munity. In prisons, in workhouses, in industrial schools, provision is most carefully made by statute that children are to be brought up in their father's religion. Take, for example, the following section of the Reformatory Schools Act, 1866 : In choosing a certified reformatory school, the Court, justices, magistrate, or visiting justice shall endeavour to ascertain the religious persuasion to which the youthful offender belongs, and, so far as is possible, a selection shall be made of a school conducted in accordance with the religious persuasion to which the youthful offender appears to the Court, justices, magistrate, or visiting justice to belong, which persuasion shall be specified by the Court, justices, magistrate, or visiting justice. The right of the father, then, so confidently and so ignorantly denied, is emphatically recognised by English law. Has it no deeper foundation, no auguster sanction? I am well aware that the great majority of publicists in this country would answer that question in the negative. Matthew Arnold was not in error in calling the doctrine that "all rights" (all, note, without exception) "are created by law, and are based on expediency, and are alterable as the public advantage requires," "the English doctrine.' Nay, he blesses and approves it as the "sound" English doctrine, and, what is more, as his own: "that orthodox doctrine is mine." I wonder whether the accomplished scholar who thus wrote remembered that the doctrine so glorified is precisely the doctrine of the sophists which Plato refuted by arguments as valid now as they were two thousand years ago. But let us consider this "sound English doctrine " a little in the light of first principles. What is a right? It is evidently something which cannot be seen, touched, tasted, or handled: something beyond the grasp of the senses something immaterial. Physical science knows nothing of rights; it is concerned only with facts. For the very notion of a right we must go to an order of verities transcending the visible and tangible universe to what Aristotle called Tà μETÀ TÀ QUσiká, to metaphysics, to supersensuous realities. Yes, I am afraid a right must be described-there is no help for it as that thing so deeply detested by an influential school at the present day, a metaphysical entity; nor do I think that. can improve upon the old definition of it as "a moral power residing in a person, in virtue of which he calls anything his own." Note, please, the words "moral" and "person." My dog's collar happens to lie before me on the table as I write. It belongs to me. Why? In virtue of my right to property as a person. I have bought it; that is to say, I have obtained it from another, with his free consent, in exchange for something else which was mine: the power by virtue of which I call it my own, rests upon the ethical exercise of my personality. It would not belong to a thief who stole it; he is a person indeed, but he would have obtained it by an unethical exercise of his personality his power over it would not be moral. It cannot belong to my dog who wears it, because he is not a person he does not even belong to himself, but to me. Personality-the ethical idea and psychological being of man-is the source and fount of that moral power termed a right in virtue of which we call anything our own. Man alone of all the animals, as Aristotle puts it, is free; he exists for himself and not for another. He has an indefeasible right to live out his own life he has an indefeasible right to what is necessary to enable him to do that. And property is necessary-necessary to the true idea of human personality in this workaday world, to its full explication, its complete development. Hence it belongs to the moral realm, the realm of rights: it is one of the natural rights of man.' It is, in its original idea, the fruit of a man's labour and abstinence: that is, of the ethical exercise of his personality it is realised liberty. It is not the creation of the State. What its relation is to the State we shall see presently. Such is the true account of the right of property. It really flows from a man's natural right to the self-determined use of his faculties, mental and physical, which is personal liberty. Another manifestation of man's aboriginal right to freedom is his right of existence-liberty to live. And yet another is his right to political liberty-the right to be considered in the legislation and government of the commonwealth, for he is not a thing-an instrument for the use of another-but a person. These are among the rights of men which may properly be called natural, as issuing from the nature of things, as attaching to that attribute of personality which is the very ground of human nature. But these aboriginal rights of the individual are not, of course, absolute. They are conditioned by duties, and if the duties are disdained, they may lose their character and become wrongs; they are strictly fiduciary and are subject to that eternal rule of justice which we call the moral law, and which is a natural and permanent revelation of the Reason. (1) But it belongs, according to the accurate distinction of the Schoolmen, to the secondary sphere of such rights, and not, like the right of existence, to the primary sphere. And so it has to give way to that higher right, if the two come into conflict. It is the common teaching of the greatest masters of ethical science, and has been for the last thousand years, that extreme necessity makes all things common; so that a man, who through no fault of his own, is in danger of perishing by hunger, may, without culpability, take from another, even against the other's wish, what is necessary for the sustentation of life. For these rights are but the subjective expressions of Right. We may say of them, in the words of the tragic poet, that "they live for ever, and no one knows their birthtide." They are anterior to positive law and human convention. Surely this is evident. Imagine a number of settlers in a new country outside the jurisdiction of a State, before they have had time to frame a polity. Are they, then, devoid of these rights? Have the personal prerogatives of the individual man no validity against the passion or caprice of his fellow? But we are told that all rights arise from a contract, express or implied. As a matter of fact, human society is not founded upon a contract, although I allow a virtual compact whence is derived the binding obligation of laws regarding things in themselves indifferent. But if the rights of which I have been speaking exist at all—and, in practice, everyone admits their existence-they possess universal validity. A contract may or may not be it is contingent. But these rights must be they are absolute. What is necessary and immutable cannot proceed from the accidental and changeable. These rights are, as I said, subjective expressions of Right: and, Trendelenburg well observes, "it