individual will which all men dislike, but cannot escape; and converts into willing obedience what otherwise would be unrelenting antipathy and undying resistance.

Liberty of subject and political liberty not estimated by number of their restraints.—The liberty of the subject and political liberty thus differ from each other only in giving more or less prominence to one or other of the constituent elements. They both denote the greatest protection extended to the body, the property, and ordinary pursuits, which can be attained in social life-the liberty of shaping one's conduct by laws confessedly just. When laws are originally or mainly framed by a large body of intelligent and select representatives, who declare them fit to be obeyed and enforced upon all, this is the nearest approach to self-made laws. But civil liberty is not to be estimated or measured solely by the number of the restrictions embodied in the laws. The mere number of these signifies little, for their value is often enhanced by multiplicity and variety. One restriction more or less is immaterial, when the whole fabric of the structure is instinct with freedom. This liberty, the reflex of the law, is the product of many forces-the result of incessant, far-reaching, and long-continued efforts of legislation-never attaining, yet ever approaching perfection. In short, the liberty of the subject is only another name for the highest security attainable in any community for the body, the estate, and the employments of life, more especially as these are secured against arbitrary imprisonment, against confiscation of property, and against suppression of free thought and speech.

Liberty of subject is counterpart of legal and self-imposed restraints.—The liberty of the subject, the natural fruit of the law, is said to be a government by laws, and not by men. It is entirely the counterpart and correlative of the restraints imposed by the laws on the rest of the community for the benefit of each individual. Such is the liberty of each individual to acquire and enjoy such rights as he deems most valuable, and which the laws have expressly secured for him by corresponding restraints put on all his fellow-subjects. These laws take care that none shall imprison or control him, except for causes wellknown, and which he himself acknowledges in the abstract

to be just, and under warrants which issue from proper authority. They take care that he shall enjoy a large share in making and amending the laws, for laws self-imposed are always the least irksome. When thus originated and moulded-instead of being emblems of tyranny, the laws seem the emanations of the individual will, which it is the interest and pride of each and all to array themselves in supporting.1

Distinction of absolute and relative rights.-Here may be noticed a distinction which arises in some degree out of the liberty of the subject, and which some authors have attempted to draw between absolute and relative rights. Such a distinction will be seen at once to be founded on a confusion of thought. Strictly speaking, all rights are relative, that is to say, they necessarily presuppose a society of individuals, with regard to whom alone rights have existence. If there were only one individual in the world, he would eat and drink, and sleep, and probably would exercise his faculties in some way. But he could neither plunder nor murder, could neither slander nor defame, could neither buy nor sell. He would have no rights, nor would he have any wrongs. He would simply satisfy his personal wants if he could, and having no competitors or disputants, he could neither sue nor be sued. To speak of absolute as something different from relative rights is altogether unmeaning. All rights are equally the accompaniments

1 "As popular liberty without government will degenerate into license, as government without sufficient liberty will degenerate into tyranny, they are mutually necessary to each other; good government to support legal liberty, and legal liberty to preserve good government.' -Bolingbroke, Patriot King.

"The difference between free and despotic governments is not that the sum of liberties which the former leaves to its subjects exceeds the sum of the liberties which are left to its subjects by the latter. The excess in the sum of the liberties which the former leaves to its subjects may be purely mischievous. It may consist of freedom from restraints which are required by the common weal, and which the government would lay upon its subjects if it fulfilled its duties to the Deity. In consequence, for example, of that mischievous freedom its subjects may be guarded inadequately against one another, or against attacks from external enemies. A free government leaves or grants to its subjects more of the political liberty which conduces to the common weal."-1 Austin, Prov. Jur. p. 283, 285.

of society, and all are alike enforceable by some legal procedure, otherwise they would not be rights at all. They may differ in intensity or in relative value and importance, according to the estimation of the individual; but in all essential particulars each is as absolute as the other. All that Blackstone probably really meant by the distinction between absolute and relative rights was this, that, of those rights which regard the person, some are common to all members of the commonwealth without exception, at least to all adult members; while others are conspicuous only in classes and sections of people, or rather they become more prominent in some circumstances than in others.1

Natural rights of man.-Again, it has sometimes been said that the three natural rights of man are life, liberty, and property, to which Bentham justly adds reputation. But this involves some confusion of ideas, for liberty necessarily includes life and property as well as reputation, and many things besides. Whatever be the laws under which human beings live, one of their essential tendencies, and indeed an inseparable quality of all human beings, is to cherish and defend life, and to create, accumulate, and defend property, and to aspire to various other enjoyments. Liberty is the radical condition of human life, and engrosses all the faculties and develops the habit of preserving life, property, reputation, and the general rights and results of all kinds of labour.

