men with the freedom of the human conscience. This alli- ance made the English commoner clings to his civil rights with an enthusiasm which tyranny over a quickened con- science alone could arouse. Civil liberty under the inspira- tion of religious duty shattered the Eikon Basilike1, and upon the ruins of jus divinum regum erected the edifice of constitutional government. And the historian who sees in the struggles of our race, which have evolved the free insti- tutions of England and America, nothing but the efforts of man to assert the cold abstractions and canons of a violated social compact, has omitted to see and estimate the power of a religious enthusiasm, which feels the inspiration of loyalty for a Divine King in every blow struck for the security of personal freedom against human despotism.

22. The germ of royal responsibility to law under the Hebrew Commonwealth is found in the words: "He (the king) shall write him a copy of this law in a book and it shall be with him, and he shall read therein all the days of his life; that he may learn to fear the Lord his God, to keep all the words of this law and these statutes, to do them: that his heart be not lifted up above his brethren, and that he turn not aside from the commandment to the right hand or to the left: to the end that he may prolong his days in his kingdom, he, and his children, in the midst of Israel."2

In this prophetic constitution for the kingly power, we see no warrant for its perpetuity or for irresponsible au- tocracy deduced by the Filmer school-but we find the

I This means "Royal Image," and him. John Milton wrote in reply
was the title of a book issued after the "Image Smasher."
the execution of Charles L, and 2 Deut., ch. 17, v. 18-20.
reported to have been written by

17 INTRODUCTION

germs of modern freedom in the three-fold canon - that the king should be bound to the observance of the written law as the charter of his power and of the rights of the peo- ple; that he should not be lifted above his brethren, nor turned to the right or left from the commandment made for him as well as for them; and that the tenure of his king- ship was conditioned upon his observance of the written law of the kingdom. The Divine ordainment of govern- ment, and even of the prospective monarch (so he be not an alien, but a brother), is shown; but absolute irresponsibility and disregard of the rights of the people are not only not sanctioned, but are plainly condemned.

In the New Testament, Christ himself draws a clear dis- tinction between rights which are subject to the civil power and those which are not.1 In the apostolic answer to the Sanhedrimn the assertion of religious rights which the civil authorities cannot touch, is distinct and emphatic.2 Paul enjoins obedience to the powers that be, as the "minister of God to thee for good," thus making government a minister who holds power in trust for the people.3 The trust purpose of political power, and the duty of human obedience, are set forth as interdependent, making the observance of both of equal obligation.4 And the same principle is enjoined by Peter the Apostle.5

The exodus of the enslaved Hebrews from the Egyptian rule under the prescriptive title of centuries; the selection of the first kings by the voice of the people; the secession of the ten tribes because of the oppression of Solomon's son,- were under Divine sanction.6 These facts in Jewish history reprobate the jus divinum regum, and enforce the doctrine of kingly responsibility for the duty of protecting the rights of the people. The error of the Filmer school is not in de- ducing from sacred history the Divine ordination of govern-

I Luke, ch. 20, v. 21-25; Matt, 4 I Tim., ch. 2, v. 2.
ch 22, v. 16-21. 5 I Peter, ch. 2. v. 13-17.
2 Acts ch. 4, v. 19. 6 I Kings, ch. 12.
3 Romans, ch. 13, v. 2-4

18 CONSTITUTIONAL LAW

ment, but in maintaining that it was ordained with absolute, and not with limited, power -without duty, and not under trust-regardless of man-right, instead of for its protec- tion-irresponsible and a permanent tenure, rather than conditioned upon the due observance of the law, as the con- stitution of the monarch. He deduces all kingly power as a transfer from the patriarchal or family government, and claims that royal authority is by Divine right, because the patria potestas was constituted by God. But his error is fundamental, when, even with the concession that the king is the successor to the father's power, he fails to see that, in the Divine constitution of the family, the parental power is not autocratic, but delegated - and not absolute, but in trust for the good of the subject.

Milton, Sidney, Locke, and all the religious civilians of the seventeenth century substantially concede the premises of the Filmer school, with the qualifications above mentioned, and thus deny utterly its absurd conclusions; not only in their writings, but in the Revolution which during the throes of half a century condemned to death one hereditary king, deposed another, and elected an alien to the throne, under a monarchy constituted on written charter, in the memorable year 1689.

23. The compact theory of Locke, Rousseau, and others also fails to meet the conditions of this great problem. For as already shown, it has no historic truth, and could never have been the basis of political society. And if the non- alienability of a Divinely vested personal right has been successfully established, from the trust duty coupled with the gift, no compact could bind the parties to it which pro- posed to give away what was inalienable; and much less could it bind those not parties to it, and born after it was entered into. And a fortiori, the dogma of Hobbes and his followers, or of the utilitarians, is inadmissible, which makes alienation of rights to government irrevocable and forever binding, not only on the contracting generation, but upon the unconsenting posterity forever.

19 INTRODUCTION

24. The true philosophy of this vexed question then must be sought in the historic facts, which an induction has found: Society grew from the primal pair, the dual-unit of humanity; the children with them made the family, the germ of all Bodies-politic; the patria potestas, the germ of all govern- ments, is supreme, not absolute; delegated, not autocratic; and with authority to govern, as guardian of the rights of its subjects. The family grew to a patriarchy - a union of many of these from kindred or other ties, made the nations which have filled the Earth. The Divine ordainment of the primal government therefore proves that the latter was made for man, not man for government; and that Society and Govern- ment were the Divinely constituted means for the good of men-and that no political power is legitimate which vio- lates and does not conserve Man-Right: that as the spitroxos??? (the guardian) of Plato, it must protect and uphold the rights of men, and not assail and destroy them. From all which it follows, that when the guardian fails in duty, or wickedly destroys right, its ward may take measures to remove the ruthless governor, and substitute one who will better sub- serve the ends and purposes of the Divine constitution. Power is not, Right is, immortal. Political power must cease when it fails to subserve the rights of man. The Patriarcha of Filmer (writing in the interest of the House of Stuart) main- tained juo divinum regum. The American constitutional school bases Political Science on jus divinum hominum!

25. In this statement it will be seen there is involved, as a limit on power, that it shall conserve the rights of man. It becomes proper then to define these rights of man more precisely than has been done.

If we regard the new-born member of society, with his un- developed germs of future life, powerless, helpless and hope- less but for parental love, what are his rights which God thus intrusted to parental power?

His right to life, and to its preservation in healthful growth, is God-given. The parental power is given not for the par- ent's good, but linked to a duty to the child; a power which

20 CONSTITUTIONAL LAW

has no title to be, if divorced from that duty. Infanticide is the exertion of parental power; but is criminal usurpa- tion, because a violation of duty. No parental power is legitimate which trenches on the right of the child. The power is a parasite of the duty; severed from it, the power dies.

The discretion in its exercise is unlimited, except by its object. All that is bonafide exercised for that object, in the way of restraint and direction, though under false judgment, can only be corrected by him whose right is imperiled. As he grows in capacity in self-development, the parental power decreases with his expansion; and, when maturity is reached, the right to self-use is complete, and parental power, grad- ually decreasing hitherto, now ceases. The duty of the child to God in the matter of his life is to submit himself to the wisdom of the parent, until he reaches the point at which self-direction is safe. When that point is reached, submis- sion to others against his own conscientious judgment is error -it may be worse. And as it was the duty of the child in his incompetency to yield to parental direction, so now, in his matured competency, it is the duty of the par- ent to yield his former power of control to the hands of the adult child -for as the power only sprang from a duty due to his incapacity, it must cease when the incapacity ends. If the incapacity continues in case of idiocy or insanity of the child, the parental power and the duty, of course, con- tinues, and the man's wardship is perpetuated, for such per- son has not the right of self-direction; for right to do is not predicable of one who has no capacity to do.

26. What are the related rights of adults in social life ? and what the relation of social power to personal freedom? The right of every man is liberty of self-use, which involves that of self-direction. This arises from his distinct individ- uality of being as a creature from God. If man were alone (ex hypothesi) this liberty would find no limits, except in his capacity to control external things. Within the bounds of that capacity, his will would be unconfined. This is what might be termed the liberty of isolation. But as has been

21 INTRODUCTION

shown, this solitude is exceptional, even if it ever had reality, and perhaps never existed, save in the imagination which delineated Robinson Crusoe. Let us look at its advantages.

