Duke:—“He is and he will.”
Peasant:—“I demand by what right he will force me to quit this place?”
Duke:—“He will buy it of you for sixty pennies, and the horse and the bull shall be yours.”
Nowhere, in the past, was the sovereignty of the people more haughtily declared, than in this formality of the old Carinthians. “It bears the seal of remote antiquity—of an Homeric or Biblical simplicity.” That the people were the only true source of power, was admitted even in the archaic periods of history. Of olden time, there were many forms of popular government. Aristotle made a study of their institutions. Greece had her democracies and Italy a great republic. In Asia, then, as now, the assertion of political power was the sole foundation for its maintenance.
With the development of Christianity, in Europe, was inculcated the theoretic idea. Kings were anointed and they ruled by “divine right.” In the language of Mr. Tiedeman: “The king, who in theory obtained his authority from God, acknowledged no natural rights in the individual. Individual activity, for its room, depended upon the monarch’s will.” In time, however, came the Reformation and political revolutions in England, France, the Netherlands, Spain and Italy. To-day, the “divine right” of kings is generally repudiated. It has been displaced by the ancient principle that all power is derived from the people. “The people were once subjects of the king. The government is now subject to the people.” “The king is dead,” but his functions yet live in “the state,” or the people.
While many ancient statesmen and publicists recognized the proper origin of power in government, their opinions as to its nature and extent were neither clear nor sound. Wherever lodged, in their judgment, power was limitless and irresponsible. Whether exercised by king or emperor, by an aristocracy or the people, it was absolute. Politically, in other words, the individual was annihilated by the state. Government did not permit the existence of any personal right that it “was bound to respect.” This is also true of later times, in continental Europe. True, the “divine right” of kings was repudiated, but not the doctrine of absolutism. “Vox Populi, Vox Dei,” became the general answer to all complaints of the individual against the encroachments of popular government upon his rights and liberty. In the name of the people, atrocious crimes were perpetrated by revolutionary governments.
In its proper sense, individual liberty is a development of the Anglo-Saxon institutions. This doctrine is fundamental to the English Constitution. The principle is cardinal and vital in the American system of government. Individual rights are protected by constitutional restrictions upon power, federal and state. In the United States, every individual is a king. This accords with the so-called laissez-faire doctrine, of modern development in England and the United States, which confines the sphere of government within the narrowest limits, and denies to it the power to do more than provide for public order and personal security, by the prevention and punishment of crimes and trespasses. Under the influence of this wholesome principle, with us and in Great Britain, for one hundred years, the encroachments of government upon the rights and liberties of the individual have been comparatively few.
In other words, it has been generally admitted by the wisest and broadest statesmanship, that private rights and personal liberty do not exist by the permission of municipal law. They are natural and founded upon the law of reason; that, therefore, governmental restraint should “only go to the limit necessary to a uniform and reasonable conservation of private rights.” Municipal law protects and develops, rather than creates private rights and personal liberty.
In the United States this “limit” has been generally fixed at the power to enforce the common and civil law maxim, “sic utere tuo, ut alieum non lædas.” The “police power,” it is called, and extends, in its broadest sense, to the preservation of peace and good order to the protection of property rights, “and of the lives, limbs, health and comfort of all persons.” Any law which goes beyond this, in the United States, at least, and undertakes to abolish rights, the exercise of which do not infringe upon the rights of others; or limits the exercise of rights beyond what is necessary for the public welfare and general security, is not properly within the police power.
The police power, then, is properly concerned only with crimes and trespasses. It cannot rightfully invade the realm of ethics, as such. Crime is theoretically a direct injury to the public, and trespass, a direct injury to the individual. A vice, on the contrary, is the inordinate gratification of one’s desires and passions. The primary damage is to one’s self. In contemplating the nature of a vice, we are not conscious of a trespass on the rights of others. Vice does not fall within the police power. Expressed in the language of Mr. Tiedeman, “the object of police power, is the prevention of crime—the protection of rights against the assaults of others. The police power of the government cannot properly be brought into operation for the purpose of exacting obedience to the rules of morality, and banishing vice and sin from the world. The moral laws can exact obedience only in foro conscientiæ. The municipal law has only to do with trespasses. It cannot be called into play in order to save one from the evil consequences of his own vices, for the violation of a right, by the action of another, must exist or be threatened, in order to justify the interference of law.”