by applying the general rule, may remedy the evil. In no other way, is it possible to connect a community either in sentiments, or interests, to unite the public force to direct it to the attainment of any common good, or to the avoiding or repelling of any common evil; in no other way is it possible to obtain any security of public or private rights.

Still men are imperfect. They will be guilty of deviations from the rule, transgressions of the law, and infringements of each other's rights. This will happen, sometimes, through ignorance of the law or the right; sometimes through weakness in judging, or inattention in examining; sometimes it will happen through the prevalence of interest, the violence of passion, or from a disposition habitually profligate and vicious. Therefore to [provide to the laws a compulsory force, they must be so calculated, that every member of the community shall find a convenience in the observance, and a certain inconvenience in the neglect or violation. Hence, arises the necessity of penalties. These penalties are, from the weakness of men, in discerning tendencies, and their conséquent liability to vice, necessarily enhanced. Hence also arises the necessity of subordination, and of civil rulers, to give activity and efficiency to the laws. In a state of greater perfection, than is to be found in the present state of society, a greater perfection in knowledge and virtue, penalties may make a less formidable appearance; but in every state, the necessity of penalties will equally exist.

In a community, composed of a few individuals, in a simple state of manners and of property, the motives to action are few; consequently, there is but little activity of the members, little eagerness of pursuit. A few simple rules, mostly adopted and supported by custom, supply the place of a more regular polity. They are the first rude essays in civil institutions. Still in every state of morals and of manners, the necessity of civil government, the necessity of laws, of known and established rules, equally exists. On the whole, we may safely conclude, that no order of beings, short of infinite perfection, in wisdom as well as goodness, can subsist in society without an establishment of government and laws.

BOOK IV.

OF RIGHTS AND LIBERTY.

CHAPTER I.

Of natural, political, and civil rights and liberty.

The first great object of all civil institutions is, or ought to be, the security of those personal rights, in the full and free enjoyment of which true liberty consists.

The word right, when applied to action, signifies what is fit and proper to be done, as opposed to wrong.-As a substantive, it is used to express the just title or claim which a person has to any thing; and signifies that the thing belongs to him, who is said to have the right. There are several classes of rights distinguished by some law, custom, or institution, in which they are supposed to originate, or by which they are sanctioned, and are accordingly denominated, Fist, natural rights-Secondly, political rights, and Thirdly, civil rights.

Natural rights are generally said to consist in the right of personal liberty, personal security, and of private property. These rights originate in the laws of our nature and are as universal as the social nature of man; they cannot be justly forfeited unless by the commission of some crime against the good and wholesome laws of the community. They may be violated, and their exercise by the subjects suspended, by the will of a tyrant, aided by superior force; but are never extinguished. The subjects always retain the right to reassume

their full exercise, whenever they find themselves able to resist the force of the oppressor.

Political rights have been very generally confounded with civil rights; although they clearly are, and from their importance ought to be considered, a distinct class. They consist of the rights and powers retained by the people in the fundamental law, the constitution of the state—as in a democracy, the power of making all laws as well of the constitution as of the municipal code, and the appointment and control of all the officers and ministers of the government,-in a mixed monarchy the right of electing a co-ordinate branch of the government,and in a representative government, the right and power of electing directly or indirectly the public functionaries, through which they are all, in a good degree, held accountable to the people for their conduct in the administration, and also the power of changing, altering, and amending the constitution itself, agreeably to the regulations prescribed in the original compact.

Civil rights are those that are guarantied to the citizens by civil institutions and are contained in the class of natural rights above mentioned; the right of personal liberty, of personal security, and of private property, and the rights derived from, and subordinate to these, which are very numerous. They are called natural rights as they have their foundation in the laws of social nature; but as practical rights they may well be denominated conventional, because for their secure enjoyment, they depend on the social or civil compact; whether established by usage or by express stipulation.

Judge Blackstone tells us, that "the rights of persons considered in their natural capacities, are of two sorts, absolute and relative, Absolute, which are such as appertain and belong to particular men merely as individuals or single persons.— Relative, which are incident to them as members of society and standing in various relations to each other." He farther says, "by the absolute rights of individuals we mean those which are so in their strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy whether out of society or in it." This distinction is, I think, in some degree, incorrect.-There cannot, strictly speaking, be any such thing as absolute rights, as the

author has here explained them.-What are the rights of man, if we suppose one excluded from all society, from all relation to any other human being? In such a situation, a man may have and exercise his natural powers.-He may take and use for his support any of the productions of nature, for food, for covering, or for any other purpose; but this power to use is very different from the notion of right in the appropriate sense intended. With a man in the situation we have supposed, the right of personal liberty, so important in a state of society, must sink into the mere power of locomotion, limited only by the laws of his nature. The notion of right, in the sense of the author, vanishes with the notion of relation.

There is, certainly, a distinction between the rights here denominated absolute, and relative. The former, such as the rights of personal liberty, personal security, and of private property, universally result from the social relations, are recognized by the primary laws of our nature, and continue through every stage of society, although subject to certain modifications. The latter are not permanent nor universal. They result from those relations in which a man is placed in a state of society ;-such as the right to obtain a legal redress for the violation or neglect, by others, of those rights which are recognized by the laws and constitution of the state; or from those relations, which he has the liberty and capacity of forming; such is the married state and the relations thence resulting. Beside, the former are not absolute in any sense for although they cannot be alienated by a voluntary transfer, yet they may, agreeably to just and necessary laws of the community, be forfeited and lost, by the criminal act of the individual. On the whole, therefore, these two classes of rights are not properly distinguished, by calling one absolute and the other relative. The one arising from the primary, universal, and permanent relations of social nature; the other from those relations that are subsequent, limited, and fluctuating, they will, with much greater propriety, be denominated primary and secondary rights, by which the nature of the several classes will be more clearly distinguished. Of the origin of rights on natural principles, we shall have occasion to treat more particularly in the next chapter on the inception and progress of the right of property.

Liberty, applicable to man, in the general sense of the term, consists in the free exercise and enjoyment of his rights, and is natural, civil, or political liberty, according as reference is had to one or the other of those rights. Of natural liberty Judge Blackstone says. "The absolute rights of man considered as a free agent, endowed with discernment to know good from evil and with the power of choosing those measures, which appear to him most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists, properly, in a power of acting as one thinks fit, without any constraint or control, unless by the laws of nature, being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free will." Notwithstanding the little inaccuracy to be found in this passage, in making liberty to consist in the rights themselves, instead of the exercise and enjoyment of those rights, it might have been admitted as a just exposition of natural liberty had he said, "without any restraint or control, unless by the laws of social nature." It would then have been liable to no misconception; but instead of including, the author has, perhaps inadvertantly, excluded the notion of social from his law of nature; for he immediately adds. "But every man, on entering into society, gives up a part of his natural liberty, as the price of so valuable a purchase, and in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws which the community have thought proper to establish." The author, here, has evidently confounded the natural liberty of man, with that range of action permitted to all animals of the brute creation, even the most ferocious; a range of action, for it cannot claim the appellation of liberty, not permitted to man by the laws of his nature. On this subject, Mr. Christian has very justly observed that "the libertas quidlibet faciendi, or the liberty of doing every thing which a man's passions urge him to attempt, or his strength enables him to effect, is savage liberty, the liberty of a tiger and not of a man.”

Burlamaqui has given us a definition of natural liberty, which is free from this objection. "Moral or natural liberty is the right which nature gives to all mankind of disposing of their