JUS CONNATUM AND THE DECLARATION OF THE 
 RIGHTS OF MAN 
 
 The famous lines in the first part of Goethe’s Faust: 
 
 Vom Rechte, das mit uns geboren ist, 
 
 Von dem ist leider nie die Frage, 
 
 in which Mephistopheles sums up his vitriolic invectives 
 against the study of jurisprudence in general and of positive 
 law in particular, have always been interpreted as a reference 
 to the so-called natural law. Since the entire passage in which 
 these lines occur is missing in the Urfaust but appears first 
 in the Fragment of 1790, it might be inferred that the lines 
 in question originated during the time of the French Revolu¬ 
 tion when declamations about human rights and natural law 
 were in vogue. We must remember, however, that discussions 
 of the nature, the origin and the merits of the jus naturale 
 antedate both the American and the French Revolution and 
 that Goethe, as a student or law, doubtless was familiar with 
 them. It is, therefore, not improbable that the unusual phrase 
 “mit uns geboren” by which Goethe characterizes the natural 
 law as opposed to statute or positive law and which, as we 
 shall see later, appears in the adjective form “mitgeboren” in 
 the poet’s early writings, was either coined by him or adopted 
 from current legal terminology. In either case, the very use of 
 the term discloses the poet as a champion of the cause which 
 set the later revolutionary events into motion, and as fully 
 conscious of the significance of the idea of natural law as one 
 of the greatest moving powers of modern history. 
 
 It is a fact not infrequently overlooked, that the concep¬ 
 tion of the lex naturae which plays so important a role in the 
 political, social and ethical development of modern times, is a 
 product of Stoicism and, to a certain extent, of Epicureanism, 
 the two philosophies of the senile decline of antiquity which 
 mark the birth of individualism. A manifestation of reason, 
 the great general law which pervades the universe and con¬ 
 stitutes the final cause of all existence, the natural law, accord¬ 
 ing to the stoic view, is identical with the ethical law both as 
 
MIVERSITY OF 
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 to its origin and its nature. This implies not only that this 
 law which is eternal and independent of human statutes con¬ 
 stitutes an absolute moral canon for all men but also that, 
 owing to its divine origin, it has obligatory force because it is 
 a part of human nature and as such is capable of apprehension 
 and recognition by human reason which itself had emanated 
 from the universal divine reason. 
 
 Never before in the history of Greek thought had the 
 supremacy of reason and its immanent harmony with nature 
 been emphasized as it was in the philosophy of stoicism. Nor 
 do we find a similar glorification of reason and its immanent 
 harmony with nature except during the period of enlighten¬ 
 ment in the eighteenth century. 
 
 The influence which the stoic doctrine had upon the 
 development of political ideals seems quite obvious. From 
 the postulated rationality of the universe in which every 
 thinking being participates, naturally follows the assumption 
 of a community of those beings. In fact, the stoics claim that 
 there exists an impulse in all men to form a community, for 
 since all men are subject to reason, they possess but one right 
 and law, and in obedience to this law they work for the interest 
 of all. No man can live for himself without living for others, 
 hence it is a direct command of nature that men establish a 
 community. The latter, therefore, develops from the lex 
 naturae according to the stoic view, not vice versa. 
 
 Moreover, if the human community has for its sole basis 
 the equality of reason in which each individual shares, there 
 is no cause of limiting the community to a single people or 
 nation, for all peoples are members of one body, since nature 
 has formed all of them from the same material and for the 
 fulfillment of the same purpose. Or, as Epiktetus has it: all 
 men are brothers for all pray in the same manner to the same 
 father. It is the idea of cosmopolitanism which for the first 
 time finds philosophical expression in the stoic doctrine, an 
 idea to which again Epiktetus gives concise utterance in the 
 sentence: “Patriam meam esse mundum sciam et praesides 
 Deos.” 
 
 That there is in these political conceptions and especially 
 in the idea of a World-State or a universal league comprising 
 all nations a decided Utopian element there can be no ques- 
 
Jus Connatum and the Rights of Man 
 
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 tion. The ideal state which really hovered before the mind 
 of the stoics has best been described by Ed. Zeller in his history 
 of Greek philosophy: “a state without marriage, family, temples, 
 courts, schools, and money, a state, that meets with no antago¬ 
 nism on the part of other states because all national limits 
 have been overcome by the brotherhood of all men.” 
 
 The similarity of this ideal of state with the political dreams 
 of modern communists need not be emphasized. But although 
 the words liberty, equality, brotherhood of man, cosmopoli¬ 
 tanism and rule of reason were the slogan among the stoics, 
 little or nothing was done by them to reform contemporary 
 political and social conditions. Not until the American 
 revolution and the subsequent political upheaval in France 
 was the attempt made to translate the stoic ideals into reality. 
 What the stoics were not able to realize themselves, however, 
 they projected into the past by a clever combination of their 
 doctrines with the popular legends of a golden age. According 
 to their teachings it was during this primitive ideal period of 
 humanity that the lex naturae ruled supreme. Positive law 
 owes its origin to the subsequent corruption of social condi¬ 
 tions. The jus naturale, however, retains its original absolute 
 force, even then, and whenever it comes into conflict with the 
 positive law the latter ceases to be obligatory. 
 
