Natural Rights
º
Natural Liber
AN INQUIRY INTO THE CAUSES OF SOCIAL MALADJUSTMENTS-
THE RATIONAL, JUST AND A DEQUATE REMEDY.
FRANK Q. STUART-
Daily Reporter Print, 1753 Lawrence Street.

Entered, according to Act of Congress, in the year 1886, by
FRANK Q. STUART,
In the Office of the Librarian of Congress, at Washington, D. C.

IPER HEET A CE.
HE matter of this treatise has been prepared during the past eight years, but
not until within the last year has it been reduced to its present form. It
it not expected that it will command the interested attention of the casual
reader, as it is not addressed to that class, but rather to those whose methods of
thought are of the more exacting and critical character, those who for the sake
of truth, delight in following a proposition to its ultimate conclusion. Being
published at the personal expense of the author, who can ill afford the cost, it is
published in a cheap form. For the same reason the consideration of several im-
portant questions has been eliminated. For like reason the argument has been
condensed to such an extent as to render the full comprehension of the conclusions
sought to be established, in some instances perhaps doubtful. The author therefore
begs that the reader will not hastily discard any proposition as unsound, because
of the weakness or brevity of the argument adduced in its support; but that he
will conscientiously consider it in the light of his own understanding. If this dis-
cussion shall only enlist abler minds in the line of thought that will lead to the
right solution of the great questions of the hour, its mission will have been
accomplished. The assurances that its author has received from competent judges
to whom it has been submitted, is the only apology for its publication.
DENVER, December, 1886.

“He who cannot reason is a fool;
He who will not reason is a coward;
He who dare not reason is a slave.”
INTRODUCTION.
HAT the present age is called upon to
T solve some of the gravest social prob-
lems can no longer be questioned.
The wrongs that the oppressed suffer and
the privileges that the favored enjoy are
contrary to equity, and unless adjusted
must sooner or later result in the overthrow
of government and the disestablishment of
existing institutions. Retribution follows
wrong. This is nature's way of righting
long continued infringements of her law.
During the last several years it has cer-
tainly been established by deduction and
induction that the social machinery of the
civilized world is somewhat out of gear.
That the continually widening chasm that
separates the rich from the poor—the ple
beian from the patrician must in some way
be bridged, else the same results may be ex-
pected to follow that have always followed
like abnormal conditions during the history
of the ages. I take it that very few unprej-
udiced thinking minds will undertake to
maintain that our laws relating to land
titles, to corporations and corporate privi-
leges, to the collection of debts, to the cur-
rency of the country are absolutely just.
At least it may be said that a large pro-
portion of the people are abidingly satisfied
that to these laws or some of them or sim-
ilar ones may be attributed panics, strikes,
the unparalleled wealth of the few and the
pitiable poverty of the many.
No one in particular is to blame for this
condition of affairs. It is now as it has ever
been, chargeable to society as a whole.
What is the remedy?
Let not those who would have it, so for
one moment believe that in this age with
all the improved appliances for destroying
human life and property, and especially in
this country, where all have tasted of the
sweets of liberty, the masses will ever sub-
mit to Serfdom.
How then are these problems to be solved?
By reason, as nature or God has provided
we should solve them, or shall they be left
through the ashes of the present civilization
for peoples yet to come 2.
Admitting that the destructive portion
of the work of a great reform has been ac-
complished, that certain maladjustments
must be removed, what is the proper pro-
cedure for their removal.
It has been said “Anybody can tell you
what ; only one in ten thousand can tell
how.' Wrongs and evils confront us on
every hand. Eloquent advocates of justice
demand their removal. But still they re-
main, working multiform mischief, because
no one seems to know just how to change
the habit, vary the usage, correct the custom,
modify the rule, qualify the regulation, re-
scind the requirements, annul the ordinance,
repeal the statute, overrule the decision
or escape the law which shelters the evil and pro-
tects the wrong, in such a manner and to such
an extent as to meet and overcome the diffi-
culty, without opening the door to some other,
perhaps equally great though of a differ-
ent kind.” -
In offering a remedy for social distress we
must present to thinking minds one that
is logical, just and adequate. It will not do
to offer our pet expedient and expect it to be
accepted in the stead of the pet expedient of
some other person. For disguise it as you
may, every positive statutory law is the pet
expedient of some person or class of persons
and in general was at the time of its enact-
ment regarded by its enacters as a most ex-
cellent and greatly needed measure. This
character of remedy has been fully and ex-
haustively tried. Men are slow to
adopt new theories, they are disposed rather
to bear the ills they have than fly to others
they know not of. It is well that it is so.
For if all the prescriptions should be taken
that are at the present time offered by the
social doctors the patient would undoubt-
edly be destroyed.


Those who devote themselves to earnest
consideration of these questions become so
thoroughly convinced of the legalized in-
justice that exists and so impatient for a
speedy cure, that in their anxiety to remove
the burdens from their fellow men, they are
not content to labor through the slow proc-
esses of constructive reasoning. They
jump at conclusions, invent some new ex-
pedient. And they are apt to regard those
who do not agree with them as enemies of
social progress—as heartless oppressors of
their kind. This fosters and encourages a
vindictive and rebellious spirit amongst the
masses which may result in anarchy before
reasonable adjustments can be effected by
pacific methods. Such a result is at the
present time sooner to be expected than
many are willing to admit.
It therefore becomes those who deal with
these questions to do so calmly and unimpas-
sionedly. It is equally important that those
wilo are comfortable in a worldly sense and
hence disposed to be content with present
social conditions and to regard those who
dare to suggest that there should be changes
in the social economy, as cranks and revo-
lutionists, to consider patiently the com-
plaints of the people and lend aid to bring
about that which we all desire: mutual
confidence and happiness. -
To the latter class I would earnestly say:
Be sure ye misjudge not the present con-
dition and temper of the masses.
In treating this subject I shall unlike
some reform writers, ever endeavor to hold
my mind open for conviction on any ques-
tion and shall gladly surrender any of the
perhaps many erroneous positions I may
take when satisfied it is wrong. I shall not
undertake to express my indebtedness to
the great thinkers and writers. For to do
so properly and effectively would require
some pretensions to scholarship.
But I trust I shall not espouse any prin-
ciple that is not correct nor indulge in any
deductions that are not logical. All I ask
is that patient consideration of argument
which I have given to others and if upon
reasoning logically from correct principles
we are led to certain conclusions then that
those conclusions be accepted. For I hold
that any thinker should be willing to assent
to the proposition that the moon is made of
green cheese if logical reasoning from correct
premises prove that proposition. In such
a spirit only can we hope to attain truth.
How Social Problems should be
Treated.
Social problems must be treated scien-
tifically. If we knew as much about soci-
ology as we do about geology there would
be less discontent in the world. If we
knew as much about the social system as
we do about the solar system, the regu-
larity in the working of the former
would in some degree approach that of
the latter. If we were as well versed in
the science of rights, as we are in other
sciences, comparatively speaking, this
world would be a paradise. If we knew
as much about the laws of social conduct.
as we do about the laws that govern
the action of solar bodies there would
be no wrong except that resulting from per-
sonal turpitude of individuals; whereas now
the greatest wrongs and suffering arise, not
from the desire of particular persons to do
wrong, but from a very imperfect concep-
tion of human rights.
Personal violence kills men ; legalized in-
fringements of rights destroy nations.
Objections to Rennedies Offered.
Let us briefly refer to some of the theories:
promulgated and remedies offered for the
amelioration of man's condition, and then
let us see if we cannot call attention to the
true and only method of practically right-
ing wrongs.
If we shall be able to do this we may
combine the various schools of reform and
enlist the ablest thinkers, who will soon
force upon the intellectual world truths, be-
fore which the errors of ignorance and op-
pression will fall like grain before the
sickle.
So long as the Malthusian theory that
population tends to outrun the means of
subsistence had full sway, there was little
hope of finally settling great social ques-
tions in the arena of mental combat, as that
theory not only recognized an unjust crea-
tor or creative principle, but admitted the
necessity for wars, famines and plagues.
But that blighting doctrine has lost its
power. The genius of man has demon-
strated the utter folly of war, and hence
these questions are relegated to the realm of
pure reason.
But it must not be assumed that the ad-
vocates of the existing egime do not yet,
even in the realm of thought, occupy a
strong defensive position. They can say to
reformers: ‘‘We admit that there is great
6
suffering in the world; that Nihilism in
Russia, Socialism in Germany, Communism
in France, and a variety of revolutionary
isms in other countries, strikes, panics and
riots, indicate a sad and portentous status;
but so it has ever been. What are you going
to do about it? What is your remedy, and
is it a remedy, or is it simply a present ea:-
pedient 2 All the thousands of volumes of
law books are filled with supposed remedies;
all the thousands of statutes published
yearly are supposed remedies or partial
remedies. You say divide up the lands
amongst the people. Rome tried that two
or three times. But suppose you should
confiscate and parcel out the land, how
much would you allow to each person—
forty, one hundred and sixty, or five hund-
red acres—and would you assign to men,
women and children in like quantities?
Then how long would the land remain so
parceled out? You suggest any [number
of supposed remedies, but in fact they are
nothing more nor less than present expedi-
ents, and there are hardly a dozen reformers
who thoroughly agree upon any one meas-
ure, and no one even claims that his is the
only absolutely right and only just way of
settling these questions. You must
admit that there is a semblance of in-
justice and dishonesty about all of your
supposed remedies.”
It is urged by one class of reformers that
the national banks should be abolished; that
the government bonds should be paid off as
speedily as possible, and that an indefinite
quantity of greenbacks or treasury notes
should be issued at intervals as may appear
expedient for the purposes of business.
Others argue that we should adopt the free
trade policy. Others advocate the enact-
ment of strict laws agaist the manufacture
and sale of intoxicating liquors. Still
others demand the fixing by law upon
eight hours as a day's labor. Another class
contend that woman suffrage legalized
would go far toward righting matters. We
are told by another class that corporations
are the curse of the country; that the gov-
ernment should own and operate the tele-
graph lines and railroads, and that cities
should own and operate their own gas,
water and street railway systems. Another
school demands that government should
take charge of all kinds of business enter-
prises, that the nation should be one great
partnership or family. Others tell us that
the extravagance of the people is the cause
stance.
of social distress, and some one has offered
the unique and startling explanation of
general want, that we are cursed with
chronic overproduction of the things that
we need. -
Without desiring to pass lightly over the
various remedies offered, I can best show
my objections to them by adducing argu-
ments in support of the theory that I
advocate. It does seem to me that the va-
rious measures offered for the relief of
social ills are simply expediency measures
or greatest - good-to-the-greatest-number
ideas aimed to take the place of similar
ideas of other persons, which latter ideas
happen to be at present the law of the land.
It may be that some of these measures are
correct, but their correctness must be shown.
by reasoning from correct principles, else
what better claim have they for recognition
than other measures. For instance, A
maintains that government should recog-
nize free trade; B contends for the protec-
tive tariff policy; Cholds that the telegraphs
of the country should be owned and
controlled solely by private companies; D
argues that they should be under control
and ownership of the government. Now
the point I desire to make clear, is that there
is a logically right and wrong way of prac-
tically dealing with a question in every in-
It is not a matter of policy; there
is no good, better or best about it.
Right is right, no matter if all the
statesmen of the world believe it to be
wrong. There are innumerable wrong
ways of dealing with a question, but there
is only one right way. Our statutes may
recognize the right of any one man to own -
the entire country, or they may limit own-
ership of land to 10,000, 500 or 160 acres, or
to such area as the claimant actually occu-
pies and uses. All of these measures may be
wrong, but only one can be logically right.
Let us, for the time being, free our minds
from all preconceived beliefs and banish all
prior convictions on these questions, en-
tirely forgetting that we have a government
or that we are afflicted with land monopoly
or that we have national banks, railroads, a
protective tariff, tramps, or panics, and let
us consider men as gregarious, sentient an-
animals that live upon the earth.
Let us seek the true rule for the govern-
ment of human social action.
But first in order that we may not alarm
timid readers into the apprehension that we
are about to elaborate a scheme that involves



7
the subversion of existing institutions and
the reorganization of society, let such be as-
sured that nothing of the kind is contem-
plated. On the contrary, it is only to be
hoped that the reader may have for real law
as distinguished from expediency legisla-
tion, a veneration equal to that of the writer:
But “there are people who hate anything
in the shape of exact conclusions. Accord-
ing to such, the right is never in either ex-
treme, but always half way between the ex-
tremes. They are continually trying to
reconcile yes and no. Ifs and buts, and ex-
cepts, are their delight. They have so great
a faith in the judicious mean' that they
would scarcely believe an oracle, if it uttered
a full length principle. Were you to inquire
of then whether the earth turns on its axis
from east to west, or from west to east, you
might almost expect the reply, ‘a little of
both’, or ‘not exactly either.' It is doubtful
whether they would assent to the axiom
that the whole is greater than its part,
without making some qualification. They
have a passion for compromises. To meet
their taste, truth must always be spiced
with a little error. They cannot conceive a
pure, definite, entire, and unlimited law,
and hence, in discussions like the present
they are constantly petitioning for limita-
tions—always wishing to abate and modify,
and moderate--ever protesting against doc-
trines being pursued to their ultimate con-
sequences. But it behooves such to recol-
lect, that ethical truth is as exact and per-
emptory as physical truth.”—Social Statics.
is there a Determinable Rule for
the Government of Hunnan Social
Action 2
Before pointing out the true rule for the
government of human social action, it may
be well to establish the fact that there is
such a rule, which if discovered and prop-
erly applied to social conduct, will insure
those conditions that are conducive to hap-
piness.
To that end we must be permitted to
quote to some extent. -
Blackstone says: “* * This will of his
(man’s) maker is called the law of nature. For
as God when he created matter, and endued
it with a principle of mobility, established
certain rules for the perpetual direction of
that motion, so, when he created man, and
endued him with free will to conduct him-
self in all parts of life, he laid certain im-
mutable laws of human nature, whereby
that free will is in some degree regulated
-
and restrained, and gave him also the fac-
ulty of reason to discover the purport of
those laws. Considering the Creater only
as a being of infinite power, he was able un-
questionably to have prescribed whatever
laws he pleased to his creature, man, how-
ever unjust or severe. But as he is also a
being of infinite wisdom he has laid down
only such laws as were founded in those re-
lations of justice that existed in the nature
of things antecedent to any positive precept.
These are the eternal immutable laws of
good and evil, to which the Creater himself,
in all his dispensations conforms; and
which he has enabled human reason to dis-
cover so far as they are necessary for the
conduct of human actions. Such, among
others, are these principles: that we should
live honestly, should hurt nobody, and
should render to every one his due, to
which three general precepts Justinian has
reduced the whole doctrine of law. But if
the discovery of these first principles of the
law of nature depended only upon the exer-
tion of right reason and could not otherwise
be obtained than by a chain of metaphysi-
cal disquisitions, mankind would have
wanted some inducement to have quickened
their inquiries and the greater part of the
world would have rested content in mental
indolence and ignorance, its inseparable
companion.
“As therefore the Creator is a being not on-
ly of infinite power and wisdom, but also of
infinite goodness he has been pleased to so
contrive the constitution and frame of hu-
manity that we should want no other
prompter to inquire after and pursue the
rule of right, but only our own self love,
that universal principle of action. For He
has so intimately connected, so inseparably
interwoven the laws of eternal justice with
the happiness of each individual that the
latter cannot be attained but by observing
the former; and if the former be punctually
obeyed it cannot but induce the latter.
* * * * This law of nature being coeval
with mankind and dictated by God himself
is of course superior in obligation to any other.
It is binding over all the globe, in all countries,
and at all times. No human laws are of any
validity if contrary to this; and such of them as
are vulid derive all their authority mediately or
immediately from this original.
“But in order to apply this to the particular
exigencies of each individual, it is necessary
to have recourse to reason whose office it is
to discover, as was before observed what the


