§ 204] Natural Rights. 291 in many of the state constitutions, and which must be regarded as a part of the philosophical explanation of government rather than as a part of constitutional law, is the theory of the so-called social compact, also referred to in many state constitutions as well as in the Declaration of Independence, to the effect that the obligation of the citizen to the government is one arising only by the implied consent to be governed. This theory, which seems to have originated with the English philosophers Hooker, Hobbes, and Locke during the seventeenth century, was fully exploited by Rousseau's Contrat Social (1762), and obtained wide recognition in England, France, and America. It is recognized by Blackstone in his Commentaries on the Laws of England, republished in America in 1765, and generally accepted throughout the colonies as a correct exposition of the English constitution and system of laws. The social compact theory has now, however, been generally discredited as a philosophical doctrine and is no longer of any significance in the explanation of the powers of a constitutional government. It is to be noticed that nothing is said in the Declaration of Independence as to equality in the ownership of property, or in social condition, or in capacity for the enjoyment of happiness. While the tendency of civilization, especially civilization which has been influenced by Christianity, is to give better opportunities to those who by reason of lack of health, strength, or capacity are under a disadvantage in the competition of life, it has not been found possible nor probably will it be found possible in any social condition which can be conceived of, to eliminate differences of condition. The existence of a competitive struggle for betterment of condition seems to be inherent in the human constitution; but just and wise governments give protection to the individual in order that he may not be deprived of the opportunity of life, liberty, and the beneficial enjoyment of his faculties so far as his strength and capacity are employed in ways not interfering with the enjoyment of like opportunities by others. It is also to be noticed that nothing is said in the Declaration of Independence as to political privileges or participation in the affairs of government. It is evident that governments established for the securing of the highest possible welfare of their subjects will necessarily afford some participation in public affairs on the part of those who are to be governed and who have in general the qualifications fitting them for such participation. It is conceivable that a monarchical form of government might secure the freedom and prosperity of its subjects to a fuller degree than a popular government, but this would be so only if the ruler or the members of the ruling class considered the interests of all its subjects as equally important with his or their own interests; and as this is not consistent with human nature, it is essential that a government which shall have for its sole object the best interests of all the people who are qualified to participate in such a government shall afford them the opportunity of doing so. The extent of such participation must be determined on broad principles of public policy and in any particular government largely in accordance with the established and customary forms, for it is the efficient administration of the system of government to which a people are accustomed rather than any theoretical perfection of the system which produces the most satisfactory results. It is evident, therefore, that there is a fundamental distinction between political rights and individual rights. The enjoyment of political rights is simply a means for accomplishing the ultimate result of affording the best protection to individual rights, that is, the largest opportunities which may be given to one individual consistently with the enjoyment of similar rights by others. Under the general head of civil rights, it is now proposed to discuss briefly the various guaranties found in the federal and state constitutions which are intended as restrictions on the powers of the government, in order that the enjoyment of the largest practicable measure of liberty and opportunity shall be secured to the individual. 205. Classification of Individual Rights specially The guaranties found in the state and federal constitutions which are intended for the protection of the individual in his § 205] Individual Rights. 293 person, his liberty, and his property have not been the result of any theorizing as to what ought to be secured to the individual by way of enjoyment; they have been the result of experience, and they relate to the supposed respects in which it has been found necessary to limit the powers of government in order that the largest practicable measure of individual freedom and opportunity may be secured. Nearly all of them may be traced more or less directly to struggles on the part of the people against the unjust exercise of powers of government in England and in this country. 