 It is generally known that the stoic view of the state and 
 the lex naturae together with the political theories of other 
 philosophic systems were reproduced later by Cicero, and 
 through his writings, and through the Roman jurists of the 
 early empire, transmitted to the Middle Ages. However, 
 before we follow the later history of the political ideas of 
 stoicism, a word concerning the political theories of Epicure¬ 
 anism which also undergo a revival in the course of time will be 
 in place. 
 
 The atomistic and materialistic character of the Epicurean 
 system of thought is reflected most clearly in its political 
 doctrines. As the universe, according to this philosophy, 
 developed from the accidental collision of atoms 1 so human 
 society originated from an accidental aggregation of indi- 
 
 1 “Nullo cogente natura, sed concursu quodam fortuitu.” Cicero, De 
 natura deorum, I. 66. 
 
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 viduals actuated by selfish or utilitarian motives. States owe 
 their origin to a conscious agreement or contract among indi¬ 
 viduals for the purpose of mutual advantage and self preserva¬ 
 tion. Previous to this contract no law existed for there is no 
 absolute and independent law outside of that created by 
 contract. While the stoics teach “naturalem legem divinum 
 esse, eamque vim obtinere recta imperantem,prohibentemque 
 contraria,” 2 Epicurus defines the natural law as follows: 
 “justum natura est utilitatis pactum ut neque invicem laedamus 
 nos nec laedamur.” 3 
 
 In accordance with these views the Epicurean ideas con¬ 
 cerning the primitive state of the human race differ essentially 
 from those of the stoics. There never existed a golden age 
 such as the latter and the popular traditions claim but, on the 
 contrary, at the beginning there were only necessity, poverty, 
 ignorance and coarseness as Lucretius tells us in his poem “De 
 rerum natura.” The history of the human race according to 
 him is the history of its gradual rise to a material, moral and 
 intellectual civilization. 
 
 It is not difficult to recognize in these views the source of 
 political theories which we meet again in the seventeenth and 
 eighteenth centuries and of which Gassendi, Spinoza and 
 especially Hobbes and Rousseau are the chief exponents. 
 Before the radical rationalism and the materialism of the 
 Epicurean philosophy of the state was to be revived, however, 
 the political and social theories of stoicism had already attained 
 a paramount influence as an historical factor. The acceptance 
 by the early Church of the jus naturale as developed by the 
 stoics and its fusion with essential tenets of Christianity con¬ 
 stitutes, in fact, an event of the utmost importance. Christ’s 
 message of the kingdom of God, a message of extreme religious 
 individualism and at the same time of universality, contained 
 no definite precepts with regard to the possible social and 
 political structure of the ideal community governed by the 
 spirit of divine love which gradually was to be realized on 
 earth. However, with the formation of the early Christian 
 
 2 Cicero, De natura deorum , I, 14. 
 
 3 M. Voigt, Das jus naturale , etc. I, 131. 
 
Jus Connatum and the Rights of Man 
 
 5 
 
 congregations in which Christ’s ideal found expression in a 
 radical religious individualism and socialism, a decided antago¬ 
 nism to the existing social and political organizations developed, 
 followed by long struggles with the Roman state. Although 
 these struggles finally ended in the victory of the Church, i.e., 
 in the nominal Christianization of the state, the inherent con¬ 
 trast between the Christian ideal and the traditional non- 
 Christian institutions of society as well as the exigencies of 
 actual life had not been removed. To bridge it over a compro¬ 
 mise which would make allowance for these exigencies and 
 established institutions and at the same time preserve the 
 spirit of strict Christianism seemed necessary. This was 
 accomplished by the adoption and the gradual transformation 
 of the jus naturale as developed by the stoics which, moreover, 
 bore strong resemblance to certain Christian views and doc¬ 
 trines. 
 
 It is impossible here to trace the history of the new Chris¬ 
 tian conception of the lex naturae resulting from the fusion of 
 stoic and Christian ideals which was to play a remarkable role 
 not only in the medieval Church but also in the teachings of 
 Luther and Calvin. Emphasis should be laid upon the fact, 
 however, that while the Church identified the lex naturae on 
 the whole with the lex Mosis, certain mediaeval sects and 
 later certain protestant denominations, especially the latter, 
 insisted upon the identity of the jus naturale as it existed in the 
 status integritatis before the fall with the divine law proclaimed 
 by Christ in the sermon on the mount. Freedom, equality, 
 community of property and equal rights of man and woman 
 constitute the original jus naturale and demand realization 
 in order to bring about the millenium. The element of political 
 ferment in this conception of the jus naturale is obvious, and 
 it is here that modern democracy derives its real origin. The 
 powerful plea for liberty of conscience and religious freedom 
 first uttered by Luther and contained in the Anabaptistic creed 
 as well as in the teachings of mystics such as Valentin Weigel 
 and Jacob Boehme who, moreover, identified the inner light 
 with human reason and the law of nature, worked like a 
 leaven in Germany, in Holland and finally in England, where 
 