law of nature directs in every circumstance
of life by considering what method will
tend the most effectually to our own sub-
stantial happiness.” See note by Chitty :
“Lord Chief Justice Hobart has also ad-
vanced that even an act of parliament made
against natural justice is void in itself.”
Mackintosh defines the law of nature as
“A supreme, invariable and uncontrollable
rule of conduct to all men; and it is so
called because its general precepts are essen-
tially adapted to promote the happiness of
man, as long as he remains a being of the
same nature with which he is at present en-
dowed, or, in other words, as long as he
continues to be a man, in all the variety of
times, places and circumstances in which
he has been known, or can be imagined to
exist; because it is discoverable by natural
reason, and suitable to our own natural
constitution; because its fitness and wisdom
on the general nature of human beings, and
not on any of those temporary and acci-
dental situations they may be placed ; and
lastly, because its violation is avenged by
natural punishments which necessarily flow
from the constitution of things, and are as
fixed and inevitable as the order of nature.”
See Maine's Ancient Law : “Few national
societies have had their jurisprudence men-
aced by this peculiar danger of precarious
maturity and untimely disintegration. It
is certainly doubtful whether the Romans
were ever seriously threatened by it, but at
any rate they had adequate protection in their
theory of Natural Law. For the natural law
of the jurisconsults was distinctly conceived
by them as a system which ought gradually
to absorb civil laws without superceding them so
long as they remained unrepealed. There
was no such impression of its sanctity
abroad that an appeal to it would be likely
to overpower the mind of a judge who was
charged with the superintendence of a par-
ticular litigation. The value and service-
ableness of the conception arose from its
keeping before the mental vision a type of per-
fect law and from its inspiring the hope of
an indefinite approximation to it, at the
same time that it never tempted the prac-
titioner or the citizen to deny the obligation
of existing laws which had not yet been ad-
justed to the theory. It is important too to
observe that this model system, unlike
many of those which have mocked men's
hopes in later days, was not the product of
imagination. It was never thought of as
founded on quite untested principles. The
notion was that it underlay existing law.
and must be looked for through it. Its
functions were in short remedial, not revolu-
tionary or anarchical. And this unfortunately
is the exact point at which the modern view of
the law of nature has often ceased to resemble
the ancient.
“The other liability to which the infancy
of society is exposed has prevented the
progress of far the greater part of mankind.
The rigidity of primitive law, arising chiefly
from its early associations and identification
with religion has chained down the mass of
the human race to those views of life and con-
duct which they entertained at the time when
their usages were first consolidated into a sys-
tematic form.
“There were one or two races exempted by
a marvelous fate from this calamity, and
grafts from those stocks have fertilized a
few modern societies; but it is still true
that, over the larger part of the world, the
perfection of the law has always been con-
sidered as consisting in adherence to the
ground plan supposed to have been marked
out by the original legislator. If intellect
has in such cases been exercised on juris-
prudence it has uniformly prided itself on
the subtle perversity of the conclusions it
could build on ancient texts, without dis-
coverable departure from their literal tenor.
I know no reason why the law of the Romans
should be superior to the laws of the Hindoos
unless the theory of natural law had given it
a type of excellence different from the usual
one. In this one exceptional instance, sim-
plicity and symmetry were kept before the
eyes of a society whose influence on man-
kind was destined to be prodigious from
other causes, as the characteristics of an
ideal and absolutely perfect law. It is im-
possible to overrate the importance to a nation or
profession of having a distinct object to aim at
in the pursuit of improvement. The secret of
Bentham's immense influence in England
during the past thirty years is his success in
placing such an object before the country.
He gave us a clear rule of reform. English
lawyers of the last century were probably too
acute to be blinded by the paradorical common-
place that English law was the perfection of
human reason, but they acted as if they believed
it, for want of any other principle to proceed
upon.
“Bentham made the good of the commu-
nity take precedence of every other object,
and thus gave escape to a current which
had long been trying to find its way out.
-






9
wards. It is not an altogether fanciful
comparison if we call the assumptions we
have been describing the ancient counter-
part of Benthamism. The true Roman
theory guided men's efforts in the same
direction as the theory put into shape by the
Englishman ; its practical results were not
widely different from those which would
have been attained by a sect of law reform-
ers who maintained a steady pursuit of the
general good of the community. It would
be a mistake however to suppose it a con-
scious anticipation of Bentham's principles.
“The happiness of mankind is no doubt
sometimes assigned both in the popular and
in the legal literature of the Romans as the
proper object of remedial legislation, but it
is very remarkable how few and faint are
the testimonies to this principle compared
with the tributes to the overshadowing
claims of the Law of Nature.”
Again : “The grandest function of the
law of nature was discharged in giving birth
to modern International Law and to the
modern law of war, but this part of its
effects must be here dismissed with consid-
eration very unequal to its importance.
“Among the postulates which form the
foundation of International Law or of so
much of it as retains the figure which it
received from its original architects, there
are two or three of preeminent importance.
“The first of all is expressed in the position
that there is a determinable Law of Nature.
“Grotius and his successors took the as-
sumption directly from the Romans, but
they differed widely from the Roman juris-
consults and from each other in their ideas
as to the mode of determination.”
Kent defines the law of nature to be “those
fit and just rules of conduct which the
Creator has prescribed to man, as a depen-
dent and social being and which are to be
ascertained from the deductions of right
reason.”
What is the Rule 2
What is this law natural that has ever
been held in such high esteem by the great
jurists. If there is a determinable law of
nature and it is the true rule for the govern-
ment of human social action and all human
laws not in conformity with it are invalid
and it is ascertainable by the deductions of
right reason, why should we not interest
ourselves in gaining a better knowledge of
it. It must be simple, harmonious and just
as compared with man's statutes.
Had Blackstone devoted his great abilities
to the development of the law natural, had
he labored to make English law conform
thereto instead of endeavoring to harmonize
them, had he treated law as a science in-
stead of assuming that English laws were
the embodiment of justice and wisdom and
even superior to natural laws he would have
rendered to mankind a service of value in-
calculable.
The entire universe is governed by law.
The inanimate objects of nature conform to
the law automatically and have no ability
to violate it. The lower animals, while
they have the ability to violate their pre-
scribed rule of action, are still held within
bounds by a certain something that we call
instinct, and so in the main they follow out
that line of action prescribed for them. But
man is endowed with free will. He possess-
es the ability and power to violate the law
if he so desires, but he must suffer the con-
sequences. He is, however, no less amen-
able to the law natural than are the other
objects of nature. There are limits to his
sphere of action. He has a line of conduct
outside of which he cannot step without
violating the law. He has an orbit in which
to act as has the solar body, and if he steps
outside of that orbit of action the result in
the social system may be likened to that
which might take place in the solar system
were a planet endowed with free moral
agency and it should ignorantly or purpose-
ly leave its prescribed line of action and go
hurling through space uncontrolled by law.
But man, unlike everything else in nature,
while gifted with great freedom and latitude
of action is required by the exertion of right
reason to ascertain for himself the line of
action prescribed for him, and he must con-
form thereto or suffer the consequences.
Great minds have in past ages had concep-
tions of the law of nature, and they have
promulgated the grandest truths based upon
those conceptions. As, all men are created
free; all men are created equal; all men are
endowed with certain inalienable rights; all
just powers of government are derived from
the consent of the governed. But those
conceptions seem to have sprung from an
innate sense of justice or to have been
learned by experience. They were vague
and indefinite. So far as I am informed
none of the old writers ever attempted to
reduce the law natural as applied to human
conduct to settled and fixed principles.
This is absolutely necessary to its develop-
ment as a rational science.
10
Let us resort to first principles and en-
deavor to obtain a clear, definite and dis-
tinct conception of rights, liberty, law, and
the true sphere of government.
If we shall be able to arrive at a scientific
method of determining the rights of the
constituent members of society and to a
certainty show wherein and how those rights
are infringed, it will be a comparatively easy
task for a people to remove the infringing
causes. The infringement of rights is the
fundamental cause of social distress. Not
until natural law is more generally recog-
nized and more thoroughly understood will
a government ever be established that will
for any great period of time, except by the
sacrifice of the people's rights, be able to
maintain and perpetuate itself. It cannot
possibly withstand the effects of its own er-
rors.
The True Rule.
I now invite your attention to Herbert
Spencer's derivation of a first principle for
the government of human social action.
See Social Statics, Part I.
Every man has the right to do whatsoever he
wills, provided that in the doing thereof he in-
fringes not the equal right of any other man.
See Burlamgui's definition of Liberty .
“Moral or natural liberty is the right
which nature gives to all mankind for dis-
posing of their persons and property after
the manner they judge most consonant to
their happiness, on condition of their act-
ing within the limits of the law of nature,
and that they do not in any way abuse it to
the prejudice of any other men.”
See the Justinian Code: “Facultas ejus,
quod cuique facere libet misi quid jure prohibi-
tºur.” That is : The faculty of each one to
do what each one pleases except what is
rightfully prohibited.
It will be noted from these definitions
that the older writers have vaguely conceiv-
ed the truth, but it remained for Mr.
Spencer to reduce it to that exact form neo-
essary for the prosecution of logical inqui-
ries based upon it.
I beg any reader who is disposed to in
the least question the correctness of this
principle to carefully consult Mr. Spencer's
argument in derivation of it. For without
attempting to reproduce his reasoning I
shall claim that this is the true, and if you
please, scientifically established first princi-
ple for the government of human social
action, and that the doing of any act sanc-
tioned by it is conducive to human happi-
ness and is logically right ; and the doing
of any act not sanctioned by it is destruc-
tive of human happiness and is logically
Wrong.
The right to do any act sanctioned by
the principle is a natural right. The free-
àom to enjoy natural rights is natural lib-
erty, and the law that vouchsafes to man
natural rights and natural liberty is natural
law.
[It may be objected that the terms
natural law, natural rights and natural lib-
erty should not be used. That any rule of
action that is entitled to be dignified by the
term law is natural. While there is merit
in this objection it makes little difference
what we call a thing so we but make sure
that all will understand just what is meant
when a particular term is used. And inas-
much as the writers on jurisprudence have
ever been compelled to refer to natural
rights, natural liberty and natural law, in
contradistinction from rights, liberty and
law, i.e., civil rights, civil liberty and civil
law, to avoid confusion, I deem it advisable
to follow their terminology.]
What Acts Permitted and what
Prohibited.
The doing of any act not sanctioned by the
principle being destructive of happiness—
an infringement of natural rights—and the
freedom exercised in doing any such act
being a curtailment of natural liberty and
contrary to natural law; and the doing of
any act sanctioned by the principle being
conducive to happiness and being simply
the enjoyment of a natural right—the exer-
cise of natural liberty—and in conformity
with natural law, it follows that no member
of society should do any act that is not sanc-
tioned by the principle, and every member of
society should have freedom to do any act sanc-
tioned by the principle.
The Office of Government.
If all men were possessed of perfect reason
and were prone at all times to do only those
things which are conducive to happiness
there would be no suffering by reason of
the infringement of rights—social wrongs.
But all men are not possessed of perfect
reason, and therefore they differ and disa-
gree as to their rights, nor are all men dis-
posed at all times to do only those acts that
are conducive to happiness, therefore mem-
bers of society—some ignorantly and others
purposely-do many acts that infringe ha-


11
tural rights and curtail natural liberty, in
contravention of natural law. It therefore
becomes necessary to adopt some means for
the determination of rights and for the pur-
pose of protecting the members of society
in the enjoyment of those rights.
Wherefore government is instituted as an ea:-
pedient to protect the individual members of
society in the enjoyment of their natural rights.
No Rights but Natural Rights.
We have seen that all acts sanctioned by
the principle are conducive to happiness
and in conformity with natural law, and
that all acts prohibited by the principle are
destructive of happiness and contrary to
natural law. Now the acts-sanctioned and
those prohibited by the principle taken to-
gether comprise all the acts that is possi-
ble forman to perform. Therefore we deduce
that any so-called right to do any act not sanc-
tioned by the principle is not a natural right
and its enjoyment is destructive of happi-
ness and contrary to natural law and may
be more properly termed a wrong ; and the
liberty exercised in doing any such act is
not natural liberty and its exercise is des-
tructive of happiness and contrary to nat-
ural law, and it may be more properly
termed license; and any so-called law or hu-
man enactment that authorizes the doing of
any act not sanctioned by the principle or
prohibits the doing of any act sanctioned
by the principle is not natural law, but is
in contravention of natural law, and should
not be termed law. It is simply the opinion
of the legislature as to what the law should
be.
Thus we find that all real rights are natural
rights, all true liberty is natural liberty, and all
just law is natural law.
Rights are Inalienable.
A natural right is a privilege to do some act.
It must not be confounded with property.
A horse is not a right, neither is a house.
Under the principle every one has the same
equal natural rights, and no one can enjoy
greater rights or exercise greater liberty than
is accorded to every other person without
violating natural law. It follows, therefore,
if it were physically possible for A, B and C
to convey to D their natural rights D could
not acquire aud enjoy them because if by
the transaction D should gain anything in
addition to that which he already possessed
natural law would prohibit his enjoyment
of it. But as a matter of fact, is it possible
for me to convey to D my right to breathe,
to eat, to drink, to write, to work, to sing or
to do any other act? The question is as to
my ability to convey my abstract right to do
any of the acts mentioned and has no refer-
ence to particular time or place. It is quite
evident that I cannot. Of course I may re-
frain from doing any or some of the acts men-
tioned, but in case I should so refrain would
that enable D to utilize my powers to write,
to sing or to walk? No. Then we must
conclude that it is physically impossible
and logically not allowable for one man to
convey to another his natural rights. In
other words natural rights are inalienable—
they cannot be transferred.
Government Legalizes License.
As natural rights exist and are inherent,
independent of governments and legisla-
tures, it is quite evident that the legislature
cannot create natural rights, manufacture
natural liberty, nor originate natural law.
And as we have seen that the enjoyment of
any so-called right other than a natural one
and the exercise of any so-called liberty
other than natural liberty are destructive of
happiness and contrary to natural law, we
conclude that if government recognizes any
so-called right other than a natural right
and legalizes any so-called liberty other
than natural liberty it recognizes a wrong
and legalizes license.
Object of Government.
The primary and main object of goyern-
ment is to protect the individual members of
society in the enjoyment of their natural rights,
insofar as the development of human reason and
wngenuity will permit. To this end courts are
established, whose office it is, in all matters
of dispute, to ascertain and define rights,
the witness answering to his knowledge, the
jury to their belief, and the judge, by the aid
of the science of rights, to the law natural
and to such legislative enactments as are not.
in contravention thereof. The legislature
by penalty, remedial and directory enact-
ments, provides the method and manner of
dealing with infringements of rights.
Government should take no Cogni-
zance of Duties. It should deal
alone with Rights.
Under the principle announced, the lan-
guage of natural law is: Thou mayst and
thow mayst not. Thou mayst do this act and
thou mayst not do that. It does not command
the doing of any act. By no method of
reasoning can we deduce from the principle