The primal motive of human life is self-love -and its ob- ject, happiness; which is the status wherein the man is in harmony with self and with the external world. A man at peace with self and with external things is happy - at war with either or both, he must be the reverse.

His physique has wants - which the external world can supply. He needs food, raiment shelter. When he supplies these in rude forms, his nature aspires for better. His ap- petite craves delicacies, his body demands improved raiment, and he changes the rough skins of animals for apparel which will combine beauty with utility. He is not content with a hovel and must have a home of comfort and even elegance. This passion for external things, to minister to his comfort, taste and luxury, begets a propensity to acquire by art and skill these objects in improved forms for his growing desires and improved needs.

His moral powers suggest his needs -his mind devises schemes of supply - and his physique, under the direction of these, finds and moulds natural objects to meet his varied and defined wants: for these objects must be sought, sub- jected and moulded by his physique under his intelligent direction for his purpose. The animal and vegetable - the organic and inorganic -kingdoms offer innumerable objects not attainable for use, nor useful when obtained, except by the aid of his mental, moral and physical forces. These under command of his will axe made efficient to lay Nature under tribute to his desires - when his moral force declares its pur- pose -when his brain lends intelligent aid to discovering the latent or unknown possibilities of nature - and when his physique fashions her unbounded resources to man's use - the raw material so transformed into new objects for the use and for the satisfaction of human wants, become objects into which he transfused himself, in which Nature is combined

22 CONSTITUTIONAL LAW

with himself, and the resulting product in a large degree is part of himself -because his being is so confused with the raw material as to be unseverable and indistinguishable in the new product. Hence, such things propriae - parts of the man himself -and are called in all ages property. If man were isolate, natural law dictates that Nature in her possession of unadapted materials is open and free to his sole enterprise. Robinson Crusoe in his island home would have none his "rights to dispute, as lord of the fowl and brute." But if another man were on the island, it is obvious that all the rights to external nature exclusive in the isolate Crusoe would be equally open to the enterprise of the new competitor for the supply of his need. "Thus his exclusive rights, the result of isolation, would be modified and abridged by the presence of those whose rights would be as unlimited as his own. The rights of each would thus be qualified in such a way as to deny the exclusiveness of any, and to admit the participation of all; and it would become the duty of each to admit right of all others, and so to qualify his own." 1

It is obvious that the liberty of isolation is very different from the liberty of social life. He surrenders his isolate right and liberty by being in society, but he does not sur- render his social right or liberty by being, in society. The idea so often stated, that a man by entering, into society surrenders some of his liberty to secure the residue, is there- fore inaccurate, and suggests a fallacy. His social liberty is essentially different from his isolate liberty, but he is in society to secure all of his social liberty -that is, all of lib- erty which belongs to him de jure, as a social being. His social liberty includes all rights which belong to him as a member of society. These, though different from his isolate liberty, are all which be can have in social life -and to all of these he has full title in society, and surrenders none by being in society.

The extent of the abridgment of isolate liberty by man's

1 Address of author at William & Mary College in 1854

23 INTRODUCTI0N

being in social life will depend on the "claims and necessi- ties of his associates. If each cannot have all the rights he might have as a solitary being, he must have all which are consistent with the existence of the highest practical rights in others. If there be conflict, it must be reconciled by such a compromise as will attain the best development, the high- est happiness and well-being of all. Neither part must seek for itself a greater elevation by the deeper depression of the other; but each must so adjust itself to a social equilibrium, that the maximum elevation of each shall be attained, and the minimum depression of each be avoided. Thus where two conflicting interests are combined in a society, civil lib- erty will consist in the preservation of that equilibrium, where the social rights of each so modify those of the other as to preserve to each the greatest amount of right and free- dom consistent with their co-existence in social combination. In this there may be what appears to be an abridgment of liberty; but it is the abridgment of the liberty of isolation. It is not an abridgment of social or civil liberty, which is the highest liberty which either interest can enjoy consist- ently with the incoherence in society."1 These views are in accord with Herbert Spencer: "Every man may claim the fullest liberty to exercise his faculties compatible with the exercise of like liberty by every other man. . . . Every man has freedom to do all that he wills, provided that he infringes not the equal freedom of any other man." 2 It follows further, that the maxim that the great object of government is to secure "the greatest good to the great- est number" is a perversion of all the true objects of social life. If this means that the greatest good to the greatest number may be secured by the sacrifice of the happiness of the lesser number, it is execrable; for in the social organ- ism there must be no lottery of prizes to some and blanks to others. The greatest possible good to each and all is the true canon; for that secures perfectly all the social liberty of

I Ibid. 1. Spencer's Justice, ch. 6; Kant
2 Social Statics, ch 4, 3, ch. 6, in accord.

24 CONSTITUTIONAL LAW

every man - that is, the maximum of good to each consistent with like maximum to every other. This is the equilibrium above spoken of, and is sanctioned by Spencer.'

27. And it is here proper to say, that, while isolate lib- erty is unlimited in quantity, yet social liberty is so much better in quality that the latter is not only greatly to be preferred, bat it is the highest and best and indeed the only possible liberty for man. So that it is well the liberty of isolation is only ideal, and that social liberty involves practically all that is most to be desired by man. A few observations will confirm this:

1. His inborn instincts make isolate life a curse, and social life a blessing. These instincts are affinity between the sexes, parental and filial ties, and yearning for sympathy, which can only be met by association with others.

2. His mind seeks fellowship with mind. Language, which his mind suggests and his vocal powers accomplish; music, never so charming as in harmony with others; thought, never so rich and pleasurable as in commerce; and worship, never so grand as in communion; all these are incitements and witnesses to the truth that "to dwell in the midst of social alarms" is better than "to reign in the horrors of solitude." Moral support in sickness, trial and death; the outgoings of the heart towards objects of affection; the need for co- operative effort with fellows better to obtain even phys- ical comfort, and, more important still, to achieve the pur- poses of the soul's aspirations for higher life; all these would make man, if ever isolate, fly from the best solitude to any society; or when in society, shun isolation as a dreadful doom, and cling to any social life as the only status for the race.

These statements will suffice to show that the liberty of social life is incomparably superior in its quality to all that the liberty of isolation can offer. Its very limitations being the blessings of security, and mental and moral self-develop. ment to the noblest destiny to which the individual can

1 "Justice"; "Social Statistics"

25 INTRODUCTION

aspire and which are impossible as results of isolated free- dom. And thus social liberty is the highest possession of humanity - because with it man reaches the purposes of his best aspirations -while isolate freedom dwarfs the soul, and shrivels its every aspiration into brutish insensibility.

28. Let us now look to the abridgments by social con- ditions of isolate liberty, which differentiate it from social liberty. The rights comprehended in liberty are in persona and in re -personal and property rights. In considering these, we come to a fundamental distinction between Jus and Lex.

Jus corresponds to the Greek dikn? (righteousness) and Oemis? (Goddess of Justice), and the Latin rectus (straight), our English right. from rego - the same root as rex - meaning the will of the Eternal Rex. Jus therefore means the abstract right - the will of God - precedent to and independent of all human institutions and human law. Lex, on the con- trary (lego), corresponding to Greek vomos? (enactment), and Oesmos? (radical -to place upon), is the enacted law of men. Jus is the law of God - Lex, the law of man. St. Thomas Aquinas says: "jus non est lex, sed potius id quod lege prae- scribitur, seu mensuratur." Jus is the abstract justice of which lex is the human expression and measure.1 And this distinction seems to be recognized in Tustinian's Institutes.2 Hobbes also asserts it with force.3

When therefore the terms jural and legal are applied to liberty or right, the distinction is clear. Jural liberty or right is what God gives; legal, is what society or its gov- ernment allows. The one being God-given is what the other ought to allow. The one is de jure the other de facto. They should be synonymous -but have not been in human his- tory.

