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that the person damnified has no right to demand protection against such invasions.

The method of determining the question of remedy is well illustrated by the leading case of Ashby v. White just referred to. The facts were, that certain persons had been denied the right to vote for members of Parliament. They brought suit against the officer who excluded them. No such case had ever been adjudged, and there was no precedent for the suit. But in the opinion of Lord HOLT, a precedent was not important. The material question was, Had they a right to vote? This was to be determined by the statute prescribing the qualifications of voters, and by the facts which did or did not bring these parties within the statute. When the facts were found in their favor, the legal conclusion must follow. Having a right, the remedy was of course. It might have been different had the officer been made the judge, whether the proper qualifications existed; for then his [*21] judgment that the right existed would have been a condition precedent.

To what is here said there are some apparent exceptions. Thus statutes, in many cases, forbid, under penalties payable to the State, the doing of certain acts that might be injurious to individuals, or, under like penalties, require certain acts to be done, the doing of which will be beneficial to individuals. In these cases, if it is manifest from the statute that the penalty is the only injurious consequence that is to be incurred by a violation. of the law, it may be said that the individual has a right, and yet that the law affords him no remedy for its infringement. But in a strict legal sense, the statute in such cases is to be regarded as prescribing duties on public grounds only, and the party who suffers from a failure to observe them only chances to be the individual upon whom fall the consequences of a wrong done to the public.

It may be said, also, that in the election case, if the officer had been made final judge of the facts and had decided erroneously, the voter would equally have been wronged, and yet no remedy have been open to him. But in contemplation of law the deci sion of the tribunal appointed to decide finally upon any question must be conclusively deemed correct. If that tribunal finds that no right exists, then the party is not wronged by a right being

denied him. Order and stability in government require that in all civil proceedings this conclusion shall be absolute.

Classification of Remedies. Legal remedies are either preventive or compensatory. Every remedy is, in a certain sense, preventive, because it threatens certain undesirable consequences to those who violate the rights of others. The person inclined to invade his neighbor's premises has over him the threat of the law that he shall be made to pay all damages, as well as the costs of litigation, if he shall venture to trespass. If he proposes to defame his neighbor, the threat is that he shall pay not actual damages merely, but damages specially assessed in proportion to the aggravation of the case. The principal, however, in all cases, is compensation for an injury done, and exemplary damages are only given in those cases in which the injury, for some reason, is one of special aggravation. In some cases the law permits a

mandatory writ to restrain the commission of some threat[*22] ened *wrong; but the general employment of such a

writ would lead to abuses which would be intolerable. At the best, preventive remedies are dangerous, because they must to a considerable extent be summary, aud be awarded without that full and careful inquiry into the merits which precedes the final judgment. Besides, they must be awarded upon a supposed wrongful intent, and the inquiry into an unexecuted intent is usually among the most unsatisfactory things in legal procedure.

The danger from the employment of preventive remedies is, that though given for the protection of rights and liberties they offer a constant invitation to the usurpation of right and the overthrow of liberties. It is better and safer to assume that no one will violate the law, and to treat him as an offender only after he has done so.



What a Right is. In the preceding chapter the term right has been employed in the legal sense exclusively. In that sense it implies something with which the law invests one person, and in respect to which, for his benefit, another, or, perhaps, all others are required by the law to do or perform acts, or to forbear or abstain from acts.' Before proceeding further, a classification of rights seems desirable, that we may the better understand the methods which the law has devised for their protection.

Influence of Political Institutions. The general form of political institutions has little to do with the classification of rights, this being in the main the same under all governments. There may be this difference, however, that under some forms of government certain rights will be recognized and provided for, which under other forms will not be given. This is particularly true of those rights which are political; those which are conferred in some countries being few in number, and very imperfectly protected. The general purpose of government is the same under all forms; it exists for the benefit of those who submit and are governed by it, and the benefit is afforded in the establishment and protection of rights. Except for this purpose, no govern

ment could for a moment justify its existence.

