Page:Popular Science Monthly Volume 25.djvu/309

Rh One might have expected that utterances to this effect would have been rendered less dogmatic by the knowledge that a whole school of legists on the Continent maintains a belief diametrically opposed to that maintained by the English school. The idea of Natur-recht is the root-idea of German jurisprudence. Now, whatever may be the opinion held respecting German philosophy at large, it can not be characterized as shallow. A doctrine current among a people distinguished above all others as laborious inquirers, and certainly not to be classed with superficial thinkers, should not be dismissed as though it were nothing more than a popular delusion. This, however, is [sic] by the way. Along with the proposition denied in the above quotations, there goes a counter-proposition affirmed. Let us see what it is, and what results when we go behind it and seek its warrant.

On reverting to Bentham, we find this counter-proposition overtly expressed. He tells us that government fulfills its office "by creating rights, which it confers upon individuals—rights of personal security; rights of protection for honor; rights of property"; etc. Were this doctrine asserted as following from the divine right of kings, there would be nothing in it manifestly incongruous. Did it come to us from ancient Peru, where the Inca "was the source from which everything flowed"; or from Shoa (Abyssinia), where "of their persons and worldly substance he [the king] is absolute master"; or from Dahome, where "all men are slaves to the king"; it would be consistent enough. But Bentham, far from being an absolutist like Hobbes, wrote in the interests of popular rule. In his "Constitutional Code " he fixes the sovereignty in the whole people; arguing that it is best to "give the sovereign power to the largest possible portion of those whose greatest happiness is the proper and chosen object," because "this proportion is more apt than any other that can be proposed" for achievement of that object.

Mark, now, what happens when we put these two doctrines together. The sovereign people is to appoint representatives, and so to create a government; the government thus created, creates rights; and then, having created these rights, it confers them on the sovereign people by which it was itself created. Here is a marvelous piece of political legerdemain! Mr. Matthew Arnold, contending, in the article above quoted, that "property is the creation of law," tells us to beware of the "metaphysical phantom of property in itself." Surely, among metaphysical phantoms the most shadowy is this which supposes a thing to be obtained by creating an agents which creates the thing, and then confers the thing on its own creator!