findeth me shall slay me," because it is written in the hearts of mankind. Kant has been anticipated by Locke in grounding laws of right in human nature; because to Locke laws must conform to a rule of reason, and crime consists "in violating the laws, and varying from the right rule of reason, whereby a man so far becomes degenerate and declares himself to quit the principles of human nature and to be a noxious creature."2

The state of nature, however, wherein each has a certain legislative and executive power as well as being judge of his own case, carries with it such inconveniences as make necessary the formation of a Civil State. A political or civil society is formed when any number of men unite into one society, each agreeing to resign the executive power he held in nature in favor of the public. In the civil society so constructed each binds himself to be ruled by the determinations of the majority.3 One of the chief needs for a civil government is in the regulation and preservation of property. The right to property is based upon labor, since only he may appropriate a portion of goods out of the state of nature and call it his own who has 'mixed his labor with it.'4 Hence cultivating the land and having dominion over it are joined together. Furthermore, a man should have as much as he can make use of and not more than that.

The doctrines of the Declaration of Independence, according to Professor Ritchie,5 resemble far more closely the views of Locke than those of Rousseau. He calls attention to the fact that in places even the phraseology is the same." On the other hand Sir Henry Maine alludes to the undoubted influence apparent in the writings of Thomas Jefferson of the semi-juridical, semipopular opinions that were current in France.

The genesis of these opinions centering as they do about a law of nature, is traced back to Stoicism and Roman law. In the days of the Roman republic there developed besides the Civil Law, the Jus Gentium or Law of all the nations, a necessary result of the contact and conflict between Rome and other

tribes due in part to immigration and foreign trade. At a later time the Jus Gentium which originated as a mere political necessity, prescribing a manner of dealing with foreigners, became identified with the Law of Nature, the theory of a philosophical school. The law of nature, originally with the Greeks a principle of the manifestation of physical nature, was applied later to the moral life of man because the moral was added to the physical in the conception of nature. To live according to nature meant to the Stoic to live at least a simple and dispassionate life in accordance with a principle. The blending of the Stoic law of nature with the Roman Jus Gentium gave to the latter a dignity which it had never possessed in its early history. In fact it began to be looked upon as a model, and thus Natural Law, universal in its application, became established as a norm to which all law ought to conform.

Natural law in Roman jurisprudence had its effect in Western Europe after the Protestant Reformation when Roman law began to be studied. The lawyers of France found in the system of jurisprudence in their country a peculiar conglomerate of inconsistencies constituting a legal chaos, and they eagerly seized upon a law of nature as the Moses to lead them out of the wilderness. It was a law which overleapt provincial boundaries and disregarded distinctions of rank and became in a sense the common law of France. But it wrought no specific improvements and its influence would not have been great had not the idea been given a new career in the literature of the eighteenth century and more especially in the writings of Rousseau.1

1See Maine, Ancient Law, Ch. III. and IV.

II. ROUSSEAU

The most radical of Rousseau's writings are the two early Discourses, on the Influence of Learning and Art, and on the Causes of Inequality among Men. The point of view taken in these essays can make but little appeal to our admiration today; our appreciation of them, however, is much increased by transporting ourselves in imagination to the France of 1750. Here we behold a country where two-thirds of the land is owned by a tyrannical aristocracy, and the remainder by a scarcely less oppressive ecclesiastical organization; and where taxation is so administered as to compel the peasant farmer to pay the utmost sum that can be ground from him to support a profligate nobility living in idleness about the royal court. At a time and place when the intrinsic worth of human life was not only disregarded but was disbelieved in, and when the tyranny of the property owners was sanctioned and supported by the strong arm of government, it is not surprising that the two greatest evils that have befallen the human race appeared to Rousseau to be, (1) the institution of private property, and (2) the establishment of government.