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 during the revolution, their political consequences became 
 apparent. 4 
 
 Although a direct influence of the lofty ideas of religious 
 tolerance upon the rise of the modern, purely rationalistic 
 doctrine of the jus naturale cannot be shown, it does not seem 
 to be merely accidental that the latter developed contempora¬ 
 neously with the claims of religious liberty. It is in times of 
 social unrest and revolutionary convulsions that the law of 
 nature is evoked, and as the violent struggles to attain religious 
 freedom affected the whole of the social body, the attempt at 
 a reconstruction of the jus naturale does not seem surprising. 
 That the basis of this reconstruction was found in human 
 reason may be explained from various causes. 
 
 The emphasis which the mystic and sectarian circles laid 
 upon the identity of the inner light with human reason and 
 the law of nature has already been pointed out. The emanci¬ 
 pation of human reason which lay hidden in this view and, in 
 fact, inaugurated the era of rationalism and “enlightenment” 
 made the revival of stoic doctrines in which, as we have seen, 
 reason played a similar role all the more acceptable and 
 plausible. Moreover, it will be remembered that the human¬ 
 istic movement carried with it not only a new conception and 
 valuation of man and his innate powers, but also a deeper and 
 more intense study of ancient literature and philosophy. This 
 led, of course, also to a renewed interest in the study of Roman 
 law and the conscious attempts of its revival such as we notice 
 among a number of distinguished French jurists during the 
 16th century. 
 
 The greatest impulse of the development of the modern 
 doctrine of the jus naturale was given, however, by the social 
 and political conditions of the time. While the sway of the 
 medieval Church and the Empire had practically been broken 
 by the Reformation, the autocratic power of the territorial 
 sovereigns, on the other hand, was constantly increasing, and 
 
 4 See Valentin Weigel, Kirchen oder Hauspostill (1618) II, 184: “Es ist 
 das angeborne Licht in einem Jeden, daraus alle Erkenntniss fleusset.” E. D. 
 Colberg, Das Platonisch-hermetische Christentum (1710) II, 338: “Gott hat in 
 alle Menschen, auch Jiiden und Heyden einen innerlichen lebendigen Glauben 
 gepflanzet, darin offenbaret er sich alien Volkern durch das Gesetz der Natur 
 in der Liebe, die auch Gott selber ist.” 
 
Jus Connatum and the Rights of Man 
 
 7 
 
 with it the antagonism of the state to the rising individualism, 
 nourished by the religious movements and the changed economic 
 and social conditions of the period. As both, the sacerdotium 
 and the imperium, had ceased to be the universal arbiters, a 
 new tribunal was to be found before which the fierce contest 
 between religious freedom and coercion, between democracy 
 and autocratic rule c-ould be decided. It is for this reason that 
 the jus naturale of antiquity was evoked which showed the 
 possibility of reconstructing upon the basis of individualistic 
 principles, both society and state by going back to their very 
 origins. How widespread and deep the desire for social and 
 political reconstruction was is evinced, furthermore, by the 
 numerous utopias produced during the sixteenth and seven¬ 
 teenth centuries, all of which show traces of the stoic ideal of 
 the golden age. 
 
 It is, of course, impossible here even to sketch the various 
 theories of natural right as they were developed by such men 
 as Althusius, Hugo Grotius, Pufendorf and others in Holland 
 and Germany, and by Hooker, Hobbes, Locke and their 
 followers in England. That the doctrine of the law of nature 
 should have found its earliest and most ardent champions in 
 these countries seems due in no small measure to the inera¬ 
 dicable love of freedom of which the early Germanic political 
 institutions, as described by Tacitus, give ample evidence. In 
 fact it was the Tacitean picture of old Germanic liberty 
 expressed in the sovereignty of the people, that inspired 
 German poets and patriots in their struggles for political 
 freedom from the sixteenth century down to the wars of 
 liberation. 
 
 It is significant, therefore, that the first attempt to con¬ 
 struct the state according to the principles of the revived stoic 
 conception of natural law was made by Johannes Althusius 
 upon the basis of the theory of the sovereignty of the people. 
 A professor at the German university of Herborn, which stood 
 in most intimate religious and intellectual relationship to the 
 Netherlands, Althusius, in the preface to his famous book, 
 “Politica methodice digesta et exemplis sacris et profanis 
 illustrata,” points out in eloquent terms that there was no 
 more glorious an example of the just, wise and strong realiza¬ 
 tion of the sovereignty of the people, the central thought of 
 
