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36 LAW OF NATIONS MUTABLE.
change may be either gradual or sudden, peaceful or violent.'
Or this reconsideration may be made by sovereign national powers in international law; either in that law which each state applies by its own tribunals to persons in international relations, for the private international law, or those reciprocal rules of intercourse, which, as the parties to be governed by the rule, they may mutually adopt for public international law, (in the imperfect sense of a law.) Both which divisions of international law have been constantly changed and extended during the time of recorded history, according to altered views of natural equity.
Universal jurisprudence or the law of nations, whether taken to be a rule determining the relations of states or of private persons, being thus a consequence of the juridical action of states or nations, is always liable to changes, which (from the a priori principle before stated, viz. that the legislative action of states is always juridical or jural, that is conformed to natural reason) must be taken to be progress or improvement.'
§ 40. Under the preceding view of the nature and extent of the law, every action and relation which is the subject of jurisprudence may be taken to be determined either by international or by municipal (national) law.
The rights of persons, though all relative in respect to other persons owing or bound to corresponding obligations, may be distinguished as rights in correspondence with obligations on the part of the community at large, or as rights correspondent to obligations on the part of particular persons.'
1 Revolution is resistance against the legal possessor of sovereign power. But it is founded on the assertion of a share of sovereignty, or right of supreme control, in the revolutionist, (a right above law,) and in case of success, the change, whether ethically rightful or not, becomes lawful, by being the act of the actual sovereign.
9 Suarez: do Legib. et Deo Legist, ch. 20, § 6, 8. Doctor and Student, p. 63: "For though the law called jus gentium be much necessary for the people, yet it may be changed."
Whewell: El. Mor. and PoL, 8 1143. "The law of nations, including in this international law, is subject to the conditions of which we have already spoken as belonging to the law of any one nation. It is capable of progressive standards: it is fixed for a given time, and obligatory while it is fixed: but it must acknowledge the authority of morality, and must, in order to conform to the moral nature of man, become constantly more and more moral. The progress of international law in this respect is more slow and irregular than that of a well guided national law, &c." And compare Savigny's Vocation of our age for Legislation and Jurisprudence, Hayward's Translation, p. 134.
* Reddle's Inquiries Elem. &c., p. 171. See citation, ante, page 20, note t "But though rights and obligations are in reality and correctly, the relations of individual persons to other individuals, they are plainly correlative terms. And it is manifest, in the first place, that they may exist between any one individual, or a definite number of individuals, and all other individuals generally and indefinitely, the right being positive against all others, adversus omw*, and the obligation on all others being only negative. Or they may exist between particular individuals, and instead of being adrerna omnet, directed against all other individuals indefinitely, may exist or be directed only against one or more particular individuals, who are under corresponding obligation, not merely negative not to interfere, but positive to do, or bear, or suffer something for the behoof of the person having the right." And see Austin: Prov. of Jurisp., Appendix, xxiv., xxv., definitions of rights in rem and in personam. Also, Mackeldey: Compend. Mod. Civil Law, Introd., §§ 15, 16.
INDIVIDUAL AND BELATIVE BIGHT8. 87
The first class may be called individual rights, as belonging to persons each necessarily or absolutely recognized before the law as individual members of society. The individual rights of persons, (called by Blackstone, absolute,) have ordinarily been taken to be three, denominated: the right of personal liberty; the right of personal security; and the right of property.1
The second class may be called relative rights, as belonging to persons in consequence of a relation established between them and others, not necessarily arising from their being individual members of the community.
These relative rights have been classed as the rights of parent and child; of husband and wife; of master and servant.
Both individual and relative rights, considered with reference to the persons to whom they are attributed, may be called private rights; while, in view of their existence in relation to the supreme power of society or the state, and the persons of whom it is composed, they may also be termed civil and public rights.
§ 41. From the nature of law, in its ordinary sense, including the idea of inferiority and subjection, corresponding with superiority and authority, the term a right implies a liberty in the person to whom the right is attributed; jus est facultas agendi. The idea of freedom associated with the idea of law, or legal freedom, as the condition of a person, consists in the
1 Dr. Lieber denominates such rights primordial. Pol. Eth., vol. i., p. 218. Civil Lib. and Self Gov., vol. i., p. 52. The terms absolute or primordial convey the idea of rights anterior or independent of positive law as herein before defined: rights existing under some independent law of nature: which, as before shown, has no existence, —no judicial recognition in jurisprudence, as independent of positive law. Primordial is a term liable to the same objections which Dr. Lieber advances against the term absolute in the place referred to. He also uses the term individual as a synonym. P. E., vol. i., p. 402: "We speak of individual primordial rights." Droits individuels is a common term in this sense with the French jurists. Ahrens: Naturrecht, p. 160. speaks of Indiciduellen Rechte.
38 FREEDOM OB LIBEBTT.
possession of legal rights of action, or in that liberty which is allowed by law.
Where liberty is attributed to a being existing under conditions over which it has no control, it cannot be defined except with reference to those conditions, or laws in the secondary sense of the word law. And when attributed to a moral being governed by rules of action, (laws in the primary sense,) liberty can be defined only by stating the source, authority, and extent of those laws, as well as their object, or the direct effect of their injunctions.
§ 42. The definition of liberty, when attributed to individual members of a state or political body, has been a problem for publicists.1 There are evidently two modes in which such liberty may be conceived of. In one, liberty is determined by ethical considerations, or as that freedom of action which ought —in accordance with the nature of man—to be the effect of the laws of a political state. This is a subjective apprehension of liberty, because the moral judgment of the concipient is the highest criterion of its real nature, and the test of its very existence.
