property, there is a seeming invasion of his rights as a landowner; yet a satisfactory explanation of this, reconciling it with the general right of property to the soil, will be given, when we consider the purposes and the extent of the right of property, in another place. Another seeming collision is that between the right of speech and the right of reputation. Here, however, the conflict is only apparent. One man can no more blast the good name of another, and plead the right of speech in his defence, than he can plead the right of contracting marriage for marrying another man's wife. The necessary and general limit in nearly all cases is that no injury be done to another by the exercise of a right. I say in nearly all cases, for it might seem that a man, who, in self-defence, takes away the life of a robber, does an injury to another. The true statement, however, seems to have been given already he does no injury to the robber, although he does harm to him, for he acts as a minister of justice.

The cases where righteous state laws seem to come into conflict with private rights will come up when we treat of the state (91). It seems strange that the state, the existence of which is justified by its vocation to protect the rights of individuals, should by law encroach on and violate those very rights, as it seems to do by the demand of military service, by taxation, and by taking property for a public road, on paying the price, even against the owner's will. On such cases we remark at present only (1) that many laws, which are often accounted for by the public welfare, are intended to enforce rights or secure obligations between individuals; (2) that the state has rights of its own which are truly such; and (3) that the state's right of self-preservation and of preserving private rights will account for other, especially for extraordinary, exercises of the public power.

Limitations of

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What has been said in the last section touching collisions of rights may justify some miscellaneous remarks grouped together on the subject of limitations of rights. Rights, being general powers of man arising out

rights.

of his nature, may be limited in particular cases, as (1) by the inabilities or deficiencies of individuals. Thus bodily weakness, deficiency of a limb, illness, make the exercise of certain rights for the time impossible. (Comp. § 13.) (2). The loss of mental powers, by taking a person out of the category of complete men, destroys his capacity to exercise the rights. which men as men possess. Thus the insane person, the drunkard, for the time being, and others, may be rightfully prohibited from performing certain acts which convey rights. to others. (13, u. s.). (3). A prior act limits in regard to certain future acts, as in contract, the very essence of which is to limit the power of will of the contracting party in a certain respect (34, 35). (4). A waiver of a right, which may be classed with contracts, has the same effect. (5). The right of property does not mean that every one must have his share in the property or the landed property in the world. (Comp.

28). (6). The right of labor is limited by the want of an object on which the labor may be expended. (7). Punishment is necessarily a limitation of some right during its continuance. (Comp. $115). (8). A right may be indefinite in some respects, so as to need the definition of law. ($9, 5). (9). Foreigners are, to a great extent, limited in the present state of the world, in regard to certain rights, especially that of holding real property. How far the disqualifications of this class of persons are right will be considered elsewhere. (10). State law, as was just said, puts limits on the ownership of property by taxation, by requiring military service ($19), and on the more vague plea of the public welfare. (Comp. $91.)

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Rights may be said to be almost infinite in number, and one might cast ridicule on the science by speakDivisions of rights. ing of the right or free use of the eyes, the nose, the mouth, the arms, etc. Such an enumeration might go well with the details of the compositions in the old Germanic laws. A division is not very important, but perhaps the last

one might be found in the principal parts and relations of our nature. I suggest the following division:

(a). Rights connected with the physical nature of man, as the right to life, limb, locomotion, self-defence.

(b). Rights growing out of the relations of man to the external world, as the rights of labor and of property.

(c). Rights growing out of the relations of men to other men, and first the more general and temporary rights of contract and association.

(d). Rights growing out of distinctions of sex and the introduction of new beings into the world-the family rights as an aggregate, including among them rather than under (b) the right of testamentary disposition.

(e). The social rights of free speech and of other means of communication.

(f). The rights of reputation and of exemption from insult. (g). The rights of conscience and of opinion, together with that of open religious profession and worship.

Another division would be into those rights which are carried out by the action of a single human being, and those which imply a concurrence of human wills. To the first class belong the rights of life and limb, of labor and property, of speech, conscience, and worship. To the second, contract and association, together with marriage, so far as it is a contract or union. But the family rights cannot all of them be subjected to this division.

The terms perfect and imperfect rights and obligations, formerly quite common and still sometimes used, denoted rights and moral claims under the first class, obligations and duties under the other; that is, those moral requirements were called perfect which could be defined with precision and therefore enforced by law; while the imperfect were indefinite, and hence incapable of being the subject-matter of law. The terms are misleading, and may with advantage be laid aside.

etc.

CHAPTER II.

PARTICULAR RIGHTS.

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THE right of an individual to life, means, in relation to anRights of life, limb, other, that no one shall deprive him of it. It includes the right of continuing one's physical existence by all the means, not otherwise immoral, which do not invade the rights of others, and of defending it when it is attacked. If there be any rights at all, this must be one of them, for life is that essential condition without which no other right can be exercised. Accordingly usage and law in all nations endeavor to protect it. Not only is the public power in well organized communities clothed with the office of punishing murder, but in early, immature societies this power was put into the hands of the nearest of kin. Thus, among the Hebrews the right of blood-revenge appears as an ancient practice brought down from the nomadic life of the tribes. The goël, or avenger of blood in the first sense of the word, was the redeemer of land, which by law could not be alienated in perpetuity from the family; then the next of kin, and then, as such, the punisher of one who had killed his relative. To prevent the unlimited exercise of this power, cities of refuge were established to which the man-slayer could flee, and, if found guiltless of intentional or premeditated murder, could remain there in security. But if he left his refuge, the goël had the right of killing him (Num. xxxv.). This usage was common in the time of David (see 2 Sam., xiv., 7, 11). Mahomet found and allowed it among the Arabs, but recommended mercy. It prevails still among them, among the Persians, Abyssinians, Druses, Circassians, the Morlachs of Croatia, the Montenegrins-the two last nominally Christians

-not to trace the practice among many tribes of still inferior civilization. We may add that the Greeks, as they appear in Homer, had blood-revenge, and that there is a trace of it among the Romans. That it was widely extended among the ancient Germans is certain; yet Tacitus tells us of the weregild (life-price, composition) in the words “luitur homicidium certo armentorum ac pecorum numero, recipitque satisfactionem universa domus," that is, the whole family are precluded, on receiving the fine, from pursuing revenge further. It is worthy of notice that blood-revenge continued in some of the German territories, as in Switzerland, long after they were Christianized.* The compositions for other bodily injuries caused by violence, down to the most minute, appear in all the German laws.

This practice of the primeval times seems to have grown out of the feeling that retribution for so fearful a thing as taking life was necessary, and out of the damage done by the homicide to the family interests. As time went on and bitter feuds arose on account of revenge for murder, which would naturally often fall on the innocent and thus call for new revenge, the feeling of just retribution took the back-ground, and family interests were satisfied by composition. Yet the obligation to pursue the intentional murderer with vengeance, expressed in some laws which admit of no compositions, shows a strong moral sense, however liable it might be to go astray. It is not mere blind hatred, but was connected with and required by religion.

The right to life is one that cannot be waived, because, as we have already said, to give it up would be to give up the possibility of exercising all rights. If given up, it is given up forever and all other rights with it. Whether a man can take his own life, whether he can expose it or give it up for great

*See E. Osenbrüggen, Alamannische Strafrecht, §§ 17, 18. For the whole subject, compare for the Hebrews, Winer's Realwörterb, voce Blutrache, and Saalschütz, Mos. Recht., cap. 71; for the Greeks, Schomann, Gr. Alt., i., 470, ii., 6, Nägelsbach, Homer. Theol., p. 249 ; for the Germans, Waitz, D. Verfassungsgesch., ed. 2, i., 66 and onw.