No rights surrendered on the forma

"Upon entering into society, however, for the purpose of having their natural rights secured and protected, or properly redressed, the weak do not give up or surrender any portion of their priceless heritage tion of governin any government constituted and organized as it should be."

Herbert Spencer, also, develops the following principle:

"Every man has freedom to do all that he wills, provided that he infringes not the equal freedom of any other man.” "Social Statics," chapter 6, section 1. Or, as subsequently expressed : "Every man has the right to do whatsoever he wills, provided that in the doing thereof he infringes not the equal right of any other man.' And, in considering the idea that man surrendered a portion of his natural rights upon entering into the social state, Spencer says:

"The self-importance of a Malvolio is sufficiently ludicrous; but we must go far beyond it to parallel the presumption of legislatures. Some steward who, deluded by an intense craving after dominion, and an impudence equal to his craving, should construe his stewardship into proprietorship, would more fitly illustrate it. Were such an one to argue that the estate he was appointed to manage had been virtually resigned into his possession; that to secure the advantages of his administration its owner had given up all title to it; that he now lived on it only by his (the steward's) sufferance; and that he was in future to receive no emoluments from it, except at his (the steward's) good pleasure, — then should we have an appropriate travesty upon the behavior of governments to nations; then should we have a doctrine perfectly analogous to this fashionable one, which teaches how men on becoming members of a community, give up, for the sake of certain social advantages, their natural rights. Adherents of this fashionable doctrine will doubtless protest against such an interpretation of it. They have no reasona

ble cause for doing so, however, as will appear on submitting them to a cross-examination. Suppose we begin it thus:

"Your hypothesis that men, when they entered into the social state, surrendered their original freedom, implies that they entered into such state voluntarily, does it not?'

"""It does.'

"Then they must have considered the social state preferable to that under which they had previously lived?'

ment.

Statement of a principle.

Equality of

mankind.

The pre

sumption of legislatures.

An appro

priate travesty

Cross-examination.

Entrance into the social state volun

tary.

Social state preferable.

"Greater security for life, for property, for the things that minister to happiness.'

"Exactly. To get more happiness: that must have been the object. If they had expected to get more unhappiness, they would not have willingly made the change, would they?'

"'No.'

Greater security offered.

More happi ness secured.

In what happiness consists.

Happiness impossible without free

dom.

Freedom is

privilege of exercising rights.

Summary of argument.

Simpler statement.

Man's

rights.

Object

of organized

society.

Preservation of rights.

Contradiction involved.

Another statement.

Government

an agent.

"Does not happiness consist in the due satisfaction of all the desires? in the due exercise of all the faculties?'

"'Yes.'

"And this exercise of the faculties is impossible without freedom of action. The desires cannot be satisfied without liberty to pursue and use the objects of them.'

"True.'

"Now it is this freedom to exercise the faculties within specific limits, which we signify by the term "rights," is it not?' (See "Social Statics," page 93.)

"It is.'

666

'Well, then, summing up your answers, it seems that, by your hypothesis, man entered the social state voluntarily; which means that he entered it for the sake of obtaining greater happiness; which means that he entered it to obtain fuller exercise of his faculties; which means that he entered it to obtain security for such exercise; which means that he entered it for the guaranteeing of his "rights."'

"Put your proposition in a more tangible form.'

"Very good. If this is too abstract a statement for you, let us attempt a simpler one. You say that a state of political combination was preferred mainly because it afforded greater security for life and property than the isolated state, do you not?'

666 'Certainly.'

"Are not a man's claims to his life and his property amongst what we term his rights, and moreover, the most important of them?' 666 'They are.'

"Then to say that men formed themselves into communities to prevent the constant violation of their claims to life and property, is to say that they did it for the preservation of their rights?'

Wherefore, either way we find that the preservation of rights was the object sought.'

"So it would seem.'

"But your hypothesis is that men give up their rights on entering the social state?'

"'Yes.'

"See now how you contradict yourself. You assert that on becoming members of a society, men give up what, by your own showing, they joined it the better to obtain !'

"Well, perhaps I ought not to have said that they "give up" their rights, but that they place them in trust.'

"In whose trust?'

"In that of a government.'

"A government, then, is a kind of agent employed by the members of a community, to take care of, and administer for their benefit, something given into its charge?'

"And of course, like all other agents, exercises authority only at the will of those who appoint it — performs all that it is commissioned to do subject to their approval ? '

""Just so.'

"And the things committed to its charge still belong to the original owners. The title of the people to the rights they have placed in trust continues valid the people may demand from this agent the full benefit accruing from these rights; and may, if they please, resume possession of them ?'

"""Not so.'

"Not so! What, can they not reclaim their own?'

"No. Having once consigned their rights into the keeping of a legislature, they must be content with such use of them as that legislature permits.'

Acts within its commissioned author.

ity.

Logical conclusion.

Ludicrous position of our

"And thus we arrive at the curious doctrine above referred to, that the members of a community having intrusted an estate (their rights) opponents. to the care of a steward (their government), thereby lose all proprietorship in such estate, and can have no benefit from it, except what their steward pleases to vouchsafe!"

