apply the Roman definition of natural law to municipal law, without observing the distinction that a natural law, being of divine origin, must necessarily conform to what is right, while municipal law, emanating from man, may or may not; for the simple reason that a body of men are no more certain to do right than an individual. This, so far from covering the point, is a departure from it. It is saying that, having classified into rights and wrongs, the definition is necessary. Hence law commands what is right and prohibits what is wrong, and from the definition the division follows; while the question is: Does a law always command what is right and prohibit what is wrong? Does it necessarily conform to what is morally right? If not, the definition is untrue. Neither is it true that all other classification is but auxiliary to this primary division, as contended by Prof. Hammond, or, in fact, that any classification is dependent upon the definition.

§ 49. Blackstone's primary classification not adhered to by himself. Notwithstanding the great pains to which he went to frame and defend his definitions of law and to demonstrate the material dependence of his classification of the law, as it relates to rights and wrongs, upon the definition, Blackstone does not, in reality, introduce any new arrangement, nor does his arrangement necessarily depend upon the closing phrase of the definition.

Professor Hammond, one of the most scientific editors, points out this fact quite clearly (40). The fact is that

40 “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. 166), the observant student will see that there is here a departure from that

Book I of the Commentaries has to do with the various classes of legal entities and their personal relations in society-i. e., the status or personas of men as we shall see it explained in the next chapter.

This book does not treat of all the rights of persons, but only their personal rights (41) (i. e., Public Relations, Domestic Relations, and Status). In the sense in which he uses the word "person," the subject of the second book constitutes the Property Rights of Persons, and the third book the Right to Remedies Afforded, or the Auxiliary Rights, as he terms them.

This Classification Was Novel.

Blackstone refers to

no precedent for the formal arrangement, and none of his editors have pointed out any. The body intended to be treated and actually arranged was the law of England. The classification ostensibly made was of rights, but so artificially is it done that rights are apparently accorded to things (42).

§ 50. The confusion results from inapt use of words. "Jurisprudence," says Holland, "is specifically con

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 constituting 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." Hammond's Blk., p. 316.

41 We are excluding corporations for the present.

42 "Rights of Persons and Rights of Things." Hammond asserts that rights are not defined by Blackstone. Int. to Sandars' Juris., p. L.

cerned only with such rights as are recognized by law and enforced by the powers of a state. We may, therefore, define a legal right, in what we shall hereafter see is the strictest sense of that term, as a capacity residing in one man of controlling, with the assent and assistance of the state, the actions of others. That which gives validity to a legal right is in every case the force which is lent to it by the state. Anything else may be the occasion, but not the cause of its obligatory character.

This simple meaning of the term 'a right' is, for the purposes of the jurist, entirely adequate (43). It has, however, been covered with endless confusion, owing to its similarity to 'right,' an abstract term formed from the adjective 'right,' in the same way that 'justice' is formed from the adjective 'just.' Hence it is that Blackstone actually opposes rights in the sense of capacities to wrong -in the sense of unrighteous acts" (44).

Professor Hammond, himself an editor of Blackstone, and the one who has made the ablest attempt to defend him, says in his learned introduction to Sandars' Justinian (45), speaking of Blackstone's division into rights and wrongs: "As a scientific distribution, this is no doubt open to criticism, since a wrong can no more exist apart from right in law than a shadow without substance in optics, a negative without positive in logic." Again, at page 50 he says: "We confess that seems to us the weak side of Blackstone's entire system." Walker

43 See opinion of Chase, J., in Calder v. Bull, 3 Dall. *394, quoted by Webster, 4 Wheat. 516.

44 Holland's Jur., 71, 72, 73.

45 Page 48.

says a wrong always results from the violation of a right, so that by describing the one we indicate the nature of its opposite. A treatise, therefore, upon municipal law is for the most part a treatise upon rights and remedies, as one may choose to express it; and this suggests a remark upon Blackstone's primary division of legal subjects into rights of persons, rights of things, private wrongs and public wrongs. These expressions do not on their face indicate that remedies are to enter into the discussion. Moreover, the phrase "Rights of things," "Jura rerum," by itself conveys no definite idea, since all rights are the rights of persons; that is, they belong to persons, though they may have relation to other things (46).

Indeed, Blackstone is inconsistent with himself, because, he should have divided wrongs into wrongs of persons and wrongs of things. He says, in treating of private wrongs (47): "For, as these (wrongs) are nothing else but an infringement or breach of those rights which we have before laid down and explained, it will follow that this negative system of wrongs must correspond with the former system of rights. As, therefore, we divide all rights into those of persons and those of things, so we must make the general distribution of injuries (48) into such as affect the rights of persons and such as affect the rights of property" (49).

§ 51. The right to redress in court is a right. One ob

46 Walker's Am. Law, p. 47.

47 Book 3, p. 119.

48 Notice the change from "wrongs" to "injuries."

49 "Property" is now substituted for "things."

servation further will make the matter so plain that one can more readily see it.

If laws are to be classified under rights at all, under that head should be classed rights of action (50), or the right to redress in courts of justice, which Blackstone himself calls a right auxiliary to absolute rights, but without which the other rights would be useless and protected only by the dead letter of the law (51). He, however, treats it under the negative head of wrongs (52), No better illustration could be asked of Bacon's remark, "that men imagine that their reason governs their words," while in truth their words react upon the understanding, and, as a consequence, science becomes sophistical and inactive, and also of the words of Burke, "that studies become habits of thought," than is found in the confusion the definitions and forms of expressions, imbibed from Blackstone by students at the outset of study, has produced on their habits of thought.

A recent author, who has brought to the matter great learning and deep research, in his preface makes this candid statement: "When the author began the study of law, he was, like other students, bewildered by the confusion reigning in Blackstone's and other text-books with regard to the nature and general principles of private right" (53).

60 See 1 Wilson's Works, pp. 36, 46; Austin's Jurisprudence, p. 764; Bronson v. Kinzie, 1 How. 311, 317; Board of Education v. Blodgett, 155 Ill. 441; Campbell v. Holt, 115 U. S. 620.

511 Blk. Com. 141.

52 In Book III.

68 Smith's Right and Law, Preface, p. 7.