1 Cicero says:"Nec enim alia lex 2 Lib 1, tit. 1, 2.
Romae, alia Athenis, alia nune, alia 3 De. Corp. PoL, Bk. 2, ch. 10, 5.
post hac: et omnes gentes et See also Burlamaqui Bk. 1, ch. 752;
omni tempore, una lex et sempiterna Puffendorf, Bk. 1, ch6 3.
et immutabilis continebit."

26 CONSTITUTIONAL LAW

29. What jural rights in persona belong to man within the term "social liberty" ?

This depends on his relations to others. These arise from particular ties, which include marital and parental and filial rights and duties, or they arise from general ties embracing the obligations of all contracts express or implied - the duties inter se of parties in sales, partnership, agency, bail- ment, trusts assumed voluntarily or imposed by law, and also all conflicting personal rights by misuse of one's own liberty to the injury of others.

The definition of limits between competing rights is a ques- tion for natural law and not for the subject in hand; but it may be said that Nature and Revelation supply two rules - the Golden Rule of Christ, and the civil-law maxim: Sie utere tuo, ut non alienum laedas. Justinian also says: "Juris praeceptae sunt haec - honeste vivere - alterum non laedere; suum cuique tribuere."1 In all the relations of persons, their jural rights may be decided by these rules, and the legal en- actments of society should conform to these.

30. What jural rights in re belong to man within the terms of his social liberty?

The origin of property has been the subject of much acute and learned discussion -with which this work has nothing directly to do -but the jural principles which underlie it may be stated, for their important bearing on political science. Property in self has been spoken of as involving the title to self-use. A man belongs to himself - subject only to God's right in him. All that is of objective value, which is the ex- clusive product of his self-use, belongs to the man.

Instance his thought-his idea. lt is his own exclusively- for how can another get it but at his will?2 Disconnected with matter, idea is an entity of value -of money value - and man has such a jural right attaching to it, that legal title to it is recognized in copyright and patent laws -so that no

I Lib. 1, tit. 1, 3. if my heart were in your hand; nor
2 Othello: By Heaven, I'll know shall not, whilst 'tis in my custody.
thy thoughtsl Iago: You cannot, Othello, act III, scene 2

27 INTRODUCTION

one can combine another's thought with his material prop- erty, unless he pays for the intangible and invisible idea.1 If A can claim title to his idea, which in contact with the insensate matter makes it a thing of life and power, how can B claim title to the resulting product, into which A has breathed his vitalizing thought, unless B has some better right than A to the original material?

This jural right of each man to his own thought is so rec- ognized the Roman and Common-law jurisprudence, that B's property, if wholly transformed into a new thing of utility by the genius and art of A, becomes A's rather than B's property, with allowance of claim by B against A for the value of the original material; unless the taking of the latter by A was a wilful trespass.2

This evidence - communes consensus - as to the jural right in such cases, would show that if A bestows labor of brain or physique upon res nullius or res communis, he must be held jurally to own the product by reason of the commin- gling or confusion of his labor with the original material; and this idea of property is vindicable upon another ground hereafter stated.

But the question still remains - what is the basis of prop- erty to things in their natural condition - movables and immovables?

Let us consider that "dominion" which God gave to man "over all the earth,"4 to which Blackstone refers in his Com- mentaries,' and adds, "the earth, therefore, and all things therein, are the general property of mankind, exclusive of other beings, from the immediate gift of the Creator." Perhaps the best view of the relation of mankind to the earth is this: The Creator placed man upon the earth cov- ered with organic and inorganic material to be fitted for his

1 Spencer's Social Statics, ch.II Social Compact, ch. 9; Locke, Civil
2 Schouler, Personal Prop., ch. 2; Gov., Bk. 2, ch 5.
1 Domat, Civil Law, 2160. 4 Genesis, 1, 28
3 Ante, 26. also Rousseau's 5 Blackstone's Commentaries, Bk
2, ch. 1, P. 3.

28 CONSTITUTIONAL LAW

comfort by his labor, and with endowments to assume and hold dominion over them. As this is the fact, it is rational to presume it was the ordainment of God.

Property in all this was not vested in man, but was offered to his acceptance for tillage, and the use of its animals for food and clothing. Like all the gifts of creation, they must become ours, only on condition of their subjection to our use by our labor of brain or muscle. All Divine bounty is only consummate upon acceptance through labor in some form; even light and air may be accepted or rejected. Natural fruits and water must be found and gathered for use. Trees must be felled for fuel and shelter; animals ferae naturae must be hunted and killed for food and raiment. Land must be cleared for tillage; timber and stone pro- cured and felled for houses; springs sought and wells dug for water.1 In all of these cases, which look to individual holding of external things as one's own, or as property, per- sonal labor is so mixed with the original object as to make a new product, combination of the raw material and man's work.

Thus, the truth seems to be this: God gives to him who will take for use through labor - not to the sluggard. "In the sweat of thy face shalt thou eat bread." 2 And with re- spect to the best of Divine gifts, it is said: "Whosoever will, let him take the water of life freely."3 He may take what he needs for his personal use and make it his own, leaving what he does not need for the supply of others in equal right with himself.

Cicero illustrates this well by right to the seats in a thea- ter, where the first occupant of one, when seats are free to all who will come, has best title thereto. Qui prior est tem- pore potier est jure. He says: "Sed quemadmodum theatrum, cum commune sit, recte tamen dici potest, ejus esse eum locum quem quisque occupari: sic, etc."4

I See this illustrated in the Patri- 2 Genesis, ch. 3, v. 19.
archal era. Genesis, ch 21, v. 80; 3 Rev., ch. 22, v. 17.
ch. 26, v. 15-I8 4 De Fin., lib. 3, ch. 20.

29 INTRODUCTION

Let us test this by a case where A and B compete for title to a thing adapted to human use, e. g. a house, an arable fiel, a well, clothing, food, or the like. A has taken a nat- ural object, and his individual labor has transformed it into a thing for use and comfort. B claims that the gift of Nature to mankind entitles him to partake of the benefit of the new thing because of his equal right with A to the original object. He says his right was equal to A's for the original thing, and why not to it in its transformed state ?

In answer to this claim, A may say that the offer was made to all alike, he accepted and B did not; that his ac- ceptance still left to B and others a fair share of what Nat- ure abundantly supplied for all; that if B had equal right with A to the natural object, but no superior right to him, yet as A has supreme right to himself and B has no right at all in A, the product of the combination of A's self with the natural object gives A a better right than B can claim to the product; that even where no labor was put by A in the natural object, yet, as the rights were equal, if enough be left for B and others, there is every reason why posses- sion should give title to A - and even if there be not enough for all, B's claim against A's possession would only be for his share on a partition between all, which would be infin- itesimal; and finally if length of time has created moral claims from association to the thing possessed by A, and further the tie of affection, there is just ground to add to the possession the inference of a presumed acquiescence in it by all, which is the title by prescription - for as the civil- ians put it, the owner is presumed to possess, and e converso, the possessor, after long time, may well be presumed to own.1

In what has been said, the right of one to take is only equal to that of every other; and hence, one may not take so much as will exclude others from a fair share in the things provided by the Creator for the use of all mankind. Rousseau said that while one may occupy vacant land, yet

I Domat, Civil Law, 2185, 2139.

30 CONSTITUTIONAL LAW

"no greater quantity should be occupied than is necessary for the subsistence of the occupiers."1 This indicates a truth which, however, cannot be so strictly confined. It is a protest against monopoly, but must not limit acquisition merely to subsistence.

In this view will be found the vindication of the doctrine of Johnson v. McIntosh,2 where the unlimited claim of the nomadic Indian was confined within limits which would allow God's gift of a virgin continent to be used for the life of hundreds of millions of civilized men, rather than give a monopoly of it to a few hundred thousand savages. The jural right of every man and of every race must be limited as all social liberty has been shown to be, by the co-equal rights of other men and races brought into association with them.' The reader will note the analogy between these jural principles and the pre-emption laws of the United States, which prevent monopolizing grants to any one, and give pref- erable rights of purchase to him who has expended his labor in making a home on any part of the public domain.

