been led by our survey of the Springs of Human Action. Of these Classes, the principal are, as we have said (80), the Rights of Personal Security, the Rights of Property, the Rights of Contract, the Rights of Marriage, and the Rights of Government. To these we might add, as has been said, other asserted Rights, arising from less simple and universal springs of action, as the Right to Freedom of Opinion, and the Right to Reputation. But these are less important and we shall for the most part confine our attention to the Five Principal Classes of Rights which we have mentioned.

In the Roman and in the English Law, all the five Classes of Rights are, for the most part, clearly and fully established; and the same is the case in all communities, in which Law has made any considerable advance. In rude and turbulent conditions of Society, it may happen that some of these Rights are very imperfectly defined, and very precariously held; or it may be, that, from a portion of the community, some of them are withheld altogether. Thus, in countries where Slavery exists, the Slave has not the Rights of Personal Security. The constraint which Slavery implies, is of itself an entire violation of the Rights of Security. And the Slave is further liable to blows and wounds in a great measure at the will of his master. He has commonly no legal remedy for such inflictions, which would be Wrongs, if any Rights of the Person existed for him. And with the loss of this class of Rights he loses all. He can have no Property; for he can have nothing which his master may not take from him, using violence if other courses fail. He cannot contract to do anything; for what he is to do, must depend on the Will of his master. He cannot even have the Rights of Marriage; for his master may at any time separate him from the sharer of his bed.

653 Thus, in such cases, we have an absence of all the Classes of Rights. Such cases are recognized in the Roman Law; for Slavery was one of the elements of Roman Society. One of the distinctions laid down as the basis of the Roman Code is, that all men are Freemen or Slaves. "Summa divisio de jure personarum hæc est, quod omnes homines aut liberi sunt aut servi*." But this state of things was afterwards altered, by the improved condition of the national morality. The steps of transition in the abolition of slavery are gradual. In many countries, there exist classes which, without being Slaves destitute of Rights, have Rights inferior in kind to the Classes above them. In many cases these inferior

Inst. I. 3.

Classes are the successors of a vanquished race: for in ancient times, by the custom of nations, the conquered in war became the slaves or servants of the conquerors. The stages by which, from this condition, men pass to an equality of Rights, are generally connected with the Right of Property, and especially with the tenure of property in land. Thus, in many countries, in which the land is cultivated by Serfs, who are allowed to raise their own subsistence from the soil, but compelled also to labour for the Master to whom the land belongs, men are often ascripti glebæ; bought, sold, and inherited with the land: yet they are not Slaves. They have a right to their own share of the produce; and, under favourable circumstances, pass by various gradations into the condition of Freemen; a change which is taking place extensively at present, in the state of the cultivators of Europe. Property in land is a Right which exists in all States; yet in some States the Right of Property of individuals has been much limited. In some of the ancient Republics, as for instance Sparta, the land belonged in common to all the citizens. And in another form of Society, which prevailed in India, the Ryots or Cultivators generally occupied the land in common, and were collected in villages under officers who distributed to the cultivators and tradesmen their respective shares of the produce*. Out of the earlier forms of tenure of land emerged the more complete Rights of Property of modern times; bearing traces however, in many respects, of their historical origin.

The Rights of Marriage are justly considered as essential to settled Society and those who look back to the origins of things, speak of those men as the founders of Society, whose office it was to establish this institution-concubitu prohibere vago. Yet the female slave has generally been at the mercy of her master, wherever slavery has existed: and polygamy has been a practice extensively prevalent, and has only gradually given way to more perfect forms of the Rights of Marriage.

654 It may be asked whether the Five Principal Classes of Rights, which we have mentioned, are entirely distinct; whether one Class does not run into another. Especially, it may be asked whether Contracts do not necessarily imply Property; for we contract to buy and sell our property; and whether Property be not merely a general tacit Contract that each shall have his share. To this we reply, that Contract is really distinct from Property: we contract for services, for bodily labour, for mental labour, for knowJones On Rent, p. 116.

ledge and intelligence, as in hiring a teacher, or combining in a literary work. It may perhaps be said, that a man's limbs, his knowledge, his intelligence, his mind, are his Property; so that, in these cases also, Contract implies Property. But to speak thus, is to introduce a lax and fanciful use of words, which renders all exact expression and rigorous reasoning impossible. Such a use of words annihilates the fundamental distinction of Persons and Things; and is inconsistent with our previous reasonings, in which we established the existence of Rights. For the Right of Property was shown to be necessary, by considering that man cannot act without some command of the external world, the world of material objects. By the nature of our arguments, we spoke of Property as something external, visible, tangible; or at furthest, we included, (as we shall see,) only the inseparable appendages of such material Property. We cannot consider knowledge and mind as Property, ́ without making Property cease to have any definite meaning at all. Hence Contract may exist where Property does not; the two Conceptions, and the corresponding Classes of Rights, are independent of each other*.

Again we reply, that Property cannot be said to depend upon tacit Contract, if we are to classify rights at all. For contract, as we now consider it, is the result of a special Act; or at least of an Understanding founded on some distinct analogy. A Contract implies Language, or something equivalent to Language: Property does not imply the use of Language, or any substitute for it. A tacit Contract, not understood from any special act, but, without any special ground, assumed as a universal fact among men, is not a Contract in that sense in which we have used the term in our previous reasonings. Moreover, if we suppose the prevalent respect for the Right of Property to be founded upon

• The distinction of the rights of pro perty and the rights of contract agrees with the antithesis established by Roman Jurists, between Jus in re and Jus ad rem: the former being a property in the thing; and the latter being a right of contract relating to the res, but only good against the other party to the contract. The primary notion of property is that it consists in things, or the adjuncts of things (as a right of way:) and in this sense, no property can exist, without some corporeal thing for it to inhere in.

