Blackstone was the first (1765) to found his doctrine of the absolute rights of persons upon the idea of the personal rights of the individual. Security, liberty, and property are the absolute rights of every Englishman, which from their character are nothing else than the natural liberty that remains to the individual after deducting the legal restraints demanded by the common interest.[62] Laws appear likewise as protectors of these rights,—the whole constitution of Parliament, the limitation of the royal prerogative, and along with these the protection of the law courts, the right of petition, and the right to carry arms are treated, exactly in the manner of the Bill of Rights, as rights of Englishmen, and indeed as subordinate rights to assist in guarding the three principal rights.[63] But in spite of his fundamental conception of a natural right, the individual with rights was for Blackstone not man simply, but the English subject.[64]
The American declarations of rights, on the other hand, begin with the statement that all men are born free and equal, and these declarations speak of rights that belong to "every individual", "all mankind" or "every member of society". They enumerate a much larger number of rights than the English declarations, and look upon these rights as innate and inalienable. Whence comes this conception in American law?
It is not from the English law. There is then nothing else from which to derive it than the conceptions of natural rights of that time. But there have been theories of natural rights ever since the time of the Greeks, and they never led to the formulation of fundamental rights. The theory of natural rights for a long time had no hesitation in setting forth the contradiction between natural law and positive law without demanding the realization of the former through the latter. A passage from Ulpian is drawn upon in the Digests, which declares all men to be equal according to the law of nature, but slavery to be an institution of the civil law.[65] The Romans, however, in spite of all mitigation of slave laws, never thought of such a thing as the abolition of slavery. The natural freedom of man was set forth by many writers during the eighteenth century as compatible with lawful servitude. Even Locke, for whom liberty forms the very essence of man, in his constitution for North Carolina sanctioned slavery and servitude.
Literature alone never produces anything, unless it finds in the historical and social conditions ground ready for its working. When one shows the literary origin of an idea, one has by no means therewith discovered the record of its practical significance. The history of political science to-day is entirely too much a history of the literature and too little a history of the institutions themselves. The number of new political ideas is very small; the most, at least in embryo, were known to the ancient theories of the state. But the institutions are found in constant change and must be seized in their own peculiar historical forms.
FOOTNOTES:
[46] It harks back finally to the old definition of Florentinus L. 4 D. 1, 5: "Libertas est naturalis facultas eius, quod cuique facere libet, nisi si quid vi aut jure prohibetur."
[47] Arch. parl. VIII, p. 222.
[48] Ibid., pp. 438 and 453.
[49] Bancroft, VII, p. 243.
[50] Cf. Blackstone, Commentaries on the Laws of England, I, 1, p. 127. (Edited by Kerr, London, 1887, I, p. 115.)