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The wide research and long study preceding and attending the preparation of this work have been prosecuted for the purpose of extracting from the recorded experiences of the various people of the earth, in the governments they have had and the laws under which they have lived, such broad and general principles as may be helpful in the work of framing constitutions and formulating laws. Neither governmentbuilding nor law-making is a science. That the moral law has some force and application is generally admitted, but that it may be violated, when deemed expedient to do so, is constantly asserted in practice. What is the moral law, and where may its precepts be found? Perhaps most men will answer, in the sacred books.
But it may again be asked, what books are sacred? To this the Brahman will unhesitatingly answer, the Vedas and the code of Manu; the Buddhist, the Greater or the Lesser Vehicle, according to his sect; the Mohammedan, the Koran; the Jew, the Talmud; the Parsee, the Zend-Avesta; the Christian, the Bible, and so on through less widely accepted codes. While much of agreement can be found in all of them, there are direct antagonisms of the utmost importance.
Mohammed taught war and commanded the propagation of the word by the sword. Christ forbade it, yet is recorded as having said. “I came not to send peace but a sword.” Manu taught caste and inequality among men; Buddha equality. All the Asiatic codes, including the Christian, countenance slavery, which the moral sense of Europe and America now condemns. All nations resort to war; yet its immorality is its most apparent characteristic. Every normal person feels a capacity for determining the moral quality of the acts of himself and of others, yet varying capacity, education and surroundings lead to diverse judgments on many subjects. A definition of the moral law as the rule determining right from
wrong merely leaves the question unanswered. Nevertheless it would seem self-evident that there are moral principles of universal application, binding alike on all men, by which the quality of human conduct may be tested. They attend and inhere in our existence. The fact that any such principle is not generally perceived or followed does not prove its nonexistence.
Many natural laws have remained concealed from man through all the ages, and moral laws are natural laws. The progress of the age is measured by the discovery and application of natural laws to science and art. Perhaps a fair definition of the moral law would be, the Divine, the natural law, which fixes the duty of man to himself, to other human beings and to all living creatures. A man living in complete isolation from all other human beings would owe himself the duty to appropriate to himself everything that would contribute to his welfare, comfort and highest development, taking food, clothing and shelter wherever he could get the best. But civilized man does not live in isolation. His duty to himself continues, but always subject to the limitations resulting from the rights of others. A duty and corresponding right attaches to each one to provide for himself and the right of each becomes a limitation on that of every other
This conflict of interest and loss of right to freely appropriate whatever is at hand is more than compensated by the advantages of combined effort and mutual help. It is clear that the moral law applies to all alike and commands a just sharing among the people of all the things that nature provides as well as of the fruits of their united efforts. In the division of the bounties of nature equality appears to be the natural law, but equality of opportunity to take every kind of r-atural product and resource in a densely peopled world is impossible. Human activities are largely applied to the search for and gathering of useful things from the surface of the earth and the mines beneath. The value of the things gained by these activities depends in great measure on the labor expended in acquiring them. There is difficulty in separating the added labor value from that of the thing as it was before man touched it. Combination of effort for common ends implies the assignment to each of a special part of the work. Specialization requires the assignment to each of the task for which he is best qualified. Division of labor calls for the exchange of products. Advancing civilization is attended by increased combination of effort, division of labor and specialization of occupation. Amid the complexity of modern business conditions the applicability of fundamental moral principles to the rights and duties of each member of society is obscured and often lost to view. In the division of labor inequalities of burden inevitably arise. In the distribution of the benefits of combined effort equality of share to each is difficult of attainment, if not impossible. The necessity for direction and leadership implies a degree of mastery, which may be carried so far as to become oppression. Out of a disregard of duty and of the rights of others come oppression, strife and crime. In an ideal state the law would oppose its force to all unsocial and immoral conduct.
To give positive sanction to conduct that violates ethical principles is inexcusable. Practical men do not expect an ideal system of laws completely enforced, but a nearer and nearer approximation to the moral law.