It is proper to notice the views of Mr. Herbert Spencer in respect to the right to property in land, distinguishing this from all other property. As to all property rights, except land, he is not in antagonism to the general view already presented; but as to land he maintains that land belongs to mankind, and therefore to society and not to the individual. He suggests that the State should lease at some fair bidding free to all; the lessee paying rent will own the residual prod- uct of the land as his own (for he has mixed himself with it). This being his property he can buy other things. Why not buy land of the State? If so, land-holding with its sup- posed evils begins again. If leasing but not sale be allowed to society, as the feudal land-owner, then the evils of pater- nalism (which none condemns more than Spencer) will be the doom of social life. The remedy this able writer pro-

1 Social Compact, Bk. I, ch 9. 3 Ante, 26; Maine, Ancient Law,
2 8 Wheat. 543. ch. 5,

31 INTRODUCTION

poses, besides the obvious difficulty of carrying it into prac tice would be worse than the disease.1

Besides, as above suggested, why should not the right of the lessee to the fruits of the soil be legitimately allowed to pay society for the permanent as well as for the temporary use? Why not permit him with his own money to buy from society the freehold as well as the leasehold? or the lease- hold for a thousand years as well as for ten? If all this were allowed, we should have what we have had in all ages: an original ownership of all land by the State, distributed by sale or voluntary grants to individuals. If we reverted to this original condition according to Spencer's principle, his- tory would only repeat itself, in bringing us to our present status after a few generations. What the public will should be careful to control is the tendency of men, greedy for power or wealth, to take hold of the political machinery and to regulate it in such wise as to grant a monopoly of land- holding, or any other property holding to the fortunate few, at the expense of the unfortunate many.

The principles thus far established explain the way in which property rights have arisen in all the ages. Nature is fera natura; it is only when touched by the wand of man's genius that it acquires value for human use and becomes his own (propria).

Discovery, which is so potential an element in the title to external things, is the result of man's enterprise, sometimes of daring energy directed by a master mind. In the compe- tition of children in search of shells, the first finder has con- ceded to him the preference of right. "I found it first," is recognized as giving a priority of claim. But in such cases, if the finder does not appropriate the thing found, it is left for appropriation by a succeeding finder. The trover must be followed by occupancy in order to title-for occupancy for permanent holding is, as Mr. Maine says, "the advised assumption of physical possession." ' Lord Stowell makes

1 Justice," ch. II; Social Statics, 2 Maine's Ancient Law.
Part 2, ch. 9.

32 CONSTUTITIONAL LAW

discovery give jus in rem, an inchoate title - but occupancy following, gives jus in re, the consummate title.1 In these cases, the moral, mental and physical functions of the man or nation combine in purpose, thought and bodily labor to make res nullius or res communis the res propria of him who discovers and occupies. Thus the bold enterprise of Columbus, followed by occupancy, gave the title of a conti- nent to Spain, at the foot of whose throne it was laid by the genius of the discoverer.

We have by the inductive method reached these primal truths of human philosophy, which revelation sanctions -a rational induction, independent of the teachings of revela- tion, yet in entire accord with them -that the Divine title to self is the foundation of the Divine right of man to prop- erty in external things. This independent process of reach- ing these primal truths is the tribute which human reason pays to Divine revelation. And all the writers to whom reference is made have quoted and relied on the evidence derived from the Scriptures as a basis for their reasoning and as authority for their conclusions.

31. Bearing these conclusions in mind, it will be in- structive to deduce some important corollaries from this simple analysis of the power of the Body-politic and the liberty of the man -as the former is the ordained means and agency for the conservation of the latter, which is the direct gift of a beneficent Creator.

First. The absolute and unwarranted tyranny of all laws which invade the freedom of individual conscience in the worship of God. For how could government be presumed to have been vested with Divine power to intrude upon the personal liberty of the man in paying his personal homage to God, under a sole personal responsibility to Him?

Second. As man in his personal independence of being has exclusive title to his own faculties, of brain, will and phys- ique, with a title to exclusive self-use, it follows that the prod- ucts of self-use of these, being the things into which he has

15 Robinson's Adm. 114; 1 Phillimore, Int. Law, 247; Hall's Int Law, ch. 2.

33 INTRODUCTION

transformed or converted natural objects for human use, are as much his own as were the faculties by means of which they were produced. They are, in truth, a part of himself because he has commingled a part of his real self with the natural objects from which they are made; and as this com- mixture cannot be resolved into its original elements, these transformed objects are recognized as his own, and are what we call property (proprius - a part of self). Labor (which is self-use) added to raw material makes the mass of objects of property among mankind;1 and the right of property, therefore, is an essential branch of the rights of personal lib- erty -a right for which, as we shall hereafter see, men have made their greatest struggles for free institutions.

Third. If B takes A's property by force for his own use, it is equivalent to a claim of mastery by B and of a condi- tion of servitude for A. And when government by form of law takes the property of A and gives it to B, whether by direct confiscation or by indirect means, it is a violation of duty and a usurpation of power. "It is none the less rob- bery, because it is done under the forms of law, and is called taxation." 2

Fourth. Laws of monopoly, whereby special privileges are conferred on the few at the expense of the many -or for agrarianism, which divides the accretions of thrift and econ- omy with the idle and wasteful - or for communism, which shares the fruits of toil with the worthless drone -all such destroy the equality of right which each man has in the ex- clusive use of himself, and subjects him and his property to spoliation and plunder.

Fifth. The oft-made assertion, that inequality of wealth among men is contrary to natural right, is wholly untrue. We have seen that men differ in their endowments and hence in their capacity and desire for the acquisition of property. Their acquisitions, therefore, must and do differ

I Locke on Civil Government, 44. 664. Accord: Fletcher v. Peck, 6
2 Loan Ass'n v. Topeka, 20 Wall 3 Cr. 87.

34 CONSTITUTIONAL LAW

largely. The "economy of industrious poverty," in contrast with the unthrift of the idle and of the prodigal laborer, makes a contrast of comfort and well-being even among the members of the poorer classes.

So far, therefore, from an inequality of condition being contrary to equality of right, it would be the greatest viola- tion of equality of right to enforce an equality of condition.

32. Having thus deduced the personal and property rights of man - these jural rights - from man's exclusive liberty of self-use to the fruits of self-use, it is necessary now to say that these jural rights are not always realized in the legal rights; that is, in the rights allowed to the man by the social polity under which he lives. But while this is so, we must not forget that the jural are none the less real be- cause the social polity does not make them legal rights. The jus cannot be abrogated, but ought to find full expres- sion by the lex.

33. These jural rights of man, constituting in their ag- gregate what we call his liberty, have, as we have seen, been given to him by his Creator to be used under responsi- bility to Him. Can he rightfully surrender them? Is he not religiously bound to defend them?

We have further seen that society is ordained by God to conserve the rights of man and not to injure them. These rights embrace life (limb, health and self-use as part of life) and property as the results of life work and enterprise. To conserve these society is ordained.

As man holds all these rights in trust from God, he breaks trust by their surrender, or by not defending them. Hence self-preservation, embracing self-defense and self-develop- ment to the highest degree possible, is a religious duty. Man not only may, but must, defend himself. Self-defense is not merely a, right, it is a duty -a religious duty. If he held his rights absolutely, he would have a mere right to defend them and might waive them; but as he holds them in trust for God, he is bound by religious obligation to defend them.

35 INTRODUCTION

In self-defense, therefore, man defends not his own, but God's right in him. And thus it comes to pass, under every well- ordered human polity, that this self-defense has the best sanc- tion, in that the man is to be regarded as the jural instrument for the lex, in what he does to the detriment of, and then in defending, his right.

As Society is ordained to conserve these rights, it follows that it cannot violate them - jural power cannot infringe jural rights. Governments have trampled on them - with- out jural power to justify them -and man-right has been destroyed by the power which God ordained to conserve it. In this sociological discussion of the relation of man to society, and to the government, which is the organic social force, we are brought to the threshold of Political Science - and axe confronted with the inquiries: How can de facto power be made to conform to the jural standard and made to respect jural right? What redress-what protection - has right against un-jural power? Must the man abandon his right because power denies it? Is power irresponsible to right for its wrong? And how is the organic social force to be so constructed as in its administration to protect, and not destroy, man-right ? Must the jural rights of man perish under the usurped dominion of de facto and un-jural govem- ment ?