Origin of government, social contract, and divine right.The origin of government and civil society has been a fruitful speculation in all ages, and many volumes have been written to explain by what stages each generation has reached and matured the complicated system of mutual checks, under which modern nations are well pleased to live. Philosophers have often suggested that in prehistoric days the community first chose the tallest and strongest man for a king, as Herodotus says the Ethiopians did in the time of Cambyses.1 Such would be one who was pre-eminent for physical prowess-who had slain his thousands in battle,

1 BLACKSTONE, taking up Coke's expression as to a prior period, says that the absolute rights are declared by the Act of Settlement to be the birthright of the people of England.-6 Rep. 231; 1 Bl. Com. 127. This was obviously a figure of speech, but a good one. 2 Herod. b. 3.

and led the war-dance in intervals of peace. The mere habit of command and obedience may have induced the next most able and active of the same family to be promoted to the vacant chiefship, and then the choice may have finally settled for better or for worse in one tribe. Councillors and wise men would then gather round their leader, and fence all the avenues of tyranny about, till tier upon tier of caste and routine should make heavy and stable the seat of power. There is much fancy blended with all such speculations, and each has his own train of ideas and theories to smooth the way through difficulties, and trace the secret links of the chain of order. Much must in such a search turn on the point of departure, and all prefer a stage of barbarism to start from. How the patriarch from a huntsman became a shepherd, a husbandman, a trader-how one by one families flocked to walled towns, and a network of local government spread over the landhow units became tens, and tens became hundreds, and hundreds became thousands, till each tribe became merged in the crowd, and in the maze nothing but units could at length be clearly distinguishable, and thus became a new point of departure, each being then treated as the radical basis of legislation, and of social merit and responsibility.

Theory of growth from barbarism.-The theory of natural growth and development out of barbarism has, however, many difficulties. Tribes have for hundreds of years shown no signs of advancement, have lacked all invention in common implements-grown more stolid and mechanical-have stagnated in all the isolation of barbarism, and lost almost the lineaments of humanity.1 A descent from higher to lower grades of barbarism is not only in accordance with observation, but is as inscrutable as inevitable in theory. Double difficulties surround every explanation, and some read backwards and some read forwards the legends of the past. It is enough, however, for lawyers to surrender all such speculations to the philosophers, and to know this and

1 HUMBOLDT said he could not make out whether the savage state was a dawn or a sunset of better days: but preferred the latter hypothesis. NIEBUHR held that savages were the remnants of civilised tribes driven to the woods, and who had gradually forgot the arts of settled life. And WHATELY remarks that there is no record of savages ever civilising themselves.-Whately, Ess. Civilis.

"2

this only, that no society can exist without the rudiments of laws and of government.1 Laws, though often at first seemingly the sport of chance, are for a time credulously believed in; till simple faith is gradually transformed into scepticism, and reflection into criticism; and the era of reform slowly dawns over the torpid generations, quickening their intuitions till they find new aims, methods, and solutions for overcoming the many varieties of evil, want, and oppression. Societies, as Bolingbroke remarked, are "begun by instinct and are improved by experience." 2 In all stages of advancement, indeed, there are some landmarks not to be overpassed, some restraints inevitable and irresistible, and in all forms of government there is much of the machinery common, because human nature is much the same in every clime, and moves under the same influences. But no human sagacity or learning has yet made plain, why or how civilisation has quickened most in some climates, and among some races, however ingenious may be the theories which the vanity and self-glorification of nations put forth on this subject.

Theory of divine right and original contract.-Leaving, however, as inscrutable the historical origin of laws, and their earliest progress, there is still some mystery even in the later stages. Philosophers and divines have discussed two opposing theories-one of divine right, and one of social or original contract. One holds that the governor is heaven-descended to be received without misgiving

1 See ante, p. 6, as to savages without laws.

2 Bolingbr. Frag. x.

"It is reasonable to conclude that society was coeval with man, and that the savage in his woods exhibits the picture of fallen, degenerate man in an unnatural state-the ruined, degraded species rather than his living image in the infancy of the world."-Filangieri, La Sci. d. Legisl. The law of nature is inseparable from the nature of thinking beings it subsists and will subsist for ever, in defiance of the passions which obstruct it, the tyrants and impostors who would obliterate or annihilate it in blood and superstition."-Ibid. ch. iv.

"The

3 "I believe that no creature now maintains that the crown is held by divine hereditary and indefeasible right."-Burke, Fr. Rev. senseless plea of divine and indefeasible right, repugnant to nature and common sense, implies that man can have a property in his fellow-creatures."-Fox, Hist. Jas. II. "The wild and absurd doctrine of divine right.'-1 Bl. Com. 219.

VOL. I.

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