Let us notice a few of the customs that have long been sanctioned by the laws of great nations. In China the inferiority and servitude of the females to the males lies at the foundation of the whole social system. The wife and daughter may be abused, overworked and mistreated by the husband and father almost at will. The power of the father over his sons is also very great. Prior to the late revolution the Imperial Clan and descendants of Confucius constituted privileged classes and were supported from the taxes gathered from the toiling multitude.
In India, from remote ages, the rigid rules of caste have kept the lower orders in enforced ignorance and servitude to the ruling classes. Denial of the right to engage in any business or calling, other than those assigned to his caste, has deprived the members of all castes of that personal freedom of effort so essential to high development. Rank injustice
and disregard of natural rights lie at the base of the whole system.
In Mohammedan countries the Koran's precepts allow polygamy, and far worse than this, command the propagation of religion by war, the most immoral of all concerted efforts of men. The errors and falsehoods of the Koran are taught as divine revelation, and all inquiry tending to replace them with truth is stified.
Throughout all the history of Rome slavery was recognized and the machinery of the government was employed to enforce the dominion of the masters. Much of the learning of the great jurists consists in rules governing the relations of masters and their slaves, and determining the personal status of persons as citizens, coloni, freedmen and slaves. Even in our own land, within the memory of the writer and those of his generation, slavery was the most important institution in nearly one half of the Republic. No law can be a greater departure from the moral law than that which sanctions slavery and allows one man to compel another to serve him according to his arbitrary will and take all the proceeds of his labor to use as he pleases. Nothing can better illustrate the tendency to depart from the moral law in framing human laws than the history of the law of slavery. The feudal system of land tenure after the decline of the Roman Empire worked out results similar to slavery.
Without stopping at this time to apply moral tests to the leading principles of modern law in Europe and America, let us consider what influences produced the laws above mentioned. Clearly the authors of such laws were not guided in their work by any moral principles, for the injustice of them is obvious. The universal motive has been advantage for the ruling class, and the excuse for taking the advantage has been expediency or necessity. During periods of war or civil discord men seek to assure their own safety by the destruction of their enemies. The victors in the contest seldom give nice consideration to moral rules in imposing term on the vanquished. Primitive tribes either kill or enslave their captives. . Slavery has its root in war. Greeks and Romans, though admitting the immorality of slavery, enslaved their captives and always maintained the dominion of the masters by law. In the conquest of India by the Aryan invaders the subjugated natives were assigned to a servile class. The system of castes arose from the organization of the priestly and military orders and the enslavement of the native races. The victor in a fierce conflict often considered himself humane to accord life to his enemy on terms of perpetual service. The institution of slavery was never originated by a deliberative body of law-makers, nor by any great autocrat acting merely as a lawgiver. Where the institution has existed, law-makers have undertaken to apply some moral rules to its incidents, leaving its fundamental vice undisturbed. We shall find as we proceed that the habit of accepting immoral systems and then attempting to apply moral principles to their incidents is universal. The enslavement of the recently overpowered and disarmed enemy appears in very different light from that of the child born in slavery. In the latter case the law of inheritance of condition is required to pass mastery from the captor to his son and the status of a slave from the captive to his child.
Under the feudal system conquest of land carried with it rulership over the occupants of it, and a theory of ownership of the face of the earth was made to give in effect ownership of the people inhabiting it. This mastery was mitigated in time by rules governing the relations of lords and tenants and out of these rules came the early English laws of real property. It cannot be truthfully said that the idea of absolute ownership of the face of the earth is an outgrowth of war. It seems rather to have arisen from continued occupancy by successive generations of families and tribes. The influence of habit, education and environment, in moulding opinions on all questions of political science, is quite as marked as in religion, fashion and industrial habits. Nothing is more natural or more common than to base reasoning on the fundamental principles of existing institutions, and to assume that the existing system is in its main features a natural and necessary one.
Thus in Roman jurisprudence