anything. It is the basis of the divine right of kings, sanctioned by Arstotle, Justinian, Bacon, Queen Elizabeth and King James, and as Prof. Hammond himself says, "Blackstone, in falling back on to the original-compact idea, without apparently perceiving the inconsistency between the doctrine and his definition, an inconsistency of which his first American critic, Wilson, has made effective use, showing that this definition ranked him, in spite of himself, with the supporters of divine right and absolute power" (32).

The Institutes lays down the doctrine that the law of nature was the basis of the law of nations, and yet holds that slavery was contrary to the law of nature, but was an incident of war, which, of course, was regulated by the law of nations and humanity. The Roman civil law recognized regulated slavery. The very churches of America have been divided upon the subject.

Blackstone says the only true and natural foundations

321 Hammond's Blk. 112; Wilson's Works, vol. 1, pp. 54-75. Men of the same race, religion, ancestry, language and law could justify the institution of slavery, and with the same law illustrate that the air of England could not be breathed by a slave. Best, Judge, in the celebrated case of Forbes v. Cochran, in 1824, goes somewhat into the history of the relation of the slave traffic with England, and asserts that during the reign of Queen Elizabeth she issued patents to encourage the trade, and these were followed up by acts of parliament expressly recognizing it. Acts were also passed during the reigns of William III and George II. Lord Mansfield refers to the opinion of Sir Phillip Yorke and Lord Chief Justice Talbot, whereby they obliged themselves to British planters for the legal consequences of slaves going over to England. He himself, with the same magic weapon, the law of nature of God's law, wiped out the institution in England once for all. Somerset's Case, State Trials, 201; Great Opinions by Great Judges, 112. The English cases discussing the subject of slavery in the English law are cited in Forbes v. Cochran, 2 B. & C. 448; 9 E. C. L. 138.

of society are the wants and fears of individuals; and, if it were not too cynical, one might almost be justified, in the light of history, in saying that man has had no other criterion for determining the law of nature than his own selfishness. The doctrine of the binding force of natural law as a legal doctrine is long since exploded; not but what there are some things in the law of nature recognized and enforced by all municipal codes, but these rules address themselves to the law-makers, while civil laws address the individual.

A false antithesis is made the ground for classification. Enough has been said to indicate the foundation upon which Blackstone rests this last clause of his definition, and somewhat of the force of the criticisms against it. But, as the basis of classification, the definition is subjected to still more serious criticism. Close attention and observation to Blackstone's text will suggest to the reader that in the definition Blackstone uses the words "right" and "wrong" as adjectives, but in the classification he uses them as nouns. This manner of using the words is much like "keeping the word of promise to the ear and breaking it to the hope." The transition from the adjective use of the words to their use as nouns is so bold and sudden that it requires an effort of the mind to detect that the same words in the two situations have entirely different meanings. In the definition, the words "right" and "wrong" are used to express the idea of abstract moral qualities as applied to certain acts (33).

23 Holland Jur. p. 73. Lord Russell's Address Am. Bar Assn, Rep. 1896, p. 260.

We might substitute that a law commands what is just, good, upright, and in conformity with "natural justice," and prohibits what is unjust, evil, bad, iniquitous, or contrary to "natural justice;" in which case it would, according to Blackstone, naturally follow that the law was divided into just and unjust, good or bad, etc. Chitty, Christian, Austin, Coleridge, and Judges Wilson and Cooley (34) all agree that this qualifying phrase is surplusage, and not true as a definition of municipal law. Coleridge, Judge, thinks Blackstone misquotes Cicero (35). It is apparent that, if we reject this phrase in the definition, or substitute other words for rights and wrongs, the primary division of the law, depending as it does upon the definition, falls out of Blackstone's analysis, because he says the division follows the definition. He says: "Because the law is a rule commanding what is right and prohibiting what is wrong, it follows that the primary and principal objects of the law are "rights and wrongs." But I cannot assent that the definition of law necessarily discloses the division of the whole body of law. Much less is there any association of ideas between the words, although the same spelling and sound; “right” and "wrong," when used adjectively, denoting an affirmative or negative quality of morality and synonymous with "good" and "evil," and the same words, when used as nouns, indicating something a man is entitled to. Rights are, by Blackstone, nowhere defined, nor their nature investigated (36), although they are the principal and

84 Notes to different editions of Blackstone, pp. 39, 44, 122. 35 Sharswood's Blk. 1, note.

86 Prof. Hammond's Introduction to Sandars' Justinian, p. 50.

primary objects of the law. "Rights" and "wrongs" are nouns. The latter conveys no ideas separable from the former. A wrong must have a right to operate against. Every rule of law in a body of municipal law involves a right, but not necessarily what is right; and under the head "Rights" all of the law might be classed. In fact, we know this is just what Blackstone really does, though he translated "jus" and "jura," in this connection, "right," while the words mean "law" (37).

Blackstone's real primary division, Book I, consists of the Rights of Persons; Book II, of the Rights of Things or Property, or the rights of persons concerning things, which is Blackstone's meaning; Books III and IV, the Law of Actions, Private and Public, meaning not, however, the rights and wrongs of actions, but, as he himself says, the means of obtaining redress and punishment. By classifying these actions under Wrongs, Blackstone does not intend that persons do not have a right to these actions or remedies. The subjects discused in Book IV are punishments for violation of public rights. We know that the right to a hearing in court in vindication of any of our other rights is a constitutional right, and in reference to contracts constitutes their obligation, binding force, and indeed their only valuable attribute. Chief Justice Taney says: It is this remedy by an action in court which constitutes "the part of municipal law which protects the right, and the obligation by which it enforces and maintains it (38). It is this protec

37 See Holland Jur. p. 73. Lord Russell's Address Am. Bar Assn. Rep. 1896, p. 260.

38 Actions Subordinate to Rights, 1 blk. 140.

tion which the clause in the constitution (sec. 9, art. 10) now in question mainly intended to secure, and it would be unjust to the memory of the distinguished men who framed it to suppose that it was designed to protect the barren and abstract right without any practical operation upon the business of life" (39).

Supposed reason for the definition. Prof. Hammond, in his recent edition of Blackstone, undertakes to refute the criticism of Christian, Wilson, Cooley, Sharswood and others, though admitting that they are almost universally followed, on the ground that they do not see, or they disregard, the importance of the clause as connecting this definition with Blackstone's classification, and undertakes to maintain that the definition is necessary for the purpose of the division made by Blackstone.

While it is perfectly obvious that this definition gives apparent color to the division, with all due respect to the distinguished editor's manifest learning, it is clear that he signally fails to show, either that this clause of the definition is required from the nature of the word defined, or that it is true in fact, or that the division was a natural or necessary one. The division was original with Hale, while the definition was taken from the civillaw definition of natural law. His note makes it quite plain that Blackstone, following Puffendorf, Hobbs and other authors back to the days of Cicero, attempts to

39 Bronson v. Kinzie, 1 How. 311, 317. See also Cooley's Const. Lim. (6th ed.) 344, 350, citing dissenting opinions of Judges Washington, Thompson and Trimbell, in Ogden v. Saunders. 12 Wheat. 213; McCracken v. Hayward, 2 How. 608; McMillan v. McNeal, 4 Wheat. 209; Douglas v. County of Pike, 101 U. S. 677.