View of our

courts.

This legal principle is well established in this country as is evidenced by the following decision of the Supreme Court of the United States : "It must be conceded," says our highest court, "that there are such supreme [private] rights in every free government beyond the control of the state. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens, subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many.

"The theory of our governments, state and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, the judicial branches of these governments are all of limited and defined powers.

"There are limitations on such powers that grow out of the essential nature of all free governments;— implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A and B, who were husband and wife to each other, should be so no longer; but that A should thereafter be the husband of C, and B the

All government limited.

Legislative limitations.

Rights are just claims.

Cooley's statement of the law.

Parliament

legally limited.

Old common-law limitation binding here.

Authority

wife of D; or which should enact that the homestead now owned by A should no longer be his but should henceforth be the property of B."

Judge Cooley in his "Constitutional Limitations” also asserts in part, the principle underlying the foregoing decision of the Supreme Court. Rights, as here used, are just claims according to the law of pure equity. Declarations of rights are simply declarations of these claims; — the claims are valid and just, whether they are or are not recognized in our constitutions. Judge Cooley says:

"The bills of rights in the American constitutions forbid that parties shall be deprived of property except by the law of the land; but if the prohibition had been omitted, a legislative enactment to pass one man's property over to another would nevertheless be void. If the act proceeded upon the assumption that such other person was justly entitled to the estate, and therefore it was transferred, it would be void because judicial in its nature; and if it proceeded without reasons, it would be equally void, as neither legislative nor judicial, but a mere arbitrary fiat. . . .

"The Parliament of Great Britain, indeed, as possessing the sovereignty of the country, has the power to disregard fundamental principles, and pass arbitrary and unjust enactments; but it cannot do this rightfully, and it has the power to do so simply because there is no written constitution from which its authority springs or on which it depends, and by which the courts can test the validity of its declared will.

"The rules which confine the discretion of Parliament within the ancient landmarks are rules for the construction of the powers of the American legislatures; and however proper and prudent it may be expressly to prohibit those things which are not understood to be within the proper attributes of legislative power, such prohibition be regarded as essential, when the extent of the power apportioned to the legislative department is found upon examination not to be broad enough to cover the obnoxious authority. The absence of such prohibition cannot, by implication, confer power.

"Nor, where fundamental rights are declared by the constitution, is of declarations it necessary at the same time to prohibit the legislature, in express of rights. terms, from taking them away. The declaration is itself a prohibition, and is inserted in the constitution for the express purpose of operating as a restriction upon legislative power." "Constitutional Limitations," chapter 7.

Sovereignty legally limited.

These fundamental principles of our governmental system are too of ten overlooked. The truth is, according to the American political system, that the rights of man are wholly "beyond the legitimate reach of sovereignty," as Madison says, "wherever vested or however viewed.” Sovereignty, according to the common-law idea, is amenable to law. The controlling power in a state has no more right to violate law than has any other power. Law means the path in which power should go,

and we therefore have the common law maxim: "Force should follow the law but not precede it." It is this view that is here set forth.

FREEDOM OF RELIGIOUS OPINION.

WRITTEN BY JAMES MADISON TO M. M. NOAH. 1

MONTPELIER, May 15, 1818. SIR: I have received your letter of the 6th, with the eloquent discourse delivered at the consecration of the Jewish synagogue. Having ever regarded the freedom of religious opinions and worship as equally belonging to every sect, and the secure enjoyment of it as the best human provision for bringing all either into the same way of thinking, or into that mutual charity which is the only substitute, I observe with pleasure the view you give of the spirit in which your sect partake of the blessings offered by our government and laws.

2

1"Writings of James Madison," volume iii, page 97.

2 Madison held that the fundamental principles of our government were so equitable, so liberal,- so just to the Jew, to the Turk, to the dissenter, to the agnostic,— that any bill guaranteeing this equality would probably be defective in that it could not be worded so as to be broad enough to cover all cases liable to arise. He was afraid that any provision they might make would be given too narrow a definition—not given the full meaning intended. His effort at breadth is seen in the first amendment :

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

May 15, 1818.

Religious freedom be

longs equally Christian.

to Jew and

This equal freedom a blessing.

Extent of

American liberty.

Guarantees

of liberty not sufficiently broad.

Madison's original proposed

While this question was under consideration, he wrote as follows to amendment. Jefferson :

"There is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite lati tude. I am sure that the rights of conscience, in particular, if submitted to public definition, would be narrowed much more than they are likely ever to be by an assumed power. One of the objections in New England [to the proposed federal Constitution] was, that the Constitution, by prohibiting religious tests, opened a door for Jews, Turks, and infidels."

He also regretted what experience has since demonstrated to be true, that where the people or public opinion happens to be against the enforcement of a provision guaranteeing religious freedom, the provision

Madison's

letter to Jefferson.

Proneness of majorities to ignore bills of right.