In the attack upon the arts and sciences Rousseau tells of an ideal condition of the race when human life was simple and i virtuous; character was not concealed, manners were natural, and people were happy. Through the advance of the arts and sciences. manners have been corrupted and men have become suspicious of one another; they do not reveal their true selves. Treachery and hypocrisy are covered with a varnish of refinement. Philosophy is but a display of words, and the sciences, if they reveal anything, reveal that which had better not be known. Of nations, Egypt, Greece, and Rome, each in its time, was strong before developing a philosophy and a civilization. Science boasts of achievements in learning the ways of insects and of heavenly bodies; but government could be no worse than it is had there been no science.

1Discours: si le rétablissment des sciences et des arts a contribué à épurer

les moeurs.

2 Discours: sur l'origine et les fondemens de l'inégalité parmi les hommes.

Rousseau's chief indictments against the arts and sciences are: (1) An evil effect upon their followers, whom in his experience at Paris he found to be egotistic and clever without being honest and sincere. (2) Science and Art had brought no social benefits and, indeed, were anti-social, because they had introduced social distinctions and had thus augmented the artificial inequality that had grown up in human society.

Rousseau does not overlook the natural differences among individuals. In the Discourses on the Causes of Inequality he distinguishes between two types, (1) inequality in physical and mental endowment, and (2) social and political inequality; ï. e., inequality in riches, honor, and privileges which some enjoy to the detriment of the rest. Inequality of the first order is established by nature and existed among men in their primitive state and did not make them less happy, because each lived in isolation. Men gradually came together for joint labour in overcoming some external conditions, therefore they began to measure one another. Through accident, tools were invented for metal-working and tillage, and the development of these arts led to the holding of private possessions, a step which brought into prominence the natural inequalities among men and finally resulted in the great distinction between rich and poor. In its degeneration the race is conceived to have passed through three stages:

(1) The appropriation of private property. This evil began when the first individual built a fence around a piece of land and called it his own. The harm thus begun was accentuated by a growing division of labor.

(2) The institution of government, which was a device of the rich and strong to protect their property against the poor, and from this there resulted the condition of

(3) Slavery for the great mass of the people.

The Social Contract evinces a marked change of attitude. Government is no longer condemned and a plan is laid for the construction of a just government. The existence of private property is assumed, and, in fact, is necessary to the maintenance of equality. It is just because the circumstances of things tend constantly to destroy equality that the state should endeavor to maintain it. A system of legislation should have as its main objects liberty and equality. The Social Contract is not given as

descriptive of primitive society, but tells how society ought to arise. Rousseau takes as his fundamental problem to find a form of association which defends and protects, with the force of all, the person and property of each associate, and whereby the individual in surrendering himself to the organization sacrifices none of his individuality and gets in return the support that comes from the organization. The solution of the problem is found in the notion of the general will, the "public person" or body politic.

The following analysis may be given as the essence of the social contract: Each places in common his person and his powers under the direction of the general will, and in return each receives every member as a part of the whole. The conditions are the same for all, so that individual liberty is not infringed upon; and since everyone gives up to all, each gains for his protection the equivalent of what he loses, and even more, too, because he gives up the power of one but gets back the protection of the entire number in the social compact." ||

The body thus constituted by convention is the sovereign. Each individual has a double relation, viz., he is a member of the sovereign, with definite relations towards individuals, and is also as an individual a member of the state and subject to the sovereign. It should be noted too that sovereignty is inalienable, since it is the exercise of the general will, and will is something which cannot be surrendered to another. Moreover, sovereignty is indivisible and the rights which individuals, as individuals, claim must be kept subordinate to the general will.

In the doctrine of a general will we have a social conception. It involves the notion of a common good. If we eliminate the strictly private interests or ends in which individuals differ, we still find an interest common to all, and this gives us the notion of a common good-the good of the community as such. To attain this common good is the desire of the general will. The significant fact in this conception is that it involves a social person. The introduction of a social individual makes Rousseau an inno

1Social Contract, Bk. I., Ch. 6.-Trouver une forme d'association qui defende et protege de toute la force commune la personne et les biens de chaque associé, et par laquelle chacun, s'unissant à tous, n'obéisse pourtant qu'a lui-même, et reste aussi libre qu'anparavant.

2 Social Contract, Ch. VII.