THE BASIC PRINCIPLE.

When the Constitution of our country came before the several states for ratification, Virginia and some of the others sent with their proofs of ratification the following emphatic statement:

"That there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety."

To give further assurance and protection to this statement of human rights, the first ten amendments to the Constitution were immediately promulgated and adopted. It was tacitly agreed that they should be submitted and adopted before the Constitution itself took effect.

In that simple statement were embodied the highest aspirations of mankind. It realized the hopes and dreams of centuries. It followed the Declaration that all men are divinely endowed with life and certain personal rights, and for the purpose of protecting that life and those rights, governments were established; that no government gave them and no government could take them away. They antedate all government.

Two of the greatest justices of our highest judicial tribunal have written concerning this proposition with such clearness and eloquence that I desire here to call attention to what they wrote:

"As in our intercourse with our fellow-men certain principles of morality are assumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all action, and upon a recognition of them alone can free institutions be maintained. These inherent rights have never been more happily expressed than in the Declaration of Independence, that new evangel of liberty to the people: 'We hold these truths to be self-evident'-that is so plain that their truth is recognized upon their mere statement-'that all men are endowed'-not

by edicts of Emperors, or decrees of Parliament, or acts of Congress, but 'by their Creator with certain inalienable rights'—that is, rights which cannot be bartered away, or given away, or taken away except in punishment of crime-'and that among these are life, liberty and the pursuit of happiness, and to secure these'-not grant them but secure them— 'governments are instituted among men, deriving their just powers from the consent of the governed.'

"Among these inalienable rights, as proclaimed in that great document, is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment.

"The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must, therefore, be free in this country to all alike upon the same conditions. The right to pursue them, without let or hindrance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright.

"It has been well said that, "The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty, both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.' Adam Smith's Wealth of Nations, Bk. I., Chap. 10.

"In this country it has seldom been held, and never in so odious a form as is here claimed, that an entire trade and business could be taken from citizens and vested in a single corporation. Such legislation has been regarded everywhere else as inconsistent with civil liberty. That exists only where every individual has the power to pursue his own happiness according to his own views, unrestrained, except by equal, just and impartial laws. . . With what intense indignation would a law be regarded that should, in like manner, turn over the common trades of the community to a single corporation. I cannot believe that what is termed in the Declaration of Independence a God-given and an inalienable right can be thus ruthlessly taken from the citizen, or that there can be any abridgment of that right except by regulations alike affecting all persons of the same age, sex, and condition. It cannot be that a State may limit to a specified number of its people the right to practice law, the right to practice medicine, the right to preach the gospel, the right to till the

soil, or to pursue particular business or trades, and thus parcel out to different parties the various vocations and callings of life."1

"The right to follow any of the common occupations of life is an inalienable right; it was formulated as such under the phrase 'pursuit of happiness' in the Declaration of Independence, which commenced with the fundamental proposition that 'all men are created equal, that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.' This right is a large ingredient in the civil liberty of the citizen. To deny it to all but a few favored individuals, by investing the latter with a monopoly, is to invade one of the fundamental privileges of the citizen, contrary not only to common right, but, as I think, to the express words of the Constitution. It is what no legislature has a right to do; and no contract to that end can be binding on subsequent legislatures."2

"I hold that the liberty of pursuit-the right to follow any of the ordinary callings of life-is one of the privileges of a citizen of the United States. It was held by a majority of the court in the former decision of the Slaughter House Cases, 16 Wall. 36, 57, that the 'privileges and immunities of citizens of the United States' mentioned and referred to in the Fourteenth Amendment, are only those privileges and immunities which were created by the Constitution of the United States, and grew out of it, or out of laws passed in pursuance of it. I then held, and still hold, that the phrase has a broader meaning; that it includes those fundamental privileges and immunities which belong essentially to the citizens of every free government, among which Mr. Justice Washington enumerates the right of protection; the right to pursue and obtain happiness and safety; the right to pass through and reside in any State for purposes of trade, agriculture, professional pursuits or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; and to take, hold, and dispose of property, either real or personal. Corfield v. Corryell, 4 Wash. C. C. 371, 381. These rights are different from the concrete rights which a man may have to a specific chattel or a piece of land, or to the performance by another of a particular contract, or to damages for a particular wrong, all of which may be invaded by individuals; they are the capacity, power, or privilege of having and enjoying those concrete rights, and of maintaining them in the courts, which capacity, power, or privilege can only be invaded by the State. These primordial and fundamental rights are 'the privileges and immunities of citizens,' which are referred to in the Fourth Article of the Constitution and in the Fourteenth Amendment to it."3

