state confers upon them by the legislation by which they are created. See Cooley Const. Lim. cc. 2 and 8. Also, Dillon on Municipal Corporations.

The congress of the United States possesses the power of exclusive legislation in all cases over the District of Columbia: Const. art. 1, ý 8; and under another provision, art. 4, § 3, it has exercised the authority to originate governments for the territories, and to modify and supervise them from time to time; but how far this authority is rightful has been of late the subject of dispute between political parties, and also by the Mormon authorities exercising functions of government without congressional permission in Utah. The subject is treated on legal grounds by Judge Jameson in his work on the Constitutional Convention.

75

COMMENTARIES

ON

THE LAWS OF ENGLAND.

BOOK THE FIRST.

OF THE RIGHTS OF PERSONS.

CHAPTER I.

OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.

The objects of the laws of England are so very numerous and extensive, that, in order to consider them with any tolerable ease and perspicuity, it will be necessary to distribute them methodically, under proper and distinct heads; avoiding as much as possible divisions too large and comprehensive on the one hand, and too trifling and minute on the other; both of which are equally productive of confusion.

*Now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or as Cicero, (a) and after him [*122] our Bracton, (b) have expressed it, sanctio justa, jubens honesta et prohibens contraria, it follows that the primary and principal objects of the law are RIGHTS and WRONGS. In the prosecution, therefore, of these commentaries, I shall follow this very simple and obvious division; and shall, in the first place, consider the rights that are commanded, and secondly the wrongs that are forbidden, by the laws of England.

Rights are, however, liable to another subdivision; being either, first, those which concern and are annexed to the persons of men, and are then called jura personarum, or the rights of persons; or they are, secondly, such as a man may acquire over external objects, or things unconnected with his person; which are styled jura rerum, or the rights of things. Wrongs also are divisible into, first, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and secondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemeanors. (1)

(1) [This classification was adopted by Lord Ch. J. Hale (see Hale's Analysis of the Law), who introduced it into our system from the Institutes. It has also been adopted in the Code Civil of France.]

The objects of the laws of England falling into this fourfold division, the present commentaries will therefore consist of the four following parts. 1. The rights of persons, with the means whereby such rights may be either acquired or lost. 2. The rights of things, with the means also of acquiring and losing them. 3. Private wrongs, or civil injuries; with the means of redressing them by law. 4. Public wrongs, or crimes and misdemeanors; with the means of prevention and punishment. (2)

We are now first to consider the rights of persons, with the means of acquiring and losing them.

*Now the rights of persons that are commanded to be observed by the [*123] municipal laws are of two sorts: first, such as are due from every citizen, which are usually called civil duties; and, secondly, such as belong to him, which is the more popular acceptation of rights or jura. Both may indeed be comprised in this latter division; for, as all social duties are of a relative nature, at the same time that they are due from one man, or set of men, they must also be due to another. But I apprehend it will be more clear and easy to consider many of them as duties required from, rather than as rights belonging to, particular persons. Thus, for instance, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection as the duty of the magistrate; and yet they are reciprocally the rights as well as duties of each other. Allegiance is the right of the magistrate, and protection the right of the people. Persons also are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic.

The rights of persons considered in their natural capacities are also 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. The first, that is, absolute rights, will be the subject of the present chapter.

By the absolute rights of individuals, we mean those which are so in their primary and 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. But with regard to the absolute duties, which man is bound *to [*124] perform considered as a mere individual, it is not to be expected that any human municipal law should at all explain or enforce them. For the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no concern with any other but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vicious in his practice, pro

(2) [The distinction between private wrongs and public wrongs is more intelligible, and more accurately limited by the nature of the subjects, than the distinction between the rights of things, and the rights of persons; for all rights whatever must be the rights of certain persons to certain things. Every right is annexed to a certain character or relation, which each individual bears in society. The rights of kings, lords, judges, husbands, fathers, heirs, purchasers, and occupants, are all dependent upon the respective characters of the claimants. These rights might again be divided into rights to possess certain things, and the rights to do certain actions. This latter class of rights constitute powers and authority. But the distinction of rights of persons and rights of things, in the first two books of the Commentaries, seems to have no other difference than the antithesis of the expression, and that, too, resting upon a solecism; for the expression, rights of things, or a right of a horse, is contrary to the idiom of the English language; we say, invariably, a right to a thing. The distinction intended by the learned judge, in the first two books, appears, in a great degree, to be that of the rights of persons in public stations, and the rights of persons in private relations. But, as the order of legal subjects is, in a great measure, arbitrary, and does not admit of that mathematical arrangement where one proposition generates another, it perhaps would be difficult to discover any method more satisfactory than that which the learned judge has pursued, and which was first suggested by Lord Ch. J. Hale. See Hale's Analysis of the Law.]

Austin on the Province of Jurisprudence considers at some length and criticises the classification of the text.

vided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like,) they then become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws; private sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. But, with respect to rights, the case is different. Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others. For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human law is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple: and then such rights as are relative, [*125] which, arising from a variety of connexions, will be far more numerous and more complicated. (3) These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.

The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which

(3) The people of the American States have not been disposed to leave the protection of the absolute rights of individuals exclusively to the legislative bodies to which they have intrusted the making of the laws; but, with what appeared to many at first an excess of prudence, they have hedged about these rights with constitutional securities in a manner which reasonably protects them from invasion. In the several state constitutions there is incorporated a bill of rights" declaratory of the rights of individuals, so framed as to limit the power of the legislative department in the directions which might lead to their abridgment. Thus, bills of attainder and ex post facto laws are prohibited; the right to freedom of speech, freedom of the press, and freedom of religious worship are declared, and the legislature prohibited from abridging them; private property is declared to be inviolable, except when required for public use, and then it can only be taken on compensation being made; unreasonable searches and seizures are forbidden, and the authorities are precluded from quartering soldiers upon citizens in time of peace. These rights and immunities being thus declared, it becomes the duty of the courts to enforce them against the action of the other departments of the government; and for the more complete protection of the citizen, a right of trial by jury is preserved, that he may have the judgment of his peers upon his controversies, and upon any accusation that may be preferred against him. The constitution of the United States originally contained but few provisions in the nature of a bill of rights, but such was the popular jealousy of undefined power over their persons and property, that it was found impracticable to secure the adoption of that instrument except in connection with the recommendation of amendments which should supply the deficiency. Those amendments were soon added. It is a settled rule of construction of the national constitution that the limitations it imposes upon the powers of government are in all cases to be understood as limitations upon the government of the Union only, except where the states are expressly mentioned: Barron v. Baltimore, 7 Pet. 243; Livingston's Lessee v. Moore, ib. 551; Fox v. Ohio, 5 How. 432; Smith v. Maryland, 18 How. 471; Purvear v. Commonwealth, 5 Wal. 475; Twitchell v. Commonwealth, 7 Wal. 321. Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, and laws discriminating between citizens on account of race, color or previous condition of servitude, the states are forbidden to pass; but for the most part the protection of individual rights, as against the action of the state authorities, is not provided for by the constitution of the Union, but is left to the people of the states themselves, who will insert such prohibitions and guaranties as they deem important when framing their fundamental law.