12
the language thou shalt. Wherefore we find
that natural law, as regards the social conduct
of men, takes no cognizance of duties. And
by the term duty I mean that of the positive
sort, as where it is one's duty to do some par-
ticular act; I do not mean duty of the
negative sort, as where it may be one's duty
not to do a particular act. And when we
come to consider the matter rightly we
learn that there is no power that can compel
the performance of positive duties—the do-
ing of particular acts. It is possible in a
measure to prevent the doing of acts. That
is the theory of all penalty legislation for
the commission of crime. But can we com -
pel a man to do any act that he does not will
to do º Suppose it is A's duty to cultivate a
tract of land for the maintenance of his
family. Is it possible to compel him against
his will to perform the work? Suppose it
is his duty to deliver to B a horse at a cer-
tain time. Is it possible to enforce perform-
ance? You may by the aid of several con-
stables carry A to where the horse is kept
and, placing the halter strap in his hand, by
force so hold it and then drag or carry A to
the place of destination. In case A agrees
to pay to B a sum of money on a day certain
and fails to do so, the officers of law may
convert A’s goods and chattels into money
and deliver the money to B. But in either
of these cases can it be argued that A has
performed his duty either willingly or com-
pulsorily Can government compel a man
to be kind, generous and charitable 2
It may be true that a man may be pun-
ished to such an extent that he will some-
times do an act of duty in order to escape
the punishment, but there is no certainty
that he will do it. It is only a probability.
In such instance, if he does perform the act
in order to escape the punishment, he does
it because he wills—is pleased to do it. And
in such cases it may be always noted that
the punishment required is a greater evil
than the neglect of duty. To concede that
any power or law can compel the perform-
ance of duties is to do away with the free
will of man. The fact is every man is a
king. He may do any act that he wills to
do, provided he infringes not the equal right
of any other person, but by the law natural
he cannot be eompelled to do any act that he
does not please to do. Wherefore we con-
clude that the law of nature for the govern-
ment of human social action deals not with
duties. It takes cognizance of rights only.
Legislature Cannot Make Law, Cre-
ate Rights or Manufacture Liberty
So long as the legislature is confined with-
in its proper sphere, i. e., providing expedi-
ency measures to prevent and remedy the
infringement of natural rights, just so long
will a people continue prosperous and con-
tented. But suppose the agents of the peo-
ple, that is, the legislature, through whom
for convenience the people act, step outside
their proper sphere of action, and instead of
devoting themselves to the protection of
natural rights, ignore natural rights, natural
liberty and natural law and undertake to create
rights, make law and manufacture liberty, and
gradually there grows up, a distinction be-
tween the government and the people, and
the government assumes the power of pre-
scribing by statute what each and every in-
dividual may, shall and shall not do ; and
suppose the courts, which should be the
jealous guardians of individual liberty, bow
to and back the legislature up in this fia-
grant usurpation of authority, what may be
the expected effects upon the social system 2
Evidently, legalized infringements of natur-
al rights.
Do Legislatures Overstep their
Proper Bounds 2
We may now properly inquire whether
or not legislatures have overstepped their
proper bounds. Have not our political
agents assumed more power than was ever
granted them 2 Do they not make so-called
laws that contravene natural law º Do they
not recognize so-called rights that abridge
natural rights? Do they not legalize license
in favor of some individuals, and by so
doing curtail the natural liberty of others?
Well, the proper way to determine these
questions is to go back and ascertain upon
what principles or hypotheses our legisla-
tors do proceed in the enactment of statutes,
and upon what fundamental principles or
hypotheses our judges are governed in the
decisions that they daily render.
This method of discussion may not be the
most entertaining to the ordinary reader,
but I apprehend that we cannot hope to
accomplish much in the “building up” proc-
ess by indulging in sentimentalism. We
will not deal with facts until we have first con-
sidered principles.
Blackstone argues that so long as man re-
mained in a state of nature (as he denomin-
ates it), that is, so long as each human being
remained in a state of isolation—separate
and apart from all other persons, he required
--
13
no law but natural law, he enjoyed no
rights but natural rights, no liberty but nat-
ural liberty. But when he entered society
(just when he made his debut we are not in-
formed) together with all other men, he
entered into and agreed to a social compact,
agreement or contract to the effect that each
individual should give up his natural rights,
or some of them, and surrender his natural
liberty, or a portion of it, and that in pur-
suance of such contract or agreement each
and every individual did in fact give up his
natural rights or some of them, and did
surrender his natural liberty or a portion of
it, “in lieu of the benefits to be gained from
the social relation.” And so thereafter
government provided men with civil law in
lieu of natural law, civil rights in lieu of
natural rights, and civil liberty in lieu of
natural liberty. As a result from this the-
orizing the great commentator defines civil
liberty to be “natural liberty so far restrain-
ed by human laws as is necessary for the good
of society.” And may we not from his hy-
pothesis go on and define civil rights to be
natural rights so far abridged by human laws as
is necessary for the good of society, and civil or
municipal law to be natural law sofar abridg-
ed and modified by human laws as is necessary
for the good of society.
Blackstone did not treat Law as a
Science.
It will be noted that the learned author
and his predecessors never attempted to ex-
pound any fixed principles of the law nat-
ural—never endeavored to define natural
rights or natural liberty. In one part of his
discussion he refers to the law of nature as
the grand underlying foundation of all hu-
man laws—as embodying the principles of
eternal justice, as being in fact the will of
our Creator for the direction of social con-
duct. And he goes on to show that if hu-
man laws in any way contravene the law of
nature they are invalid. But when he comes to
seek a foundation for the then established
English laws, English rights and English
liberty, he readily discovers that they are
not founded in and are not parts of the law
of nature, at least not entirely so; and he
suddenly abandons a great inquiry that a
mind like his might have followed to the
realization of a scientific basis for jurispru-
dence, and at one bound assumes that English
law is superior to natural law, English rights
superior to natural rights, and English liber-
ty to natural liberty. In short, he chooses the
role of a commentator in preference to that
of a philosopher. And the necessity for a
basis for the assumption suggests the adop-
tion of the social compact hypothesis.
The Fallacy of the Social Compact
Hypothesis.
The hypothesis is the embodiment of fal-
lacy.
In the first place, as we have seen, natural
rights are inalienable; and as natural liberty
is simply the freedom to enjoy natural
rights, as a necessary corollary natural lib-
erty is inalienable. Again, as a matter of
fact, I never gave up my natural rights nor
any of them—never surrendered my natur-
al liberty nor any of it, and never author-
ized any one to do so for me. I never en-
tered into any social compact, and if any one
did ever assume to do so for me it was an
unauthorized assumption. As pertinent to
this question allow me to quote: “Many
writers maintain that individuals, upon
entering into society, give up or surrender a
portion of their natural rights. This seems
to be a manifest error. In forming single
societies or states men only enter into a
compact with each other—a social compact
—either expressed or implied, as before
stated, for their mutual protection in the enjoy-
ment by each of all their natural rights. The
chief object of all good governments, there-
fore, should be the protection of all the natural
rights of their constituent members. † :
No person has any natural right wantonly
to hurt or injure another. The object of
government is to prevent and redress in-
juries of this sort; for, in a state of nature,
without the superior restraining power of
government, the strong would viciously im-
pose upon the weak. Wrongs upon rights
could not be so efficiently prevented nor so
adequately redressed.
“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, in any government
constituted and organized as it should be.”
—ALEx. H. STEPHENs.
See Mr. Spencer on the social compact
hypothesis: “In the first place, the assump-
tion is a purely gratuitous one. Before sub-
mitting to legislative control on the strength
of an agreement alleged to have been
made by our forefathers, we ought surely
to have some proof that such agreement was
made. But no proof is given. On the con-
trary, the facts, so far as we can ascertain
them rather imply that under the earliest


































14
social forms, whether savage, patriarchal,
or feudal, obedience to authority was given
unconditionally; and that when the ruler
afforded protection it was because he resent-
ed the attempt to exercise over one of his
subjects a power similar to his own—a con-
clusion quite in harmony with what we
know of oaths of allegiance taken in later
times.”
Again : “Even supposing the contract to
have been made, we are no forwarder, for it
has been repeatedly invalidated by the vio-
lation of its terms. There is no people but
what has from time to time rebelled; and
there is no government but what has, in an
infinity of cases, failed to give the promised
protection. How, then, can this hypothet-
ical contract be considered binding, when,
if ever made, it has been broken by both
parties?
“But granting the agreement, and grant-
ing that nothing positive has occurred to
vitiate it, we have still to be shown upon
what principle that agreement, made, no
one knows when, by no one knows whom,
can be held to tie people now living. Dy-
nasties have changed, and different forms of
government have supplanted each other,
since the alleged transaction could have
taken place; whilst between the people who
are supposed to have been parties to it, and
their existing descendants, unnumbered
generations have lived and died.
“So We must assume that this covenant
has over and over again survived the deaths
of all parties concerned Truly a strange
power this which our forefathers wielded–
to be able to fix the behavior of their de-
scendants for all futurity | * * * The
self-importance of a Malvolio is sufficiently
ludicrous; but we must go far beyond it to par-
allel legislatures. Some steward who, delud-
ed by an intense craving after dominion,
and an impudence equal to his craving,
should construe his stewardship into pro-
prietorship, would more fitly illustrate it.
Were such an one to argue that the estate
he was appointed to manage had been virt-
ually 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 stew-
ard's) sufferance—and that in future he was
to receive no emoluments from it, except at
his (the steward's) good pleasure—then
should we have an appropriate trayesty up-
on the behavior of governments to nations:
then should we have a doctrine perfectly
analagous to this fashionable one, which
teaches how men on becoming members of
a community, give up, for the sake of cer-
tain social advantages, their natural rights.
“Adherents of this fashionable doctrine
will doubtless protest against such an inter-
pretation of it. They have no reasonable
cause for doing so, however, as will appear
on submitting them to a cross-examina-
tion.
“Suppose we begin it thus:
‘Your hypothesis that men, when they
entered into the social state, surrendered
their original freedom, implies that they en-
tered into such state voluntarily, does it
not 2'
‘It does.”
‘Then they must have considered the
social state preferable to that under which
they had previously lived?
“Necessarily.”
‘Why did it appear preferable?'
* Because it offered greater security.'
‘Greater security for what?'
* 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 ex-
pected to get more unhappiness, they would
not have willingly made the change, would
they’
* No.”
* Does happiness consist in the due satis-
faction of all desires 2 in the exercise of all
the faculties 2"
* Yes.”
* And the exercise of the faculties is inn-
possible without freedom of action. The
desires cannot be satisfied without liberty
to pursue and use the objects of them.'
* True.”
‘Now it is the 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.”
* Well, then, summing up your answers,
it seems that, by your hypothesis, man en-
tered the social state voluntarily; which
means that he entered it for the sake of ob-
taining greater happiness; which means
that he entered it to obtain fuller exercise
of his faculties; which means that he en-
tered 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.”
ºn
15
Very good. If this is too abstract a
statement for you, let us attempt a simpler
one. You say that a state of political com-
bination was preferred mainly because it
afforded greater security for life and proper-
ty than the isolated state; do you not?'
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 2'
They are.”
* Then to say that men formed them-
selves into communities to prevent the con-
stant 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 2'
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 ob-
tain ' '.' -
The Present System of Jurispru-
dence.
Is it necessary to prolong the discussion
in order to demonstrate to the dullest cona-
prehension the utter groundlessness and ab-
surdity of the hypothesis? Yet this is the
foundation postulate of nearly all our posi-
tive legislation and judicial decisions. Leg-
islatures and courts are guided and gov-
erned by it in all their proceedings. Ask
any lawyer if this is not true. Undertake
to argue before any court that any statute
contravenes natural law–infringes natural
rights—curtails natural liberty, and you
will be politely informed that “men on en-
tering society gave up their natural rights or
some of them, and surrendered their natur-
al liberty or a portion of it, in lieu of the
benefits to be gained from the social rela-
tion;” and that “civil liberty is natural lib-
erty so far restrained by human laws as is
necessary for the good of society.”
Let an advocate persist in demonstrating
that the aforesaid hypothesis is untrue and
absurd, and that the statute in question is
not only destructive of happiness but is ab-
solutely contrary to natural law—in other
words let a lawyer undertake to pursue and
practice law as a science before the courts of
to-day and persist in such undertaking, and
he will in all probability be punished for
contempt of conrt. Before that class of
judges who are conspicuous for exaggerated
augustness in lieu of mental virility, the
innovating practitioner would undoubtedly
meet such a fate. Such a terrible hold do
fundamental postulates, right or wrong,
gain upon the ordinary mind, and with
what awful reverence are they regarded !
It will avail nothing before such a judge, to
quote that portion of the Declaration of In-
dependence that enunciates the doctrine
that natural rights are inaſ enable ; or that
provision of our constitution that says “the
enumeration of certain rights in the consti-
tution shall not be construed to deny or
disparage others retained by the people.”
The hypothesis referred to and the deduc-
tions therefrom, are older and much more
highly revered by our average court than
either the Declaration of Independence or
the national constitution. A hypothesis
that teaches that man, on entering society
(that is, on being born) gives up his natural
rights or some of them (that is, we must
conclude, all the rights he had before he
was born). -
Is it any wonder that we have oppressive
laws 2
The only thing that restrains the ignor-
ance of legislatures is the constitution.
Certainly the courts aid us but little in pre-
serving our liberties. How frequently do
we hear judges say: “this is a very harsh
statute, and it is difficult to conceive why a
legislature should enact it, but it is consti-
tutional and the courts must enforce it.”
Under the present system, but for one
moment consider how many millions of
statutes may be enacted that are perfectly
constitutional and at the same time con-
trary to natural law, destructive of happi-
ness and in violation of natural liberty.
There are only two questions that present
themselves to the conscientious legislator
under the present system. First, is the
measure under consideration a good thing
under the circumstances—if enacted into
positive law, will it be of “the greatest good
to the greatest number” 2 And secondly,
would it be constitutional 2
We know too well the working of the
present system. There are more statutes
enacted yearly for the purpose of remedy-
ing the injurious effects of former statutes
than any one lawyer can comprehend or
any court can hope to interpret, digest, con-
strue and apply, if called upon to do so. It



16
costs more to secure a final and settled con
struction of all the important parts of a
positive statute than its total benefits are
worth; and about the time that final con-
struction is secured in the court of last re-
sort, the legislature almost invariably con-
cludes that “the greatest good to the greatest
number” demands that it be materially
amended, or repealed and another enacted
in its stead.
We are rapidly being legislated out of
existence. There are some eight thousand
bills before the present Congress. The
champion of each one of the eight thousand
bills, that is of a general nature, doubtless
firmly believes that if his particular bill
were enacted into positive law it would go
far toward bettering the condition of the
people.
thousands upon thousands of bills hereto-
fore introduced in the several legislative
bodies believed.
Fortunes are spent in courts for the pur-
pose of determining what, in a particular
connection, a legislature actually meant by
the use of the word may or shall. But it
never occurs to the courts that it is their
proper business to see to it that legislatures
shall not experiment with their greatest-
good-to-the-greatest-number ideas at the
expense of our natural rights and natural
liberty.
A legislature is a necessity, and when
restrained within its proper sphere, a bless-
ing. It cannot make law, create rights or
manufacture liberty. It can provide expe-
diency measures to prevent the infringement
of rights, and to redress wrongs. But it is the
province of the judiciary to determine and
define natural rights in all matters of con-
troversy. It is the duty of jurists, untram-
meled by positive statutes, in all matters of
dispute, to discover the law by scientific
research—“by the deductions of right rea-
son.” The law of nature is self-existent,
eternal, invariable. It is nature's or God's
handiwork. In relation to human social
action it is abstract justice. It is a rule of
action. All penalty, directory and remedial
legislation is the product of man. It is vari-
able, amendable and repealable at the pleas-
ure of the legislature. It is expediency. To
illustrate: Let a man live temperately, par-
take of wholesome food at the proper times
and in proper quantities, exercise and sleep
regularly, in short, do such things at such
times and in such manner as the deductions
of right reason demonstrate are conducive
But so has the originator of the
to bodily health, and we say he obeys the
natural laws for the government of his
physical being. But he may violate those
laws; and in case he does so he may require
medical aid. The prescription is expediency,
and the medicine itself an expedient.
So likewise is human legislation expedi-
ency, which must be resorted to for diseased
conditions of the social system. So long as
men obey the laws of nature for the govern-
ment of human social conduct the less legis-
lative medicine taken or forced into the
social system the better, even if it be in the
shape of mild cordials or pleasant stim-
ulants.
The Relief that Equity Gives.
If it were not for that branch of our juris-
prudence known as equity, we would ere
this have been legislated into slavery or
been driven into rebellion. Equity is defined
to be “that which gives relief wherein law
by reason of its universality is deficient.”
More properly, it is the history of the strug-
gle of lawyers and judges to protect natural
rights as against the encroachments of
human legislation or so called laws. But
human enactments have rather gotten the
better in the contest. The divinity-of-kings
idea, or as republics read it, the divinity-of-
legislatures idea, has been too strong for the
undeveloped conception of natural rights;
and as a result we to-day find equity bend-
ing to law—liberty crushed by license—the
judge cringing to the legislature—justice
kneeling to expediency.
Equity and Natural Law One-A
Science.
Lawyers only too well know that under
the present system, that necessitates the fol-
lowing of precedents for the lack of any
thing else to follow, equity has been reduced
to certain fixed arbitrary rules, and is now
almost as rigorous and non-elastic as law.
The maxim is, “Equity follows the law.”
But how is the maxim interpreted As fol-
lows: Equity follows that which in the opin-
ion of a majority of the legislature ought to
be the law. Equity should be the jurists'
best conception of the law of nature.
Where is the great advocate or learned
judge who will take up the gage on behalf
of equity, and by making it what it should
be—a science, that will “eventually super-
cede all positive legislation”—provide for
mankind a just, lawful and adequate means
of doing away with the legalized infringe-
ments of rights under which civilization is
at present writhing.
º