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 his book, than the example which the united Dutch provinces 
 had given to all nations by freeing themselves from Spain. 
 The close connection between the great historical event which 
 inspired Althusius and the origin of his political theories is all 
 the more important since the sovereignty of the people to¬ 
 gether with his doctrine of the social contract (contractus 
 socialis) from now on occupy the foremost place in the con¬ 
 stantly increasing discussions of natural law, discussions which 
 finally, as a matter of logical consequence as well as of imme¬ 
 diate and pressing practical concern, develop the doctrine of 
 the original rights of the individual. While there is no question 
 that the demand for religious freedom furnished the first 
 impulse to the development of this doctrine, it would be a 
 mistake to trace the declaration of the rights of man directly 
 to religious causes. Religious toleration in the strict sense of 
 the word is, in the last analysis, incompatible with the idea of 
 orthodoxy to which every religious body must adhere as a 
 matter of principle. The demand for religious liberty, there¬ 
 fore, means, within the various sects, in reality the demand for 
 the right of exercising some particular religion and not the 
 recognition of the fact that other religious bodies should have 
 the same right. Tolerance, in the latter sense, is the result of 
 lofty philosophical thought, as is found first in mystics such 
 as Valentin Weigel and Jacob Boehme and later emphasized 
 chiefly by philosophers such as Spinoza, Locke and Thomasius. 
 It is for this reason that religious liberty is listed comparatively 
 late among the rights of man proclaimed by the jus naturale. 
 Least of all, however, is there any justification for the claim 
 that religious liberty was one of the prime factors which 
 produced the declaration of human rights by the various 
 American colonies. 5 
 
 s The attitude of the New England theocracy toward religious liberty and 
 toleration is well illustrated by the following quotations: 
 
 Nathaniel Ward (1645): “God doth nowhere in His word tolerate Chris¬ 
 tian States to give toleration to adversaries.” 
 
 “Polypiety is the greatest impiety in the world.” 
 
 John Cotton: “It was Toleration that made the world anti-Christian.” 
 
 Pres. Oakes (1673): “I look upon Toleration as the first-born of all abomi¬ 
 nations.” 
 
Jus Connatum and the Rights of Man 
 
 9 
 
 There is, in fact, in the various American bills and declara¬ 
 tions of rights not a single right which previously had not been 
 evolved theoretically by the leading advocates of the jus 
 naturale. Liberty and equality, they had argued, are not the 
 only rights postulated by natural law, but there are others 
 which are retained by man when by an act of free will he 
 enters into the social compact. Too much emphasis cannot be 
 laid upon the principle of the free will of the individual entering 
 upon this compact, a principle which was first introduced by 
 Althusius, for upon it is based not only the conception of the 
 purpose of the state, which is the common good or welfare, but 
 also the theory of the inalienable rights of man. In con¬ 
 formity with the stoic tradition both Grotius and Pufendorf 
 teach that according to the law of nature all men in their 
 original state are free and equal. Following Pufendorf, who 
 saw in self-preservation a fundamental instinct of man, Locke 
 makes the preservation of property the central idea of his 
 political system, an idea which, in his opinion, includes also the 
 life and liberty of the individual. This utilitaristic emphasis 
 upon property was due in all probability to the desire of 
 curbing the communistic tendencies of certain religious sects 
 and of securing for the English middle classes the necessary 
 protection of their liberty and property against possible future 
 government encroachment such as they had experienced under 
 the rule of the Stuarts. That Locke’s theories, on the whole 
 a revival of the political doctrines of stoicism and their out¬ 
 spoken individualism, would appeal strongly to the American 
 colonists in their economic struggle against the encroachments 
 of the British government goes without saying. 
 
 It is doubtful, however, whether Locke’s conception and 
 interpretation of the rights founded in the law of nature 
 would as such have lead to the declaration of the rights of man 
 and to the establishment of a new government since Locke, 
 after all, considers the English government as a moderate 
 monarchy and an especially happy embodiment of the con¬ 
 stitutional form of the jus naturale. He even goes so far as 
 to defend prerogatives and to speak of the “God-like English 
 princes” in a way that smacks strongly of the divine right. 
 If the English form of government had really been the model 
 
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 state, in which the rights of man were secured, the American 
 colonies would have had little reason to break away from it. 
 
 What Locke’s system of the jus naturale was lacking in 
 particular and what must have seemed of vital importance to 
 the discontented American colonists, was the assertion of the 
 inalienability of freedom. While one or two sections of his 
 “Two Treatises on Government” (II, 23, 95) seem to imply 
 this assertion, there are other passages which state distinctly 
 that “men when they enter society, give up the equality, 
 liberty and executive power that they had in the state of 
 nature into the hands of the society to be so far disposed of 
 by the legislative as the good of the society shall require.” (131) 
 The only power which nobody can transfer to another is the 
 power over his own life. Whether the failure of Locke and his 
 immediate followers, Montesquieu and Rousseau, to recognize 
 the inalienableness of freedom was due to the illusion that the 
 democratic form of government as such insured the personal 
 freedom of the individual, an illusion which disregards the 
 tyranny of majority rule, or whether it was caused by Locke’s 
 secret reverence for the hereditary prerogatives of the British 
 crown, cannot be decided here. 
 