34. If society and government were ordained for man's use, and to protect him in his liberty of self-development, it is now proper to look to the results of this Divine ordain- ment in the annals of mankind.

35. The most cheerless chapter in human history is the account of how political power has failed in its trust duty to protect man-right, and has consistently perverted its au- thority so as to abridge and even destroy human liberty; and how stupid the man has been to perceive, how stolid to appreciate, his Divinely conferred privilege, and how tamely he has submitted to the despotism of the ages.

The causes for this departure from the Divine scheme must

36 CONSTITUTIONAL LAW

be explained as a sad, but instructive, preface to the history of the rise of free institutions.

36. The primitive society was the family -the personal government-the patria potestas. It has been shown that the instinct of parental love was designed as an incentive to good and just government of the offspring. During child- hood this would naturally operate upon power so as to con- serve right. But when the parental power became patriarchal over matured sons and daughters, and their children, the tenderness of the father to his young children would be sub- stituted by the more stern and rigorous display of authority over them, when, with diverse purposes and other homes, they sought to break away from the traditional control of the patriarch.

But why should matured manhood yield obedience to the parental power which had controlled childhood? If we consider what creatures of habit we are; how the actual is regarded as right, because it is and has always been so; how our environment is accepted as normal, because nat- ural; how filial reverence and affection silence the cavils at parental power, and induce submission, even when restive under restraint; how gratitude for nurture during infancy be- gets obligation to repay to age the obedience and deference it exacts,- we shall no longer wonder at the enormous influence of patriarchal power in archaic society, or that the desire for liberty yielded to the customs of the household, "which put on the character of law." The impulse to be free from home- rule was checked by love for parents, brethren and the old homestead; and if other neighboring patriarchs were inimi- cal, by the value of the family band of which he was a part, to resist his foes and to uphold his interests. These motives would turn him from his purposes to fly from home, and would tend to perpetuate the family society and the patria potestas as of great advantage to him.

Even in modern society, how many cases occur in which grown sons remain at the old home under parental power; and are only released from this filial submission to the chief

37 INTRODUCTION

of the family when death removes him. If this occurs in era, how easy to conceive it in primitive society! The Homeric picture in the Odyssey, and that drawn by the writer of Genesis (both cited by Sir Henry Maine1 as sketched from life) show that archaic society "was not a collection of individuals," but "an aggregation of families."

37. In this primitive condition of society, we thus see bow a compact union between the descendants of a Patriarch "would result in which the ultimate authority would be con- ceded even by strong and able sons to the long recognized and venerable will of the Father-Chief. The energy and sagacity of Judah, and even the wisdom and civil power of Joseph, bow in filial deference to the determinant win of the aged and feeble Patriarch Jacob.2

This is in accordance with natural principles; history teaches it, and our own reason and experience confirm it. Such a status was constituted without pre-consent, and was established by nature, with the acquiescence of the members of the family or patriarchy. No better substitute could be found for it, which all would acquiesce in -and the status continued. The father had the start in power over his child's liberty, and kept it with the child's acquiescence. The son might chafe under the parental yoke; but without the concurrence of all he could not overthrow it and establish any other rule. "To yield to superior power is an act of necessity, not of the will," says Rousseau; "an act of pru- dence, not of duty."3 The man thus submits, or as an alter- native flees from his home; this is the equivalent of expa- triation. His environment is as inevitable as the air which encompasses him. If he flees from it, the solitude of Cain is his doom - a doom as abhorrent to man as vacuum to nature. He can endure the life of his native home despite parental tyranny, but the solitude he would find in leaving it is worse than death. -Man will bear despotism rather than isolation. He must, ex necessitate, submit to a rule against which he can only protest.

I Ancient Law, ch. 5. 3 Social Compact, ch. 3
2 Genesis ch. 42 et seq.

38 CONSTITUTIONAL LAW

38. If it be asked whether this patriarchal power be absolute or in trust, jural as well as actual, and whether pa- rental authority can be de jure converted into tyranny, the answer will vary with different authors.

Sir Robert Filmer, believing in the jus divinum regun, would answer affirmatively, for he holds all power is derived from Divine investiture.

John Locke and Rousseau, who believe that the claim to legitimate government is based on contract, without which it cannot be de jure, would answer that it is wrongful and not legitimate, because not so derived.

The true answer is this: Though the primal parental power was ordained of God, it was not absolute, but in trust; therefore jural only in so far as it conserved the man- right for which alone it was ordained, and that no power can be jural, however derived, which defeats the Divine pur- pose for which it was conferred; nor can any Divinely or- dained authority find warrant -in its charter of power for any tyranny over man. It is akin to blasphemy to claim Divine sanction for a tyrannical use of power, because jural power was Divinely conferred for the protection of the right which tyranny destroys: to trace to the Creator the wrong- doing which his usurping agent has done under Divine au- thority to do right. Government has power to do wrong, but no right to do so. Right is power in dutiful exercise - power plus duty. Tyranny is power in exercise regardless of duty; power minus duty. This distinction between power and right - between the power to do and the right to do - is fundamental and essential.

The Divine order was for the good of man. The human instruments of carrying out that order have perverted it into fearful evils and brought untold disasters on the race. The Divine means to bless mankind have, by human sin, been so perverted as to be a curse to him, the destroyer of his rights and the foe to his liberty.

39. The outgrowth of every nation forming a kindred race descended from a common ancestor, enlarged by the

39 INTRODUCTION

process of adoption, is based, not only on the facts of liberty and the exhumed record of extinct kingdoms, but upon ra- tional deductions from the nature of man. They are very fully set forth by Maine.1 As successive generations of this race come upon the earth, growing from infancy to matu- rity, they are subject, without regard to their volition, to the existent polity, with whose original institution they had noth- ing to do, to whose power they never consented, whose au- thority, though they may protest, they can neither avoid nor resist. The man is bound to the environment of birth by a necessity from which he may revolt by expatriation, but in which, while he remains, he must acquiesce, because he can neither successfully resist nor change it by his own will. The causes of this universal fact in human history it will be instructive and interesting to examine; why does man tamely acquiesce in a status in which his right and liberty and happiness are sacrificed to the will of a tyrannical des- potism ? Why will the instinct for individual freedom yield to the social instinct which binds him to the domicile of birth?

(a) In primitive society man's ignorance of this right, his duty and his destiny to the prescriptive possession of power under the existing order of things, would make him content with the animal life without the higher aspiration of an ad- vanced civilization, and induce quiet submission to absolute power, rather than the heroic assertion of liberty of which he knows little and cares less.

(b) As the world grew more populous, vacant spaces for isolate life decreased, and isolation became impracticable; but if practicable, would it be desirable ? On the contrary, the average man would prefer social life under a despot to the liberty of isolation. The alternative would be expatria- tion, but this would only result in an exchange of masters; and wherever he might go he would be confronted with the same bristling prerogative of power and a like disregard of liberty.

(c) Man was and is often tied by poverty to the domicile

I Ancient Law.

40 CONSTITUTIONAL LAW

of origin by a bond he cannot break if he would; perhaps would not if he could.

(d) But further, suppose he chafes at what others approve and is restive of the government which others support; how can he change it without their co-operative consent? If he dissents from restraints to which they consent, how can he get their consent to the change which he desires? All are bound together in one nationality, and the government for one must be for all; but if he and many wish a change, how can these obtain it if others refuse, without the use of force; and is a chance of change worth the blood of the conflict, or would force be rightful by the reformers against the con- servators of the existing order of things ?

(e) But are the advocates of change sure it would bring practical good -if they pull down are they sure they can build up a better structure of government ? Are the co- operators in the reform agreed upon its terms; or as to what each would esteem an improvement on the existing order?

(f) The political is so closely united with the social edi- fice -the roots of polity are so intertangled with those of society-that to tear up the one may be the destruction of the other, and social relations may be wrecked by the up- heaval of the government. This was one of the most power- ful reasons urged a quarter of a century ago, and now in England, against the disestablishment of the national church and against other radical reforms, seemingly good in the abstract, but fraught with danger to society which made statesmanship halt in its progress.

