that private property shall not be taken for public use without compensation, property is not defined or its nature even hinted at, nor can we ascertain from a perusal of the Constitution what is liberty or what is due process of law. All of these matters have had to be marked out in decisions which are almost too numerous to be counted.

In the making of these decisions the following are some of the conclusions characteristic of American ideas of private rights which the courts have reached, together with some of the inconveniences which have been incident to the American method of determining and protecting individual rights.

The clause providing that private property shall not be taken for public use without just compensation has been interpreted as prohibiting inferentially the taking of property for private use. This interpretation is really due to the recognition in the individual of a natural, inherent, substantive right of property which may be limited by the government only in the case mentioned in the Constitution-viz., by taking property for public use. It is therefore altogether probable that the American courts would have held unconstitutional in the United States an act of the legislature similar to the recent act of the British Parliament apportioning the property which had been held to belong to what was known as the "Scotch Wee Kirk" between that Church and the "Free Kirk."

Again the clause providing that no person shall "be deprived of his life, liberty, or property without due process of law" has been held by some of the state courts, under the influence of the idea of substantive inherent absolute individual rights, to prevent the legis

lature from passing an act which changes the basis of the liability of employer to employed. The old basis of the liability was negligence. The act declared unconstitutional provided in the case of accident a liability on the part of the employer regardless of the question whether he was negligent or not. Other acts of legislation have been declared unconstitutional as violating this due process clause, because they imposed upon an employer the duty to pay his employees in money, or at stated periods, or because they forbade an employer to work his men more than a certain number of hours a week or a day. Such acts were held unconstitutional as depriving either the employer or the employed of his property or his liberty.

Such decisions have been reached as a result of the fact that the American courts have emphasized the idea of a substantive right, and have lost sight of the fact that the right granted in the constitution, if defined in the light of its history, was a right not under all conceivable circumstances to liberty or property, but merely a right not to be deprived of liberty or property except in a certain way, that is, by due process of law. The fact that in all these cases an act of the legislature-that is, a law in the historic English sense-provided that liberty or property should be taken away was not regarded by the courts as providing due process of law. In fact, the courts of the United States have really taken the position that there is no due process of law by which the individual may be deprived of these absolute, substantive, inherent natural rights.

Just as the determination of the relations of the states and the nation has drawn the courts into the vortex of partisan politics, whirling about the ideas of

states' rights and national supremacy, so the attempt on their part to fix the relations between employer and employed through their postulation of these substantive rights has precipitated them into the struggle between labor and capital. The courts in the United States have thus become important factors in the determination of questions elsewhere usually regarded as questions of legislative policy, and to the extent that they have taken sides in the bitter political struggles incident to the settlement of these questions have lost the position of impartial arbiters between man and man on the basis of the rule of law to be made by the legislative authority of the country.

If, then, we compare the American with the English conception of individual rights, we may say that the Americans, influenced by the doctrine of natural rights, have emphasized the substantive character of those rights, which are sought not, as in England, in the law, but in philosophical conclusions as to what rights ought to be. Basing themselves on a static and stationary conception of society, the American courts have been too inclined to assume that the rights of individuals should be the same at all times and under all conditions.

The American conception of civil liberty is, therefore, somewhat wider than is the case in England. For in addition to all the procedural rights recognized in England it recognizes as well a large number of substantive rights of which the individual may not be deprived in any way. The American conception has been extremely effective in protecting the sphere of individual liberty, for it makes almost the same provision as is made in England for remedies to which the individual may resort when his recognized rights are involved.

The American conception of civil liberty has not, however, made sufficient allowance for changes in ideas as to the extent of individual rights which may be recognized-changes due to changes in economic and social conditions. The American conception is in a way an obstacle to progressive development. It is, however, only fair to say that these disadvantages are due not so much to the American conception of rights as to the form given to them by the American courts. Those bodies are already beginning to see that they have made mistakes, and under the leadership of the Supreme Court of the United States, probably the most enlightened, broad-minded, and influential tribunal in the United States, are considerably modifying their views.

XXII

THE EUROPEAN CONCEPTION OF PRIVATE RIGHTS

THE 'HE first comprehensive statement in legal form made on the continent of Europe, of private individual rights, is probably to be found in the "Declaration of the Rights of Man and of the Citizen," put forth in France in 1789, and subsequently incorporated in the first written constitution of France adopted in 1791.

The National Assembly, which drafted and adopted this constitution, states in this declaration that it considers "that the ignorance, forgetfulness, or the disregard of the rights of man are the only causes of public misfortunes and of the corruption of government," and that it therefore has determined to set forth in a solemn declaration "the natural, inalienable and sacred rights of man, in order that this declaration, being constantly before all the members of the social body, may constantly remind them of their rights and duties."

The Declaration proper then follows.

It states that men are born and remain free and with equal rights; that the end of all government is to preserve the natural rights of man, which are liberty, property, safety, and resistance to oppression. After announcing that sovereignty resides in the nation, the declaration defines liberty as the right to be able to do anything which does not injure others. It concludes,