 The champions of the cause of the colonies, all assiduous 
 students of the law of nature, which furnished them with their 
 weapons, had to look elsewhere for the justification of severing 
 their allegiance to a government which, though claiming to 
 be founded on the laws of nature, did not recognize in its laws 
 the rights of the individuals and denied them the fundamental 
 rights of this law. They found this justification in the basic 
 principle of the jus naturale laid down for the first time in the 
 system of Chr. Wolff, according to which the right of freedom 
 is inalienable. Wolff arrives at this important principle by 
 distinguishing strictly between freedom in the original state of 
 nature and freedom in the state of society, and defines the 
 former as jus connatum and as such “homini ita inhaeret, ut 
 ipsi auferri non possit.” 6 This innate and inherent freedom 
 is not given up by man to the majority of the community, as 
 Locke and others teach, but is only restrained: “Imperium 
 civile cum metiendum sit ex fine civitatis, idem non extenditur 
 
 • Chr. Wolff: Institutiones juris naturae et gentium (1750), § 74. 
 
Jus Connatum and the Rights of Man 
 
 11 
 
 ultra eas civium actiones quae ad bonum publicum consequen- 
 dum pertinet; consequenter cum nonnisi quoad easdem libertas 
 naturalis singulorum restringatur, quoad ceteras actiones ea 
 illibata manet.” 7 
 
 The extraordinary esteem in which Samuel Pufendorf’s 
 great work “De jure naturae et gentium” (1673) stood at the 
 end of the seventeenth and the beginning of the eighteenth 
 centuries in Europe and America 8 was second only to the regard 
 in which Christian Wolff’s rigorously systematic and philo¬ 
 sophical book, “Institutiones juris naturae et gentium,” was 
 held since the middle of the eighteenth century. “The aca¬ 
 demies of Paris and London,” says Hettner, “made Wolff their 
 honorary member, and it was indeed an hitherto almost 
 unheard of event that the scientific writings of a German were 
 translated into nearly all living languages.” Especially strong 
 was his influence in France where Voltaire became an enthu¬ 
 siastic student of his philosophy, and the Journal des Savants, 
 the Histoire litteraire and the Journal de Trevoux published 
 large extracts from his writings. 
 
 How soon Wolff’s work on the jus naturale became known 
 in America cannot be definitely stated, but the fact that 
 Vattel’s book on the Law of Nature, a famous popularization 
 of Wolff’s system, is often quoted by John Adams, Samuel 
 Adams, Otis, Jefferson, Hamilton, and others, goes to show 
 that Wolff’s ideas had taken root in this country even before 
 his work was translated into French by E. Luzac in 1772. 
 
 There seems to be no question that as soon as in the political 
 discussions the rights of man are described as inherent and 
 inalienable, as is done by James Otis in his celebrated speech 
 on the writs of assistance delivered in Boston in 1761, the 
 influence of Wolff is evident. Moreover, the fact that in the 
 same speech Otis mentions the rights of mutual defense and 
 security, proves beyond a doubt that he knew Wolff’s list of 
 jura connata, a catalogue existing in no previous author: “Ex 
 
 7 Ibid., § 980. 
 
 8 The most striking example of the influence which Pufendorf, who held 
 the first professorship of International Law at the University of Heidelberg, 
 exerted upon early American political thought is the famous little book, A 
 Vindication of the Government of New England , published in 1717 by John 
 Wise, pastor at Ipswich, Mass. 
 
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 hactenus dictis patet, quaenam sint jura hominum connata, 
 nimirum jus ad ea, sine quibus obligationi naturali satisfied 
 nequit, sub quo comprehenditur jus petendi officia humani- 
 tatis, et alterum sibi obligandi ad ea perfecte, aequalitas, 
 libertas, jus securitatis et inde natum ius defensionis et jus 
 puniendi.” 9 It is no wonder that John Adams shuddered, as 
 he relates, to hear these doctrines whose import was so far 
 reaching, and that he considered American independence to 
 have been born then and there. 
 
 It is a most significant fact, hitherto overlooked, that 
 Wolff’s Institutiones Juris Naturae, in Luzac’s edition of 1772, 
 which prints the Latin text opposite the French translation, was 
 owned by Jefferson and shows a mark, presumably made by 
 him, opposite the Latin paragraph which treats of the right of 
 civil war: “differt a rebellione Bellum civile quo justa arma 
 adversus Rectorem civitatis sumunt subditi. Licitum igitur est 
 in omni casu, in quo Rectori civitatis resistere licet.” 10 In the 
 last part of the work numerous passages which treat of war and 
 neutrality are marked by Jefferson. While it is impossible to 
 determine the exact year when he purchased the book his manu¬ 
 script library catalogue shows that he possessed it previous to 
 March 6, 1783. 
 