17.
Though not generally understood, it is
the bench and bar that are largely to blame
for the present social ills, and it is the
bench and bar, and they alone, that can
peacefully bring society out of its present
dangerous entanglements. The fact is, the
legal profession is hundreds of years behind
the times.
All thought is becoming systematized and
the different branches thereof are being
formulated into scientific character.
We already have several well defined
sciences where a few years ago there were
but few. Even that aggregation of dismal
speculation known as Political Economy
has developed into something tangible. A
long needed intellectual filtering has but
recently evolved out of it a beneficent
science. -
The absence of a science of rights, which
must come first, has long retarded the de-
velopment of the science of duty.
Not until the legal profession shall dis-
cover and adopt a method for the deter-
mination of human rights worthy of the
importance of the interests involved, shall
we be able to arrest and eliminate the ele-
ments of social decay.
Let us not delude ourselves in the belief
that relief can be attained through legisla-
tive media. In order to determine and pro-
tect rights we must look to the forum whose
business it is to pass upon rights—to the
tribunal whose office it is to inquire into
the infringements of rights. It is impossi-
ble for a legislature to cover the ground. If
it possessed sufficient wisdom to make a
compilation of all the different states of facts
that may arise in the universe and declare
the law natural, as applicable to each sep-
arate state of facts, then there might be a
hope for a legislative solution. But this is
not possible and if it were there would not
be sufficient paper in the universe upon
which to publish the revelation.
Courts have acquiesced in and taught
legislatures the damnable doctrine, that
men have surrendered their natural rights;
that to the legislature must we look for all
rights, all liberty and all law; that so long
as the legislative enactment does not con-
flict with the constitution it is as binding
upon the courts and the people as the edict
of God. Why should the legal profession
foster this blighting doctrine 2 From
whence came it but from the social compact
postulate”. The Declaration of Independ-
ence does not teach it, neither does the Con-
stitution, but on the other hand it is in
direct conflict with a plain provision of that
instrument. It is contrary to science, de-
structive of human happiness, and repug-
nant to common sense.
Wherever prejudice exists there is always
some cause for it though the real cause
may not be rightly understood.
Not until jurisprudence develops into a
science will the legal profession be able to
command the confidence and respect of a
decaying civilization.
Objections to the Natural
System.
“But,” argues the expediency philoso-
pher, “this may be all very true in theory,
but it is not practical. This theory of law,
rights, liberty, the object of government,
the respective functions of courts and legisla-
tures, would do very well for a state of social
perfection. But we must look at things as
they are, not as they should be.”
It is not surprising to hear such utter-
ances from the unthinking class—the social
parrots, but it is discouraging to hear such a
line of argument from a lawyer—a man
whose business of life is to reason upon
propositions.
If the doctrine for which we contend is
true in theory should we not endeavor to
conform our practices to it? The question
is not how the theory, if true, will work, but
how we will work.
Again, if we were socially perfect, we
would need no theory under which to work.
We would all be intellectually able to de-
termine the just and proper course of con-
duct under any and all circumstances, and
would be morally desirous of conforming
to it. It is not because there is no just and
proper rule of social conduct that necessi-
tates government, but because first, we are
not sufficiently acquainted with it, and
secondly, not sufficiently desirous of follow-
ing it. This is why we require government
—courts to determine the rule and point out
its infringements, and legislatures to pro-
vide means to prevent the infringements.
We do not contend that a better knowledge
of the true rule for the government of hu-
man social action will do away with all
crime and make us socially perfect, but it
will do away with a great deal of govern-
mental error and the suffering resulting
therefrom.
18
Equity, the Science of Rights–Eth-
ics, the Science of Duty.
We are simply dealing with man's con-
duct in his contact or relations with his fel-
lowmen. This discussion has nothing to do
with his conduct or acts in life, so long as
such acts do not affect his neighbors. Of
his ethical, divine or other duties, this argu-
ment does not aim to take note.
Governments, legislatures and courts have
nothing to do with man's individual con-
duct only insofar as it affects the rights of
others. In matters of duty, he must consult
a law higher than that for the government
of social action. Whether or not he will be
a good man at heart—kind, merciful, for-
giving, charitable and generous—are mat-
ters that he must settle with a power higher
and more exacting than courts and legisla-
tures. -
Ethics is the science of duty, and treats of
what man's thoughts, impulses and acts
should be. Its province is to demonstrate
what men should do. Equity is the science
of rights, and treats of what men may and
may not do.
The Artificial and the Natural
Systern.
Having ascertained the true principle for
the government of human social action,
and having arrived at a definite conception
of rights, liberty, the object and office of
government, and the different branches
thereof, and having pointed out the errone-
ous theory by which our courts and legis-
latures are governed in their proceedings, it
may be well before proceeding with the dis-
cussion to undertake to state the two doo-
trines side by side.
The True Doc-
trine.
Every man has the nat-
ural right to do whatsoever
he wills, provided that in
the doing thereof he in-
fringes not the equal right
of any other man.
A natural right is a priv-
ilege vouchsafed by natur-
al law to man to exercise
his faculties in sueh man-
ner and to such extent only
as is compatible with a like
exercise of faculties by
every other man. Natural
rights are essential, inher-
ent and inalienable.
The Prevailing
Doctrine.
Every man has the civil
right to do whatsoever is
sanctioned by judicial prec-
edent and not prohibited
by statute; also all acts
that are legalized by stat-
ute; also all other acts that
he wills to do and that are
not prohibited by legisla-
tive enactment or judicial
precedent.
Man, on entering society,
gives up his natural rights,
or some of them, in lieu of
the benefits to be gained
from the social relation.
He enters into a social
compact agreement, or
contract, by which he sur-
renders his natural rights
and natural liberty, and in
lieu thereof gains civil
rights and civil liberty.
He surrenders the protec-
tion of natural law and
gains the protection of civil
a W.
Civil liberty is natural
liberty so far restrained by
human legislation as, in
the opinion of the legisla-
ture is necessary or expe-
dient for the good of soci-
ety.
Natural liberty is the
freedom vouchsafed by mat-
ural law to man to enjoy
his natural rights, that is,
to do any act he wills to
do, provided that in the
doing thereof he infringes
not the equal rights of any
other man.
Natural law, as applied Municipal or civil law is
to the social conduct of a rule of action prescribed
man, is a rule of action by the supreme power of a
prescribing that which is state commanding that
right and prohibiting that which, in the opinion of
which is wrong. It is un-the legislature, is right or
changeable, invariable and expedient, and prohibiting
eternal, and is ascertain-that which, in the opinion
able by the exertion of of the legislature, is wrong
right reason. or inexpedient. It is
changeable, variable and
repealable at the pleasure
of the legislature.
The interpretation of
statutes and precedents
and the endeavor to apply
them to human social ac-
tion is judicial expediency.
The right deduction and
application of the princi-
pies of natural law to hu-
man social action is the
science of rights.
Government is an expe-
dient instituted by man for
the purpose of curtailing
and abridging natural
rights and restraining nat-
ural liberty, and enforcing
the performance of duties,
in such mamner and to
such extent as shall from
time to time to the govern-
ing class appear expedient.
Government is an expe-
dient adopted by man for
the purpose of protecting
himself in the enjoyment
of his natural rights. -
It is the province of the
legislature to abrogate nat-
ural law, curtail natural
rights, restrain natural lib-
erty, enact civil law, es-
tablish civil liberty, in such
manner and to such extent
as shall from time to time
appear expedient; and in
general enact such legisla-
tion as “the greatest good
to the greatest number”
shall seem to demand.
It is the province of the
legislature to provide pen-
alty and remedial measures
for the infringement of nat-
ural rights. -
It is the province of
courts to follow and en-
force all precedents, usages
and customs that the legis-
lature may legalize, and to
enforce all statutes that are
not unconstitutional.
It is the province of
courts to inquire into in-
fringements of natural
rights and practically ad-
minister equity; the jury
answering to the facts and
the judge to the law natur-
al, and any legislation not
in conflict there with.
Torts Are the Only Illegal Acts.
The infringement of a natural right is a
tort. All infringements of natural rights
are torts. In other words, the doing of any
act not sanctioned by the principle is a tort.
Torts are divisible into two classes, viz.: in-
tentional and unintentional. Against the
former class all criminal legislation is in
theory directed and for the commission of
that class of torts it has been the policy in
civil actions to allow vindictive damages
upon the principle that if a man intention-
ally and purposely infringes the rights of
another it is best for the protection of soci-
ety that he be more or less severely dealt
with. In the latter class of torts it has been
º
º

19
the policy in civil actions by the injured
party to allow actual damages only; on the
theory that he who injures another unin-
tentionally, unwittingly, or even accident-
ally, should at least reimburse the loser.
The True Systern in Pratice.
I have no disposition to criticise criminal
legislation or procedure, or legislation for
the redress of wrongs, or the civil procedure
in cases of tort. These are matters of expe-
diency—man's method of dealing with in-
fringements of the law natural. They are
good, better or best. There is no absolutely
right way of dealing with a wrong. As to
whether it is best to fine, imprison, draw
and quarter, or hang a man for certain
crimes are questions entirely outside the
scope of this discussion.
All I seek to establish is the truth that no
action, either criminal or civil, should lie
against a member of society, except for the
commission of a tort—that is, for the in-
fringement of a natural right. That both
criminal and civil actions should lie for in-
tentional forts, and that civil actions should
lie for unintentional torts, I shall not dispute.
In short, the lawyer will understand just
what is meant when we assert that it is the
duty of a court to sustain a demurrer to any
complaint, criminal or civil, that does not charge
an act not sanctioned by the principle for which
we are contending.
The Land Ouestion Under the
Natural System.
Let us now proceed to the consideration
of some of the most injurious legalized vio-
lations of the law natural. First and fore-
most amongst these is our system of land
tenures. To avoid unnecessary circumlocu-
tion we will at once affirm that all so-called
titles to land except title by occupancy are void.
Occupancy we will understand to mean
actual possession and use.
I shall not take up space to argue that
a man has the natural right to breathe, to
eat, to drink, to work, or to do any other
act in such manner and to such extent as is
compatible with a like exercise of faculties
by every other man. Those who cannot
assent to this postulate may as well drop
this discussion, and if they have any desire
for truth and ability to comprehend it they
may profitably study Mr. Spencer's deriva-
tion of a first principle.
In order to eat, drink, walk, and other-
wise exercise his faculties a man must be
upon the earth. And unless the necessaries
of life are furnished by others he must be
permitted to occupy and use some deter-
minate portion of the earth's surface. If he
dwells on some particular portion of the
earth's surface, where the means of subsist-
ence grow spontaneously—where the cli-
mate is so salubrious that he requires no
shelter—a country where “cattle wax fat on
the mere superabundance of ozone,” his
actual wants will be easily satisfied and
his natural rights will probably be cor-
respondingly easy of ascertainment. He
would have the natural right to take food
from the tree and water from the spring, or
to slay the ox for food, and if any other
man should prevent him from doing any of
these acts, such prevention would be an in-
fringement of his natural rights—a curtail-
ment of natural liberty and a violation of
natural law. Now suppose there is a scarcity
of the means of subsistence, and that the
harshness of the climate compels him to
provide for himself a shelter. He must dig
in the ground for water, he must cultivate
the land, and breed and care for the beasts
and fowls for food, and he must construct a
hut for shelter. He must cultivate ground,
dig a well and construct a hut where no one
else is actually occupying the ground; and
he must take unto his use beasts and fowls
that no one else has appropriated; and so
long as he actually occupies the ground by
cultivating or otherwise using it; so long as
he actually occupies his cabin and retains in
his possession the particular beasts and
fowls, it would be a gross infringement of
his natural rights for any one to disturb him
in their enjoyment. His right to solely and
exclusively occupy and use a particular
tract of land continues just as long as he
does in fact continue to occupy and use it,
and no longer. His title is occupancy, and
the evidences of his title, actual possession
and use. He may appropriate as much
land as he pleases, but he must actually pos-
sess it. Natural law does not recognize con-
structive possession. If he desires to possess
land he must do those acts that constitute
possession. He may appropriate one, forty,
five hundred or five thousand acres, or ten
times that acreage, provided it is physically
possible for him to actually possess it, and
provided further, that in so doing he in-
fringes not the equal rights of any other
man, and he may hold it so long as he actu-
ally possesses or uses it; in short, he is per-
mitted to hold that land and that quantity
of land that he does in fact hold; that is, does