The rights which every government is expected to recognize and protect may be classed under the following heads: 1. Security in person. 2. Security in the acquisition and enjoyment of property. 3. Security in the family relations. Whether the government be despotic or free, so much will be expected from it; and in a free government there will also be a further class of rights, known as political. The theory of political rights is, that they are not given for their own sake and for the benefit

'Austin, Jurisprudence, Lecture XVI.; see, also, Lec. VI.

of those who enjoy them, but for the general benefit of the political society. Their chief advantage to the individual consists in this: That they constitute securities to other rights, so that their value is to be found in what they protect. The right of the English peasant to such property as the law recognized as belonging to him was the same under despotic rule as it is to-day; but the political rights which have been acquired by the people have given it guaranties and a security which it did not have before. What then was often violated with impunity is now assured as completely as the experience of the country up to this time has shown to be practicable. On the feeling of security which political rights afford must mainly depend the content and happiness of the people. Were the government itself, instead of protecting rights, to impose unnecessary restrictions for its own purposes, or the purposes of those wielding its authority, or were it to interfere capriciously to deprive individuals or communities of rights which nominally are assured to the people, there would to that extent be a tyranny, whether the form of government were representative or despotic. A representative government only affords certain security against abuse of power, which cannot be had where political rights are not possessed by the people.

Personal Rights. In the classification above made, the first class embraces the rights which pertain to the person. In this are included the right to life, the right to immunity from attacks and injuries, and the right equally with others similarly circumstanced to control one's own action. In all enlightened countries the same class would also include the right to the benefit of such reputation as one's conduct has entitled him to, and the enjoy ment of all such civil rights as are conceded by the law. Political rights may also be included under the same head.

Right to Life. The first and highest of all these is the right to life. On this all others are based, and it is needless to discuss others if the life is not protected. In barbarous periods a man sometimes, for some great crime or contempt of authority, was put out of the protection of the law, and a term was then applied to him which indicated that he might be treated as a wild beast of prey, and must find his protection in his own strength and cunning. This was the ancient outlawry; and the law under some circumstances

even permitted the life to be taken with impunity.' But this was a case of forfeiture of rights, and it implied that the outlaw, by his contempt of the law, had justly put himself beyond the pale of human sympathy. No society is so barbarous as not to recognize the right of its several members to their lives, but the securities which are provided for the protection of the right mast, in different countries, be as diverse as are the characters of the people. Among the early laws of some people will be found regulations giving to the relatives or friends of one who had been unlawfully slain the privilege of private vengeance. Two different views may be taken of such regulations: 1. That assuming the protection of life to be the concern of the State, they make the friends of the person slain the agents of the State in inflicting punishment, for the reason that the natural feelings and impulses would be more likely to impel them than others to the performance of the duty. 2. That, regarding the protection of the life of an individual as something which specially concerns him and his immediate relatives and friends, rather than the political society, they make the homicide a ground for the just forfeiture of the life of the slayer to those relatives and friends, but not to others. Where such rules prevail, they are likely not to distinguish between criminal homicides and those which are excusable; and it is manifest that they rest upon very unenlightened notions, and can supply to society only a rude and imperfect protection. Indeed, the tendency is to cruelty, rather than to justice, and anarchy is encouraged by them, rather than governmental order. In a wiser period, the government takes into its own hands the punishment for homicide, and treats it as a wrong to the State. But this is on the assumption that it is found to be blamable. Governments do not assume to punish innocent acts, however serious may be the consequences resulting from them."

"An outlaw was said caput gerere lupinum, by which it was not meant that any one might knock him on the head, as has been falsely im agined, but only in case he would not surrender himself peaceably when taken; for if he made no attempt to fly, his death would be punished as that of any other man, though it seems

that in the counties of Hereford and Gloucester, in the neighborhood of the marches of Wales, outlaws were in all cases considered literally capita lupina." Reeves' Hist. of English Law, Ch. VIII., Sec. 4; Bl. Com. 178, 319.

(4th ed.)

2 Austin, Jurisprudence. 1092; People v. Faulks, 39 Mich. 200.

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