1

him, but no available right to more. A natural liberty of this sort is obviously inconsistent with any valuable right whatsoever, and would of itself, as other writers have shown, be sufficient to demonstrate the necessity of government for the imposition of restraints and the establishment of a common arbiter or judge between individuals. And where governments are established, the rights of which the law can take notice, can be those only which come from and are defined by the law itself. A legal right is something which the law secures to its possessor by requiring others to observe it, and to abstain from its violation. Only the law can prevent such interference by others as would deprive it of all the qualities of an individual possession. Individual rights, liberty, and property are born of legal restraints; by means of these every man may be protected within the prescribed limits; when without them, possessions must be obtained and defended by cunning or force. In the domain of speculation or morals a right may be whatever ought to be respected; but in law that only is a right which can be defended before legal tribunals. Protection in rights gives to a man his liberty, but the same protection sets bounds to and constitutes a limitation upon [*6] *the liberty of every other person, and the maximum of benefit of which government is capable is attained when individual rights are clearly and accurately defined by impartial laws, which impose on no one any greater restraint than is found essential for securing equivalent rights to all others, and which furnish for the rights of all an adequate and an equal protection.'

'Burlamaqui, Nat. and Pol. Law. Vol. 2, pt. 1, c. 8.

As

2 Much is said by some writers concerning natural rights and natural liberty, and of the duty of the government, instead of creating, to recognize those which come from nature. if nature had indicated any clear line which the human intellect and conscience would infallibly recognize, on either side of which might be placed the acts permitted and the acts prohibited, according as the one or the other was by nature justified or condemned. As if every human act or omission had a moral quality of which the government could take notice, and

by which it might judge the act or omission. Indeed, some have even gone so far as to assume that in a world where the moral law was accepted fully and obeyed implicitly, no law would be necessary, because every individual would at once perceive and do that which was right, and thus put legal compulsion out of the question. But if the most conscientious persons in any state of existence were compelled to support themselves by their industry; if they had occasion to buy and sell, and to find their transactions affected by accident and mistake; if occasionally they encountered questions of defective title, or questions

Public Wrongs. Certain acts or omissions are taken notice of by the law as constituting wrongs to the State. These may consist in something which tends to disturb, embarrass, or subvert the government, or to hinder the administration of the laws, or they may consist in acts or neglects which prejudice individuals, but indirectly and perceptibly affect the public also. cases will be referred to in a subsequent chapter.'

These

The law also permits certain acts to be punished as wrongs to municipal corporations, or to the several political divisions of the State, because they have a tendency to disturb their peace and good order, or to embarrass or obstruct in some manner the local government, though to the people of the State at large they may *be matters of indifference. These wrongs will con- [*7] sist mainly in breaches of municipal by-laws, or of local police regulations, and they may or may not be wrongs to individuals. The two classes of wrongs just enumerated constitute what are known as public wrongs, and they will be visited with some species of penalty. While the leading purpose in imposing the penalty will be security for the future, incidentally the reformation of the offender may also be had in view. In inferior offenses the idea of compensation is sometimes present, and even in case of offenses of a high grade, pecuniary penalties are often imposed to cover in whole or in part the cost of bringing the wrong-doer to justice. But compensation in the case of public wrongs is usually a subordinate purpose, while in the case of private wrongs it is the substantial purpose of the law.

Wrongs essentially Public sometimes Private Wrongs also. When the act or neglect which constitutes a public wrong is specially and peculiarly injurious to an individual, and obstructs him in the enjoyment of some right which the law has undertaken to assure, the offender may be subject to a double liability; he may be punished by the State, and he may also be compelled

of commercial law, where one of two innocent persons must inevitably suffer; if bankruptcies must occur, the Consequences of which must fall upon third persons, whose dealings with the bankrupt had been interwoven with dealings between themselves; in short, if they lived in a world which, except in the moral qualities of the people,

corresponded to the present, they would be likely soon to discover that the rule of morality is very far from being adequate to the adjustment of a large proportion of all the controversies in which conscientious men, in the absence of law, would find themselves involved.

'See Chap. III.

to remunerate the individual. These cases we pass for the present, with only the general remark, that the private injury must be of a pecuniary nature; something different from that which is inflicted upon or suffered by the public at large. One man cannot have his private action against a murderer on a showing that the murder was more shocking to him than to others, or touched him peculiarly in his affections. These injuries are general in

kind; they are only peculiar in degree.

Wrongs to Aggregate Bodies. A wrong may consist in depriving a number of persons associated together for their own purposes of some legal right. In such a case there is either a joint wrong to all, or there is an individual wrong to each of the associates. The wrong must be severable, and constitute individual wrongs, if it only deprives each associate of a right personal to himself, though exactly like the rights of which his associates are deprived at the same time, and by the same act or neglect. Such would be the case if the several members of a voluntary organization were wrongfully prevented from [*8] meeting. *The right of each is personal to himself, and therefore, though there is a common wrong, there is no

joint wrong.'