But if on the ideal theory of compact, or on any other theory, a change is proposed in the polity of people, how can it be effected ? If on the former theory, the consent of all must be obtained to the compact -it cannot be compact if any dissent. On this theory all change is impracticable, and if the jus majoritatus be assumed as rightful, of what shall your majority be constituted ? on restricted or universal suffrage? Shall all men, women and children be included? If not all, who shall be excluded and by whose fiat? Is it

41 INTRODUCTION

not obvious, if we upturn the existing polity and set it aside as illegitimate, that the difficulty arises as to the terms of reconstruction upon which the millions of any of the nations of Europe or elsewhere can be so organized as to rebuild a new edifice on the ruins of the old? These causes suffice to make men

"Rather bear those ills they have,
fly to others that they know not of;

There's the respect,
That makes calamity of so long life."1

Man cannot fly society; he cannot destroy it for that is an- archy. Change may not be reform. To attempt it by social revolution - by setting aside all the existing polity - is tem- porary suspension of social life; and how can its revival be effected -and what will be its consequences? Man, there- fore, shrinks from revolution as from social and political suicide. It is the last resort of freedom against intolerable tyranny. Justum bellum quibus necessarium; et pia arma quibus nulla nisi in armis relinquitur spes.2

40. Wisdom, in dealing with a question involving such momentous results, will direct us to the most practical rem- edy for existing evils with a satisfactory assurance of real good from the proposed change in polity.

These considerations dictate that, in all revolutions which promise success, we must not attempt any scheme which sets aside as illegitimate the existing order of society and starts our new polity upon any abstract theory of what ought to have been or ought to be now and for the future. Wisdom dictates that we must start with the concession of legitimacy of organism somewhere, out of and through which we may evolve the reform polity we aspire to establish. Man must accept the de facto social polity as his initial point. Ex hypothesi it must be regarded as the legitimate government, because the alternative is social anarchy. If you reject it because it exists without your consent what

I Hamlet, act III, scene I 2 Livy, Bk. 9, ch. 1

42 CONSTITUTIONAL LAW

movement can you make which will have universal consent, and, if not universal, in its absence the consent of any por- tion against the will of the remainder will lack the essence of legitimacy as much as that you reject. We must have an initial point of departure. Dissolve all existing organ- ism, and how can anarchy construct any other?

This conclusion of reason is confirmed by all revolutions in modern times. The English Revolution of the seven- teenth century, the American Revolution, and the French Revolution of 1789, all assume, ex hypothesi, that the Parlia- ment of England, the Assembly of the three Estates in France, the Legislatures of the Colonies in America, were legitimate. Back of them the chasm of social anarchy yawned, and the wisdom of those periods effected their great reforms in polity through the agency of those established organisms; de facto powers indeed, but assumed as de jure in order to an initial point conceded as such by all men. It is not contended here that this assumption of legitimacy for the de facto government is essential to the validity of political revolution, but it is meant that except in anoma- lous cases where the agency of the de facto government is impossible, either because it is destroyed, or absolutely refuses to be auxiliary to the reform movement, the use of the de facto order as an agency of reform is most desirable and is best when it can be secured for the purpose. And with- out anticipating a definition of legitimacy in polity, we may say now that the government de facto, having by prescrip- tion at least colorable title, against whose claim by common consent no better title can be asserted, may very reason- ably be taken to be the representative of political legiti- macy. Mr. Guizot1 defines political legitimacy to be a "right founded upon antiquity -upon duration." This is practicable legitimacy, though, as he says, true legitimacy is that "of reason, of justice, of right." 2 To avoid anarchy and the chaos of a resort to ideal legitimacy, wisdom will dictate, as the initial point of our reform movement, the

1 Guizot's Civilization, p. 63 2 Guizot's Civilization, p65

43 INTRODUCTION

acceptance of the de facto order as practically legitimate for our purposes.

In the French revolution of 1848 Lamartine began his movement by the arbitrary assumption of power for the pro- isional government proclaimed by him and his associates, setting at naught the de facto authority of the kingdom. The King had fled, and Lamartine usurped by the voices of the populace the executive function in order to an initial point to the revolution. This was done as a substitute for the de facto power which had been abdicated.

When, therefore, acquiescence in an existing order is found by men to be dangerous to their liberty and destructive of their rights - when men demand reform in government be- cause the government ordained as protector has become the destroyer of man-right -what must he do? Is he bound -to submit, or can he resist and force a change?

The answers to these questions will be found in what has been already stated. Man's title to his liberty is from his Creator. It consists in self-use of endowments bestowed on him, under trust responsibility to God. God ordained society as the school of the race, and government as the organic social force was ordained to preserve social peace and order and to conserve the liberty of man.

These things being established, the related order of these social elements is thus: Man trustee of his liberty for God; society the Divinely ordained trustee for man; and govern- ment the Divinelv ordained trustee for society. Man is the object of all this Divine arrangement. They are ordained for him; not he created for them. His liberty and right of self-use is the essential object of this Divine arrangement; their power is to be exercised for him - not over him. His good is the ultimatum of all their use of power, and their power is only legitimate in title or in exercise when it does justice to him in the protection of his right and liberty. But we have established another point: Man has not only the right of self-preservation, but God has made it his duty. It is his primal duty, therefore, to see that the Divine means

44 CONSTITUTIONAL LAW

ordained for his protection shall not be perverted to his in- jury or his destruction. Man is under obligation of duty to take care that these Divine means, clothed with trust for his right, shall not be perverted into tyrannical deflances of the trust. He may reform this potential agent if he can- change it entirely if needed -and resist its usurped author- ity if he must.

To sum up, power and right are correlated. Both are Divinely ordained. Political power is vested in trust for man; right is vested in man in trust for God. Right is pri- mal; power secondary. Right is fundamental; power is an- cillary. Right is the end; power the means. Right is the good to be secured; power the minister - the servant of right. The Divine constitution is not jus divinum regum but jus divinum homenum.

This political philosophy is that which has the sanction of Christianity and of reason. It is not the result of social com- pact, but the logical consequence of that intense individual- ity of man arising out of his sole responsibility to God, to conserve and develop which society and government were Divinely ordained. Right is God-given, and is neither given nor can it be taken away, but must be protected by the politico-social power.1

41. This philosophy was but little known to the ancient world. The State, not the individual, was the central object of the ancient political philosophy. Christianity, as we have seen, was the new force in modern civilization which made man the primal object and the state the auxiliary means for his good.2 The writing of Milton, Sidney and Locke, of the French, English and American authors of the eighteenth and nineteenth centuries, while differing in abstract theories, have reached in a large degree results like to those to which our reasonings have conducted us. The great State papers of our Revolutionary period confirm them, and these results may be thus stated:

1 Guizot's Civilization, chs 1 and 2; 2 Bluntschli, Theory of the State,
1 Lieber, Political Ethics, 33. Bk. 1

45 INTRODUCTION

First. The government has no just right to power which it perverts to the injury of the right it was ordained to pro- tect.

Second. Man, whose right is to be conserved, is bound by religious duty to use all means in his power to reform, change and reeconstruct the government, so as that it shall conform its action to its trust duty to him.

The language of the Declaration of Independence is dis- tinct and clear on this point:

"Whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a now government, laying its foundation on such principles, and organizing its power in such form, as to them shall seem most likely to effect their safety and happiness." . . . "When a long train of abuses and usurpations, pursuing invariably the same ob- ject, evinces a design to reduce them under absolute despot- ism, it is their right, it is their duty, to throw off such govern- ment, and to provide new guards for their future security."

The fifth article of the Bill of Rights of Virginia, adopted June 12, 1776, is in accord with this:

"5th: That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community: of all the various modes and forms of government, that is best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that, when any government shall be found inadequate or contrary- to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal."

