makes a state of war."

The man who makes war upon another is a wolf or lion, and may be killed as such.1

Against Grotius, Hobbes, and Pufendorf, Locke asserted that man could not by free consent or compact enslave himself or give to another absolute and arbitrary power over himself. This inalienability of freedom was later insisted upon by the Massachusetts patriots, Otis, and John and Samuel Adams, and by the American Bills of Rights. "No man can, by agreement," says Locke," pass over to another that which he hath not in himself, a power over his own life." Preservation of property is the chief purpose of leaving the natural state and forming government. Though men are free in the state of nature, the enjoyment of their rights is uncertain, inasmuch as the Law of Nature, though plain and intelligible to all rational creatures, is not of sufficient compulsory authority. Known and indifferent judges are also lacking, as is the power to execute sentence. On joining political society men give up the power to execute the Laws of Nature. But though they give up to society their natural equality, liberty, and executive power, it is only to secure life, liberty, and property more effectively. It would be irrational to change one's condition in order to render it worse. The power of society over its members does not extend any further than the common good requires.2

Locke asserts that the earth was originally given by God to all men in common. Every man, he says, has a property in his own person. "The labor of his body and the work of his hands, we may say, are properly his." By labor man removes things from the state of 1 Of Civil Government, Ch. 3.

2 Ibid., Ch. 9.

nature and acquires property in them. As the labor belongs to each man alone, so that becomes his to which he has joined his labor.1 Each man has free disposition over his property according to his own will, within the compass of law. The preservation of property is, according to Locke, one of the chief ends of government. No person, not even the supreme ruler in the State, can take away from any man a portion of his property without his own consent.

It was of great importance that Locke, unlike Hobbes and afterward Rousseau, maintained that the Laws of Nature do not lose their force after men enter society. These laws do not only apply in the state of nature. Indeed, after the formation of political society, the force of these laws has increased, for now penalties are attached to breaking them. The Laws of Nature are eternal rules, forming the standard according to which legislators shall frame the positive laws of the State. Neither do men lose their natural freedom and equality. There is only such a sacrifice of this natural liberty made as is absolutely necessary to the formation of the State and the establishment of government. Men do not relinquish their natural freedom in order to become slaves. They seek security for their natural rights. It is this view from which the idea arises of setting forth the Rights of Man in a solemn declaration, as was done by the Americans in their Bills of Rights, and subsequently by the French in their Declaration of the Rights of Man and of the Citizen.

CHAPTER III

THE EIGHTEENTH CENTURY

WE have seen how the conception of the Law of Nature, which originated in early Greek philosophy, has steadily increased in dignity and importance, having been finally worked up into a system by such writers as Grotius, Pufendorf, and Locke.

The basis of Natural Law was the idea that there exists an essential justice, which is the same for all men of whatever race or State they might be members. The Laws of Nature were considered as being independent of tradition; as being given with the constitution of man; as being founded in reason, and as being unchangeable by any human, or even divine, power. These Laws of Nature were of course not legally binding upon men, since there was no authority to impose a penalty upon their infraction. But they were regarded as morally binding upon all men. It was a question of ought. The positive laws of every State ought to conform to the Laws of Nature. The citizens of every land ought to enjoy their natural rights; their rights as men; the rights to which the constitution and needs of human nature entitle them. These rights might be denied them in any State; but the denial meant that the government exceeded its just powers and had become tyrannical. Of course, de facto the sovereignty of the State is unlimited. Should it be de jure? Should there

be a sphere within which the State must not interfere; namely, the sphere of the rights each citizen ought to possess as an individual, as a man? These questions were by the writers on Natural Law answered in the affirmative. They often forgot, however, that these so-called Laws of Nature are only morally, not legally, binding.

It is evident that the theory of Natural Law is admirably adapted to become the theory of revolutions, whereby the ordinary course of custom and tradition is interrupted and new standards are sought. When men are dissatisfied with things as they are, they will inquire, How ought conditions be? At such times they will ask for the reason back of customs and institutions.

It was but natural that the doctrines of Natural Law should be employed during the American, and more especially during the French, Revolution to attack abuses which had accumulated for centuries. Natural Law taught that men were naturally free and equal; that such rights as freedom of conscience, of religious worship, of speech, of the press, of public meeting, followed from the very constitution of human nature; that, given the personality of man, these rights are absolutely necessary to secure its development. The actual condition of affairs was far from agreeing with these demands of Natural Law in the Europe of the eighteenth century.

Not only did the disparity between theory and actual conditions render the doctrines of Natural Law dangerous to the order of things prevailing during the eight eenth century, but the danger had become particularly great, because of the general spread of these views, which was a consequence of the advance and wide dissemination of education.

Natural Law had a peculiar attraction for the people who lived at this period. It was a period during which men were singularly devoid of reverence for the past. The historical spirit was lacking. There was a general longing to be freed from the thraldom of antiquated customs and institutions. The foundations of things were examined. The fact that privileges had existed for ages was no longer regarded as a sufficient title why they should exist forever.1 Reason was regarded as the panacea for all human ills. No other age had such a faith in the perfectibility of things. It was believed that the Golden Age could be realized by enthroning Reason. The application of reason to science resulted in a wonderful advance of human knowledge at this time. It was held that laws and political institutions must also conform to reason. The simple and perfect Laws of Nature were regarded as immeasurably preferable to the multitudinous and conflicting laws of the existing type.

Another reason for the popularity of Natural Law was the universal desire for individual liberty which marks this epoch. To the people of this period the constant meddling of the government in private affairs, carried on to a ridiculous extent, had grown almost intolerable. They sighed for liberty, for the free disposition of themselves and their property. They longed to be rid of the shackles of custom. As a reaction against paternalism and overcentralization the desire arose to restrict the interference of the State to a minimum. This movement culminated in the writings of Kant, Fichte, W. von Humboldt, John Stuart Mill, and Herbert Spencer.

'See Chapter 13 of De Tocqueville, L'ancien régime et la révolution.