CHAPTER THE FIRST. OF THE ABSOLUTE RIGHTS OF 117 Municipal law being a rule of civil conduct, commanding what is right and prohibiting what is wrong;a it follows, that the primary and principal objects of the law are rights and wrongs. visible into Rights are liable to another subdivision: being either, [ 122 ] first, those which concern and are annexed to the persons of Rights dimen, and are then called jura personarum or the rights of rights of persons; or they are, secondly, such as a man may acquire rights of over external objects, or things unconnected with his person, which are styled jura rerum or the rights of things. persons and things, We are in the present work to consider the rights of per- The rights sons; with the means of acquiring and losing them.b of persons. persons of Now the rights of persons that are commanded to be ob- [ 123 ] served by the municipal law are of two sorts: first, such as Rights of are due from every citizen, which are usually called civil two sorts. duties; and, secondly, such as belong to him, which is the more popular acceptation of rights or jura. Both may indeed be comprised in this latter division; for, as all social duties are of a relative nature, at the same time that they are due from one man, or set of men, they must also be due to ano 2 See ante p. 35. The rights of things are treated of in" the Principles of Real Property, "according to the text of Blackstone, Persons are either natu cial. ther. But I apprehend it will be more clear and easy, to consider many of them as duties required from, rather than as rights belonging to, particular persons. Thus, for instance, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection as the duty of the magistrate; and yet they are, reciprocally, the rights as well as duties of each other. Allegiance is the right of the magistrate, and protection the right of the people. Persons also are divided by the law into either natural ral or artifi- persons, or artificial. Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic. Rights of persons are either absolute or relative. Absolute rights. [124] The rights of persons considered in their natural capacities are also of two sorts, absolute, and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. The first, that is, absolute rights, will be the subject of the present chapter. By the absolute rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it. But with regard to the absolute duties, which man is bound to perform considered as a mere individual, it is not to be expected that any human municipal law should at all explain or enforce them. For the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no concern with any other but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vicious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like) they then become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circum stance of publication is what alters the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws; private sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. But with respect to rights, the case is different. Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others. pal aim of protect indi For the principal aim of society is to protect individuals in The princithe enjoyment of those absolute rights, which were vested in society is to them by the immutable laws of nature; but which could not viduals. be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect and enforce such rights as are absolute, which in themselves are few and simple; and then such rights [125] as are relative, which, arising from a variety of connexions, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security. berty, what The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to Natural libe most desirable, are usually summed up in one general it is. appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he given upon ciety. civil liberty, what it is. Partially endued him with the faculty of free-will. But every man, entering so- when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable than that wild and savage liberty which is sacrificed to obtain it. For no man, that considers a moment, would wish to retain the absolute and uncontrolled power of doing whatever he pleases: the consequence of which is, that every other man would also have the same power; and then there would be no security to individuals in any of the enjoyments Political or of life. Political therefore, or civil liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public.b Hence we may collect that the law, which restrains a man [126] from doing mischief to his fellow-citizens, though it diminishes the natural, increases the civil liberty of mankind; but that every wanton and causeless restraint of the will of the subject, whether practised by a monarch, a nobility, or a popular assembly, is a degree of tyranny: nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are regulations destructive of liberty: whereas, if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance; by supporting that state of society, which alone can secure our independence. Thus the statute of king Edward IV., which forbad the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that savoured of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve b Facultas ejus, quod cuique facere libet, nisi quid jure prohibetur. Inst. 1.3. 1. с 3 Edw. IV. c. 5. no purpose of common utility. But the statute of king Charles II., which prescribed a thing seemingly as indifferent, (a dress for the dead, who were all ordered to be buried in woollen) was a law consistent with public liberty; for according to the opinion of that day, it encouraged the staple trade, on which in great measure depends the universal good of the nation. So that laws, when prudently framed, are by no means subversive but rather introductive of liberty; for (as Mr. Locke has well observed)e where there is no law there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint. berty flou greatly in The idea and practice of this political or civil liberty Political liflourish in their highest vigour in these kingdoms, where it rishes falls little short of perfection, and can only be lost or de- England. stroyed by the folly or demerits of its owner: the legislature, [127] and of course the laws of England, being peculiarly adapted to the preservation of this inestimable blessing even in the meanest subject. Very different from the constitutions of many other states, on the continent of Europe, and from the genius of the imperial law; which in general are calculated to vest an arbitrary and despotic power, of controlling the actions of the subject, in the prince, or in a few grandees. And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and so far becomes a freeman:f though the master's right to his service may possibly still continue. And acting on this the spirit of our constitution, slavery has been finally abolished throughout the British dominions by an act of the imperial parliament, and has at last been extinguished not only in name but in substance by the legislatures of those colonies where it formerly existed.h d 30 Car. II. st. 1. c. 3. now repealed by the 54 Geo. III. c. 108. On Gov. p. 2. §. 57. f Salk. 666. See ch. 14. 3 & 4 Wm. 4. c. 73. Slavery was abolished in all the |