20
in fact occupy and use. Natural law deals
not in fictions. Constructive possession is
one of man's inventions, and hence we
to-day find particular persons holding con-
structive possession of many square miles of
land as against all the world, when in fact
they actually possess only a small city lot.
Title is lost by abandonment of occupancy,
by ceasing to physically possess, occupy
and use it, with intention to permanently
abandon it.
“But,” argues the expediency philoso-
pher, “there is no certainty or security to
such title; a man must be in actual physical
possession of his well, his house, his horse,
his cow and his land continuously, morn-
ing, noon and night, or he may lose title.
If he leaves his house and farm for an
hour another man may appropriate all his
earthly possessions.”
Let us see: Suppose A were taken by
force and against his will imprisoned in a
house, will it be argued from this that he is
the owner of the house and lot because he
actually occupies them? Certainly not. He
has not intentionally entered into posses-
sion with a view of appropriating to his
own use. He is detained against his will.
He has no desire to make the prison his
home. The forcibly taking him into custody
is a gross infringement of his natural
rights and a palpable curtailment of his
natural liberty. Again, suppose a man
leaves his hut temporarily for the purpose
of obtaining water from the spring twenty
yards away, or for the purpose of securing
food, and during his absence another man
enters and appropriates everything to him-
self. Can it be argued from this that the
first man has lost all title to the hut, and
everything in and about it? Certainly not,
because he did not leave it with the inten-
tion of permanently abandoning and sur-
rendering the possession of it, and the sec-
ond man must have well known that fact
when he entered into possession. Any
ordinarily sensible and honest man would
have known it. But if the first man re-
moves his hut or tent and all articles in it,
and goes to another country, leaving the
ground vacant, while there are evidences of
former occupancy, everything indicates a
permanent abandonment of that particular
ground, and any reasonable man might
rightfully assume the facts to be as the in-
dications suggest.
Again, if A leaves his house and farm
temporarily for the purpose of attending
church or visiting his neighbor, he loses
not his possession. So if he visits relatives
a thousand miles away and remains absent
a week or six months, his intentions can be
easily ascertained. In the first place men
do not ordinarily permanently abandon
and surrender valuable possessions without
exacting value therefor before doing so.
Therefore, because A happens to be absent
six months or a year no honest man or fair
jury will conclude from this that he
has permanently abandoned and surren-
dered possession of a valuable farm and a
good residence. Even if he takes up his
abode in another country and possesses
himself of another farm and builds another
house and stays there for years, it does
not necessarily follow that he loses litle to
his first farm. He may leave some one to
care for it, keep up the fences, &c., until
such time as he can sell the possession for a
reasonable price. -
But on the other hand, if he takes up his
abode in another country, remains absent
for years, employs no one to look after his
farm and care for the house; the land re-
mains uncultivated and grows up in weeds
and grass; the fences and house decay and
crumble away, and in short, the land be-
comes common, vacant, unoccupied land,
would not an honest man, a sensible jury
and an intelligent court be driven to the
conclusion that he had permanently aban-
doned and surrendered possession of the
land 2 -
Natural law is abstract justice, and when
a man has once actually occupied and used
a tract of land, it will not, on any flimsy
pretext, allow the conclusion that he has
permanently abandoned it. The law will
give him the benefit of every doubt. But
when every doubt is solved, and all the facts
and circumstances establish beyond question
that he has purposely and intentionally
abandoned and surrendered permanent
possession of a tract of land, natural law
allows of no fiction by which he can say to
all other men, “I constructively own that
land and shall hold it against all the world
during my natural life, and then control it
by will as against coming generations.”
But what shall we say of the millions
upon millions of acres of land that have in
no manner ever by any act been in any
manner reduced to actual possession ?
Natural law recognizes the efficacy of no
resolution, be it preambled by never so
many “whereases,” to enable one man or
º
-
. - - 21
set of men to exclude all mankind from
setting foot upon millions of acres of unoe-
cupied, unimproved portions of the earth's
surface Natural law takes cognizance only
of what men do and pays no attention to
what they say. Neither does it regard the
proceedings of a few men, whom the people
select to provide measures for the protection
of their natural rights, when those few men
–agents of the people–legislators chosen
on account of supposed wisdom and virtue,
formally resolve, that, “whereas, it has
pleased an all-wise Providence to create the
earth, and whereas, it has pleased the peo-
ple to select us as their agents to provide
measures for the protection of their natural
rant from infringing the rights of the other
members of society, therefore, we, the said
agents of the people, do hereby solemnly
resolve and assert that we the said agents,
in other words the government, do own
the earth ; and in consideration of the sum
of twenty-five cents per acre in hand paid
by his lordship the Earl of Dunraven, we
the said government, do hereby sell, assign,
transfer, set over, quit claim, alien, release
and convey unto the said Earl of Dunraven,
his heirs, executors and assigns forever, a
large portion of the said earth, which said
portion is particulary described as follows:
* * * * And if any of the said people
shall undertake to enjoy their natural inal-
ienable right to enter upon, occupy, pos-
sess, improve, cultivate or enjoy any of the
vacant, unoccupied, or unused portion of
the earth's surface granted herein, then and
in that event, we, the government, will im-
prison any of the people that shall sounder-
take to exercise their natural rights; and
for that purpose we bind ourselves to bring
into action if necessary all the vast powers
and resources of this great government, in-
cluding a large standing army which we
maintain at the expense of the people. And
this we do because a certain wise country-
man of his lordship, our distinguished
grantee herein, did about a hundred years
ago write and actually publish in a book
the assertion that the said people did
(would), on entering society, give up and
surrender their natural rights to us in lieu
of the benefits to be gained from our wise
legislation.
In witness whereof the chief agent of the
said people has hereunto set his hand and
caused to be hereunto affixed the great seal
of the United States.”
rights, by preventing the bad and the igno-
Why Juries ignore the Instructions
of Courts. -
A inherited a large fortune. Business
pursuits being distasteful to him, he in-
wested a portion of his fortune in two hund-
red thousand acres of vacant, unimproved
land. This he purchased from a railway
company to whom it was granted by Con-
gress. A is a man of good impulses and
good intellect; and believing that every
one should employ his time to the best ad-
vantage, and having considerable leisure,
he has endeavored to learn what he could of
political economy, ethics, law and the
science of government.
B is a poor man; he has been a laboring
man all his life, has a family of several
children whom he is anxious to rear and,
educate properly. In the East, every suc-
ceeding year, it became more and more
difficult for him to make a living and pay
rent. The labor market was glutted. In
order to get along he had to put his children
at work in factories and struggled along a
few years in the hope that “good times”.
would come again ; but times became worse,
wages lower, resulting in panics, strikes,
lockouts, and riots. He too is a man of
reasonably good intellect. He thought
about free trade and protection, trades'
unions, co-operative industries, eight hour
and arbitration laws, individualism, social-
ism and anarchy; but he was unable to
better his condition, and finally he was
thrown out of employment by reason of
the failure of the concern by which
he was employed. He tried to find
other Work but could not, and
finally sold his household effects and
went West with his family, and entered a
tract of government land. Here he fared
better. By hard work and careful manage-
ment he succeeded in opening out a fine
farm, and had accumulated considerable
stock. The family was bothered somewhat
by the Indians, but the older ones of the
family became accustomed to handling
guns with required dexterity, and in this
wise they managed to protect themselves.
It was now time for B to go to the land
office and “prove up” on his claim and get
title from the government. He had saved
up the necessary funds to pay out on his
claim and have quite a little sum left. So
he arranged to take the whole family in the
wagon and drive to the town where the
This town was
They aimed to
land office was located.
about forty miles away.



















































22
reach there on the evening of July 26 and
on the 3d to “prove up" on his claim, do
some trading in town and then partake in
the celebration of the Fourth—the day on
which our forefathers entered society and
gave up their natural rights. But on reach-
ing the land office he was informed that he
had no right to the land on which he had
settled; that it had been granted to the rail-
road company by Act of Congress of July
2nd, 1862, and he was just twenty years too
late, as the land had been patented to the
railroad company.
office and paid him fifty dollars to look in-
to the matter. The lawyer interviewed the
railroad land agent, examined the county
records and ascertained that the land had
been sold by the railroad company to Mr.
A several years before; that the proceedings
were all regular, and that although when B
settled on the land the railroad had not
been built and there was no certainty that
it would be, still the company had filed in
the land office at Washington its map of
definite location and that settled the ques-
tion. B bundled up his family and drove
back home saying nothing to his wife. He
did not work any for several days. He
borrowed a Code of Laws from the country
Justice of the Peace and carefully read and
re-read the Declaration of Independence,
and especially that portion that refers to
natural rights. He also became interested
in that provision of the Constitution that
says “the enumeration herein of certain
rights shall not be construed to deny or dis-
parage others retained by the people.” And
the thought occurred to him “if my right
to this land is not a natural right, what the
devil is it? and if natural rights are inalien-
able, how can the land be taken from me?”
And the next day he went to town to see
the lawyer again, and called the lawyer's
attention to the provisions of the Declara-
tion of Independence and the Constitution.
But the lawyer laughed at him and said
“why my dear sir, on entering society you
gave up your natural rights and natural
liberty in lieu of the benefits to be gained
from the social relation. You entered into
a social compact to that effect.”
“No, I didn't,” said Mr. B, “I never even
heard of a social compact.”
“But,” urges the lawyer, “the law says you
did.”
“What law 2 show it to me,” said B in
utter astonishment. And the lawyer bor-
rowed Judge Cincher's volume of Black-
-
He rushed to a lawyers
stone and read the law to Mr. B But B
insisted that he would not give up the land.
He doubted Blackstone, endeavored to find
an authentic account of the social compact
transaction, read the philosophers, adopted
deductive reasoning, gained a definite and
distinct idea of natural rights and the true
principles for the government of social con-
duct, but could get no lawyer to try his
case. Finally as a last resort he sought Mr.
A the legal owner of the land, and Mr. A
becoming interested in the points raised by
the old farmer, they together discussed the
question for months. Mr. A had a valuable
library, and they exhausted every treatise
that threw any light on the subject, and to
make a long story short, Mr. A a short time
after deeded to B the land.
Property.
We again quote Blackstone: “There is
nothing which so generally strikes the in-
agination and engages the affections of man-
kind, as the right of property; or that sole
and despotic dominion which one man
claims and exercises over the external things
of the world, in total exclusion of the right
of any other individual in the universe.
And yet there are very few that will give
themselves the trouble to consider the
origin and foundation of this right. Pleased
as we are with the possession, we seem afraid
to look back to the means by which it was ac-
quired, as if fearful of some defect in our
title; or at best we are satisfied with the
decision of the laws in our favor, without
examining the reason or authority upon
which those laws have been built. We
think it enough that our title is derived by
the grant of the former proprietor, by de-
scent from our ancestors or by the last will
and testament of the dying owner; not car-
ing to reflect that (accurately and strictly
speaking) there is no foundation in nature or
natural law, why a set of words upon parch-
ment should convey the dominion of land. *
# * It is Well if the mass of mankind Will
obey the laws when made, without scru-
tinizing too nicely into the reason for mak-
ing them. But when law is to be considered
not only as a matter of practice but as a rational
science, it cannot be improper or useless to
examine more deeply the rudiments and
grounds of these positive constitutions of
society. * * * For by the law of nature
and reason, he who first began to use it
(land), acquired therein a kind of transient
property, that lasted so long as he was using
it, and no longer; or, to speak with greater









23
precision, the right of possession continued
for the same time only that the act of pos-
session lasted. Thus the ground was in
common, and no part of it was the per-
manent property of any man in particular;
yet whoever was in occupation of any de-
termined spot of it, for rest for shade, or the
like, acquired for the time a sort of owner-
ship, from which it would have been un-
just, and contrary to the law of nature, to
have driven him by force. Thus
also a vine or other tree might be said to be
in common, as all men were equally enti-
tled to its produce; and yet any private in-
dividual might gain the sole property to the
fruit which he had gathered for his own re-
past. A doctrine well illustrated by Cicero,
who compares the world to a great theatre,
which is common to the public, and yet the
place which any man has taken is for the
time his own.”
If a man has a natural right to occupy
ground “for rest, for shade, or the like,”
and he thereby acquires therein “a sort of
ownership, from which it would be unjust
and contrary to the law of nature to drive him
by force,” it follows that whoever is in oc-
cupation of any determined tract of land for
rest, for shade and for the purpose of build-
ing himself a house and living in it, and for
the purpose of cultivating the soil for food
for himself and family or for any other law-
ful purpose, acquires therein for the time
(so long as he maintains such actual occu-
pancy, whether the time be five minutes,
three months or a hundred years) a sort of
ownership, from which it would be unjust
and contrary to the law of nature to drive him
by force. In other words, the right of pos-
session continues for the same time only
that the act of possession lasts. Or to speak
with greater precision, he may retain actual
possession and use of the land just as long
as he pleases, but if he does not desire to re-
tain possession of it, but intentionally sur-
renders, abandons and relinquishes posses-
sion, occupancy and use of it, natural law
provides no fiction to enable him to make
his fellowmen believe that when he sur-
renders said land and removes permanent-
ly to a foreign country, that he either takes
the land or the possession, occupancy or
use of it with him in his vest pocket in the
shape of some writing on a piece of paper
called a deed.
We quote further: “In the case of habi-
tations in particular, it was natural to ob-
serve, that even the brute creation, to whom
everything else was in common, maintained
a kind of permanent property in their dwell-
ings, especially for the protection of their
young; that the birds of the air had nests,
and the beasts of the field had caverns, the
invasion of which they esteemed a flagrant
injustice, and would sacrifice their lives to
preserve. Hence a property was soon es-
tablished (who established it 2) in every
man's house and home-stall; which seem
to have been originally mere temporary
huts or moveable cabins, suited to the de-
sign of Providence for more speedily peo-
pling the earth, and suited to the wandering
life of their owners, before any extensive
property in the soil or ground was estab-
lished. And there can be no doubt that
moveables of every kind became sooner ap-
propriated than the permanent substantial
soil; partly because they were more sus-
ceptible of long occupancy, which might be
continued for months together without any
sensible interruption, (Is there anything
susceptible of longer occupancy than land?)
and at length by usage ripen into an estab-
lished right; but principally because few of
them could be fit for use till improved and
meliorated by the bodily labor of the occu-
pant, which bodily labor bestowed upon
any subject which before lay in common to
all men, is universally allowed to give the fairest
and most reasonable title to an exclusive property
therein. -
--
---
~f~ ºr
:
The only question remaining
is, how this property became actually
wested ; or what it is that gave a man an ex-
clusive right to retain in a permanent man-
ner that specific land, which before belonged
generally to everybody, but particularly to
nobody. And, as we before observed that
occupancy gave the right to the temporary
use of the soil, so it is agreed upon all hands
that occupancy gave also the original right
to the permanent property in the substance
of the earth itself, which excludes every one
else but the OWner from the use of it.”
It Will be noted that the learned author With
his determination to construct a basis for
the English theory of the ownership of “the
substance of the earth itself,” would not al-
low himself to reason logically. Why did
he not say in whole as he did in part; and,
as we before observed that occupancy gave
the right to the temporary use of the soil, so
it is agreed upon all hands, that occupancy
gave the right to the permanent use.
Again : “There is indeed some difference
of opinion among the writers on natural
24
law, concerning the reason why occupancy
should convey this right, and invest one
with absolute property; Grotius and Puffen-
dorf insisting that this right of occupancy
is founded on a tacit and implied assent of
all mankind, that the first occupant should
become the owner.”
The distinguished commentator is abso-
lutely determined that there shall be absolute
property in land, that there must be an abso-
lute owner. Why does he not fairly state the
conclusions of his own deduction and if
there must be an absolete something about the
title to land, say absolute occupancy, absolute
use or absolute possession.
The reason is quite apparent. If occupancy
is the only title, then the title is gone when
occupancy ceases. So likewise with use or
possession. Whereas the uncertain terms
ownership and absolute property, may form a
basis for constructive possession of which we
have elsewhere spoken.
Again: “However, both sides agree in
this, that occupancy is the thing by which
the title was in fact originally gained; every
man seizing to his own continued use such
spots of ground as he found most agreeable
to his own convenience, provided he found
them unoccupied by any one else.” -
The great author in substance almost
states our first principle of the law natural.
For the welfare of civilized peoples it is to
be regretted that he did not grasp its full
truth and adopt it for a guide in his writ-
ings on law. -
Quoting further : “Property, both in
lands and moveables being thus originally
acquired by the first taker, which taking
amounts to a declaration that he intends to
appropriate the thing to his own use, it re-
mains in him, by the principles of universal
law, wintil such time as he does some other act
which shows an intention to abandon it; for
then it becomes, naturally speaking, publici
juris once more, and is liable to be again ap-
propriated by the next occupant. So if one is
possessed of a jewel and casts it into the sea
or a public highway, this is such an express
dereliction, that a property will be vested in
the first fortunate finder that will seize it to
his own use. But if he hides it privately
in the earth or other secret place, and it is
discovered, the finder acquires no property
therein ; for the owner hath not by this act
declared any intention to abandon it, but
rather the contrary, and if he loses or drops
it by accident, it cannot be collected from
thence, that he designed to quit the posses-
sion; and therefore in such case the prop-
erty still remains in the loser, who may
claim it again of the finder.”
And further see note of Chitty: “But
how, or when, then, does property com-
mence? I conceive no better answer can be
given, than by occupancy, or when anything
is separated for private use from the common
stores of nature. This is agreeable to the
reason and sentiments of mankind, prior to
all civil establishments. When an untu-
tored Indian has set before him the fruit
which he has plucked from the tree that
protects him from the heat of the sun, and
the shell of water raised from the fountain
that springs at his feet; if he is driven by
any daring intruder from this repast, so easy
to be replaced, he instantly feels and resents
the violation of that law of property, which
nature herself has written upon the hearts
of all mankind.”
Does not this line of argument in every
detail establish our theory of the title to
property and the manner of acquiring and
losing it?
Title is gained by occupancy, it is retained
by continuing to occupy it, and it is lost by
ceasing to occupy it. If under natural law
a man may occupy and use as much land as
he pleases, and may continue to use and
occupy it as long as he pleases and for what-
ever purpose he pleases, provided that in
the doing thereof he infringes not the equal
rights of any other man ; what more should
any well-disposed person desire, and what
greater freedom can he enjoy without cur-
tailing the liberty of his fellow men? Why
should he insist upon human enactments
that will enable him to say to his fellow
men : “It is true that under natural law I
may actually occupy and use all the land 1
please, whether it be one acre, two hundred
or fifty thousand (granting that it is phys-
ically possible for one man to actually use
so great an area), and this land I may hold
to the exclusion of all mankind so long as
I please, whether it be ten, fifty or one hun-
dred and twenty-five years (if he live to
that age), but here lies two hundred thou-
sand acres of excellent land. It has never
been actually occupied or used by me or by
any one else, so far as I know ; I do not de-
sire nor intend to occupy or use it in any
way, but I forbid any man from setting
foot upon or in any manner occupying, cul-
tivating or using it, without paying me ten,
fifty or one hundred dollars per acre, as I
may decide to demand.”