In the alternative mode of conception, liberty is the object of a legal apprehension. That is, it is viewed as that actual degree of freedom which exists, or is allowed to the individual member of the civil state under the power of society and the unalterable conditions of human existence. Its conception is entirely independent of the moral sense of the concipient, and may be said to be the objective apprehension.
Liberty, in the first named aspect, is a subject of that science which relates to that necessary condition of man's existence as a moral being; and belongs to the province of political ethics. It is in the last described point of view that it becomes a topic of jurisprudence, in the sense herein before given to that term, viz. the science of positive law. No definition of liberty, when thus regarded, can be given but by defining it as the effect of the law of some state or nation, and without describing the law of some state or independent political society.'
1 See Lieber: On Civil Liberty and Self Government, ch. ii., and the citations.
* Compare Dr. Lieber: Civil Liberty and Self Government, ch. iv., v. Therefore, a presumption in favor of the personal liberty of any private person is not a necessary principle in jurisprudence. There may be in some states a constant legal presumption against the freedom of certain persons, and hence a presumption that some other person must have over them a right of control. The law, in resting on the authority of civil society, can derive no rules of action, and therefore no rights or obligations, from that state of nature which some authors have supposed to have existed anterior to civil society or the state. The natural freedom of man is known in jurisprudence only so far as it is the result either of laws in the secondary sense—conditions of things, or has been acknowledged and realized in the rules of natural reason which are identified with positive law.
BONDAGE OF LEGAL PES80N8. 39
§ 43. Since the nature of a legal right implies a duty or obligation as a correspondent constituent of some relation between persons, that obligation or duty may be considered as the opposite of a liberty: or, the duties made obligatory upon a person by law may be said to constitute a condition opposed to legal freedom. As the condition of freedom in this sense is indefinite, and is determined according to the nature and extent of the rights given by the law, so is all that is in this manner opposed to it determined by the nature and extent of the obligations or duties imposed by the law.
When a state of freedom, in this sense, is attributed to any subject, a power of choice and action is, by the signification of the words, necessarily supposed to exist in that subject, in the absence of law limiting or defining that freedom. According to the use of words, freedom cannot be predicated of anything which is without powers of choice and action. Therefore, according to the definition of & person in jurisprudence, (ante § 21,) freedom can be attributed to persons only. The same may be said of any state or condition opposite to freedom ; only persons, as having the power of choice and action in the absence of restraint, can be said to be bound by law, (in the primary sense;) and, therefore, bondage, as expressing a condition opposite to freedom, can be properly ascribed to persons only.
§ 44. The individual and relative rights of persons are capable, under the supreme power of the state, of such various modification between the extremes which constitute on the one hand a state of license, and on the other, the extremity of coercion which is physically possible, that the laws of freedom and bondage, as constituting opposite conditions of legal persons, might be considered under the description of these various rights and their corresponding obligations, as they exist under municipal (national) and international law.
40 CHATTEL CONDITION OF NATURAL PERSONS.
But since the non-possession of legal rights may be said to be the opposite of freedom, and since things, in the idea of the law (being only the objects of action, and never the subjects of rights) can have no legal rights, every object which the law contemplates as a thing, may, by a somewhat loose use of language, be said to be in a legal condition opposed in the farthest degree to freedom. Positive law being necessarily understood to be a rule of action for mankind,1 it might from this alone be inferred that the law attributes capacity for choice and action, or personality, to all men; or that the legal personality of all men is to be taken as a necessary or natural first principle of all law resting on the authority of society, or of the states holding the powers of society. But in accordance with the proposition that there is no other legal criterion of natural law than such as is sanctioned or adopted by the state, there is room in the jurisprudence of every country for an inquiry into the absoluteness or extent of such legal recognition of mankind as persons,' or for the question, whether some part of mankind may be legally wanting in the character of personality, distinguishing them from things, and may be in legal relations, things ;—only the objects of the rights of persons, and never the subjects of rights.'
1 Dig. L. I. Tit. 5, § 2. Quam igitar omne jus hominum causa constitutum sit,— Inst. L I. Tit 2. § 1 '2—parum est jus nosse, si persona;, quaruin causa constitutum est, ignorentur.
* Thibaut: Syst.d. Pand. Rechts.—Vol. i. § 118. Tr: "The third topic which is to be considered in relation to rights and obligations is their subject, that is to say, the person who has the capacity or obligation. And here the question directly arises: who can be the subject of a right,—either in respect to the nature of the thing (natural capacity for rights) or in respect to the precepts of positive law, (civil capacity for rights.) He who in any respect is considered as the subject of a right, is to that extent denominated a person; particularly considered as the subject of civil rights. On the other hand, that is called a thing which constitutes the opposite of a person: civil capacity for rights is what the Romans call status or caput. The moderns give it the name of ttatia eirilii, as consisting of all the capacities attributed by the laws, to which particular rights are attached; the natural capacity for rights on the other hand, as consisting of physical capacities which are followed by particular relations, is called by them status natural is." Compare Lindley's Transl. § 101. Mackeldey's Comp. by Kaufmann, § 116, 117. Ahrens' Naturrecht, p. 83, 84, also published in French.
Falck: Jurist. Encyc. § 27. French Tr. "On pent considerer comme une introduction generate la theorie du Status, oil Ton resout la question de savoir jusqu'a quel point l'etat a reconnu la capacite juridique aux etres humains qui vivent sous sa protection, de maniere qu'en leur en supposant la possibility physique, ils puissent entrer dans certains rapports de droit ety persistcr. Ce point etait beaucoup plus important dans l'ancien droit, que dans le droit actuel; car nous ne connaissons guere aujourd'hui d'autres causes d'exclusions des rapports juridiques, que cclles qui les rendent physiquement impossibles."
* In the Roman law the condition of all natural persons as subjects of law was de