42. The next question presented is, how shall man per- form this duty of reformation, change and reconstruction? As a man is not alone but in social union with others, there must be a concurrence of action among the members of so- oiety in this matter which concerns all. The coetus -the

46 CONSTITUTIONAL LAW

aggregatio hominum- the people- must do this. But who are the people, and how must the people act? We have pre- viously defined the Body-politic1 to be "the organism in unity of the many human beings, associated by jural bond for the objects of the social state, in which is vested all right- ful political power over its members for the common good of all." This Body-politic is composed of all the men, women and children in society. Each has his distinct individual right; for each society and government is the ordained trustee. Each, de jure, has a will of his own, and should have a voice in what is proposed; for if A and a thousand others wish a change, and B and a thousand others do not, or if all wish a change, but differ as to the new order, how is a decision to be reached? If A were alone in his isola- tion, he would have sole liberty to decide; but being asso- ciated with others, his liberty must be made consistent with the like liberty of others. How shall this action of all be now attained?

43. At this point we have reached the domain of the "social compact," if practically it can ever be reached, for all who hold this theory admit that in order to validate social compact all must consent. If all, therefore, consent to a change and to any proposed form of change, the theory of social compact would prevail.

But in history and human experience no such unanimity has ever been reached. If, by the theory, it is essential in order to legitimate change, then it results that no change can be made and the existent tyranny must be perpetuated. But unanimity cannot be reached, for an obvious reason. The great mass of this Body-politic have no wills to decide. Children, idiots and lunatics cannot decide. Women, in most countries, are excluded from a voice in the decision. The determinate body in all such cases -which history re- cords is composed of not more than one-fifth of the whole number of society. What then shall be done?

Rousseau, confronted with this difficulty, evades it when

1 Ante, 4.

47 INTRODUCTION

he says: "The choice by a plurality of votes is itself the re- sult of convention," and supposes that unanimity must at least for once have subsisted between them.1 He assumes ex hypothesi that the special compact was, at some unknovrn period adopted with unanimity, and that by its terms future action was to be decided by a plurality. But how does this prehistoric compact bind the living generation, and how can a living minority be jurally bound by a majority under an hypothetical compact they never agreed to, made by an an- cestry at a period whereof history makes no record? Thus, to maintain his theory, he resorts to an hypothesis of an event which never happened, and which, if it had, would, on his own principle of needed consent by all, have no obligation upon a living generation who dissented from it. This diffi- cult problem is insoluble upon any theory of compact. Polit- cal science is a practical science, not a theory. It formulates this postulate: the de facto Body-politic and the de facto government must be assumed to be de jure, not because it is upon any original theory, but as an initial point -as the origin of political action - because the alternative would be political anarchy and social chaos.

If it is objected that neither the defacto government, nor the de facto Body-politic, is de jure, the answer is, can you establish any government or Body-politic which is de jure ? If the de facto be void because without your consent, will that which you substitute be valid without the consent of all; and how can you hope for this universal consent? Hence reason ex necessitate sanctions the above postulate. All revolutions or reformations in government have their start with the de facto government, or have, by usurpation and force, created a defacto government and Body-politic as the initial point for its reformation or revolution. The English Revolution of the seventeenth century, the American Revolution of 1776; the French Revolutions in 1789,1848 and 1870, have started with the assumption of the

1 Social Compact, Bk. I, ch. 6

48 CONSTITUTIONAL LAW

de facto order of things as de jure in order to the accom- plishment of their reform or revolution.

If the objector still asks, is then a defacto government un- changeable - must mankind submit eternally to its domina- tion? the answer is clearly, no. The de facto government may be used as an instrument for the proposed reform, or even for the proposed revolution, as an initial point, but not as the terminal, because the alternative to its acceptance as such is chaotic anarchy-social disintegration-political death. The satisfactory reasons for this conclusion may now be stated:

First. The Body-politic was not framed by man or under human compact. It grew and was not made; it grew under the ordaining providence of God. Its existence was by Divine order, not by human consent.

Second. Man in his highest condition cannot live out of society; his social status is his supreme right. His social liberty can only exist for him as a social being, and hence this liberty ceases when his social status ends. To assert this liberty for him by destroying that status, is to seek to secure such an equality for his liberty when the substance to which it belongs is gone. Anything to avoid anarchy, therefore, is a primary and essential security to his liberty; for liberty dies with the extinction of society.

Third. But to the objector who reasons for an a theory of natural right, the answer is easy. To reach some practical result, Rousseau's violent hypothesis is that the right of a majority to control was a term in the original contract of society; while, on the contrary, we insist that the defacto Body-politic has, by long acquiescence, been sanctioned by all, and may well, therefore, be deemed a de jure Body-pol- itic by universal acquiescence, if not by universal consent.

Fourth. Politics is a practical science, not a mathematical one. The. interests involved are not abstract, but personal. No theorem in this science can be true which would wreck society, transform it into chaos, in order to secure the social liberty of the man. If the dejure order is insisted on, we

49 INTRODUCTION

must first determine what it is. The answer will be found in a babel of confusion of tongues. Therefore, in an impos- sibility of consensus as to what is de jure, what recourse have we but to assume as dejure what for generations has been acquiesced in by a whole people? In order to reconstruct the ship of state, it is madness to blow it up in mid-ocean. We must use it in order to repair it. This is true wisdom, and therefore is a sound canon of Political Science. While, on the contrary, it is folly to call that science which wisdom condemns and reason repudiates, because it destroys what it proposes to save and reform. If we cannot have a dejure initial point by common consent, we can reject that which is the nearest approach to it, that is, the government and social status which for generations has been acquiesced in by the people who proposed to deal with it.

44. Let us now see to what uses we can adapt the defacto government in the reform and reconstruction we propose in our social policy. It is obvious that complaint of the work- ings of any defacto system will not often come from those who wield its power and enjoy its benefits. It is not prob- able that the tyrant will confess his sins and aim to over- throw his power or to reform his administration, nor is it usual that the parasites of the existing order- the recipients of its patronage - the pensioners on its bounty - the armed force which has no thought but loyalty to its leader-or the classes whose peculiar privileges are dependent on the defacto system, would readily take part in a movement fatal to their selfish interests.

But the power of public opinion -the clamor of an angry population-the sense of justice even with those interested to resist reform, and the threats of violence as a measure to enforce the proposed changes, have in modern times pre- vailed to wrest power from the hands that abuse it, and restore liberty to an oppressed people in all parts of the civilized earth; and, as already intimated, these results have come through the agency of the defacto power whose au- thority was to be overturned or reformed. Through the

50 CONSTITUTIONAL LAW

regular Parliament of England from 1641 to 1666, through the French Assembly of States regularly call,d in 1789, two kings lost their heads, kingly power was overturned; and through the Parliament of England in 1832, the reform bill of 1832 was passed revolutionizing the government of England with the active agency of William IV.

If the defacto government refused to aid the reforms which the Body-politic imperatively demanded, shall the latter still submit to the perpetuation of the tyrant? Clearly not; the right of forcible revolution is always the reserved right of an oppressed people against any government. But if the de facto government yields to the popular demand so far as to aid the reforms which are proposed, what can it do in order that this Body-politic may act in the consummation of its purpose ? As a practical problem its solution has been found in getting the defacto government to furnish the legal and regular method through which the Body-politic may utter its voice.

45. It is at this point we find the advantage which is derived from long historic struggle of the people with des- potism. Century by century, generation by generation, year by year, liberty makes its continual claim, and concession after concession is yielded to popular demand, until popular power at each step increases its hold upon the defacto gov- ernment, until it is ready to yield again and again. Power, because of this position, possesses the vantage ground of liberty, for it may reply to every demand of liberty, "Take what I am willing to concede, but social chaos is the alter- native." Liberty has generally shrunk from the alternative and accepted the involuntary concession. Hereafter we shall see how, by gradual advance, but by persistent purpose, our own great race has risen from slavery to freedom, and how others, rather than brave the terrors of revolution and social convulsion, have, in hopeless submission, purchased peace and order of despotism by a loss of liberty.

46. It seems strange at first that the tyranny of one or a few can so long suppress the liberty of the mass, but a

51 INTRODUCTION

few considerations will solve the mystery and make it more strange that liberty should ever succeed against established despotism. The views presented in 39 will explain why the spirit of liberty among various races of men has been so inactive and dormant. History proves that power never voluntarily relaxes its hold, and only yields to popular will when by sturdy and persistent demand it compels the recog- nition of the right of the people. The causes which have stimulated the people to this attitude of resistance have arisen, as we shall see, from race characteristics and from the peculiar education of some particular nations. On the other hand, the agencies of despotism are ancient, organic and formidable. The sentiment of submission to long-accustomed authority is almost a superstition out of which were evolved the heresy of the Filmer school. There is a divinity that doth hedge a king so that whatever is, seems right; but besides this prescription in favor of defacto power and the revolting alternative of forcible revolution, there are many moral and material methods by which power per- petuates itself against the -protests of freedom.

