Page:The Green Bag (1889–1914), Volume 21.pdf/554

 Review of Periodicals Charles River Bridge case (1837, 11 Pet. 644), which holds that an act contrary to the Constitution is not a legislative act) as this writer implies, nor by the Granger cases (1876). In State Bank of Ohio v. Knoop (1853) and in Washington University v. Rouse (1869), the Supreme Court held, in effect, that a state cannot by charter deprive itself forever of the power of taxation. In West River Bridge Co. v. Dix (1848) 6 How. 507, the Supreme Court held substantially that a state cannot alienate the public power of eminent domain. Mr. Orton conceives these decisions as dis turbing the authority of the Dartmouth Col lege case, but in this supposition he is in error. Whether a charter is an inviolable contract is not so much the point as whether it was in the first instance a contract into which it was competent for the legislature to enter. The repeal of obnoxious charters must be effected by judicial decision rather than by legislative enactment, and then only with due regard to the constitutional safeguards with which the law has wisely surrounded all private property. That the right of property, because it con cerns the individual more directly than the state, is essentially founded on individualism is a widely current fallacy in our day, and many, in escaping from it, flee to the opposite extreme of an equally fallacious view of all Sroperty rights as emanating from the state, feither the individualistic nor the socialistic interpretation of the right of property is the correct one, which lies halfway between. The following author is one inclined to the social istic view, as will be seen:— "The Right to Property." By Prof. Frank Sargent Hoffman. International Journal of Ethics, v. 19, p. 477 (July). "The primary and distinctive ground of property is labor," says this writer. A man's "natural right to anything comes from the labor he has expended upon it, and is deter mined by the extent of that labor." But a "natural right," meaning presumably a moral right, "is not of necessity an ultimate right." For, says this author, showing his conception of the nature of rights to be somewhat con fused, "the natural right . . . may justly be sacrificed in case the needs of the community require it. . . . The true state is an organism and individuals are the members of that organism." The proper conclusion which should have been deduced is of course that the moral rights of labor are necessarily regu lated by social justice, as are in fact all moral rights. But the author overshoots the mark, and goes to the extreme of saying that "the natural right to property therefore is ulti mately resolvable into a state right." The fallacy of treating the state as something dis tinct from the individual, rather than as an individual multiplied many times, and that of supposing that state rights are a limitation on individual rights, instead of being merely organized individual rights, is common enough in our day. The writer shows a slight social istic bias which is unfortunate, as when, for example, he says that "the time ought not

523

to be far distant when our national revenues should chiefly be derived from inherited wealth." The chief fault of the essay is its failure to attempt to set forth any intelligent theory of the moral rights of property, con sidered with reference to hereditary wealth— a subject on which light is to be desired if the investigator is not too impatient of results to employ accurate and painstaking methods of discussion. The subject of hereditary wealth is evi dently in the mind of another writer, who has little to say about property, but who would doubtless gladly restrict the right to hold property to the economically productive mem bers of the community, and remove all the protection with which organized society sur rounds the institution :— "The Policy of Disability." By W. R. MacDermott. Westminster Review, v. 173, p. 130 (Aug.). This author may not consider that he holds a brief for anarchism, but the trend of his views is unmistakable. He takes for his text the words of the Odyssey descriptive of the Cyclops: "They have neither assemblies for consultation, nor judges, but every one exer cises jurisdiction over his wives and children, and they pay no regard to one another." Because of his compressed style, it is impos sible to epitomize here anything but some of his more important propositions, which seem to be in substance as follows:— 1. Man is unlike the lower animals, as Max Miiller says and as Darwin denies, in his power to form general concepts. Such gen eral concepts crystallize in language, which can express emotions which we do not feel, and occupies a higher intellectual and moral plane than that of individuals and social aggregates. 2. Man's distinctive power to form gen eral concepts gives him consciousness of indi viduals and social aggregates, and effectively holds the balance for him between extreme individualism and extreme socialism. 3. Individualism and socialism exist on the animal plane, but the prophet or lawyer, the Homeric themistes, the mouthpiece of the higher ideals of the race, condemns them on the intellectual plane. The human race is not a creation of individualistic and social istic action. The factitious or conventional standard established in societies and indi viduals by force majeure is in opposition to an ideal standard as a common mental fact. In every society the social form is in opposition to the ideas of the race. 4. The self-seeking individual is traveling in a path leading to decay and extinction, for his effort to relieve himself of the burden of the struggle for existence is but an effort to place himself in a position of disability. 5. The social aggregate is always tending toward extinction, because association always increases the number of the useless and help less by evolving destructive forms of para sitism. It invariably increases disability, by