66 The guaranty of the right to life seems to be intended as a safeguard against inflicting death on persons who are regarded as obnoxious to the government, otherwise than as the result of a regular and orderly procedure for the punishment of crime; hence, the provisions with reference to the method of accusation, trial, and punishment may be regarded as guaranties intended for the protection of the right to life. But liberty is equally imperilled by criminal proceedings which are not in accordance with regular and orderly methods, and by imprisonment inflicted as a punishment for crime for which there has not been a proper conviction. Therefore, the provisions with reference to the methods of criminal procedure are guaranties both as to life and liberty, and these will be considered in a subsequent chapter as among the provisions intended for the protection of civil rights, although in a popular sense immunity from unjust or illegal criminal punishment is not classified among the civil rights of the individual. The enjoyment of the largest measure of liberty which can consistently be guaranteed by organized government to the individual involves, however, much more than protection against unlawful physical restraint. Liberty is a most comprehensive term. It suggests, not only freedom of action, but the unrestricted enjoyment of the result of beneficial activity so far as such freedom is not inconsistent with like freedom on the part of others. Civil liberty is therefore impaired when individuals are deprived of protection in the acquisition and enjoyment of property, for the accumulation of property is one of the most substantial results of the freedom of action, the desire for acquisition being one of the strongest desires of human beings. Hence, proper guaranties of civil liberty involve guaranties of property rights and of rights to pursue profitable occupations, and to make and enforce contracts. The social instincts involve a desire to communicate with others, either for the mere pleasure of social intercourse or for the purpose of persuading or inducing others to act in accordance with one's wishes or for his benefit. Therefore, civil liberty is unduly restricted if the privilege of writing and speaking one's views and sentiments, so far as the privilege may be exercised without involving injury to others, is impaired or taken away. Hence, the so-called freedom of speech and the press is among the rights protected by constitutional guaranties. Among the privileges most highly prized are those involving the enjoyment of religious forms and observances according to the dictates of individual conscience. Therefore, among the provisions for securing civil liberty are those prohibiting the undue interference with religious beliefs and the expression thereof in suitable forms. The constitutional provisions relating to the protection of these various forms of civil liberty will be discussed in succeeding chapters. Although the first eight amendments to the federal constitution are limitations only upon the powers of the federal government, and serve as protections of the rights therein guaranteed as against the exercise of federal authority, and have no application as limitations on the exercise of authority by the state, nevertheless they correspond to provisions found in many of the state constitutions which are limitations upon state power, and the clauses of the federal constitution may therefore be made the text for discussion in separate chapters of the various rights which are usually guaranteed by state constitutions as well. And it will be convenient to follow the order of the clauses as they appear in these amendments in discussing the various topics suggested. CHAPTER XXXVII. RELIGIOUS LIBERTY. 206. References. J. Story, Constitution, §§ 1843-1849, 1870-1879; T. M. Cooley, Constitutional Limitations, ch. xiii; J. R. Tucker, Constitution, § 326; J. Bryce, American Commonwealth, ch. ciii; T. M. Cooley, Constitutional Law, ch. xiii, § 1; H. C. Black, Constitutional Law, §§ 196-198; Pfeiffer v. Board of Education of the City of Detroit (1898, 118 Mich. 560; McClain's Cases, 879); State ex rel. Weiss v. District Board (1890, 76 Wis. 177; McClain's Cases, 882); Reynolds v. United States (1878, 98 U. S. 145; McClain's Cases, 883). 207. Religious Equality. With reference to religious liberty, it is provided in Amendment I, that " 'Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof," and in the constitution as originally adopted it is declared that "no religious test shall ever be required as a qualification to any office or public trust under the United States" (Art. VI, 3). The prohibition of religious tests as a qualification for holding office is now of universal recognition throughout the United States, and originated, no doubt, with the protest in England against the exercise of authority on the part of the government, the reigning family of which belonged to one religious sect, in excluding from participation in public affairs those of other sects. This form of religious liberty has now been practically established in England, although complete. religious equality has not been established in that country. Some state constitutions have an additional provision analogous in its nature, that no person shall be incompetent to give evidence in court in consequence of his opinion on the subject of religion; but notwithstanding such a provision, it is usually regarded as permissible to inquire into the question whether a |