25
The Basis of the Present System
of Land Tenure,
Let us consider the reasons assigned by
the most eminent authority, Blackstone,
why men insist upon human enactments
that permit them to control immense areas
of the earth's surface which they do not oc-
cupy nor desire nor expect to actually oc-
cupy or use. After showing that under
natural law there is no title to land but title
by occupancy; that title is gained by actual
possession with intention to use and occupy;
and that it is lost by actual abandonment
with intention to cease to actually possess
and use; with the view doubtless of giving
some plausible reason why the wholesome
and just law of nature should be ignored
by courts, he goes on to say: “But when
mankind increased in number, craft and alm-
bition it became necessary to entertain con-
ceptions of more permanent dominion; and
to appropriate to individuals not the imme-
diate use only, but the very substance of the
thing to be used.” It would seem that this
is a distinction without a difference. If
under natural law we may occupy, possess,
use, enjoy, stand or lie upon, eat, drink,
wear, smell and feel a thing when, where,
how and for so long or short a time as we
may desire, to the absolute exclusion of all
other men, so long as we infringe not the
rights of others; does it make our title any
stronger or our enjoyment any greater to
say that we own the very substance of it?
If the language “ownership of the very sub-
stance” has any definite meaning, what is it
and does it embrace more than the language
above used ? Is it any advantage for a man
to say, “I own the substance of the sun's
rays, the substance of the air, the very sub-
stance of the earth's surface, when it is
physically impossible for him to actually pos-
sess, enjoy and use but a small portion of
these external gifts of nature? No; the ad-
vantage lies in his power to prevent others from
enjoying a portion of them.
It could not have been because men in-
creased in number that it became necessary
to ignore natural rights, natural law and
natural liberty. Even the deluded wor-
shipper of the Malthusian theory cannot
urge this flimsy reason. “Some one has
recently made public the remark that if the
whole human race were divided into fam-
ilies of five persons each the State of Texas
is large enough to supply half an acre of
land to each family. The statement sur-
prised some people, and not a few of them
declared hastily, without performing the
necessary calculations, that it could not be
true. But it is true. There are supposed
to be about 1,400,000,000 persons living on
the globe. A half acre to each family of
five would require one acre for ten persons.
or 140,000,000 acres in all. The area of
Texas is more than 262,000 square miles, or
nearly 188,000,000 acres. Consequently there
would be a surplus of almost 28,000,000
left over after every family was provided
for, which would be sufficient for four or
five times the present population of the
United States. - -
“Not many people realize how little space
would be needed to accommodate the whole
human race, assembled in one place. Sup-
pose we were to fancy every human being
forming one of a vast congregation, seated
in 1,400,000,000 easy chairs, each occupying
a square yard of ground space. As there
are nearly 3,600,000 square yards in a square
mile, that number represents the size of the
congregation that could be seated upon it
under the conditions named ; and the whole
human family could be gathered on a tract
of 452 square mile—or 214 miles each way.
Less than two-fifths of the area of the little
State of Rhode Island would suffice to give
comfortable seating room to the whole hu-
man race. One-twelfth of the area of
Rhode Island would be enough to afford
standing room—as people stand in a crowd,
without crushing—to every man, woman
and child on the face of the globe.”—
Youth's Companion. -
Then the real and only reason for this
monstrous legalized disinheritance of the
children of men is that it became necessary
in order to satisfy the “craft and ambition”
of particular members of society.
In other words, the courts of to-day rec-
ognize void paper titles to land, legalize the
infringement of natural rights and the cur-
tailment of natural liberty and violate nat-
ural law, because it is necessary to do so in
order to satisfy the craft and ambition of
the barons of society
An Illustration.
A owns twenty square miles of open, va-
cant, unoccupied land by paper title. B de-
sires to establish for himself and family a
home, and he argues with A as follows:
“You say you own this large tract of land
and you forbid me from entering into actual
possession of a few acres of it for the pur-
pose of cultivating and using it for the sup:
26
port of my family. I have traveled hun-
dreds and hundreds of miles in quest of a
place for a home; and while at least nine-
tenths of the land that I have seen is va-
cant, unoccupied and unused, I have in ev-
ery instance been debarred from appro-
priating any of it by a pretended owner.
What am I to do 2. There are three men
offering to work at starvation wages where
there is one wanted; I am out of money
and cannot get work ; all the vacant land
is owned by some constructive possessor and
he invariably drives me off, and there is no
place except upon the highway and they are
now imprisoning men for ‘tramping.' It has
been demonstrated deductively from prin-
ciples and inductively from facts, and I in-
tuitively know and feel it to be a truth, that
I have the natural right to occupy and cul-
tivate any unoccupied portion of the surface
of this planet for the purpose of supporting
my wife and children, and this I know be-
cause in doing so I do not infringe or inter-
fere with your natural right or that of any
other man to do likewise. You say you
have the right to this tract of land. You
have the right to occupy any or all of it;
so have I, and so has every other man.
But your acts not only show, but your pos-
itive statements are that you do not desire
or intend to occupy or use any portion
of it, still you forbid me from exercis-
ing my right.” “But,” A answers; “You
have no natural rights. On entering so-
ciety you gave them up. And while orig-
inally you had the natural right to occupy
and use unoccupied portions of the earth's
surface, you have gained in lieu thereof the
right to tramp upon the highway. When
the right to tramp is taken away you can
exercise your right to occupy the poor
house.” This is the difference between nat-
ural and civil liberty. -
Possession May Be Sold.
Island a subject of barter and sale 2
A man may for pay abandon occupancy
of a tract of land and the purchaser may
enter into possession. The purchaser of
the possession must, in order to hold the
land, do those acts that constitute occu-
pancy.
Inheritance of Possession.
The omnipresent expediency philosopher
here asks: “Under natural law what be-
comes ºf the land when the occupant
dies?” Unless in case of an earthquake
the land will remain just where it was be-
fore the possessor died. “Yes, but who will
succeed to the possession, who will inherit
it º'
Blackstone says: “The most universal
and effectual way of abandoning property
is by the death of the occupant: when,
both the actual possession and intention of
keeping possession ceasing, the property
which is founded upon such possession and
intention ought also to cease of course.”
In such case the possession of land would
descend the same as horses, money, jewelry
or any other property. It is the office of
the courts of probate to determine the in-
tention of the deceased. If he leaves a will,
then his intention can be readily ascer-
tained. If he leaves no will, his intention
is not known, and courts proceed to deter-
mine as nearly as possible what his inten-
tion was by assuming that it was the same
as that of a reasonably good and intelligent
member of society.
We are not contending for any changes
in the laws of inheritance. The possession
of land might go to the children just the
same as the possession of money goes to
them. If they refuse to take possession of
the money, it may be turned over to the
State on the reasonable assumption that
any ordinarily good man would desire his
possessions to be converted to the use
of the whole community in case those that
are supposedly nearest him refuse to accept
them. Just so in the case of the possession
of land. If the heirs desire the possession
they should within a reasonable time take
possession. If they do not desire to take and
enjoy it in common, then they should di-
vide it equitably. If they cannot agree up-
on an equitable division, then courts should
divide it equitably amongst them ; because
we must assume that any ordinarily good
citizen and father would so desire. If the
land is not susceptible of equitable division,
then the possession should be sold by the
court and the money be equitably divided
for the same reason.
In case the deceased leaves no will, and
there are no living relatives, then let the
court sell the possession of the land and
turn over the proceeds to the State fund.
These are questions for the legislature and
courts. Under the natural system, as un-
der the present system, the courts would,
under the direction of the legislature, make
such honest and fair disposition of a de-
ceased person's estate as reason and con-
soience suggest. Under the present system."

27
if an heir refuses to take possession of a
Horse that belonged to the deceased, and re-
fuses to accept from the probate court the
proceeds of the sale of the horse, the State
appropriates the money. Just so should
the possession of land be treated. The
State cannot possess and use either the
horse or the land, but it can convert the pos-
session of either into money and utilize
the money for the entire community.
Under natural law title to land is ac-
quired, retained and lost in exactly the
same manner as is title to any article of
personal property. Who would think of
the necessity for an abstract of title to a
horse, or a cow, or a warranty deed for a
set of false teeth ! Yet is not occupancy
and use of land a much more certain title
than occupancy and use of thousands of
articles of personal property 2
Paper titles to personal property always
weaken rather than strengthen the plain
title of actual possession, as they are gener-
ally indicative of fraud. Properly under-
stood it is so with paper titles to land,
Grants, patents, deeds, mortgages, releases
sheriffs' ecrtificates, and the like, are evi-
dences of titles founded in fraud, force and
llSury.
All Procedure for the Collection
of Debt is in Violation of Nat-
ural Law.
Under natural law, as we have seen, a
man may for pay abandon possession of a
particular tract of land in favor of another
So likewise may he abandon possession of
any species of property; and he may by
pay acquire possession of anything. In ev-
ery transfer of property the question for
determination is: has the owner intention-
ally abandoned and surrendered possession,
two things being necessary, the mental in-
tent and the physical act.
One cannot be deprived of property by
fraud, force, mistake or deception ; for in
such case, while there may be a phys-
ical abandonment, the mental concurrence
is lacking. One's rights may be infringed
by fraud or deception to as great an extent
almost as they may be by force. It is there-
fore the theory of all law, that any act that
is induced or brought about through fraud,
mistake, force or deception is not binding
upon the doer, because in fact it is nºt his
act. But a man cannot be excused in every
instance simply because he was mistaken or
was deceived. If he has done an act he is
bound by it, unless it shall be found by the
jury that he was deceived or misled to his
injury by such artifice as would have de-
ceived or misled any reasonably prudent
man under the same circumstances. For-
instance A desiring to gain B's possession
to a tract of land doth represent to B that
the neighborhood is about to be visited by
a pestilence that will almost depopulate the
neighborhood ; or that there is an immense
army of invaders marching into that sec-
tion of the country, and that B had best
flee for his life; and because of such repre-
sentations, or similar ones, B parts with his
possession for a nominal price; he is estop-
ped from attempting to reclaim it, because
no reasonably prudent man would be de-
ceived by such representations. But sup-
pose that A and B agree upon a price that
B shall receive for abandoning the land,
and A represents to B that he has ten
thousand dollars in bank two miles away,
and B loads his chattels into a wagon and
they together start for the money at bank,
A leaving his family in possession of the
land, but on arriving at bank B learns that
A has no money. Under such circum-
stances B would doubtless have the right to
reclaim the possession, or to speak with
greater precision he never in fact lost pos-
session, i. e., he did no act that a reasonably
prudent man would not have done under
the same circumstances. In short, if a man
rightfully gains possession he cannot against
his will be deprived of it. If he rightfully
loses possession he cannot in any manner
regain it against the will of the rightful
possessor. -
Again, suppose A intentionally abandons
possession in favor of B, and B enters into
possession and continues to do those acts
that constitute possession, and use but that
payment for possession is not made a condi-
tion precedent to or concurrent with the
actual intentional transfer of the possession,
occupancy and use; but that B promises to
pay A in two years ten thousand dollars for
such possession. We contend that any hu-
man law or penalty for the enforcement of
such promise or to punish its non-perform-
ance is contrary to natural law and void ,
because first, a man can be punished only
when he infringes the right of another,
and it is an invasion of natural liberty to in
any manner molest him or interfere with
the enjoyment of his rights so long as he
infringes not the rights of others; and
secondly, because his failure to keep and
perform such promise is not an infringe-


28
ment of the rights of A or of any other man.
A natural right is not a tangible thing.
It is a privilege to do an act—to exercise a
faculty. Rights cannot be infringed by re-
fraining from doing an act. It is only by
the doing of acts that rights can be infringed.
If A sells to B a horse in consideration of
one hundred dollars, natural law requires
A to exact payment when he parts with
title—possession, or take his chances in get-
ting payment. If instead of relying upon
the money itself he sees fit to rely upon
the promise of B to pay at some future time,
he does so at his peril. Upon B's failure to
pay, A cannot take the horse back, because
he has parted with title. Not so if A loans
to B a horse. In this case he does not part
with title, but may at any time go and re-
take the horse in case B fails to return it;
and if B should interfere with A's retaking
the horse, such interference would be an
infringement of the rights of A.
There is no provision in natural law to
compel the performance of a promise.
If A sells to B a horse in consideration of
B's promise to pay one hundred dollars in
six months, and at the expiration of that
time B fails to pay, as we have said A. can-
not retake the horse, because he has no
right to it. He parted with title and the
horse was afterwards at the entire disposal
of B. A cannot take the property of B
and convert it into money, because in so
doing he infringes B's rights, which is only
allowable as a social expedient in cases of
fort. B's failure to pay as agreed is not
punishable civilly or criminally, because it
is not an act the doing of which infringes
the rights of another. It may be argued
that A has the right to rely upon the prom-
ise of B. Granting this for he sake of ar.
gument; has he not exercised this right,
and may he not continue to exercise it?
It may be said that A has the right to expect
payment. While this is an objectionable
use of the term right, in the case cited has
A's right to expect payment in any manner
been infringed?
Executory Contracts Not Binding
in Natural Law.
One man is under no obligation to rely
upon the promise of another. If A sees fit
to rely upon the promise of B because he
believes B to be honest, and that B will live
and continue to be honest until that time
in the future fixed for the fulfillment of the
promise, and that at that time B will have
the means to make payment according to
promise, if A desires to run all these
risks, he is a free moral agent and can do
so. But if B is unable, or fails or refuses
at the appointed time to perform his prom-
ise, why should all the machinery of a
great government be brought into action in
behalf of A *
It is customary when a man gives to an-
other a sum of money and takes in return
a note payable in a certain time with inter-
est, to call the transaction a loan. It is not
a loan. When a thing is loaned the lender
does not part with title; he expects the re-
turn of the identical thing loaned ; and if
it is not returned he may retake it. If A
should loan to B one hundred dollars for
the purpose of allowing B to exhibit it at a
fair, if we may conceive of such a state
then would we have a good faith loan.
In such case A does not part with title, and
if B should convert the money to his own
use, such conversion would be a palpable
infringement of the rights of A, and such
act would be punishable criminally and re-
dressable civilly. But if A delivers to B
one hundred dollars not expecting the re-
turn of the identical money, but expecting
that B shall do with it as he sees fit, and A
takes B's note for the amount payable in
six months with interest, it is fiction to call
such transaction a loan in the sense that
we speak of loaning or hiring a horse. A
simply trades one hundred dollars for B's
promise, and whether or not B shall keep
and perform his promise is a matter of
which the natural law takes no note.
Indeed, when we come to consider the
matter without prejudice what good reason
can be given why society should constitute
itself a committee to violate natural law,
infringe natural rights and curtail naturai
liberty, by ousting one man from his
house and converting his goods and chat-
tels into money to reimburse another man
because of the failure of the first to keep
arid perform a promise 2 Aside from the
logic of the question, it were far better that
human laws should in every way discour-
age debt and credit transactions of every
nature, instead of encouraging them. At
this day and age of the world we ought to
know from experience and observation, if
not from philosophical research, the utter
wrong and folly of endeavoring to compel
men to keep their promises—perform their
contracts; and the worse than folly of try-
ing to indemnify the promisee for the fail-
ure of the promisor. It really appears that
-
29
there is more money wasted in the costs of
such proceedings than is realized on execu-
tion. Step into a court at any time and at
any place; look through the court records;
note the condition of the docket of any
court—nearly every one months or years
behind in the trial of causes; note the gen-
eral complaint as to the law's delay; ob-
serve the legislature all the while creating
new courts and increasing the number of
judges of the old ones; look through the
thousands upon thousands of volumes of
adjudicated cases, and then for one moment
consider what a large proportion of all this
interminable litigation and procedure is ex-
pended in the vain and fruitless effort of
endeavoring to compel the performance of
human promises or indemnify the prom-
isee Consider what a small portion of the
judgments rendered are ever paid; think of
the cost of all this vast machinery, as well as
that of the particular controversies; think of
the suffering and oppression entailed in the
practice of this system
T]ebt has been the curse of the ages. Think
of our National debt, State debt, county
debt, city debt, school district debt, corpor-
ate debt, individual debt; debts evidenced
by bonds, deeds of trust, mortgages, promis-
sory notes and book accounts, debts in parol.
In ninety-nine cases out of every hundred
it were far better not only for the debtor
but for society at large, if the debt had not
been contracted. All the result of legisla-
tures and courts saying to the people, “we
will collect your debts for you.”
“But,” interposes the expediency advo-
cate, “would you prevent the poor and
needy man from borrowing the where with
to provide himself a crust of bread, or rai-
ment to shield him from the storm *
God, not the legislature, tempers the wind
to the shorn lanb. 'Tis the law of love and
not human made laws for the collection of
debt that enables such to borrow. If the
borrower is poor and needy, it is because he
is poor and needy that the lender gives, it is
not because the lender relies upon laws for
the collection of debt, for such a borrower
is always execution proof. If the lender
expects to be repaid he relies upon the man
and not upon the law. Such a borrower is
never accommodated at a bank or any other
place that makes a business of loaning
money. If the borrower is not poor and
needy he ought not to borrow, as all history
shows that by so doing he will almost cer-
tainly become poor and needy. If it be said
he can give security, then it may be answer-
ed that he had better convert the security
into money than to undertake to pay in-
terest. If he cannot convert it into money
except at a great sacrifice, this is the best
evidence that he should not borrow.
If the lender desires to let the borrower
have money for speculative purposes, then
let him exact value received when he parts
with his money or take his chances on the
speculation, and not call upon a nation with
all its vast machinery of government to
make him whole because the speculator's
judgment proved defective. -
Under the present barbaric system it has
become a highly developed art to loan
money and secure contracts almost impossi-
ble of performance. The surface of the earth
in every so-called civilized country is abso-
lutely and irredeemably plastered with
mortgage debt. If in a comparatively few
instances, the borrower by hook or crook
manages to pay the loan with an exorbitant
interest, he is more than fortunate—he is
the exception—and possesses qualifications
and abilities that may make him one of the
social barons. If he fails to pay it back he
loses in property, through the highly civil-
ized processes of our courts, generally about
two to three times the value of the loan be-
sides having his natural rights infringed,
his natural liberty curtailed, his mind dis-
turbed and his heart embittered to that de-
gree that is not best for the general weal.
Slow Development of the Natural
System.
A few hundred years ago for debt, the
pound of flesh was exacted, the debtor was
made a slave or imprisoned. In many of the
States of this country imprisonment for
debt is still indirectly enforced. Everyone
now realizes that these barbarous practices
are in flagrant violation of natural law ;
but still the courts oust the people from
their houses and set them out in the high-
way, convert their goods and chattels into
money, and in short, do everything that
the patience and ignorance of the people
will permit, regardless of natural liberty, to
the end that the usurer shall not lose a
cent. - -
It is true the exemption laws have to
some little extent helped the people. The
magnanimous legislatures of some of the
States actually allow a family a bed or two
to sleep upon, a pew in a church, and pos-
sibly a burial lot in the cemetery. Some
States have even gone so far as to allow a