 In view of these facts it is of great interest to examine the 
 Declaration of Independence with regard to the possible 
 influence which Wolff’s teachings might have had on Jefferson, 
 That the conception of the inalienable rights, especially of the 
 inalienability of the right of freedom, must be traced back to 
 Wolff has already been pointed out. Of the three rights listed 
 by Locke: life, liberty and property, the Declaration of Inde¬ 
 pendence has only life and liberty, adding in place of property 
 the pursuit of happiness. While the latter is not contained in 
 Wolff’s catalogue of rights, it appears among the objects for 
 which, according to Wolff, the State has been constituted: 
 “unde patet, pacto hominum civitates fuisse constituendas et 
 finem civitatis consistere in vitae sufficienta, abundantia eorum 
 ad vitae necessitatem commoditatem et jucunditatem requir- 
 untur ac mediorum felicitatis.” 11 The omission of the right 
 of property is all the more significant, since Locke, as has been 
 shown above, based the entire structure of his system upon 
 this conception. Whether Jefferson, with keen logical insight, 
 
 9 Ibid., §95. 
 
 10 Ibid., § 1233. 
 
 11 Ibid., § 972. 
 
Jus Connatum and the Rights of Man 
 
 13 
 
 considered the inalienability of property as debatable and 
 irrelevant as far as the great issue was concerned, or whether 
 he thought that the Declaration of Independence should be 
 based upon an interpretation of the law of nature different in 
 some essentials from that of Locke and his follower, Black- 
 stone, both of whom were after all loyal Englishmen, is difficult 
 to determine. 
 
 To justify the complete political separation from England 
 and the establishment of a new form of government, an exposi¬ 
 tion of the right of resistance that could furnish the legal basis 
 for these actions was necessary. What Locke had to offer as a 
 last resort in this respect was an appeal to Heaven. Wolff, 
 however, was far more explicit and radical in his teachings. 
 While he concedes to the individual only the right of passive 
 resistance against encroachments on his liberty, he declares 
 that the people as a whole, by whose consent the government 
 exists, are entitled to disobey and give active resistance when¬ 
 ever their constitutional rights are infringed, for with the 
 breach of the social compact the people return to the original 
 state of nature in which each individual protects his own 
 rights and the formation of a new government becomes 
 imperative. 
 
 That this train of reasoning is also at the bottom of Jefferson’s 
 arguments in support of the contention that “it is the right 
 and the duty of the people to throw off a government designing 
 to reduce them under absolute despotism and to provide new 
 guards for their future security” is quite evident. Nor can 
 the purpose of laying the long list of infractions of the rights 
 of the colonies directly at the door of the British king, the 
 Rector civitatis, 12 and not of the English Parliament which, of 
 course, was equally guilty of these infringements, be misunder- 
 
 12 The original draft of the Declaration of Independence reads, “the 
 present majesty,” which Benjamin Franklin changed into “the present King 
 of Great Britain.” 
 
 As a matter of historical interest it may be mentioned that among “the 
 injuries and usurpations” with which the King of Great Britain is charged 
 there appears in Jefferson’s original draft also the following: “he is at this time 
 transporting large armies of Scotch and other foreign mercenaries to compleat 
 the works of death,” etc. Why t,he Scotch , who were evidently classed as 
 foreigners with the so-called “Hessians” by Jefferson, were afterwards omitted 
 has not yet been explained. 
 
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 stood. Had Jefferson adhered to the fiction of the democracy of 
 the British government and accused the Parliament, his entire 
 argumentation would have collapsed and what he wished to have 
 considered an uprising against tyrrany, justifiable by the law 
 of nature, would have appeared an unwarrantable rebellion. 
 
 There is finally one more vital point of contact between 
 Jefferson’s Declaration and the system of Wolff. Although 
 Locke had succeeded in reestablishing the jus naturale of 
 stoicism, his own system lacked the metaphysical foundation 
 which the stoic doctrine possessed in the principle of the 
 universal reason, of which the jus naturale is a manifestation. 
 Without sacrificing the rationalistic character of his method or 
 of returning to the theological explanation of the natural law 
 of previous times, Wolff, following Leibniz, on the other hand, 
 declared that “autor legis naturae ipse Deus est et ad actiones 
 suas eidem confirmandas hominem obligat, sicque obligatio 
 naturalis etiam divina est et lex naturalis divina.” 13 The 
 spirit of Deism which dictated this explanation of the origin 
 of the law of nature would naturally appeal to Jefferson and 
 it is not difficult to see how it is reflected in the phrase: “that 
 they are endowed by their creator with certain inalienable 
 rights.” 14 The jus connatum is, therefore, in the last analysis 
 a divine law and its inalienability follows from its divine 
 character. 
 
 By this allusion to the divine origin of the law of nature 
 the doctrine of the inalienable rights of man became a message 
 whose inspiring ring acted with irresistible force especially 
 upon the masses. What had been slowly evolved in the quiet 
 workshop of the thinkers and teachers now loomed in historical 
 reality by the establishment of a democracy such as the world 
 had not seen before. 
 
