classifying them where they very clearly belong, among the civil rights of men (38). He classes under political relations that of which Blackstone says: "Political, therefore, or civil liberty, which is that of a member of society, is none other than natural liberty, so far as restrained, etc.;" (39) or, "The absolute rights of every Englishman, which, taken in an extensive and political sense, are usually called their liberties" (40).

§ 87. Rights are secured, not surrendered, by creating government. Mr. Justice Wilson says: "In a state of natural liberty every one is allowed to act according to his own inclination, provided he transgress not those limits which are assigned to him by the law of nature; in a state of civil liberty he is allowed to act according to his own inclination, provided he transgress not those limits which are assigned to him by the municipal law. True it is that by the municipal law other things may be prohibited which are not prohibited by the law of nature; but equally true it is that under a government which is wise and good, every citizen will gain more liberty than he can lose by these prohibitions. He will gain more by the limitation of other men's freedom than he can lose by the diminution of his own. He will gain more by the enlarged and undisturbed exercise of his natural liberty in innumerable instances than he can lose by the restriction of it in a few. "Upon the whole, therefore, man's natural liberty, instead of being abridged, may be increased and secured in a government which is

38 They are not rights in personam at all.

291 Blk. Com. p. 125.

401 Blk. Com. p. 127.

good and wise. And as it is with regard to his natural liberty, so it is with regard to his other natural rights" (41).

ILLUSTRATION.

Ogden v. Saunders.

"When men form a social compact, and organize a civil government, they necessarily surrender the regulation and control of these natural rights and obligations into the hands of the government. Admitting it then to be true that, in general, men derive the right of private property and of contracting engagements from the principles of natural universal law; admitting that these rights are, in the general, not derived from or created by society, but are brought into it; and that no express, declaratory municipal law be necessary for their creation or recognition; yet it is equally true that these rights, and the obligations resulting from them, are subject to be regulated, modified, and sometimes absolutely restrained, by the positive enactions of municipal law. I think it incontestably true that the natural obligation of private contracts between individuals in society ceases, and is converted into a civil obligation, by the very act of surrendering the right and power of enforcing performance into the hands of the government. The right and power of enforcing performance exists, as I think, all must admit, only in the law of the land, and the obligation resulting from this condition is a civil obligation. As, in a state of nature, the natural obligation of a contract consists in the right and potential capacity to take or en

41 2 Wilson's Works, 300.

force the delivery of the thing due to him by the contract, or its equivalent, so, in the social state, the obligation of a contract consists in the efficacy of the civil law, which attaches to a contract and enforces its performance or gives an equivalent in lieu of performance. From these principles it seems to result as a necessary corollary, that the obligation of a contract made within a sovereign state, must be precisely that allowed by the law of the state and none other. I say allowed, because, if there be nothing in the municipal law to the contrary, the civil obligation being, by the very nature of government, substituted for and put in the place of natural obligation, would be co-extensive with it; but if by positive enactions the civil obligation is regulated and modified so as that it does not correspond with the natural obligation, it is plain the extent of the obligation must depend wholly upon the municipal law. If the positive law of the state declares the contract shall have no obligation it can have no obligation, whatever may be the principles of the natural law in relation to such a contract. This doctrine has been held and maintained by all states and nations" (42).

The distinction between the position of Blackstone and other transatlantic writers, and that assumed by Wilson and the other American jurists, may be concisely put thus: By the former, civil liberty consists of natural liberty restrained by law; by the latter, society is considered as a natural state. Civil liberty is natural liberty secured by law. Government is by the latter held to be

42 12 Wheat. 319-20.

but the means of enforcing the safeguards provided by the social compact which is called the constitution. The constitution does not create society, but is created thereby. It may create or change the government.

§ 88. Resume of the statements. The distinctions pointed out above will be made clearer by a comparison of Blackstone's analysis with the treatment of Lord Hale above given and the statements of the author.

Blackstone's analysis is as follows:

Chapter 4, Section I. The objects of the laws of England are: 1, Rights; 2, Wrongs.

Section II. Rights are the rights of persons, or the rights of things.

Section III. The rights of persons are such as concern and are annexed to the persons of men.

Section IV. Persons are divided by the law into natural persons, and artificial persons.

Section V. The rights of natural persons are: 1, absolute, or such as belong to individuals; 2, relative, or such as regard members of society.

Section VI. The absolute rights of individuals, regarded by the municipal laws, compose what is called political or civil liberty.

Section VII. Political or civil liberty is the natural liberty of mankind, so far restrained by human laws as is necessary for the good of society.

Section VIII. The absolute rights or civil liberties of Englishmen, as frequently declared in parliament, are principally three; the right of personal security, of personal liberty, and of private property.

§ 89. Civil liberty and Blackstone's absolute rights the

same. From the above it is clear that absolute rights are synonymous with political or civil liberty, and so treated under the seventh head or section, "Political liberty is natural liberty restrained by human laws." There is evident confusion between sections 7 and 8 and the statement implied in section 5. Section 5 affirms that only relative rights belong to members of society. Sections 7 and 8 are repugnant thereto. It seems perfectly clear that there is no such distinction between the various rights which are guaranteed and enforced by the law as that one part of them may be denominated absolute in any modern idea of the word, and another portion of them relative; and it is clear that the law, so far as it relates to persons and those rights which are annexed to the persons of men, irrespective of rights over external things or property, regards them as they stand in public relations or private relations.

Of this peculiarity of Blackstone's handling of the subject, Austin says: "Blackstone here runs into a singular confusion of ideas, for he opposes these natural or inborn rights, by the name of absolute rights, to what he calls the relative rights of persons. But there are no such things as absolute rights; all rights are relative; they suppose duties incumbent on other persons. He defines these absolute rights to be rights appertaining to them merely as individuals or single persons (43). He further defines them as rights which would belong to persons in a state of nature, rights which they would be entitled to enjoy either in or out of society.

.As to legal rights, with which alone Blackstone was

48 Had Blackstone stopped here, he would have avoided the error.