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NOTES OF THE AMERICAN EDITOR TO CHAPTER I.

THE ORIGIN OF LEGAL RIGHTS AND THEIR RELATION TO LAWS.

(1) "The primary and principal objects of the law are rights and wrongs," page 122.

Notwithstanding the care of Blackstone to connect the general plan of his work and its chief divisions with the definition of law given in the introduction (p. 44, as to which see note 14, ante, p. 121), the observant, student will see that there is here a departure from that conception. He would naturally expect to find the body of the work consisting of a statement of the laws or rules which command or forbid the actions of man, and constitute thereby rights and wrongs; he would expect to find the character of these latter absolutely determined by the rule which commands or forbids them; on the contrary, the conception of a law, and especially the highest kind of law, natural or ethical, disappears entirely from this point onward, that is to say, in the main body of the work. We have in its place the rights and wrongs themselves, originating, it is true, in that reason which is the common law, but rarely traceable to any distinct command. He will find that they are shaped and governed by the everyday interests of men and the purposes of daily life, and that the law which defines or limits them is usually formed from them, and intended only to mark off their limits, and prevent the conflicts, which in actual life are constantly arising between them. So far from lying at the basis of the system, and determining the form and contents of every right, the law of a given case is usually the last thing to be determined, and cannot be accurately stated, until the courts of justice have measured the relative extent of the conflicting rights, and drawn this line between them. But that Blackstone has expressed the actual phenomena of English law in these books, whatever difficulty there

may be in bringing these phenomena under the definitions of the introduction, no one acquainted with the subject has ever doubted.

As a mere question of classification, he could not do otherwise. No one has ever succeeded in arranging the contents of a nation's law (jus) by the rules or laws which govern it. The only classification possible of such rules is one of their form. They may be written or unwritten, natural or positive, constitutional or statutory, with perhaps some other classes of minor importance, but none of these terms have any necessary connection with the subject-matter of the rules. The law governing a particular action or right may be found in one class or another, or may change from one class to another without in any way affecting its oontents. A classification of laws as laws by any marks belonging to them as such would be of little service in the guidance of human action, or in determining the bounds between right and wrong.

On the other hand, the entire subject-matter of law (jus) falls naturally into a classification of rights and wrongs and duties. These terms are only the generalized expression of the actions themselves, which the law is meant to regulate. If the latter is defined as a rule of action (1 Com. 38), the right or the duty is the action itself which the law rules: the wrong, a breach of right and duty, is the action which the law reprobates. It is therefore by these terms that every system of law which the world has known was reduced to a system. It is by virtue of these terms that we reason in all cases from the rules, actual or imaginary, to the facts of daily life. We cannot wonder, therefore, that Blackstone, describing in these four books what he found in the law of England, deals with the rights and wrongs (and the duties corresponding to the rights), and not with any series of rules prescribed by the sovereign power.

In another respect the rights, etc., which are the subject of the Commentaries, differ from those for which the introduction, and especially the second section of it, has prepared us. The student would probably expect to find natural rights with which no human law could interfere, whether these might exist by virtue of natural reason in a form to be recognized and enforced independent of any human rule, or were only to be defined in accordance with the laws imposed by nature or the Deity upon men. He finds on the contrary that there is not a human right, however valuable and however clear, but must yield at times to the rules of positive law. Life itself, the highest of all rights, or at least the condition and indispensable prerequisite of them all, may be justly taken from him at command of a human sovereign. Parliament had created more than two hundred capital offenses in Blackstone's time, only the smallest fraction of which are known to the divine law. The right of liberty, scarcely inferior in value, may be infringed lawfully, not only when a citizen has committed a crime, but when he fails to perform a promise or breaks the least regulation imposed by the police. It is not even necessary that he shall be shown to have done either of these; upon a reasonable suspicion that he may have done them, his natural right of liberty is sacrificed to the interests of society, as a magistrate or creditor may interpret them. Upon infringements of the natural right of property it is useless to dwell: as an absolute right, that of acquiring and holding property, it is rarely capable of direct infringement, and the indirect restraints upon it with which civilized society abounds are perhaps incapable of legal regulation. The right to specific objects or things unconnected with the person, as Blackstone expresses it (2 Com. p. 1), is so inevitably subject to positive law that the jurists have good reason for denying it the character of an absolute right. These illustrations are sufficient

to show how widely the rights recognized by the law of England, or of any civilized country, differ from the natural rights of theory. If the question had not long been supposed to be between this theory and the utter denial of all rights not given by positive law, the true nature of legal rights would not so long have been overlooked. We have only to study the facts, as stated in these four books, to perceive that a legal right is simply such action as the contemporary law warrants, without reference to the question whether it existed before the law or was introduced by it: the law warrants it by protecting its exercise and punishing all interference with it in most cases this is all that it does. The life, security, and liberty of each citizen are not assured against any of the natural perils to which he may expose them, but only against his fellow members of the community, by virtue of duty imposed upon them, not to kill, assault, or imprison him. But some rights are of a more positive nature: the individual can secure to himself a right to the services or acts of his fellows by contract, or in certain instances the relative status of two parties may impose upon one duties to be performed for the benefit of the other. In all these cases the law guarantees to the holder of the right, if not the performance of the duty, yet at least a proper compensation for the breach of it. And here, although the right may be perfectly natural in its origin, such as that of the father against the child, it depends entirely upon the positive law of the state for its enforcement. No court enforces filial duties in a case where positive law has made no provision for it.

But does it follow, therefore, as Austin and his school believe, that all rights are created by the sovereign, and that no such thing as natural right is known? In other words, will not the law give effect and remedy to any right, unless a command of the state to do so can be shown? This is as gross an error on the other

side. The writers who repudiate natural law, because it is impossible to show an actual command imposed by nature, seem to forget that they have not thereby excluded nature herself from the world of which they treat. If the sovereign should attempt to impose upon the child from his birth the duty of supporting and educating the father, a thing which upon Austin's theory he might well do, he would at once find that he could no more create such rights than he could command that heavy bodies should fall upward. Granting that there are no such things as natural laws (as a part of jus), there is a very substantial nature with which every earthly judge or sovereign must reckon before he can determine what the law is that he is called upon to enforce. And this constitutes the importance of Blackstone's view of all law, the order of the universe as a single system. (See n. 10, ante, p. 95.) The common law in its strictest definition would be quite other than it is, if the laws of physics, of mathematics, and even of metaphysics were not as they are. Many of its most positive doctrines are determined by these wider laws; for example, all our rules of the measure of damages are mere applications of the principle of mathematical equality, as determining the rule of compensation for damage.

The old question, therefore, so long and bitterly discussed, whether laws precede rights in genetic order or rights precede laws, must be dismissed with the countless other questions of the same nature, upon which speculations have been wasted. The two conceptions are complementary of each other; every law produces rights, of course with the duties and wrongs which belong to them; every right requires laws to be passed for its enforcement, and these may be either so easily inferred from the nature of the right that a judge may see them to be a necessary part of it, or they may be so distantly connected with it, although needful for its

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