The first of these is patronage, through which society it- self is divided into two classes, the one of which is consti- tuted of officials who, being supported by the government, rally to its support themselves, their kindred and friends. Then there are parasitical interests, privileged monopolies and the like, which, being fed by the bounty of the govern- ment, lend it their support and that of their retainers. The nobility established castes and classes, and all the people who depend on them, being in the same case with the gov- ernment, may also be relied on to uphold it. These various dependents, with all their several dependents, ramify soci- ety, and make the proteges of power a band of faithful ad- herents to conserve the existing status against the hostility of the mass of the people. Society is thus separated into benefit-receivers and burden-bearers-privileged and tin- privileged orders -tax-consumers and tax-payers, and though the mass may be more numerous, the dependents on govern-

52 CONSTITUTIONAL LAW

ment are sufficient in number, influence and wealth to coun- teract in a large degree the tendency of revolution and reform by the mass. Another and more fearful instrument of des- potism is a standing armed force, which, organized to and habituated to the discipline of obedience to authority, are the reliable defenders of power against the unorganized forces of rebellion. It is obvious that the de facto govern- ment, thus defended and upheld, will not easily be made a medium for reforms which will disturb the status of the privileged classes and their interests. They use the govern- inent for their benefit, faithfully oppose for it and themselves the intrusive interference of malcontents with a system emi- nently satisfactory to those who feed upon it, though adverse to the interests of the people who bear its burdens and reap none of its benefits. Reform will be a slow growth in the face of such a despotism.

47. But despite hinderances, governments de facto have been efficient in aiding substantial reforms which divested them of authority and placed it in hands hostile to their tra- ditional policy. In two instances in the last century, revolu- tionary reforms have been consummated through the agency of governments, whose natural attitude of hostility to them would have made their action seemingly impossible. In 1789 the oppressed people of France clamored for an assembly of the states for radical reform in its policy. The Crown, in acquiescence with other orders, called them to Paris. The tiers-etat forced the battle with the established order of nobles and clergy and formed that famous assembly which upheaved the monarchy, leveled the social order to an unheard-of extent, and shook every throne in Europe by its audacious challenge of all existent authority, and by its uni- versal proclamation of liberty, equality and fraternity. The government defacto called the body into deliberation whose edicts established a democracy on the ruins of the most des- potic monarchy in Europe.

The Parliament of Great Britain, in 1832, with the aid of William IV., operating on the reluctance of the House of

53 INTRODUCTION

Lords, passed the great reform bill which revolutionized the government and gave dominion and permanent influence to the Commons in the future direction of British affairs. Without adverting to the English Revolution of the seven- teenth century, or to the American Revolution of the eight- eenth century, it may be taken as true, that popular move- ments for reform will be heard and headed by de facto governments, and that through their instrumentality changes may be consummated in the interest of free institutions.

48. The defacto government in all these instances acts instrumentally in furnishing the legal sanction to the organ- ism through which the Body-politic may work a change in the structure of the government and in limitation of its powers. Minor reforms may be effected by ordinary legis- lation under the influence of public sentiment, but the most important and efficient activity of the de facto government in political reform lies in creating the organ through which the will of the Body-politic itself may be made known. The fundamental work of the Body-politic is to construct the government- to define its powers, to distribute them between departments, and to shield individual right from any jural power. This is constitution making; the Body- politic is the constructor. How is this to be done? We have seen that the Body-politic is composed of all the men, women and children of the state. It is impractical for all of these to act. Children and imbeciles, by natural incapacity, partial and complete, are obviously incompetent to take part in this great work. For reasons unnecessary now to be considered, women have been excluded in most nations from participation in public affairs. How, then, shall the Body-politic act ? This question can only be taken by assuming the Bo4i,-politic de facto as the legitimate Body-politic, or we may call it the representative Body-pol- itic. To admit, upon any theory, the Body-politic de facto into any proposed Body-politic de jure, would end in confu- sion. Who, besides those actually admitted into the defacto Body-politic, should be introduced under your theory? What

54 CONSTITUTIONAL LAW

portion of the excluded classes ought to be included? What hope of communis consensus on any proposed change? In the absence of any possible consensus, we are driven by analogy to reasons already adopted in respect to the defacto government, to take ex hypothesi the Body-politic de facto as the Body-politic de jure. The alternative to this assump- tion is anarchy. We may then assume that, while the Body- politic de jure is composed of all men, women and children in society, the de facto Body-politic will be composed only of those admitted to suffrage under the existing order of things. The first is the real Body-politic; the last the rep- resentative Body-politic; and this last is in substance the plitos poletesu? of Aristotle - the mass of citizen voters.

We are in a dilemma between accepting the defacto Body- politic as legitimate, or, by its rejection, plunging into social chaos and political anarchy. The acceptation of the de facto Body-politic is conservative of social order and hopeful of political reform; the rejection of it, upon a theory of what ought to be the Body-politic de jure, is like dynamite - it destroys social bonds and wrecks hope of political reform.

49. Nor is the acceptance of the defacto Body-politic as ex hypothesi de jure open to serious objection when closely examined. The representative voter in the de facto Body- politic, where suffrage is universal, is really the head of the family. The Body-politic is not a collection of individuals, but an aggregation of families, of which the chiefs are the representatives. No great evil can result to the family by being excluded from personal participation in public affairs, when they, as collective individuals, are represented by their chief. The patria potestas of archaic society thus comes into play as a constituent factor of this representative Body-pol- itic. In Great Britain the voters are about one-tenth of the population; in the United States about one-fifth; and where suffrage is universal it may be assumed that the paterfamil- ias wielding the patria potestas, is a representative of an average of himself, wife and three children, the material constituents of the Body-politic defacto. Thus it will be

55 INTRODUCTION

seen that the defacto Body-politic is substantially represent- ative, and that as each suffragan intelligently voices the will, rights and interests of his own family, no essential wrong can be done, and the true representative of right of all may be held as embodied in this defects Body-politic.

50. In considering the powers of this representative Body-politic of the real Body-politic of all men, women and children organized in social union our definition has shown that all rightful political power has been vested by the Di- vine Being in trust to promote social order and civil liberty for all its members. The powers thus vested in this Body- politic are not autocratic but in trust -not absolute but lim- ited to the purposes for which they were delegated, which trust involves protection of the inalienable rights of every member of the Body-politic and can never be used de jure for the impairment or destruction of them. This jural po- litical power representative of the Body-politic is what we call sovereignty, but is neither absolute nor autocratic, but is delegated by the Supreme Being and limited by the re- served rights of individuals, which are inalienable by the man himself, and indefeasible by any other man or any body of men.

This view of the authority of the Body-politic shows that man has certain rights which are beyond the reach of the power of any government or of any Body-politic. This Divine agency ordained to protect this God-given right can- not have Divine authority to assail and destroy them, and this limitation upon the real Body-politic for a stronger reason is applicable to the representative Body-politic, so that the duty of the representative Body-politic is so to use its sovereignty, thus limited in power, as to promote the max- imum of good to every member of the Body-politic - that is, the largest social liberty to every human being -the greatest good to each -consistent with the greatest good to all, and not to achieve the greatest good to the greatest number.

51. In thus conserving the functional agency of the de government and the de facto Body-politic for the

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reform of political institutions as the only alternative to social chaos or violent revolution, we do not mean to deny, but really to affirm, the right of revolution in the Body-politic against all established systems of government. The right and duty of men are superior to any claim by prescription of government. We have endeavored to show that in every mode in which reform may be admitted, whether by peace- able or forcible revolution, we cannot best protect the action on any de jure principle, but must resort to the use of the existing defacto order to accomplish our purpose, or we shall be driven in violent action to an assumption or usurpation of initial authority as defacto legitimate to achieve like results. No political authority can be adapted to the solution of this political problem. We may approximate,