30
family a cow and one calf and a horse or
two, and perhaps a sow and pigs, but the
pigs must not be allowed to become hogs
else the government in the person of the
sheriff will take them to apply on the note
held by Moses Isaacs. The pigs must be
less than six months of age.
In some States a family is allowed a
homestead of forty acres, or up to a certain
value, but in order to secure this exemp-
tion the owner must be very careful that
the records are properly made. He must
have the fact written in exactly the proper
book and at the proper time.
We are yet very far from the recognition
of the great truth that under natural law
everything is exempt from execution.
In cases of tort, that is, where one man
infringes the natural rights of another it is
necessary to punish criminally for the
graver offenses, and possibly expedient to
redress civilly in all cases; that is, allow
the injured party to recover his damages
out of the property of the wrong doer. But
breach of contract is not a tort.
There is nothing in natural law to prevent
one man from charging any rate of interest
he pleases, nor another from paying any
rate. Any human law that attempts to reg-
But
ulate the rate of interest is invalid.
while this is true, it is equally true that any
law for the enforcement of a contract is in-
Walid. -
Courts the Present Greatest Barrier
to Material Progress.
If courts would discard the absurd social
compact hypothesis, social maladjustments
that are directly traceable to that hypothesis
would gradually but entirely disappear.
This is the only logical, adequate and just
method of dealing with the great problems
of the day. Protect the individual and the
nation will manage to get along reasonably
well, thank you.
If our deductions from the principle are
correct the interest or usury question would
be solved. There would be no occasion for
a statutory legal tender, the currency ques-
tion would disappear, and so far as the cir-
culating medium of the country is con-
cerned, government would simply interest
itself in preventing counterfeiting or fraud.
Paper land titles, mortgages, trust deeds,
judgment liens, releases and abstracts of
title would be known only as relics of a
barbarous age. Bonds, bills and promissory
notes, would be matters of business honor
and integrity. They would disappear from
the courts and legal literature. There would
be little borrowing except by those who
might need, and to only such should loans
be made in any state of society; and such
can always borrow under any system. The
larger portion of all the modern methods of
legal larceny would be wiped out. The
watering of stocks and similar transactions
would be impossible. Stock gambling
might not disappear, but its devotees would
have to consult a revised edition of Hoyle
instead of the science of jurisprudence. In-
nocent holders of fraudulent contracts would
be like the visits of angels. If A should
want a thousand barrels of mess pork he
would probably buy it and pay for it, or if
he should see fit to bet on the price of mess
pork six months in the future, he would be
compelled to bet with an honest and financ-
ially able man. Constructive possession of
land would be a fiction of the past; a vast
and damnable credit system would gradu-
ally but certainly disappear ; there would
be no oversupply in the labor market and
consequently no strikes and kindred dis-
turbances, because if men were not ade-
quately paid they would occupy unoccupied
land and work for themselves; there would
be few landlords and few tenant farmers,
because of uncertainty in collection of rent
and because men would not care to rent
land of others when they could possess and
enjoy land themselves ; every man's prop-
erty would be exempt from execution ex-
cept for taxes, fines for crime, and damages
for torts; there would be much less crime,
but real crimes would be much more cer-
tainly and intelligently dealt with, because
the adoption of the principle would enable
the courts to determine with considerable
certainty what acts ought and what ought
not to be punished; the industrious and
frugal would become wealthy; the talented
and worthy would be known for their
parts, and even the lazy and unworthy
would fare better; a man could labor eight
or twenty-four hours per day if he should
desire–his necessities would compel him to
labor not to exceed five or six hours; the
Iudicrous disparity between law and justice
would gradually disappear; equity would
become a science, and the conscientious
lawyer could retire to his rest at night with-
out the conviction that by the wise he was
regarded as an ass, by the shrewd as a
schemer, and by the ignorant as a knave.
Point out any practical remedy for exist-
ing social ills, except through the medium

31
of the courts, that does not involve the
subversion of existing institutions, and the
people will acclaim you a Christ. We have
passed the divinity-of-kings period, and we
are about through with the legislative re-
gime. Will we free ourselves from the en-
vironments of the great social compact and
individual-contract period and adjust our-
selves to the reign of law. -
The Sacred Duty of a Judge.
It is the sacred duty of a judge to refuse
to enforce any statute or custom or so-called
law that he knows to be contrary to natural
law. Chief Justice Hobert, so contended
long before the principle for which we are
contending was known. Cannot the ju-
diciary of the present show at least as
much respect for the law of nature as had
the Roman jurists centuries ago—as had
Blackstone and his cotemporaries nearly an
hundred years before the derivation of the
first principle of the law natural ” Their
conceptions of it arose from their innate
sense of justice. If the jurists of the pres-
ent day have not an equal love for justice,
can they not at least exercise an enlight-
ened understanding 2
Courts Follow an Absurd Hypoth-
esis in Preference to a Scien-
tifically Derived Principle.
While the philosophers of the world are
wrestling with these problems, while the
pulpits are earnestly devoting themselves
to a peaceful solution, and while the revo-
lutionary forces of society are rapidly gath-
ering for physical conflict, the legal pro-
fession go on enforcing so-called laws and
and precedents that are not only destructive
of happiness and demonstrably contrary to
natural law, but are absurd end farcicah.
We may talk about all sorts of remedies
and expedients, about trades-unions,
strikes, legislative panaceas, socialism,
ethics and what not; what men want and
must have is their rights, and those they
must get in the tribunals where rights are
determined and protected. Philosophy and
experience prove that the methods that
courts now follow in determining rights are
fundamentally wrong. Will courts adopt
the correct method 2 If not, the day is not
far distant when the firy torch and the red
flag of Retribution shall stalk through the
ruins of the temples from whence the blind
goddess has been driven. The sequence of
events admonish us that a rapidly growing
disrespect for not only the law but the legal
profession will ere long assume a tangible
form and anarchy will hold sway.
If a judge does not know that under mat-
ural law there is no title to land but that of
occupancy—actual possession, and that any
so-called human law that recognizes any
other title is void, he ought to know it; and
if he does know it and refuses to make his
decisions in accord with that knowledge,
he is a greater enemy to social progress
than the most grasping and greedy monop-
olizer of the earth's surface, or the most
aggressive socialist or anarchist.
Objections Urged Against the Nat-
ural System.
Let us briefly eonsider the objections urg-
ed against the introduction of the natural
system.
To show the prevailing conception of
natural rights, natural liberty and natural
law, and the arguments used against the
practicability of government undertaking
the determination and protection of natural
rights instead of the creation and protection
of civil rights, I quote from Mr. Justice
Cooley, whose philosophical and exhaust-
ive treatment of propositions is proverbial.
“Much is said by some writers concerning
natural rights and natural liberty, and of
the duty of the government, instead of
creating, to recognize those which come from
nature. As if nature had indicated any
clear line which the human intellect and
conscience would infallibly recognize, on
either side of which might be placed the
acts permitted and the acts prohibited, ac-
cording as the one or the other was by na-
ture justified or condemned. As if every
human act or omission had a moral quality
of which the government could take no-
tice, and by which it might judge the act -
or omission. Indeed, some have even gone
so far as to assume that in a world where
the moral law was accepted fully and obey-
ed implicitly, no law would be necessary,
because every individual would at once
perceive and do that which was right, and
thus put legal compulsion out of the ques-
tion. But if the most conscientious per-
sons in any state of existence were com-
pelled to support themselves by their in-
dustry; if they had occasion to buy and
sell, and to find their transactions affected
by accident and mistake; if occasionally
they encountered questions of defective
titles, or questions of commercial law,
where one of two innocent persons must



- 32
inevitably suffer; if bankruptcies must oc-
cur, the consequences of which must fall
upon third persons, whose dealings with
the bankrupt had been interwoven with
dealings between themselves; in short, if
they lived in a world which, except in the
moral qualities of the people, corresponded
to the present, they would be likely soon
to discover that the rule of morality is very
far from being adequate to the adjustment
of a large proportion of all the controver-
sies in which conscientious men, in the ab-
sence of law would find themselves in-
volved.”–Note to Cooley on Torts, page 6.
This argument is strong, and perhaps un-
answerable, from the standpoint of the old
line advocates of the natural system. Their
conception of natural rights, natural lib-
erty and natural law were too vague and
indefinite to admit of judicial adoption of
a system for the ascertainment of rights
based upon them. They were unable to
demonstrate that “nature had indicated any
clear line which the human intellect and
conscience would infallibly recognize, on
either side of which might be placed the
acts permitted and the acts prohibited, ac-
cording as the one or the other was by
nature justified or condemned.” They
announced no settled and fixed principles
of the law natural, by following which
courts could with any reasonable certainty
determine and define natural rights and
natural liberty.
In order to avoid anarchy rights must be
determined and controversies settled in
some way. Even a wrong decision is better
than no decision. And in defining the
rights of individuals some degree of cer-
tainty is absolutely essential to the peace of
society. It would be disastrous to simply
leave the determination of such questions
to the conscience of different judges. There
must be something to control and direct
the reason and conscience. And as the
older champions of the natural system
failed to offer any certain and fixed rules for
the government of human social action,
they were not in a position to urge con-
clusive reasons why their supposedly cor-
rect but uncertain natural system should
be accepted in the place of a faulty but
reasonably certain artificial system. There-
fore the objections so forcibly presented by
Justice Cooley are well taken as against the
former unformulated and uncertain theory
relative to the determination of natural
rights. But with our present knowledge of
the law natural applicable to human social
action ; with our present logically deduced
and formulated principles that will enable
courts with reasonable certainty in all mat-
ters of controversy to determine and define
the natural rights of men, should a cum-
brous and sadly defective and only meas-
urably certain artificial system be longer
followed to the exclusion of that simple,
harmonious and just natural system for
which the minds of great jurists have for
ages yearned 2
The learned author says: “As if nature
had indicated any clear line which the hu-
man intellept and conscience would infal-
libly recognize, on either side of which
might be placed the acts permitted and the
acts prohibited, according as the one or the
other was by nature justified or con-
demned.” -
Has it not been demonstrated that there
is such a rule for the government of human
social action ? See Social Statics, Part I.
Every man has the natural right to do whatso-
ever he wills, provided that in the doing thereof
he infringes not the equal right of any other A
111,071.
As to whether or not “the human intel-
lect and conscience would (will) infallibly
recognize” this principle is dependent upon
the same conditions as is the infallible rec-
ognition of any demonstrated truth. It
may be said the greater portion of the
thinking world has already recognized this
truth, and it only remains for the legal pro-
fession to accept it in order that we may
enjoy its benefits.
We cannot hope that in all cases the de-
ductions from and applications of the prin-
ciple will be infallibly correct until the per-
fection of human reason and human con-
science shall be attained. The learned jur-
ist certainly would not contend that the
interpretation and construction of statutes
and the application of precedents under the
present artificial system are infallible in
character.
Under the natural system there
would be erroneous interpretations of the
law natural, and errors in the findings of
fact the same as under the present system
but errors in logical deduction would be
immensely less in number and less harmful
than under the present theory, because the
fundamental premises of the natural are
correct and those of the artificial are er
I'Oneous.
Again, under the natural system every
human social act possesses a determinable



