But it may be asked, cannot the law of society regulate these powers of action, so that the individual himself shall not judge how he shall employ his power of using his muscles or of making a contract? One answer is that this is as much beyond the power of society as it would be to read the heart. Half of society would be employed in seeing that the other half did not exercise its powers improperly, and the great body of supervisors would have no one to supervise them. The powers of free action would be taken from half of the society in order to be given in larger measure to the other half.

Rights are powers of free action.

CHAPTER I.

GENERAL EXPLANATION OF RIGHTS.

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THE powers of action lodged in the individual by nations must then be, to a certain extent, powers of free action. But that the individual should have some unrestricted powers of action springs not merely from the necessity of the case-from the inability of the community to superintend the movements of the individual—but also from the reason of the case. Here we appeal to the convictions of men, who will admit that a certain amount of freedom in mature human beings is essential to nobility of character. Freedom is essential to virtue, courage, strength of character, sense of responsibility, high aspiration.

These powers or ways of free action are called rights,* or subjective rights, as pertaining to the individual, Subjective rights. so that it is right that he should use them, or, as it may be, refrain from using them when and as he will. And if it is right for him to use them, it is wrong for others to interfere in his use of them, or in other words, they are bound to abstain from interference-are bound to leave him

*The word right is derived from a root denoting in its physical sense to stretch out, or straighten; as straight is allied to stretch, Anglo-S. streccan. So raíhts in Goth., rectus in Latin, and ỏpéyw in Greek, show the same root for the most part in the physical sense, but denote also the reaching forth of desire after an object. The moral sense appears in rectus, Latin, recht, right, etc., in Germanic languages, and answers to wrong connected with to wring or twist. So in Hebrew, the first notion of the very common roots, yashar, tsadaq, is straightness. What is the explanation of the transition to the moral idea? Does rightness or straightness denote conformity to a straight rule, or walking in the straight way, without diverging or wandering?

obligations.

free in this respect. This binding force imposed by his free And correlative power or his right, and indeed necessarily involved in it, we call obligation; and in this work we intend accurately to distinguish the correlative to a right or rights by this word, and to use the word duty in a wider moral sense. We make a distinction (following the lead of several recent writers, as Lieber, Whewell, Wildman) between the jural and the moral spheres or departments. That which has to do with rights and obligations we call the jural, that which is concerned with moral claims and duties we call the moral. The intimate relations, and the differences of these two branches of ethics, we intend to consider hereafter.

exist.

1. From family life.

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But how does it appear that there are powers of free action Proof that rights pertaining to individuals, to which the name of rights is applied? And how do we discover what they are? To the first question we reply first that there is a general agreement throughout mankind on the point that there are rights, however indistinct the conception of them, and however different in different ages or races the enumeration of them may have been. I. Take the case of the child in the family. A parent has given something to one of the children, and he calls it his own. If now an older and stronger child takes it from him by force, he feels that a wrong is done to him and endeavors to recover it by force. Or let a younger child steal such a gift given by the parent; here too the older and stronger child feels that a wrong has been done to him. Thus there is an acknowledgment and a conviction within the family society that neither superior force gives a right to a thing, nor superior craft; but that a connection has been somehow formed between a person and (in the case supposed) a thing, which -unless some higher authority interposes-continues until the will of the individual himself breaks the connection by transferring the thing to another. For let the boy who has been wronged by fraud or force be placated, and he will be ready,

perhaps, to pass over the object to some other boy, or even to the wrong-doer. He does not doubt that the relation formed between him and the thing gives to him the free disposal of it. But let the parent have given the thing to him. with the injunction that he is not to part with it. In this case he feels that, while he calls it his own, certain uses and a certain disposal of it are prevented by the manner in which he received it. His will, his power of free action was thus limited, and the property in the thing was not absolute in all respects. But if it had been given to him in complete possession, he will not hesitate to exchange the thing so given for something which another boy agrees to give him, and then, if this contract of exchange is violated, he will feel that the other boy has injured him. Here we see the "cruda exordia" of the great system of justice which binds the world together, and it is worth while to notice here how early and easily, amid normal human relations, the conception arises of a special fight, an ownership of some object in the material world, of a right of transfer to another of the object owned, and of an obligation created by contract. The child does not look to the rights of property beyond the family circle, he does not ask how the father came to have the right to give him the thing; but as little, in general, do grown-up people in the state ask how the state comes to have the right of property over wild land, or even how private persons acquire their titles, unless for their own security it becomes necessary to decide this question.

2. From state law.

2. The rights thus acknowledged by children at an early age are expressed in the laws of most nations. We do not affirm that either in laws, or in decisions when laws are broken, there is always a distinct conception of what rights are. Some persons, as slaves, have no rights, but are property themselves; or there is a small amount of rights, as against the government in a despotical society; or religion and civil rights are so blended-owing to the protection which early society draws from religion in order to secure justice-that the distinct subsistence of the

civil relations does not stand forth in its due clearness. But in such cases the sense of justice is better than one might think. The slave is such by way of punishment, or as a captive in war, the sum total of persons in one nation being conceived to be at war with the sum total of another; or for the payment of a debt; after which partus sequitur ventrem, according to a principle which would be just enough if man was only an animal. And if we look at the law of nations, from those of Manu or of the Jews downward, we find similar notions of rights and obligations running through them all. The ten commandments are, in part, simple statements of obligation in the prohibitory form, implying the conceptions of the rights of property, of the family, of marriage, and of life, and, by forbidding false oaths and false witness, securing the obligation of contracts.

3. It will, perhaps, be said that such recognitions of rights do not belong to human nature as such, but 3. Are recognized in inferior races. to tribes and races that are somewhat above the lowest level at which men have been found. Were this true, it would only show that there is a certain degradation in which moral ideas have almost faded out from a savage tribe. But the readiness with which some such tribes have received the moral code even of Christian ethics, shows that their sense of justice only needed to be quickened, not to be created. But it is not true. In many places, where ships have visited islands of the sea, the people will steal every small article on the vessel, but so the sailors will commit acts of violence, and indulge their lusts with the women, married or not. Have they, too, had no moral ideas? If you look at the laws of the islanders, you will find that the conceptions of rights are not wanting. Almost everywhere theft is punished, violence is esteemed a crime; blood-revenge, with compositions by money and weregild, points at a sense of wrong and of injury done to a family or a kindred. It is true that conceptions of rights are faint, and mingled with religious ideas, it may be, in savage tribes; but it is true, also, that moral and religious ideas are equally undeveloped. And when a nation grows in