Even though ignoring the opposite opinion of German writers on jurisprudence, and even without an analysis which proves their own opinion to be untenable, Bentham's disciples might have been led to treat less cavalierly the doctrine of natural rights. For sundry groups of social phenomena unite to prove that this doctrine is well warranted, and the doctrine they set against it unwarranted.
Tribes in various parts of the world show us that before definite government arises, conduct is regulated by customs. The Bechuanas are controlled by "long-acknowledged customs."(11*)Among the Koranna Hottentots, who only "tolerate their chiefs rather than obey them,"(12*) "when ancient usages are not in the way, every man seems to act as is right in his own eyes."(13*)The Araucanians are guided by "nothing more than primordial usages or tacit conventions."(14*) Among the Kirghizes the judgments of the elders are based on "universally recognized customs."(15*) So, too, of the Dyaks, Rajah Brooke tells us that "custom seems simply to have become the law; and breaking custom leads to a fine."(16*) So sacred are memorial customs with the primitive man, that he never dreams of questioning their authority; and when government arises, its power is limited by them. In Madagascar the king's word suffices only "where there is no law, custom, or precedent."(17*) Raffles tells us that in Java "the customs of the country"(18*) restrain the will of the ruler.
In Sumatra, too, the people do not allow their chiefs to "alter their ancient usages."(19*) Nay, occasionally, as in Ashantee, "the attempt to change some customs" has caused a king's dethronement."(20*) Now, among the customs which we thus find to be pre-governmental, and which subordinate governmental power when it is established, are those which recognize certain individual rights -- rights to act in certain ways and possess certain things. Even where the recognition of property is least developed, there is proprietorship of weapons, tools, and personal ornaments; and, generally, the recognition goes far beyond this. Among such North-American Indians as the Snakes, who are without government, there is private ownership of horses. By the Chippewayans, "who have no regular government," game taken in private traps "is considered as private property."(21*) Kindred facts concerning huts, utensils, and other personal belongings, might be brought in evidence from accounts of the Ahts, the Comanches, the Esquimaux, and the Brazilian Indians. Among various uncivilized peoples, custom has established the claim to the crop grown on a cleared plot of ground, though not to the ground itself; and the Todas, who are wholly without political organization, make a like distinction between ownership of cattle and of land. Kolff's statement respecting "the peaceful Arafuras"well sums up the evidence. They "recognize the right of property, in the fullest sense of the word, without there being any [other] authority among them than the decisions of their elders, according to the customs of their forefathers."(22*) But even without seeking proofs among the uncivilized, sufficient proofs are furnished by early stages of the civilized. Bentham and his followers seem to have forgotten that our own common law is mainly an embodiment of "the customs of the realm." It did but give definite shape to that which it found existing. Thus, the fact and the fiction are exactly opposite to what they allege.
The fact is that property was well recognized before law existed;the fiction is that "property is the creation of law."Considerations of another class might alone have led them to pause had they duly considered their meanings. Were it true, as alleged by Bentham, that Government fulfils its office "by creating rights which it confers on individuals;" then, the implication would be, that there should be nothing approaching to uniformity in the rights conferred by different governments. In the absence of a determining cause over-ruling their decisions, the probabilities would be many to one against considerable correspondence among their decisions. But there is very great correspondence. Look where we may, we find that governments interdict the same kinds of aggressions; and, by implication, recognize the same kinds of claims. They habitually forbid homicide, theft, adultery: thus asserting that citizens may not be trespassed against in certain ways. And as society advances, minor individual claims are protected by giving remedies for breach of contract, libel, false witness, etc. In a word, comparisons show that though codes of law differ in their details as they become elaborated, they agree in their fundamentals. What does this prove? It cannot be by chance that they thus agree.
They agree because the alleged creating of rights was nothing else than giving formal sanction and better definition to those assertions of claims and recognitions of claims which naturally originate from the individual desires of men who have to live in presence of one another.
Comparative Sociology discloses another group of facts having the same implication. Along with social progress it becomes in an increasing degree the business of the State, not only to give formal sanction to men's rights, but also to defend them against aggressors. Before permanent government exists, and in many cases after it is considerably developed, the rights of each individual are asserted and maintained by himself, or by his family. Alike among savage tribes at present, among civilized peoples in the past, and even now in unsettled parts of Europe, the punishment for murder is a matter of private concern: "the sacred duty of blood revenge" devolves on some one of a cluster of relatives.
