XXI

THE AMERICAN CONCEPTION OF PRIVATE RIGHTS

THE latter part of the eighteenth century, in Europe, was marked by a serious investigation by philosophical minds of the facts of government. The old theories upon which government had been supposed to be based were subjected to a searching examination, and the attempt was made to restate those theories in such a manner as to adjust them to the changed conditions which had resulted from the extension of commerce and from industrial invention. Indeed, some of the thinkers of the day were not content with the restatement of old theories, but, on the contrary, endeavored to formulate new theories to be made the basis of a new system of government, which it was hoped might in the near future be established.

A new political philosophy was formulated, out of which it was believed that a real political science would evolve. The characteristic of this new thought was the elaboration of theories to which the possibility of universal application was attributed. Rousseau gave a new and important phase to the theory that the state is based on what is called the social contract; Montesquieu emphasized the theory of the separation of powers on which, it was claimed, all free government was based; while a school of legal thought grew up which based all

law on what was called natural law. This idea of natural law in its turn was developed from the conception that all men, as human beings, have what came to be known as natural rights. Man was regarded as an individual rather than as a social being, a member of human society. As an individual he had certain rights with which he had been endowed by his Creator, and of which he might be deprived only with his own consent.

These theories of social compact and natural rights presupposed that society was static or stationary rather than dynamic or progressive in character. It was generally believed that there was a social state, which under all conditions and at all times was absolutely ideal. In this respect the originators of these theories differed in no way from those who had preceded them. From a very early time political theorists and philosophical dreamers had visions of what have been called utopias or ideal political states. These utopias were held before men's minds as a goal unto which man should strive to attain. They depicted an ideal state of society in which, if it were once reached, humanity would cease struggling and, finally at rest, would contemplate with complacency the hardships of the past and anticipate with satisfaction the joys of the future.

Under the influence of this static conception of society political philosophers and lawgivers sought with eagerness the key to the problem of the ideal state. In the belief that they had found it they accepted, at the end of the eighteenth century, the two theories of the social contract and natural rights, which were almost universally regarded as absolutely fundamental. These theories assumed that the state was based upon a com

pact the time and manner of making which was not exactly stated, and the details of which were not precisely set forth. This compact was entered into between governors and governed.

The governed-that is, the mass of men-were considered to have given by this compact to the governors their powers to govern. It was believed, however, that a part of this compact consisted of a reservation by the governed of certain rights called natural rights which they had as men, and of which they might not be deprived by their governors.

That these ideas had a far-reaching influence, and that their application bettered the conditions of the western European world may not be denied. That they were true in fact is, however, not susceptible of proof. Indeed, prior to the eighteenth century no political system had been as a matter of fact based on such a compact. Political society was later believed to be, as it probably always was, a historical development. But the idea that society was a historical development was hardly conceived of at all prior to the formulation of the evolutionary theory of development in the world of science. But whether these ideas of a social contract and natural human rights were right or wrong, it was certainly true that they dominated the political and legal thought of the western European world until well into the nineteenth century. Indeed, it is probably the case that they still have influence. While the English law was probably much less influenced by them than was the law in any other European country, it is none the less the case that English political thought could not entirely escape from them. Sir William Blackstone, thus, hard-headed practical lawyer that he

was, seems to accept both the social contract and natural rights ideas in the theoretical and somewhat philosophical portions of his Commentaries.

Such, then, was the state of the politico-philosophical thought of western Europe when the Americans were by force of circumstances called upon to reorganize their governmental institutions. Small wonder was it that they made the social contract, natural rights, and the separation of governmental powers the basis of the constitutional system which they established. We have already seen what was the result of the attempt to apply the principle of the separation of powers. We have also already observed that the new American governments were founded upon popular sovereignty. This doctrine, it may be pointed out, was one of the necessary consequences or incidents of the social contract. For unless the people were sovereign they could not have made the compact. That they made the contract was considered to be proof that they were sovereign. We have now to ascertain in what respects the adoption of the theory of natural rights modified the conception of individual liberty which the Americans had received from their English forefathers.

The most important modifications which the Americans made in the English conception of the rights of Englishmen as they have been described were two in number:

In the first place the rights of man; that is, natural rights were regarded in a measure and no small measure as independent of the law. This characteristic of the American conception of natural rights is to be attributed to the fact that these rights were set forth in bills of rights that formed a part of the new written

constitutions, which were all but universally adopted. These written constitutions were, as has been shown, considered to be the acts of the sovereign peoples of the states. They therefore were superior to any mere laws which might be passed by the representatives of the people in the lawmaking bodies. These bodies, being simply delegates of the people, were not authorized to do anything not within the powers granted to them. If a written constitution provided that a man had a certain right it was evident that the legislature could not take it away from him. When the courts assumed in the United States the power to declare unconstitutional acts of the legislature, they did so because it was their duty to apply the law as they found it. They might not, therefore, apply as law an act of the legislature which in their opinion was in conflict with the constitution, since, being in conflict with the constitution, the highest law of all, such an act could not be law.

Now the bills of rights of the early American constitutions formulated the ideas then prevalent with regard to natural rights. In this way natural rights came to have an existence apart from the law or at any rate apart from the law as it had up to that time been understood. Furthermore, these rights obtained a judicial protection which prevented their violation by any other governmental authority.

The importance which was attributed by the Americans of those days to this idea of natural rights will be appreciated, when we recall that the Constitution of the United States, which in its original form contained few, if any, provisions relative to these natural rights, was ultimately adopted only on condition that they should be enumerated in a bill of rights to be appended