On the other hand, an injury to the property owned in common by the associates would be an injury to all, and all should unite in seeking redress. This might lead to great difficulties when the associates were numerous, and to avoid these, one person is sometimes made the owner of the property, or given legal control over it in trust for the others, and is thus enabled in his fiduciary capacity to protect the rights of all. The importance

12 Saunders, 116a, note 2. The question in each case is, whether the particular injury was or was not a joint

injury. It may have been exactly alike to each, and it may have been ac complished by one act, and yet be no joint injury; as where one says to two persons, "You have murdered J. S.;" this is a several, not a joint, slander, the reputation of each being assailed. Smith v. Cooker, Cro. Car. 513. But the injury may be joint, though it consists in depriving parties of some right, the profit of which would be

of this is perceived in the rule of law which requires the parties complainant and respondent in legal proceedings to be nained in the pleadings, and which refuses to know voluntary associations, except through the individualism of their members.

The voluntary society cannot, as such, sue or be sued; in legal phrase, it is not known to the law. But the inconveniences which may flow from this rule are, to a large extent, obviated by the permission of the sovereign authority to organize the voluntary society into an artificial person, which is called a corporation, and into which, for legal purposes, the individual identity is merged. This artificial person, like any other, has its name, and is capable of wronging and being wronged, and of suing and being sued. It has its civil rights, and it is a part of the civil right of each corporator that the law is to protect him, and to protect the association in the liberties and privileges which the law permits the corporation to assume and exercise.

Civil Liberty. From what has been said we may approach an understanding of what the condition is which constitutes civil *liberty. In making use of this term it is proper to [*9] state that writers of acknowledged authority employ it in very different senses. Thus the leading commentator on American law defines it as "consisting in being protected and governed by laws made or assented to by the representatives of the people, and conducive to the general welfare." This excludes the idea of civil liberty, except where representative institutions prevail; and in

12 Kent Com. p. 1. In the French Constitution of 1793 there was the following specification of rights:

"1. The object of society is the gen. eral welfare. Government is understood to insure to man the free use of his natural and inalienable rights.

"2. These rights are equality, liberty, security, property.

"3. All men are equal by nature and before the law.

"4. Law is the free and solemn proclamation of the general will; it is the same for all, be it protective or penal; it can command only what is just and beneficial to society, and prohibit only what is injurious to the

same.

"6. Freedom is the power by which man can do what does not interfere with the rights of another; its basis is nature; its standard is justice; its protection is law; its moral boundary is the maxim, "Do not unto others what you do not wish they should do unto you."

"8. Security rests on the protection given by society to each of its members for the preservation of his person, his rights and his property.

"16. The right of property is that by which every citizen can enjoy his goods and his income, the fruits of his labor and industry, and his right to dispose of them at his pleasure,'

"

this particular it differs radically from the definition of Justice BLACKSTONE. It also makes civil liberty and political liberty synonymous, in this particular agreeing with that of Blackstone. Mr. Austin says that "political or civil liberty is the liberty from legal obligation which is left or granted by a sovereign government to any of its own subjects." Mr. Lieber says civil liberty "consists in guarantees-and corresponding checks-of those rights which experience has proved to be most exposed to interference, and which man holds dearest and most important." Without giving the definition of others, we prefer to distinguish civil from political liberty, defining the former as that condition in which rights are established and protected by means of such limitations and restraints upon the action of individual members of the political society as are needed to prevent what would be injurious to other individuals or prejudicial to the general welfare;

and defining political liberty as consisting in an effectual [*10] *participation of the people in the making of the laws. The

former may exist when the latter is absent; but since it would be perpetually liable to be broken in upon and set aside by the arbitrary action of rulers, it is manifest that it could have no secure existence except under a government whose powers were exercised under very effectual constitutional restraints, such as can exist only where the people govern through their representatives. Civil liberty must begin with law; and in order that it may have firm root, it is essential that the law-maker himself shall be under effectual restraints of the law. Without this it could not be very important how just were the purposes of the ruler. A magistrate with despotic powers who goes about administering a rude justice in special cases according as his individual sense of right and wrong inspires him, may possibly be applauded for his wisdom, his justice or his clemency; but his decisions can settle no principles which his subjects can understand and appreciate, and by which they may afterward regulate their actions. Security can only come from fixed rules which the people, as they become familiar with them, will habitually respect and observe; it cannot

11 Bl. Com. 125.

2 Austin, Jurisprudence, Lec. VI. and XLVII.

3 Lieber, Civ. Lib. and Self-Gov., Ch. III. Liberty includes a man's "right to use his faculties in all law

ful ways, to live and work where he will, to earn his livelihood in any law. ful calling, and to pursue any lawful trade and occupation." In re Jacobs, 98 N. Y. 98.