Open main menu

Page:Harvard Law Review Volume 1.djvu/275

This page has been proofread, but needs to be validated.

basis are frequently met. But a little reflection will be apt to lead to a universal admission that the standard of right to which George appeals is valid. Little children in their play vaguely perceive and roughly act upon it in adjudging some of their fellows fair and others unfair. Our conduct in matters outside the domain of positive law, in a social club, for instance, is governed by it. In desperate emergencies, as at Cape Sabine, we unflinchingly exact the forfeiture of life itself from the man who will not conform to it. By its light, as by a beacon, our courts steer in construing constitutions and statutes, and in modifying the traditions of the common law to meet changed conditions. By that standard and no other the people of the United States of America are guided when the question is of breaking the ties of government, of establishing a new government, of making or amending constitutions, of framing statutes. I say, that in all such matters we are dominated by our natural conception of right; it is at least true that when the question is put point-blank, and must be answered categorically, we confess that we ought to be.

George’s notion of natural rights differs in no way from the commonly accepted notion. He perceives the natural differences among men in mental, physical, and moral qualities, and he accepts such differences as facts without accusing God or nature of injustice in so ordering them. But when the question is of the relations of human beings among themselves, he says (and who does not agree with him?) that each, as against all others, and so far as interference with him by them is concerned, is entitled to himself, to his life, to his liberty, to the fruits of his exertions, to the pursuit of happiness, subject only to the equal correlative rights of every other human being. Nor is he peculiar in his general idea of the functions of government and the proper scope of positive law. In his view the primary function of government is the establishment of justice by securing to all the human beings within its jurisdiction their natural rights; and it is a perversion and abuse of government if it perform other functions otherwise than in subordination to that primary function, or if it make and enforce laws which abridge or deny those natural rights.[1]

  1. It is important to emphasize the fact that George’s ultimate principles as to the rights of men and the functions of government are the same as those now generally accepted, for, the fact being so, there is evidently common ground for argument, and a fair prospect that argument will be fruitful of valuable results. The current notions