bility, of equal antiquity, and of equal authority, with prerogative. Those duties of the king and those duties of the subject are plainly reciprocal; they can be violated on neither side unless they be performed on the other. The law is the common standard, by which the excesses of prerogative, as well as the excesses of liberty, are to be regulated and reformed."

ILLUSTRATION.

"Every man has an abstract right to the exclusive use of his own property, for his own enjoyment, in such a manner as he shall choose; but if he should choose to create a nuisance upon it, or to do anything which would preclude a reasonable enjoyment of adjacent property, the law would interfere to impose restraints. He is said to own his private lot to the center of the earth, but he would not be allowed to excavate it indefinitely, lest his neighbor's lot should disappear in the excavation. The abstract right to make use of his own property, in his own way, is compelled to yield to the general comfort and protection of the community, and to a proper regard for the relative rights of others. The situation of his property may even be such that he is compelled to dispose of it, because the law will not suffer his regular business to be carried on upon it. A needful and lawful species of manufacture may so injuriously affect the health and comfort of the vicinity that it cannot be tolerated in a densely settled neighborhood; and therefore the owner of a lot in that neighborhood will not be allowed to engage in that manufacture upon it, even though it be his regular and legitimate business. The butcher, in the vicinity

of whose premises a village has grown up, finds himself compelled to remove his business elsewhere, because his right to make use of his lot as a place for the slaughter of cattle has became inconsistent with the superior right of the community to the enjoyment of pure air and the accompanying blessings and comforts. The owner of a lot within the fire limits of a city may be compelled to part with the property because he is unable to erect a brick or stone structure upon it, and the local regulations will not permit one of wood."

Blackstone's treatment does not justify the designation. Blackstone's comment upon the subject does not warrant or justify the division. He says (Book I, page 125): “Every man when he enters into society gives up a part of his natural liberty. The absolute rights of man are usually summed up in one general appellation, and denominated the natural liberty of mankind."

Again, "political or civil liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws as it is necessary and expedient for the public good." This definition is taken bodily from the Institutes (31).

Again he says: "The absolute rights of every Englishman, which (taken in a political and extensive sense) are usually called their liberties," etc (32).

These are explained to be such as depend upon the fundamental articles of their government, viz.: the Great Charter, the statute called the "Confirmatio cartarum,"

81 Institutes, 1-3-1. 821 Blk. Com. 127.

the petition of rights, habeas corpus act, bill of rights, acts of settlement, etc.

He then proceeds: "Thus much for the declaration of our rights and liberties. The rights themselves thus defined by these several statutes consist in a number of private immunities, which will appear from what was promised to be, indeed, no other than either that residuum of natural liberty which is not required by the laws of society to be sacrified to public convenience, or else those civil privileges which society has engaged to provide in lieu of the natural liberties so given up by individuals." These, he says, are the right of personal security, personal liberty, and the right of private property. Thus he says absolute rights are natural rights, and then says that these are given up (33).

These rights, he has asserted, are the first and primary end of human law (34). It needs no argument to prove that these are the rights referred to in the preamble of the Federal constitution as "the blessings of liberty," and more especially enumerated in the amendments proposed by the first congress (35). These rights were treated by Blackstone as standing alone, or rather opposed to the powers of government, i. e., absolute; and then follow chapters relating to the king and his dominion, parliament and its powers, the courts and their jurisdictions. In no sense is this in strict harmony with the facts. Their first palladium was the Great Charter, which was obtained by the barons from King John, and so on

331 Cooley's Blk. 125, note.

341 Blk. Com. 125.

351 Sharswood's Blk. 125, note.

through the list of petitions, bills and acts that define and defend these rights, there is an appearance of an agreement with the sovereigns for the preservation of those rights which are (by him) called absolute, but are spoken of as franchises and immunities (36).

§ 85. Lord Hale did not recognize absolute rights. Lord Hale in his analysis puts these matters in a different manner. After outlining the main divisions in accordance with the Roman law, he speaks of natural persons thus: "Persons natural are considered in two ways: absolutely, and simply in themselves, or under some degree or respect of relation." As considered absolutely, he speaks of their interest and their capacities or abilities. Hale does not use the word status, but uses the English equivalents, and as status was always spoken of in connection with man or individual, so he treats capacities or abilities of natural persons considered absolutely in themselves, i. e., as individuals. The treatment of capacity he refers to the ability to take and hold rights. This makes the matter perfectly clear, and robs Blackstone of any excuse for the term "absolute rights."

Hale, in his analysis (sec. 2), the title of which is: "Of the relations of persons and the rights thereby arising," says: "Now, as to persons considered in respect of relation. The rights thereby arising are of three kinds, namely: Political, economical, civil." Then proceeding: "The political relation of persons, and the rights emergent thereupon, are the magistrate and the people or subject;" section 3, of the king's person; 4,

36 See opinion of Jay, J., in Chisholm v. Georgia, 2 Dall. 470.

his prerogatives; 5, his domain and power; 6, his jurisdiction; 7, his royal revenue; 8, his temporal revenue; 9, his relative prerogatives; 10, of the subordinate magistrate; 11, temporal magistrates; 12, inferior magistrates. In section 13 he approaches again the rights of the people, which he says are rights of duty (?) to be performed; rights of privilege to be enjoyed; and continuing, he says, on page 28: "The rights and liberties to be enjoyed by the people, both in relation to the king and all his subordinate magistrates are: that they may be protected by them and treated according to the laws of the kingdom in relation to their lives, their liberties, their estates. And here falls in all the learning upon the statute of Magna Charta and Charta de Foresta, which concerns the liberty of the subject, especially Magna Charta (ch. 29) and those other statutes that relate to the imprisonment of the subject without due process of law, as the learning of habeas corpus and the law relative to taxation, the petition of rights, monopolies, martial law, and he asserts the subject is in a strict sense the correlative of the prince" (37).

§ 86. Distinction between Hale's and Blackstone's treatment. A great distinction between Hale and Blackstone is that Hale treats all of these matters pertaining to personal security, personal liberty and private property as being a part of the rules governing the relation of persons in society and the rights thereby arising (see sec. 2) (i. e., he does not recognize as to these matters any such division as absolute and relative rights),

87 Accords with Ogden v. Saunders, ante, sec. 67.