33
º
quality of right and wrong, but it does not
necessarily follow that we have reached
that state of mental and moral development
that will enable us under any and all cir-
cumstances to determine that quality;
neither does it follow that government
should under the natural system undertake
to punish or redress all infringements of
rights no more than it does under the pres-
ent system.
For instance it may be a demonstrable
infringement of natural rights for a lady
to wear in a theatre a hat or bonnet of such
proportions as to practically destroy the
enjoyment of the performance by persons
seated immedately behind her.
optional with the legislature under either
the natural or artificial system whether or
not such act, and in fact any act, shall be
punished criminally or redressed civilly.
These are questions of expediency with
which this discussion has naught to do.
All we ask is that courts shall not allow
legislatures to legalize the infringement of
rights. - -
The esteemed author uses the terms law,
human law and government, interchangeably.
The law matural takes notice of all social
acts and points out what are permitted and
what are prohibited.
As to what acts government will take no-
tice of and punish criminally or redress
civilly are questions of expediency for leg-
islative consideration.
Quoting further : “Indeed some have
even gone far as to assume that in a world
where the natural law was accepted fully
and obeyed implicitly no law would be
necessary, because every individual would
at once perceive and do that which was
right and thus put legal compulsion out of
the question.” - -
A sufficient answer to this is that no law,
either natural or artificial can be “accepted
fully” or will be “obeyed implicitly '' until
all men become mentally and morally perfect.
Men accept fully and obey implicitly just
rules of action in proportion as they are
able to understand truth and are desirous
of following it. Whether such a state of
perfection shall ever be attained is a matter
of speculation foreign to this inquiry. If
it ever should be attained on earth there
certainly would be no necessity for govern-
ment, no need for legislatures or courts, no
occasion for penalty or remedial legislation,
because there would be no infringement of
rights. All men would know the law and
But it is
would strictly obey it. I apprehend that in
that celestial day if persons should have
occasion to buy or sell” the buyer would
pay for the thing bought and the seller
would get value for the thing sold. It is
possible persons would not then “find their
transactions affected by accident and mis-
take and if they should, would not the an-
gelic parties to the transaction be likely to
make amends for the accident and correct
the mistake in a manner and to a degree
at least commensurate with our present leg-
islative and judicial remedies for torts?
May we not ventºre to believe that tº de-
fective titles,” “questions of commercial
law where one of two innocent persons
must inevitably suffer " and “bank-
ruptcies” would be unknown. How could
there be a moral wrong in a state of mental
and moral perfection? If the objectionable
answer be given : “Through accident or
mistake,” may we not reply by asking
would not the mental perceptions and
moral impulses of perfect creatures insure
relief more nearly adequate and complete
than can be looked for through govern-
mental interference?
We might go further and show that the
law natural for the government of human
social conduct deals not with the finer
shades of moral wrong and positive duty.
The study of the laws and the deduction of
the principles for the determination of the
conduct of a morally perfect being, are be-
yond the realm of the science of rights.
The object in analyzing the foregoing
argument against certain undeveloped and
unformulated conceptions of the natural
system is, if possible, to make clear the
true conception.
As we find men at present mentally and
morally conditioned, governments, legis-
latures and cotirts are necessities. We must
have legislative penalties, procedures and
remedies for the invasion of rights; we
must have civil procedure and redress, and
so far as we are able to judge, mankind will
require all these expedients for the protec-
tion of their rights for at least ages to come.
We do not demand the abolishment of any
human law, or penalty, or remedy, statute,
precedent, decision, custom or usage, ex-
cept such comparatively few as unquestion-
ably recognize and legalize the infringement of
demonstrable natural rights.
The fact never occurs to the unthinking,
that all judicial rulings are based on certain
fundamental postulates, and that if those
34
postulates or hypotheses are correct, the
decisions will be correct except in those
instances wherein the jury may err in find-
ing the facts, and those wherein the judge
may reason wrongly. In such instances,
only the parties to the particular contro-
versy must suffer. But if the fundamental
postulates or hypotheses are erroneous and
false, the judicial rulings based thereon
must not only injuriously affect the rights
of the parties to the particular controversy,
but also indirectly, the rights of every mem-
ber of society. Such judicial wrongs must
of necessity eventually result in greater in-
jury to society than the individual wrongs
that courts are supposed to remedy.
The recognition and adoption by the
judiciary of the principle contended for is
the only adequate and rational remedy for
existing legislative and judicial wrongs. It
is legalized infringement of rights, and not
individual turpitude, that is rapidly de-
stroying civilized communities.
The remedy is simple and sure. Elect
judges who will recognize the principle and
ignore the absurd hypothesis. A judge who
fully understands the truth of the principle
and the falsity of the hypothesis will set
aside any precedent, statute, title, usage, or
custom that violates the principle, and in
so doing he will be backed by the constitu-
tion, the declaration of independence, by
science, by a clear conscience, and by every
man who does not exult in the degradation
and enslavement of his fellow men. Con-
cern yourselves not about deductions from
the principle; simply demand and exact its
recognition and adoption and you will effect
the greatest and most benign revolution the
world has ever known. Fear not, the sci-
ence of rights will jealously care for the de-
ductions from, and applications of the
principle in particular controversies. Dis-
card all expediency measures. By far the
greater portion of them are simply deduc-
tions from the social compact hypothesis.
Thousands upon thousands of such remedies
have in vain been tried. Talk not about
the dishonesty of judges and lawyers, the
corruption of legislators and the grasping
greed of capitalists, the most of them are
about as good and many of them better men
than you. It is your ignorance and theirs
that prolongs hºman bondage. A person
who at the present day believes that men
on being born give up their rights, or who,
if he disbelieves it, possesses not the man-
hood to ignore that blighting fallacy, is
not fit to cast a vote or preside over the lib-
erties of cattle. The one error is funda-
mental—the resultant errors are manifold.
The social system is diseased. The orig-
inal cause of the disease must be removed in
order to attain a permanent cure. You
may administer patent potions from now
until doomsday without avail. By present
expedients you may change the form of the
malady. You may heal up the sore in one
part of the body politic, but it will surely
appear in a more aggravated form in anoth-
er part. You man burn and cut out the
sores by torch and sword, but they will
come again in other parts. Such treatment
will never cleanse the system. The tem-
porary relief gained thereby is the delusion
of the ages. After all the strikes and riots
of the past few years, a committee of Con-
gress asked the representative of the work-
ingmen of this country what remedy he
had to offer for social maladjustments. He
answered in substance that he had not
worked out the problem—he had no remedy
to offer. -
The Transportation Ouestion.
Under natural law, possession of the
earth's surface can be held and enjoyed in
two ways only ; either in common or in
severalty. It may be held in severalty as
shown in the discussion on the Land Ques-
tion, i. e., where one man holds to the ex-
clusion of all other men a particular area,
provided he secures possession without in-
fringing the rights of any other person and
provided he continuously does those acts
that constitute possession.
* But the highest and most sacred title is
occupancy in common, i. e., where land or
water is occupied and used in common by
the people at large, as in the case of high-
ways, water courses, streets, etc.
No individual can gain possession of land
held and used in common until such use
has been abandoned, and then only subject
to reassumption of possession in common
by society. -
It is a fundamental principle that while
an individual cannot be compelled to sur-
render possession to another individual; to
the public use, he may be required to sur-
render for just compensation. It may be
urged that this is a statutory or human.
made law, and this, because it is an accept-
ed and prevailing principle of our law of
enminent domain. But it is not a human-
devised provision. It is a principle of the
law natural,


35
It will be noted that it in no way violates
the principle heretofore announced.
An individual originally can only gain
possession subject to the rights of the pub-
lic at large. When increase of population
or other legitimate causes require appropri-
ation of land, water or air for public use,
the right of the individual is not infringed
as he never had any right to possession as
against the public at large; but a particular
enjoyment of his right to occupy is curtailed
by operation of natural law. To illustrate:
A has the right to occupy the land, water
and air in severalty, but this is always and
of necessity must be subject to the coilective
rights of the members of society to reassert
the superior title. He cannot, simply be-
cause he is the first inhabitant of a country,
appropriate a section of a river, or the
sea coast, or the entrance to a bay, to
the detriment of the commerce of the World.
For the same reason, while in a state of iso-
lation he may conduct himself as he desires,
he cannot, when he is surrounded by other
persons and other interests, drive a horse
into a church, nor create a disturbance in
a theater, nor establish a business stand in
the street. That is, as population increases
and other and varied interests spring into
existence, while A retains the freedom to
enjoy all his natural rights, as to when,
where and how he shall enjoy them, are
matters that are adjusted by operation of
natural law.
In proportion however, as particular en-
joyments of rights are curtailed, it must be
noted that the general enjoyment of rights
is enhanced. When in a state of
isolation. A could conduct himself as
he pleased ; but he could not enjoy
his right to attend church, or the theater,
or the convention, because there were no
churches, theaters or conventions. He
could fence the sea coast, construct a dam
in the river and build fences were he
pleased, but he could not exercise his right
to travel on the stage coach, or steamboat,
or railway train. Thus we find that partic-
ular enjoyments of natural rights are curtailed,
and the general enjoyment of natural rights is
enhanced by operation of natural law.
The Public Highway.
A highway is a portion of the earth's sur-
face that the members of society use in com-
mon. No one under natural law can ac-
quire exclusive possession or control thereof.
Each and every one bas an equal interest
therein and a right to use and enjoy it in
such manner and to such extent only as is
compatible with a like use and enjoyment
by every other person. It should be con-
structed and maintained at the public ex
pense. Under natural law it can in no man-
ner be leased to or controlled by an individ-
ual; first, because it is physically impossible
for an individual to do those acts that con-
stitute public occupancy and use; he can
only do those acts that constitute posses-
sion in severalty; secondly, public use and
occupancy are those things and those alone
that render a strip of ground a public high-
way; and thirdly, the giving control to an
individual would enable him to levy tribute
from the traveler, and this is in plain viola-
tion of the principle; for every one has the
natural right to do (to travel upon the highway)
whatsoever he wills, (without being tazed there-
for) provided that in the doing thereof he in-
fringes not the equal right of any other person.
Every person has the right to travel upon
the highway, to drive his team and wagon
or carriage or cart, or to ride horseback;
but he must not violate the public regula-
tions. He must not, perhaps, exceed a
certain rate of speed; he must not turn to
the left or right as the case may be when
passing another traveler. In other words
he must use the highway as he exercises all
his other natural rights, i. e., in such man-
ner and to such extent as is compatible with
a like use by every other person.
The Railway a Public Highway.
A railway is an improved highway; a
locomotive is an improved horse; a car is
an improved wagon. A railroad must, un-
der natural law, be constructed, maintained
and controlled by and at the expense of the
people.
Any one has the natural right to run a
train or trains thereon to and frona such
points as he desires, provided he does so in
such manner as is compatible with the ex-
ercise of the same right by any other per-
son. That is, he must conform to the regu-
lations prescribed by the people through
their authorized agents. Superintendents,
train despatchers, telegraph operators, sta-
tion agents, and similar officers should be
the agents of and answerable to the people.
But the people should not assume nor ac-
quire any ownership in the rolling stock no
more than they should in the animals or
vehicles that traverse the streets and com-
mon highways. These are not the subject
of ownership in common i.e. by the people
36
at large, society, or the State. They are sub-
jects of ownership in severalty by indi-
viduals.
Anticipating the expediency objector let
us ask : Why cannot a railroad superin-
tendent, train despatcher, road master, tel-
egraph operator, section or bridge foreman,
serve the people just as well and faithfully
as he can a corporation—as well as can a
street commissioner, a road supervisor, or
other public agent? Why cannot a station
agent serve the people (the State) as well as
can a postmaster? Why cannot a telegraph
operator serve the people as well as can a
mail carrier? Why cannot a business man,
whose success depends upon his manner of
doing business in competition with other
business men, own and operate a train as
carefully, successfully and satisfactorily to
his patrons, as can a soulless corporation
through half-paid train hands who have no
particular regard for their employer or in-
terest in the success of the business, the
safety of the property or the good will of
patrons 2 There are very few railways in
the country to which the people have not
contributed sufficient in the way of land
grants, tax subsidies, rights of way, sub-
scriptions and otherwise to build them.
Why should these improved highways
that the people have builded be given over
to great corporations to throttle the indus-
tries and manipulate the commerce of the
country for the purpose of realizing “all
that the traffic will bear ’’ 2
Under the natural system there would be
no building up of towns (where the di-
rectors are interested in town lots) and no
tearing down of towns (that refuse to vote
an enormous subsidy) at the caprice of the
railway magnate. There would be compe-
tition in fact for freight and passengers.
There would be no locality that needs a
railroad that would not have it. The finan-
cial success of persons owning and oper-
ating trains would depend upon their busi-
ness capacity, their facilities for accommo-
dating and their disposition to please their
customers, and their reasonableness of
prices. The train proprietor would stand
in the same relation to the public that the
theater manager, the hotel keeper and the
merchant now stand. For the safety of his
property and the success of his business,
every interest and motive would impel him
to conform strictly to the prescribed regu-
lations and to cater to the public for patron-
age. -
Why cannot we deal with the railways
the same as we do with the commou high-
ways, water ways, etc. * In such way only
can they be operated without ignoring the
principle before announced, whose strict
observance is absolutely necessary to the
preservation of personal liberty. It is use-
less to expect any material or permanent
relief from Congressional or State legisla-
tion so long as the control of the road-bed
itself is left in corporate hands, as that must
always mean direct or indirect corporate
control of the transportation.
Under the natural system we would see
fewer special cars containing one person
while seven or eight cars in the same train
are jammed to overflowing. We would see
fewer farmers' alliances, boards of trade
Knights of Labor and other assemblies,
supplicating some bloated general manager
for the recognition of common rights. We
would see fewer pools, free passes and draw-
backs, but ten times as much travel and
traffic. -
Is there a Legislative Rennedy ?
You may by legislation make the rich
poor and the poor rich. You may limit the
ownership of land to any given area. You
may make paper or gutta percha a legal
tender. You may abolish the national
banks, make government bonds payable in
paper or wheat or anything else. You may
establish eight hours as a day's labor; adopt
free trade ; enact prohibitory liquor laws :
establish bureaus of labor and boards of ar-
bitration; enact compulsory education
statutes; pass liberal exemption statutes;
regulate transportation charges; repudiate
the national debt; construct a canal from
Chicago to the Mississippi river; prohibit the
contracting of convict labor; prohibit Chi-
nese immigration; establish a State church ;
put the word God in the constitution; en-
courage co-operative industries; make any
or all of the 8,000 bills now before Congress
positive law, you may imprison strikers,
hang socialists, or legalize murder;-any or
all of these measures, or any other meas-
ure can be legally enacted into positive
constitutional law under the present sys-
tem; but do what you will by legislation
and you will have only changed the form
of the problem. You may take entire
charge of all the machinery of government
and at the present session of the legislature
fix everything up just to suit yourself, and
before the next session of that august as-


37
semblage there will be malignant sores and
eruptions in different parts of the body
politic entirely different from anything you
ever saw or heard of before, and you
can find no treatment for them prescribed
in the books. You will then have to wait
several years until you can decide upon a
new course of expediency treatment. Then
you may conclude to issue three thousand
tons of irredeemable greenbacks, or convert
all forms of business into one grand gov-
ernmental enterprise, or perhaps you may
abolish mormonism, or extend to women
the elective franchise, or perhaps you may
tax all the dogs in the country, or legalize
the imprisonment of tramps, or establish
several hundred almshouses throughout the
country, or compel the Union Pacific rail-
road company to pay the interest on its
debt, or forfeit a few land grants; you may
by legislation do any or all these things or
legalize any other measure and so on ad in-
finitum, but you will only change the form
of and aggravate the disease, until one class
of society will demand the abolishment of
the legislature or the establishment of the
Referendum. Still others will advocate the
killing of all rich men and all lawyers, or.
it may be that extremists will suggest the
blowing up of the country with dynamite
But never will any permanent good be ac-
complished until the tribunals that in mat-
ters of dispute pass upon and determine the
rights of persons, have acquired sufficient
intelligence to know what a right is. This
is all we need; courts competent to de-
termine the rights of individuals.
A bull is all right in a pasture, but it has
no business in a China shop. A legislature
is a necessary and proper expedient to pro-
vide means to facilitate the enjoyment of
rights, by preventing their infringement,
but when it invades the realm of human
liberty it transgresses and exceeds its proper
bounds, and usurps functions beyond its
DOWer. -
It never occurs to us that if we had not
taken the sweet cordials and pleasant stim-
ulants offered by the legislature we would
not now require the strongest mercurial
If the legislature had not un-
treatment.
tertaken to diversify industry we would not
now be compelled to pay about forty per
cent too much for a large proportion of the
necessaries of life in order to keep up the
diversification.
infalat manufacturers, we would not now
have to suffer the tyranny of the adult
manufacturers.
granted away millions of acres of the pub-
lic domain, perhaps our people would not
find it so difficult to secure homes. If our
legislature had not strengthened the public
credit quite so much, our legislators might
now have enough moral strength left to
withstand the blandishments of the credit-
OTS.
There is a determinable limit to legislaº
action. Will the courts, who are the guard-
ians of the people's rights, see to it that that
limit is not exceeded?
We may legislate, agitate, organize, and
rebel, but never until we understand the
true principle for the government of human
social action, never until the courts recog-
nize and follow the principle will we have
attained the conditions that render human
social happiness possible.
The pursuit of truth is ennobling, the ad-
ministration of justice, a theme upon
which the mind loves to dwell; yet to such
a complection have we come under the
present theory of law that the practice of it
is to a mind of a logical turn and to a heart
of the higher impulses, a disagreeable occu-
pation.
If the legislature had not
been permitted to so zealously protect the
If the legislature had not




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