is the very office of Naturrecht to deduce them, in their multiform aspects, from the selfsame fount, so that they may be exhibited as governed by the unity of an inherent co-ordinating thought.' We may demur-every scientific jurisprudent must demur-to many, I might say to most, propositions in the famous Declaration of the Rights of the Man and the Citizen which served as the manifesto of the French Revolution. But, at all events, the document has the merit of asserting that man has "natural inalienable and sacred rights." Green, indeed, more accurately puts it that there is "a system of rights and obligations which should be maintained by law, whether it is or is not, and which may properly be called natural." This is what "the law of nature" meant for the great Roman jurists; this is what the phrase means for the illustrious jurisprudents of Germany who follow in their footsteps. Curiously enough, their teaching has been much misconceived by a distinguished English writer whose work for ancient law and early institutions I should be the last to undervalue. Sir Henry Maine tells us, "The law of nature,' as the Roman jurisconsults conceived of it, "confused the past and the present"; "it implied a state of nature which once had been regulated by natural law," while "for all practical purposes it was something belonging to the present, something entwined with existing institutions, something which could be distinguished from them by a competent observer." I believe that for (1) See Ancient Law, c. iv. the Roman jurisconsults the law of nature did not imply "a state of nature which once had been regulated by natural law." They regarded it as belonging to the domain of the ideal, as the type to which positive law should endeavour, as far as may be, to approximate; but they were well aware that the approximation must vary, indefinitely, according to social conditions. Following the teaching of the philosophers of the Porch, they deemed of the law of nature as an objective law of righteousness, embodied in, and learnt from, the highest part of nature-Reason. And they identified this jus naturale with the jus gentium, because it is found in all countries, and is applicable to all men on whose hearts and consciences it is written. Its dictates are the body of rights, "the obligatoriness of which," to quote the words of Kant, can be recognised by the rational faculty a priori." This is, in Burke's magnificent language, "that great immutable, pre-existent law, prior to our devices and prior to all our sensations, antecedent to our very existence, by which we are knit and connected in the eternal frame of the universe, out of which we cannot stir." "This law," Cicero declared two thousand years before, "no nation can overthrow or annul; neither a senate nor a whole people can relieve us from its injunctions. It is the same in Athens and in Rome; the same yesterday, to-day, and for ever.' This is the law of which Hooker majestically proclaims, "Her seat is the bosom of God, her voice the harmony of the world: all things in heaven and earth do her homage; the very least as feeling her care, and the greatest as not exempted from her power.' 66 When we speak, then, of the law of nature, we mean an order or standard of right not made by man, the obligatoriness of which, to use the words of Kant, which we shall not better, "can be recognised by reason, a priori." It is the ideal type to which positive law should ever more and more approximate, though it can never be wholly realised in human enactments. Positive law, we may say, does not make right, but merely declares it. The office of positive law is to clothe right with might, to give right validity in civil society, to convert "ought" into "is." Human law, properly considered, is not what Mirabeau called it, "a caprice" it is the rational or ethical will-the two adjectives mean the same-of the commonwealth; or, to quote the wellknown dictum of Kant, "the expression of the reason (Vernunft) common to all." It is the recognition and sanction by the State of a portion of that system of correlative rights and duties which Reason itself reveals. Heraclitus summed the matter up long (1) Cicero, in the De Officiis, calls it, very happily, "ipsa naturæ ratio quæ est lex divina et humana." ages ago: "All human laws receive their life from the One Divine Law"-the Law of Nature and Reason. And so Aquinas: “A human law bears the character of law so far as it is in conformity with right reason; and, in that point of view, it is manifestly derived from the Eternal Law. But inasmuch as any human law secedes from Reason, it is called a wicked law; and to that extent it bears not the character of law, but rather of an act of violence."1 Or, as he elsewhere puts it,2 "Laws enacted by men are either just or unjust. If they are just, they have a binding force in the court of conscience from the Eternal Law, whence they are derived. . . . Unjust laws are not binding in the court of conscience, except perhaps for the avoiding of scandal and turmoil." And now to return to the immediate subject of this paper. I say that the authority of the father, rightly recognised and enforced by the law of England, has a yet higher sanction: the sanction of that "law of nature and of nations" whence our jurisprudence derives its light and life. "Family and household rights," Green admirably points out, "do not arise from the existence of the State, but are antecedent to it" The authority of the father is a natural right, or, in the words quoted from Lord O'Hagan, "a very sacred thing bestowed by the Almighty, and to be sustained to the utmost by human law." It is not, of course, from the merely animal function of generation that the authority and right of the human father arise. Trendelenburg forcibly insists that the patria potestas is not derived only from the physical act of procreation, which is the material basis, but from the spiritual and moral ground of man's spiritual and moral nature. He adds that the right of the father is accompanied by the duty of labouring for the ethical good of the family of which he is the head, of bringing up his children as ethical beings, that is, as men. Moreover, the authority of the father manifestly exists not only for his own sake and the sake of his children, but for the sake of the community as well. It is the very first principle and root of the family and the family is the true foundation of the State. 3 That is a truth upon which we cannot too emphatically insist in this age. It is an age of dissolvent individualism-that is part of the legacy which has been left to us by the French Revolution. Whatever the French Revolution was or was not, no one can doubt that it was an attempt to translate into fact the political and social sophisms of Rousseau. The underlying doctrine of that great Anarch was that the individual-the abstract man, (1) Summa Theologica, 1, 2, q. 93, a. 3, ad. 2. p. 536. |