In the Constitutions of Kentucky and Wyoming is this provision: "Absolute and arbitrary power over the lives, liberty and property of freemen, exists nowhere in a re

1 Justice Field in 111 U. S. 756, 757, 758.

2 Justice Bradley in 111 U. S. 762. 3 Idem.

public, not even in the largest majority." It is another statement of the proposition of the Massachusetts Bill of Rights that the government of the Commonwealth must be a government of laws and not of men, "for the very idea that one man may be compelled to hold his life or the means of living or any material right essential to the enjoyment of life, at the will of another, seems to be intolerable, in any court where freedom prevails, as being the essence of slavery itself."

That distinguished scholar and statesman, Henry Cabot Lodge, in a most interesting and instructive address, after stating that socialism is as old as human nature, for it appeals to the strong desire in every man to get something for nothing, and have some one else bear his burdens and do his work for him, thus declares:

"Broadly stated, there have been only two market additions to theories or principles of government since the days of the Greeks and the Romans. One is the representative principle developed by the people of England in the 'Mother of Parliaments,' and now spread all over the world, and the other is the system of federation on a large scale, embracing under a central government of defined powers a union of sovereign and selfgoverning States, which the world owes in its bold and broad application to the men who met at Philadelphia to frame our Constitution in 1787.

"With these exceptions, the framers of the Constitution dealt with the theories and systems of government which have been considered, discussed, and experimented with for more than two thousand years, and which are today, a century later, the same as in 1787, unchanged and with no additions to their number."

We believe that the learned Senator's remarks are only partially correct in that he has omitted to mention the great constitutional principle which first found recognition on American soil. It is the inherent limitation upon the powers of all government to which we have already adverted. This has been the declaration of our highest courts and has been an accepted principle of our constitutional law.

In what other land or country has it found the same recognition? When our constitution was written the entire

theory of sovereignty of England was antagonistic to ours. The rights of the people there were extorted from the crown. With us, it has always resided in the peoplewith the ruled and not with the rulers. It will be remembered that the Magna Charta was extorted from the King and merely gave security against the oppressions and usurpations of his prerogatives. It did not protect the people of England against the powers of Parliament. We are therefore aware that bills of attainder, ex-post facto laws, laws declaring forfeitures of estates, laws requiring men to work at fixed sums or go to jail, confining them to a fixed locality, prescribing the clothing they should wear and the food they should eat, the hours they should sleep, all these things were not considered inconsistent with the Magna Charta. "The omnipotence of Parliament over the common law was absolute even against common right and reason.'

President Garfield, when in the Senate, speaking of the fundamental principle which entered into the composition and structure of our constitution, said:

"Whence came the immortal truth of the declaration? To me this was for years the riddle of our history. I have searched long and patiently through the books of the doctrinaires to find the germs from which the Declaration of Independence sprang. I find hints in Locke, in Hobbes, in Rousseau, and Fenelon; but they were only the hints of dreamers and philosophers. The great doctrines of the Declaration germinated in the new influences of this wilderness world, by the same subtle mystery which brings forth the rose from the germ of the rose tree. Unconsciously to themselves, the great truths were growing under the new conditions, until, like the century plant, they blossomed into the matchless beauty of the Declaration of Independence, whose fruitage, increased and increasing, we enjoy today."

The blessings of the liberty secured by our constitutional law were not merely freedom from imprisonment or freedom of locomotion, but the highest freedom that could be allowed in all the affairs of life. It included the right of every person to use his brains, to employ or sell his labor, in every honest employment, occupation or pursuit, to freely contract with respect thereto and to retain all that he could