 The student who follows the history of natural law from 
 its beginnings among the stoics to its consummation in the 
 declaration of the rights of man, is impressed with the fact that 
 he is face to face with one of the most potent forces at the 
 
 13 Wolff, Institutiones, § 41. 
 
 14 It is most significant that in the original draft of the Declaration of 
 Independence, Jefferson intended to deduct the inalienable rights from the 
 equality of all men: “that from that equal creation they derive in rights 
 inherent and inalienable.” 
 
Jus Connatum and the Rights of Man 
 
 15 
 
 root of the historical process since the decline of antiquity. 
 Determined in its growth by great political and social events, 
 the doctrine of natural law not only accompanies these events 
 but also in many instances furnishes and spreads the ideas 
 which shape them. Its main efforts are directed toward a 
 transformation of existing social and political conditions and 
 toward the establishment of a new and more desirable state of 
 human affairs in the future. 
 
 The real motive power behind this progressive tendency, 
 however, was the exalted conception of nature as the original 
 source of truth, goodness and right and, above all, the ideal of 
 man and humanity which had been carefully fostered by 
 thinkers and poets ever since the time of the Renaissance, an 
 ideal which, moreover, acquired a new lustre with the dis¬ 
 covery of the inalienability of the rights of man. 15 
 
 The victory of man’s rights in the political sphere was 
 therefore felt essentially as a triumph of humanity. For this 
 reason Klopstock, the apostle of humanity, hails the American 
 revolution with the lines: 
 
 Ein hoher Genius der Menschlichkeit 
 Begeistert dich! 
 
 Du bist die Morgenrote 
 Eines nahenden grossen Tages. 16 
 
 In a later ode entitled, “Der Freiheitskrieg,” he greets the 
 French Revolution, before its pledges and promises had been 
 broken, in a similar strain: 
 
 Weise Menschlichkeit hat den Verein zu Staaten erschaffen, 
 
 Hat zum Leben das Leben gemacht. 17 
 
 15 An excellent illustration of the high conception of nature which inspired 
 the advocates of natural law is furnished by the following extract from Wolff’s 
 dedication of his Institutiones : “Actionum humanarum bonitatem, aequitatem 
 et rectitudinem non facit hominum opinio, quae stabilis non permanet, nec 
 sibi in omnibus consentit, sed ut sint bonae, ut rectae, id ab ipsa hominum 
 natura venit, et in rerum essentia atque natura rationem sufficientem habet. 
 Differt igitur ab opinione veritas, quae aeternitatem et sempiternitatem ab ipsa 
 hominum atque rerum essentia et natura immutabili trahit . . . Haec ratio 
 me permovit, ut castum illud et sanctum jus, quod ipsa natura inter homines 
 singulos atque gentes constituit, inconcussum felicitatis totius generis humani 
 fundamendum, et ipsa natura humana continuo nexu . . . redigerem,” etc. 
 
 18 Der jetzige Krieg (1781). 
 
 17 Der Freiheitskrieg (April, 1792). 
 
16 
 
 Goebel 
 
 There is no question that Goethe, as has already been 
 stated, while a student of law at Leipzig and Strassburg, 
 became intimately acquainted with Wolff’s system of natural 
 law and his doctrine of the jus connatum. How deeply this 
 doctrine impressed him can be seen from the fact that years 
 before the innate and inherent rights became the political 
 watchword in America and France, he made the idea of con¬ 
 genital origin his own to express the birthright of genius and 
 personality. Hence the epithet “mitgeboren,” a direct trans¬ 
 lation of connatum, which he employs to characterize the 
 endowments which nature has given man. Thus he speaks of 
 the innate grace of true womanhood as “mitgeborner Anstand” 
 and calls his own destiny “fatum congenitum.” A striking 
 example of the use he makes of Wolff’s conception of “conna¬ 
 tum” occurs, moreover, in the dramatic fragment, “Prome¬ 
 theus,” of the year 1773 in which the young poet draws a 
 remarkable picture of the communio primaeva, as Wolff and 
 others before him call the state of nature in which men lived 
 before positive laws were established. The similarity between 
 this picture and Wolff’s description of the original state of man, 
 which is essentially that of the stoics, precludes the suggested 
 influence of Rousseau’s “Discours sur l’inegalite” (1758), a 
 work based wholly upon Epicurean theories of the status 
 originarius , 18 It is characteristic of Goethe’s early attitude of 
 indifference toward political questions that his sketch of the 
 primitive state of man suggests the origin of the right of 
 property but in no way alludes to the beginning of government. 
 What at the time interested the poet chiefly was the modern 
 ideal of man as a free and self-responsible being, personified 
 in Prometheus, who defiantly proclaims for himself and the 
 generation created by him, the right of shaking off the yoke of 
 servitude which the gods had placed upon him. His former 
 religious faith has yielded to an unlimited self-confidence that 
 recognizes neither divine origin nor dependency upon the gods. 
 Even the inspirations of the godess of wisdom, his only friend 
 among the Olympian powers, he declares to be “mitgeborne 
 Harmonien” to which he alone has a right. 
 
