THE PROBLEM OF RIGHTS. DIFFERENT THEORIES AS TO THE SOURCE OF RIGHTS
The problem of Rights is also centuries old. There have been in later
years glowing tributes to human rights even more than to justice,
though the sentiment of rights is egoistic, while that of justice is
in some measure altruistic. There have also been diverse opinions in
the past, as now, as to the source, foundation, and nature of what are
called Rights, as there were and are of justice. A brief review of
these opinions and of the changes in them may present the problem more
vividly.
In patriarchal times there could be no political questions about
rights. The head of the family was supreme and sole ruler and judge.
Even in Rome under an organized civil government the pater familias
was long left the power of life and death over the members of his
family. When families and tribes were combined in states, government
was long conducted on the theory that as the individual had belonged
to the family or tribe into which he was born or adopted, so he now
belonged to the state, to be directed and disposed of as the state
might order. What he might enjoy of life, liberty, or property was the
gift of the state, subject to revocation at will. Plato reflects this
theory in making Hippias declare that the measure of man's right is
what the state commands. The total abolition of the liberty of
innocent persons by holding them in slavery was not deemed any
infringement of any right of theirs. This theory was acted upon in
democratic as well as in monarchical states. Slavery was as lawful in
Athens, Sparta, and republican Rome as in Persia or Egypt. True, there
were rebellions and revolutions at times, but, though sometimes
provoked by oppression, they were usually to acquire the power of
government and not in defense of individual rights. The Plebeians
revolted to obtain a greater share in the governing power. The civil
wars of Marius and Sulla were not waged for liberty but for power. In
Sicily, where the slaves under Eunus had for a time wrested the
governing power from their masters, they did not hesitate to enslave
in turn.
The doctrine that the individual man has some rights by nature which
the state ought not to disregard had no place in ancient nor medieval
governments. The English Magna Charta purports to be a grant from the
king and, though framed by the barons and forced upon the king, it
contains no assertion of rights by nature. The rights claimed were
claimed as accustomed rights previously conferred and enjoyed, such as
the laws and customs of the time of Henry I. Apart from provisions as
to improved methods of administration, the language of the Charter
implies restoration rather than revolution.
So in the Petition of Right in the reign of Charles I, no appeal was
made to natural rights, but the demand was for accustomed privileges,
for the observance by the king of the old laws and customs of the
realm, especially those in force under Edward I and Edward III. In the
Petition, the Charter of King John is cited, not as a schedule of the
rights of man in the abstract, but as "The Great Charter of the
Liberties of England," implying that the liberties therein named were
not the natural heritage of men in general but the peculiar heritage
of Englishmen, under English law. The prayer of the Petition is simply
that the king shall accord the people of England "their rights and
liberties according to the laws and statutes of the realm."
So in the Bill of Rights framed by Parliament and approved by William
and Mary upon their accession to the throne, it was not asserted that
the acts of James II complained of were contrary to any natural right
of the subject, but that they "were utterly and directly contrary to
the known laws and statutes and freedom of this realm." The purpose of
the Bill of Rights was declared by the Parliament in behalf of the
people to be "for the vindicating and asserting their ancient rights
and liberties." In the earlier remonstrances of the legislatures of
the English colonies in America against various acts of the king and
Parliament, only the accustomed rights of Englishmen were claimed to
be violated. The colonists, at first, claimed as against king and
Parliament no rights not accorded to Englishmen in England.
But though the notion that man has rights by nature, not granted by
the state and which the state should respect as such, did not for
centuries find expression in state papers or state action, it was by
no means non-existent. It was early in the minds of many and found
some expression in the writings of jurists and philosophers. In Rome
it was a corollary of the doctrine of the existence of a _jus
naturale_. The statement of that doctrine by Ulpian incorporated in
the Digest implies a doctrine that man does have some rights anterior
to and independent of the state. So far, however, as the statement
was susceptible of that construction it was not generally acted upon
and remained practically a dead letter. The doctrine itself survived,
however, engaging the attention and receiving the support of various
writers. It gradually gained ground among students of politics and
spread rapidly after the Protestant Reformation, so-called, because of
the impetus given by that event to the exercise of private judgment.
