« SebelumnyaLanjutkan »
a custom be allowed to control the interpretation of a written instrument in opposition to its express terms, and courts are always averse to holding customs good where they vary the common law obligations of the parties.
$ 40. Legal rights. —The object of law is to protect us in the enjoyment of our rights and to punish invasions of these rights. A right in one person implies a duty in all other persons to respect that right.
Absolute rights belong to individuals in a single, unconnected state. Relative rights are those which arise from the civil and domestic relations.
We speak also of natural rights, by which we mean (a) right to life; (b) right to liberty; (c), right to form the family relation; (d) right to acquire property; (e) right to make contracts. Moral claims, often called rights, can not be enforced by law: as obedience to parents, politeness to equals and inferiors, the duty of charity, and the like. These can only be enforced by public opinion and the individual conscience. A disregard of them is punished by the opprobrium which public opinion casts upon the offender. We have here to do with legal rights, or those to which the state has given its sanction; they are such rights as can be enforced by legal means against the persons or the community whose duty it is to respect them. These rights may be enforced in actions at law or equity by the courts, or by the public prosecution of offenders against them,
in which the sanction may be penal or compensatory, or both.
§ 41. Meaning of natural rights. — Blackstone says the absolute rights of man may be summed up in one general appellation and denominated the natural liberty of mankind, whereupon Judge Cooley remarks that there is no such thing as natural liberty. He says: “Every man enters into society by being born into it, and he gives up no natural liberty but acquires liberty by becoming a member of the civil state. This liberty is civil liberty and it constitutes the sum of a man's civil rights as they are declared and protected by law.” So that man's liberty and rights are determined by the law, written and unwritten, of the society or state of which he is a member. The rights thus given by law are enforced in suits in the courts, brought by or in behalf of individuals whose rights are invaded. As to the forms of procedure in enforcing these rights more will be said hereafter.
§ 42. The right of personal security.—The right of personal security is the most important of all rights and it consists in a person's legal and uninterrupted enjoyment, (a) of the right to life, (b) of the right to limbs, body, etc., including the right to use them in lawful labor, (c) right to the preservation of health, (d) the right to one's reputation, (e) the right of free speech and locomotion. These rights are only determined by death.
§ 43. The right to life. The right to life begins with the first pulsations in the unborn child. It is everywhere a moral wrong, and in most civilized countries it is a crime to destroy human life, even in its first manifestations. The right to life implies the right to preserve it, and from this springs the right of self-defense, a right which is not given by law but is recognized by it. It is a right which exists in the jungle when one is set upon by a wild beast, and it is the same right when asserted in the most civilized society where life is threatened by an assassin. Besides the right of the individual to repel a deadly assault by taking the life of his assailant, society has the right to punish with death any one who unlawfully takes the life of another. Blackstone and the earlier writers base the right of capital punishment upon the Mosaic law, but the better view now is that it rests upon grounds of public policy and can only be justified when and because it is necessary for the preservation and security of society.
§ 44. The right of personal liberty.--The right of personal liberty is secured by that provision of the constitution which declares that “No person * * shall be deprived of life, liberty or property without due process of law.” “The meaning of this is," as Webster said in his speech in the Dartmouth College case, “that every citizen shall hold his life, liberty, property and immunities under the protection of general rules which govern society." This term liberty is, as has been said, a negative term denoting the absence of restraint. But it is more-it implies the right to think, to speak, to act individually or with others, to labor for one's support without molestation from others; it means the right to the full exercise of one's faculties in lawful ways. Civil liberty, which is here meant, is liberty restrained so far as is necessary for the common good.
§ 45. Habeas corpus.—To prevent unlawful invasions of this right to liberty the habeas corpus act of the year 1679 has been re-enacted generally in the American states. And to further secure it the constitution of the United States declares that “The privilege of the writ of habeas corpus shall not be suspended, unless where, in case of rebellion or invasion, the public safety may require it." The law also gives one who is unlawfully restrained of his liberty a civil action against the wrong-doer.
§ 46. Right to health.—The right to the preservation and enjoyment of health is protected and enforced by suitable laws. No one has the right to do anything which will impair the health of another. To create or maintain a nuisance by carrying on a noisome trade in a thickly populated neighborhood, to the discomfort of, or to the injury of the health of, the citizens, would, where the wrong was sufficient to amount to a public nuisance, be punished by the criminal law, and if the injury is confined to one or only a few of the citizens, they have a right of action in which damages for the injury may be recovered from one who creates or maintains the nuisance, and in a proper case the courts will interfere by injunction and prohibit its continuance.
§ 47. Right to reputation.—The right to one's reputation is protected and enforced by the laws on the subject of libel and slander and malicious prosecution. To write and publish anything of another which is false, and which either charges a crime or holds one up to public scorn or ridicule, is libelous, and subjects the author to an action for damages, and in many states to a criminal prosecution also. To