 18 See F. Saran, Goethe’s Mohamet und Prometheus, Halle, 1914. 
 
Jus Connatum and the Rights of Man 
 
 17 
 
 The intimate relationship existing between the rebellious 
 spirit of the Prometheus fragment and the insurgent temper of 
 the subsequent revolutionary movements was recognized by 
 Goethe himself when, in later years, he called his Prometheus 
 the “gospel for our revolutionary youth” and “the priming of 
 an explosion.” 
 
 It was at the time when the firsts bursts of thunder an¬ 
 nounced the approach of the storm of insurrection against 
 tyrannical oppression that Goethe wrote the famous lines in 
 defense of the jus connatum quoted at the beginning of this 
 paper, summing up in a single epigrammatic phrase the funda¬ 
 mental issue of the great revolutionary struggle. How deeply 
 Goethe was affected by the enthusiastic hopes which the 
 declaration of human rights in America and afterwards in 
 France had aroused in Germany may be seen from the well 
 known passage in “Hermann and Dorothea”: 
 
 Denn wer leugnet es wol, dass hoch sich das Herz ihm erhoben, 
 
 Ihm die freiere Brust mit reineren Pulsen schlug, 
 
 Als sich der erste Glanz der neuen Sonne erhob, 
 
 Als man horte vom Rechte der Menschen, dass alien gemein sei, 
 
 Von der begeisterten Freiheit und von der loblichen Gleichheitl 
 Damals hoffte jeder, sich selbst zu leben, es schien sich 
 Aufzulosen das Band, das viele Lander umstrickte, 
 
 Das der Miissiggang und der Eigennutz in der Hand hielt. 
 
 O, wie froh ist die Zeit, wenn mit der Braut sich der Brautigam 
 Schwinget im Tanze, den Tag der gewiinschten Verbindung erwartendS 
 Aber herrlicher war die Zeit in der uns das Hochste, 
 
 Was der Mensch sich denkt, als nah und erreichtbar sich zeigte. 
 
 Da war jedem die Zunge gelost, er sprachen die Greise, 
 
 Manner und Jiinglinge laut voll hohen Sinns and Gefiihles. 
 
 Unfortunately this glorious time did not last long and the 
 disillusionment which the subsequent events in France brought 
 to Klopstock and other noble spirits of this period, also seized 
 Goethe. Hence he continues in “Hermann und Dorothea”: 
 
 Aber der Himmel triibte sich bald. Um den Vorteil der Herrschaft 
 Stritt ein verderbtes Geschlecht, unwiirdig, das Gute zu schaffen. 
 
 Sie ermordeten sich und unterdriickten die neuen 
 Nachbarn und Briider. 
 
 Nevertheless Goethe did not abandon his faith in the message 
 of the rights of man, and for his defense of his mission as a poet 
 
18 
 
 Goebel 
 
 expressed in the famous lines of Faust, I. 135 ff., he knows of 
 no higher appeal than that of his sacred human right. 
 
 There has been a tendency both in Europe and in America 
 during the last decades to disregard and to disparage the law of 
 nature upon which the declaration of our independence rests. But 
 no tyranny, whether of autocracy or pseudo-democratic majority 
 rule, will succeed in smothering its immortal spirit, 19 nor will 
 any philosophic or religious doctrine destroy the innate belief 
 of man that he carries the oracle of divine nature in the secret 
 recesses of his soul. Here originate our conceptions of truth 
 and right and here is born the will to avenge nature when it 
 has been desecrated and outraged by man. Whenever the old 
 order of things must be demolished to inaugurate a new day 
 for humanity, the law of nature will again be conjured and the 
 poet’s immortal words will come true: 
 
 Wenn der Gedriickte nirgends Recht kann finden, 
 
 Wenn unertraglich wird die Last—greift er 
 Hinauf getrosten Mutes in den Himmel 
 Und holt herunter seine ewigen Rechte, 
 
 Die droben hangen unverausserlich 
 Und unzerbrechlich, wie die Sterne selbst— 
 
 Der alte Urstand der Natur kehrt wieder, 
 
 Wo Mensch dem Menschen gegeniiber steht— 
 
 Zum letzten Mittel, wenn kein andres mehr 
 Verfangen will, ist ihm das Schwert gegeben. 
 
 Julius Goebel. 
 
 19 C/. Jefferson’s opinion expressed in a letter to James Madison (1787): 
 “I hold it that a little rebellion now and then is a good thing and as necessary 
 in the political world as storms in the physical. Unsuccessful rebellions indeed 
 establish the encroachments on the right of people which have produced them.” 
 
 . . . Again in another letter of the same year he says: “God forbid we should 
 
 ever be twenty years without such a rebellion [as Shay’s] ... If they 
 [the people] remain quiet . . . it is a lethargy, the forerunner of death to 
 the public liberty. . . . What country can preserve its liberties if their 
 
 rulers are not warned from time to time that their people preserve the spirit 
 of resistance.” 
 
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