As early as the 17th century, though finding little or no expression
in the Petition of Right or Bill of Rights, the doctrine that
individual rights were derived from nature rather than from the state
was generally entertained by the Puritans and other dissenters from
the Established Church, and was invoked by them to some extent as
justifying the revolution of 1640. The doctrine also passed over to
the Puritan Colonies in America and early found some expression there.
In the Massachusetts "Body of Liberties" of 1641 there is a suggestion
that the liberties, etc., therein recited, were those demanded by
"humanity, civility and christianity" rather than "accustomed"
liberties. It was further asserted that these liberties were to be
enjoyed by the people of the Colony and their posterity forever.
The later disputes as to the proper limits of the power of the British
King and Parliament over the American Colonies led the colonial
lawyers and politicians to a study of the theory of natural rights
advanced by various political writers, English and Continental. It has
been said, I think with truth, that the writings of Locke, Voltaire,
Rousseau, Montesquieu, and even of Blackstone, were more widely read
and studied in America than in Europe. The brilliant writings of Tom
Paine also had great influence. The result was that the doctrine of
natural rights came to be generally accepted by the people of the
Colonies as the real foundation of their claims and the real
justification for their resistance to the objectionable acts of the
King and Parliament. In 1774 the first Continental Congress in its
Declaration of Rights declared that the people of the Colonies had
those rights by "the immutable laws of nature" as well as by their
charters and the principles of the English Constitution. Two years
later in the Declaration of Independence the representatives of the
people made no reference to their charters nor to the principles of
the English Constitution as the foundation of their claims, but based
them exclusively on the theory of natural rights. They declared: "We
hold these truths to be self-evident, that all men are created equal;
that they are endowed by their Creator with certain unalienable
rights; that among these are life, liberty and the pursuit of
happiness."
The same influences undoubtedly contributed to bring about the French
Revolution of 1789, and the theory of natural rights again found
expression in the French state papers of that period. In August of
that year, in the early stages of the Revolution, the following
"Declaration of the Rights of Man and Citizen" was put forth by the
National Assembly and afterwards made the first two articles of the
Constitution of 1791, viz., "Art. 1. Men are born and remain free and
equal in rights. Social distinctions can be based only upon public
utility. Art. 2. The aim of every political association is the
preservation of the natural and imprescriptible rights of man. These
rights are liberty, property, security and resistance to oppression."
Thus in the latter part of the 18th century the doctrine that man has
some individual rights by nature, not by grant or prescription, and
not alienable, obtained official recognition in two great nations. It
has since been formally and officially iterated in the Constitutions
of many American States and has been proclaimed and invoked as an
impregnably established political truth. Nevertheless the doctrine is
only a theory, not yet demonstrated nor undoubted. It has been
assailed and in the opinion of many refuted, by Bentham, Mill, and
other utilitarian writers, the successors of Epicurus, Carneades and
the Sophists. Even in France and America it is now repudiated by many
and declared to be an obstacle to social and political improvement.
Still, despite the vigorous arguments against the doctrine, there
remains the innate feeling and a general belief that society abridges
individual rights instead of conferring them. In support of this
notion may be cited the fact that the statutes of any state or nation
are almost wholly restrictive or compulsory in character, and rarely,
if ever, permissive. From the Decalogue down, the language of the law
has been compulsive, "Thou shalt" and "Thou shalt not"; and men
generally act upon the theory that what society does not forbid by
statute or custom the individual may do.
In passing now from the region of theory, of speculative opinion, to
what seems to me the region of facts, of actual conditions, of actual
traits of human nature, I wish it to be understood distinctly that in
what I may say about rights I am considering only the precepts of
justice, and that I differentiate those precepts from the precepts
of religion, charity, philanthropy, benevolence, and other similar
virtues, and even those of what is loosely called humanity. If it be
true as asserted by Addison that justice is the greatest and most
godlike of the virtues, it does not follow that the just man, to be
just, must possess all or any of the other virtues. One can be just
without being religious, charitable, or philanthropic, and even
without earning the reputation of being humane.
I wish further to premise that I am considering our subject only with
reference to those who have grown to the age of self-maintenance and
consequent freedom. I do not take into account the rights of children
under that age.
With these premises borne in mind, I would now in the next chapter
call attention to some propositions of fact, which I shall assume
to be established by science and history and by the reader's own
experience and observation, and which I think bear more or less
directly on our subject.