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or it may be conditional on the future approval by each contracting party of the form of government adopted. In either case, it is necessarily unanimous: those who do not join in it, remain in the state of nature." P. holds also that even the contracting parties reserve the liberty to withdraw at pleasure from the society and go elsewhere. (But why go elsewhere? whence comes the interference with their natural liberty of remaining where they are?) Others hold differently on this point. No society has practically allowed men to dwell among them in natural liberty. And the right of expatriation is but recently recognized. (See Wilson's argument for it, 1, pp. and on the other side, Wooddesson, vol. 1, 23–25, margin.) The next step requisite is that the society should issue an ordinance (or form another contract) establishing a form of government. This may be adopted by a majority, and the minority will be bound by their former contract to submit, unless they reserved, as above, their right to withdraw in such a case. Lastly, still another contract is necessary between the persons to whom the sovereign power is committed, and the body of citizens or subjects: the former engaging to act for the public good, and the latter to obey faithfully, and support the government. In a democracy this last contract is less important than in any other form of government, but still must be supposed, the parties to it being the citizens as individuals on one side, and the people as a collective body on the other.

Puffendorf and the other writers of that school are by no means inclined to admit that the social contract is a mere ideal or fiction. They reason that such compacts must have been formed at a very early period, when there were no records or even writing, and that they have been therefore forgotten. Locke even compares states to men, as having an infancy in which memory is not yet formed, apparently forgetting that the analogy proves too much if it proves anything, for the infant

state could not contract. Puffendorf contents himself with arguing that every state must have had a beginning; that the power to govern could properly rest only in a contract, and a contract must therefore have been formed. (Puffendorf, lib. 7, ch. 2, 8, n. 5; Locke, Treatise on Government, ch. 7, ? 10; Sidney, Discourses on Government, ch. 3, ?? 25, 33; Wooddesson's Lectures, 1, 21, 22.)

(21) In different states according to their different constitutions, page 53.

Blackstone uses the word "constitution" in two quite distinct meanings: sometimes in the older sense of a mere law, usually a law of positive enactment, in which sense it was employed by the civilians and canonists; sometimes, as here, in the modern sense for the entire structure and organization of the state, the sense in which it is most familiar to American lawyers, although, of course, without any reference to written constitutions, which were unknown, at least by that name, when he wrote. For examples of the former meaning see "the wisdom of our late constitutions," page 16; "the imperial decrees or constitutions of successive emperors,” page 81; "the legatine constitutions were ecclesiastical laws," page 83; "the provincial constitutions," page 83. The two senses of the word are quite distinct, and probably have been so from the beginning. It may be inferred that the modern sense is really the older, not only from its derivation but from such expressions as that of Cicero, "Nec unius temporis nec hominis esse constitutionem rei publicæ:" but in the long interval between the classic period of Latin and the seventeenth century it had quite passed out of use and given way to the other. In Blackstone the two may usually be easily distinguished by the context; but it will be noticed, also, that when he uses the word for mere laws it is commonly in the plural, while in the other sense it is

in the singular, unless the plural is required, as here, by a reference to more than one state.

(22) Every law may be said to consist of several parts, page 53.

This must not be understood to mean that we find, as a rule, in each law the four distinct parts here mentioned by Blackstone, but that these are four distinct modes in which any law may operate, so implying one another that from a law stated in either mode the others may generally be inferred. Thus, for example, the declaratory part is, as B. says, that by which the rights to be observed and the wrongs to be eschewed are clearly defined and laid down: and when the existence of a right or a wrong is thus declared, the courts will infer from it the direction to respect the one or avoid the other, and the existence of a remedy whenever that direction is not followed. The vindicatory part, when properly distinguished from the remedial, has limitations indeed of its own. The commission of an unlawful act is not necessarily punishable. Many of our states, as has been shown elsewhere, deny to the courts the power of punishing such an act as a crime or a misdemeanor, unless an express statute to that effect has been enacted. (See Lieber's Hermeneutics, 3d edition, by Hammond, note J, page 293.) And this is no modern rule. The maxim, nulla pœna sine lege, has long been familair in European law. For its history, see Hermeneutics, pp. 294-296; and for its American application, U. S. v. Morris, 13 Peters, 464; Ferrit v. Atwill, 1 Blatchf. 151; U. S. v. Clayton, 2 Dill. 219; 1 Green's Crim. Rep. 439; 1 Bishop on Crim. Law, ?? 36, 134, 135. But this exception has no bearing upon private law, in which the existence of a right, the direction to respect it, and the remedy for its violation, so generally imply each other that they are almost convertible terms.

The declaration of a right rarely is found in formal language; and a right itself in legal language is less often designated by that name than by the common terms for the different kinds of rights. When a constitution or a statute defines the age and other conditions upon which suffrage is to be exercised, the law at once converts that exercise into a right, and gives a remedy for any unlawful interference with it. The question whether the plaintiff in such a case must also show some actual damage proceeding from the infringement of his right is one upon which the courts have differed.

If a statute gives to a person or to a corporation the power of flooding land, or of constructing a railroad or other easement, the exercise of such power at once becomes a right, and every interference with it a wrong, to which the law annexes the common remedies. Even when a court recognizes a new kind of property, as in the case of ice, the law at once annexes all the directions and remedies which belong to property in general to the right thus declared. One important limitation must be made here. If the legislature has not only declared a new right, but has expressly given a remedy for its enforcement, that remedy alone can be pursued ; on the principal, expressum facit cessare tacitum. It will be presumed that the legislature did not intend to add the usual common-law remedies by implication, since they have given à special one. (Cole v. City of Muscatine, 14 Iowa, 296.) Here, again, the courts have introduced a distinction not always easy to apply. If the act thus forbidden would constitute a common-law wrong, independent of the statute, the addition of a special remedy will not prevent the use of that given by the common law, e. g., a statute regulates the taking of land under the power of eminent domain for a railroad, and prescribes how it may be condemned. A railroad corporation enters upon land without taking the necessary steps for condemnation; must the owner

pursue the statutory remedy, or may he treat the entry as a common-law trespass and recover damages on that ground? Upon this point decisions are conflicting, but the latter is the more correct doctrine.

Some courts distinguish the cases where the owner has the right to set in motion the process of condemnation from those where the railroad company alone can do it, giving the common-law action to the owner in the latter case but not in the former.

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Still more frequently the law gives the remedy for acts not previously characterized either as rights or as wrongs, which are at once enrolled under those categories as a consequence. If a statute gives an action where none existed at common law, the necessary inference at once is that the case of such action includes both a right and a wrong: a wrong by the defendant for which a recovery is sought; a right in the plaintiff of which that act is an infringement. And this is a logical and necessary conclusion to which there can hardly be an exception; for right and wrong are the parents of all actions, as the old books say

Finally, when an act previously innocent is made penal, this vindicatory law implies a declaration that it. is wrong, a direction not to do it, including the important corollaries that it is legally void when done, and that no contract or agreement to do it can be binding, and a remedy for all damage resulting from it. It makes no difference in this respect whether the act is malum in se or malum prohibitum, since the addition of the legal penalty would now be regarded as adding new force and effect in such cases, contrary to Blackstone's doctrine. (1 Com, 53.)

And although the act be merely prohibited by positive law, that prohibition is evidence of the will of the state that it should not be done, and is held to impose a conscientious duty of obedience on all citizens: "Where a statute inflicts a penalty for doing an act, though the

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