페이지 이미지
PDF
ePub

its business is subsequently destroyed, and its property rendered valueless, by a general prohibition of the manufacture and sale of intoxicating liquors."

It is impossible for one to read between the lines of these decisions, and to compare the facts of the cases, without reaching the conclusion that there has been a decided shifting of the position of the court since the case of Dartmouth College v. Woodward. In that case, the Supreme Court prohibited a simple change in the personnel of the college board of trustees, although this change would not deprive the real beneficiaries, the students, of any advantage derivable under the old charter. In these later decisions, the court has permitted the practical destruction of corporate property and privileges, guaranteed by legislative grant, on the ground that corporations, as well as natural persons, are subject to the control of the police power of the State. The welfare of the communities required these interferences with property and franchises, since their enjoyment threatened or actually inflicted evil. But the same reason might have been urged in favor of the New Hampshire interference with Dartmouth College. Nowhere can one man exert a more powerful influence over the minds and hearts of others than in the professor's chair. The legislature may have had reason to fear that

1 Beer Company v. Massachusetts, 97 U. S., 25; Mugler v. Kansas, 123 U. S., 623; Powell v, Pennsylvania, 127 U. S., 678.

the presence of so many tory representatives on the old board of trustees of the college would exert a baneful influence upon the minds of the youths who would attend the college. If they truly thought this danger was imminent, they would have been justified in stamping this evil out of existence. Other nations have for the same reason banished a hostile population, or expropriated their land.

The facts of these cases do not vary materially: the difference in the opinions cannot be accounted for on this ground. The contradiction arises out of a change in public opinion, and a consequent change in the constitutional rule. Nothing but a profound respect and reverence for the great Chief Justice who penned the decision in the Dartmouth College case has compelled this show of indorsement of its principles in the later decisions of the Supreme Court, while the rule is substantially modified, if not abrogated altogether.

CHAPTER VI.

THE DOCTRINE OF NATURAL RIGHTS IN AMERICAN

CONSTITUTIONAL LAW.

PERHAPS no product of the Roman law has exerted so potent an influence upon the development of modern jurisprudence as the Roman doctrine of jus naturale. When Rome was in its infancy, the national dominion was in its character personal, and

not territorial; i.e., the governmental power was ex✓

erted over the individuals who composed the Roman people, and not over the country which they occupied. The tie of nationality bound the Romans to each other, and not to the land ; hence the early Roman law did not take into consideration strangers who might be resident within the Roman territory. The jus civile, the name given to the early Roman law, was designed to determine the legal relations and rights of Roman citizens only, and did not take cognizance even of the claims of Roman citizens against these resident strangers. The stranger had no right which the Roman was obliged to respect, nor was he under any obligations to the Romans

with whom he may have had dealings. But this anomalous state of affairs could not last long. With the increase of Rome's international intercourse, the demand for rules of law, which could apply to transactions with foreigners, became greater and greater until, finally, the Roman government provided a special judge for the hearing of all causes of actions arising between strangers and between strangers and Romans. The jus civile, like the beginnings of all systems of jurisprudence, was extremely technical and symbolical; and to apply this law in all its strictness to the adjudication of the rights of strangers, who could not be presumed to know any thing of this law, would have resulted often in the infliction of wrong, rather than the dispensation of justice. Instead of deciding these causes of action according to the jus civile, the Roman prætor, who was given charge of them, rendered his decisions in accordance with those rules of law which obtained generally among all nations. The law, thus developed alongside of the jus civile, became known as the jus gentium, or the law of nations.

On account of the general and almost universal character of its rules of conduct, the jus gentium became much less technical and more rational than the jus civile; and when the time arrived for the transformation of Roman law from its crude empirical character into a science, the jus gentium was

found to be of far greater importance than the jus civile, although originally the former was intended to play a subordinate part in the development of the system.

About the same time the Roman lawyers, together with other serious and thoughtful men of the day, revolting from the prevalent profligacy, became infatuated with the stoic philosophy, and drew from that philosophy the Greek idea of natural law. Instead of the jus gentium being received as a body of rules found to be generally enforced by all nations, it became, in its reduction to the forms of a science, the jus naturale, an ideal law which one in his imagination would conceive to be in force in a state of perfect nature. Jus naturale is the scientific, idealized form of the jus gentium.

It is impossible for one to suppose that the accomplished Roman jurists really believed that by their labors they were taking the world back to the legal relations of the aboriginal peoples, who knew no state, no legislator, and who were supposed to have lived in a state of nature. It is conceivable that poets may imagine the perfection of legal relations under such a' natural law ; but the hard common-sense of the Roman lawyer, would without doubt have revolted at the thought of finding the perfection of legal reasoning in the chaos which precedes organized national life. In the same way that these jurists

« 이전계속 »