But

the Law has created various rights in particular persons, which may in a wider sense be called property: as an exclusive right to the use of an invention given by

a patent to the inventor: an exclusive right to publish a certain book, given by a law of copyright to the author. Such rights, however reasonable and just, are rather of the nature of Privileges or Monopolies than of Property. Literary property, for instance, as the copyright of authors is termed, is not a property in the author's manuscript merely, nor is it a property in all the printed books which follow the manuscript; it is the exclusive privilege of publishing and selling such books. Such incorporeal property agrees with other property in this respect, that it may be transferred by contract: but this can only be done in virtue of special laws regulating such property.

a tacit general Contract, we must, for the like reasons, suppose the prevalent respect for the Rights of the Person, and for the Rights of Marriage, to be founded upon tacit general Contracts: and thus, all Rights would be identified with Rights of Contract. But such a use of terms would make all classification of Rights impossible. We must, therefore, make Contract a special and definite kind of Right: and if we do this, Property will be independent of Contract, and the corresponding Classes of Rights will be distinct from each other*.

have spoken do not But we see in that

The Five Classes of Rights of which we occur, in that form, in the Roman Law. Law indications which readily direct us to those Rights. The leading distinction of heads, in the Institutes of the Roman Law, is of Persons, Things, and Actions.. Omne jus quo utimur vel ad Personas pertinet, vel ad Res, vel ad Actionest. Here Actiones means legal proceedings; but we may take the term as representing peculiarly the Class of Rights of Contract; for these derive their reality especially from the support of the judicial authority. The Second Book of Justinian's Institutes is mainly concerning Property, De Rebus; and the Third, concerning Contracts. Family Rights also are distinguished in the Institutes from the other Rights of Persons. Thus, in the First Book, the ninth and tenth titles are, De Patria Potestate and De Nuptiis.

655 In both the Roman Law and the English Law, there is a distinction of Wrongs, into Private, and Public Wrongs. For the Social Order being established, in which respect for the Rights of all is commanded, those who transgress this respect, offend, not only against the particular persons whom they injure, but also against the State, the general protector of Rights. If one man violently beats or wounds another, he not only wrongs him, but violates the general order of Society. On the other hand, if one man holds, and claims to hold rightfully, a field or a house or a horse to which another also asserts a claim, the first may be doing a wrong to the second, but the possession being held under the show of law and justice, the question between the two

Other ambiguities or variations occur in the arrangement of Rights. Thus, in the Prussian Law, Rights of domestic Servants are not arranged as we should arrange them, with Rights of Contract; (Hiring;) but with Rights of Persons. This is an approximation to the distinction of Persons into Free, and Slaves, assumed by the Roman Law.

Inst. 1. 2. "The whole body of Jural Doctrine refers either to Persons, or Things, or Actions." The Rights of Persons include the Rights of Family, as well as individual Personal Rights; the Rights of Government are implied in the actual enforcement of all Rights; but in a fuller treatment of the subject, require to be made a distinct class.

claimants is, which of the two really has the right which both assert. The former is a Crime; a Public Wrong; and a Crime belongs to Criminal Law, and must be tried by Criminal Courts. The latter is a question of Private Rights, belonging to Civil Law, and to be decided by an Action or Suit, Actio. In England, the office of the State, as the guardian of Order, and of the Rights of all, is embodied in the person of the Sovereign. A person who commits violence, breaks the King's Peace*.

Taking the Classes of Rights as we have stated them, we shall now notice some of the jural expressions and distinctions by which these Rights, and the corresponding Classes of Wrongs, have been practically carried into effect in particular circum

stances.

CHAPTER II.

THE RIGHTS OF THE PERSON.

656 THE Rights of the Person are the Rights to Safety, Security, and Free Agency, which, as we have said (79), are requisite for the peace of Society, and for the human and moral character of man's actions. These Rights are protected by the Laws, which prohibit deeds of force and violence in general. But from the extreme of violence, the infliction of death, there is a gradation to slighter acts, which also are Wrongs or Injuries. The division of these Wrongs against the Person is very similar in the laws of most countries.

In the Laws given to the Jewish people, the primary Law upon this subject was the Command, Thou shalt not kill: and this Law was followed out by various Rules concerning Smiting: which are given in the Book of Exodus, chap. xxi. verse 12, and the following verses.

In the English Law, proceeding from Homicide, which is the

In some cases the distinction in the English Law between criminal and civil proceedings depends upon whether the public peace is broken or not, not upon whether the injury be a violation of the rights of the person or of property. A false (that is, wrongful) imprisonment, though an injury to the person, would not be the subject of indictment (that is, of a criminal process). A forcible entry into

a house is the subject of criminal proceedings.

The same act may be both a crime and a private wrong. e. g. In English Law an assault and battery, which, as a misdemeanour, may be the subject of an indictment, may also be concurrently the subject of an action for damages.

In Roman Law, crimes are included in the body of the Jus Civile.