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BOOK THE FIRST.
THE RIGHTS OF PERSONS.
Defined. The rights of persons, as commanded by the municipal law, 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, but it will be more clear to consider them as duties acquired from, rather than as rights belonging to particular persons.
Division of Persons. Persons are divided by law into either natural 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, and are called corporations or bodies politic.
Division of Rights. The rights of persons, considered in their natural capacities, are also of two sorts, absolute and relative. Absolute, which are such as appertain 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.
CHAPTER I. ABSOLUTE RIGHTS OF INDIVIDUALS.
Defined. By absolute rights, are meant 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.
Absolute Duties. But with regard to the absolute duties which man is bound to perform, considered as a mere individual, it is not to be expected, that any municipal law should at all explain or enforce them. For the end and intent of such laws being only to 'regulate the behavior of mankind, as they are members of society, and stand in various relations to each other, they have consequently no concern with any but social or relative duties. No matter how abandoned may be a man's principles, or how vicious his practice, provided he keeps his wickedness to himself, and does not violate public decency, he is out of the reach of human laws. But if he makes his vices public, then they become by his bad example, of pernicious effect to society, and it is the business of human laws to correct them.
Rights and Duties Distinguished. But with respect to rights, the case is different. Human laws define and enforce, as well those rights which belong to a man as an individual, as those which belong to him as related to others.
Primary Aim of Law. 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 the mutual assistance and intercourse of social communities. The primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative, result from the formation of states and societies, so that to maintain them is clearly a subsequent consideration. Therefore the principal object of human laws should 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, which are numerous and complicated.
Natural Liberty. The absolute rights of man, considered as a free agent, are denominated the natural liberty of mankind, which consists in a power of acting, as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, when God endowed man with free will. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a boon, and obliges himself to conform to those laws, which the community has thought proper to establish. Otherwise there would be no security to individuals in any of the enjoyments of life.
Civil Liberty. Political or civil liberty is no other than natural liberty, so far restrained by human laws, as is requisite for the general advantage of the public. The law which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind; but every causeless restraint of the will of the subject is a degree of tyranny, and even laws themselves, if they regulate our conduct in matters of mere indifference, are destructive of liberty. That constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject master of his own conduct, except in those points, wherein the public good requires some direction or restraint. Locke has well said: “Where there is no law, there is no freedom.” The idea and practice of this political or civil liberty flourish in their highest vigor in these kingdoms, and can only be lost by the folly or demerits of its owner. They are founded on nature and reason, and are coeval with the English form of government, though subject at times to fluctuations and change. From time to time, their fundamental articles have been asserted in parliament, as often as they were thought to be in danger.
Magna Carta. This great charter of liberty was obtained by force from king John, and afterwards was confirmed by his son Henry III. It contained but few new grants, but was for the most part declaratory of the fundamental laws of England. A statute subsequently directed this charter to be allowed, as the common law, and all judgments contrary to it were declared void.
Different Acts of Parliament. Then followed corroborating statutes from Edward I to Henry IV. After a long interval, appeared the Petition of Right, assented to by Charles I, in the beginning of his reign, which was a parliamentary declaration of the liberties of the people. More ample concessions were subsequently made by this unhappy prince to his parliament. Then came the famous Habeas Corpus act under Charles II. To these succeeded the Bill of Rights, delivered by the lcrds and commons to William and Mary, on their accession to the throne in 1688. Lastly these liberties were again asserted at the commencement of the eighteenth century in the Act of Settlement, whereby the succession to the crown was limited to the house then in power.
Of What the Rights Consist. The rights themselves, thus defined by these several statutes, consist in a number of private immunities, the residuum of natural liberty, which was not required to be sacrificed by the laws of society to public convenience, or else those civil privileges, which society had engaged to provide, in lieu of the natural liberties, so given up by individuals.
Division of Rights. These may be reduced to three principal or primary articles :
1. The right of personal security.
3. The right of private property. RIGHT OF PERSONAL SECURITY.
Defined. This right consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation.
1. Life. This right is inherent by nature in every individual, and exists even before the child is actually born.
Rights of Unborn Child. The offence of abortion of a quick child is not murder, but homicide or manslaughter. An infant in ventre sa mere is supposed in law to be born for many purposes. It is capable of having a legacy made to it. It may have a guardian assigned to it, and may have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. The same ruling holds in the civil law.
2. Limbs. Such limbs as are referred to here, are those members which may be useful to a man in fight, and the loss of which alone amounts to mayhem in the common law. By the possession of these, he can protect himself from external injuries, and they cannot be destroyed or disabled, without a manifest breach of civil liberty. Homicide even is pardonable, if done in self defense of life or limb. And the same is a sufficient excuse for the commission of many misdemeanors.
Duress. The constraint a man is under in these circumstances is termed duress, from the Latin durities, of which there are two sorts, duress of imprisonment, where a man loses his liberty, and duress per minas, where the hardship is only threatened. Duress per minas is either for fear of loss of life, or else for fear of mayhem or loss of limb. And this fear must be upon sufficient reason.
A fear of battery or being beaten is no duress, nor of having one's house burned, or of goods taken away or destroyed, because in such cases, a man may have satisfaction in equivalent damages, but no suitable atonement can be made for the loss of life or limb.
Relief of the Poor. The law not only regards life and limb, but furnishes a man with everything necessary to his sup