and drawn this line between them. . . . . The entire subject matter of law falls into a classification of rights and wrongs and duties." The rules of law by which legal rights are to be determined may be written or unwritten, natural or positive, constitutional or statutory. The fundamental classification of legal rights as furnished us by Blackstone became the bulwark of the American law of torts, by which the ramification of human acts are to be judged. These rights found lodgment in our constitutions, and are unchangeable except at the will of the people.

§ 12. Classification or Division of Rights.-The importance of a proper conception of legal rights lies in the fact that it is necessary to ascertain what a legal right is, and how many rights there may be, in order to determine whether there is a right of action and how many rights of action there are in a given transaction. This is not always easily ascertained; "since a single act may be treated as a right, or any number of successive acts, or even different acts, provided they are all connected together, and may equally be treated as one right. Our only method of identifying rights, therefore, and of classifying them, is according to their objects, or according to the persons liable to the duties or obligations that correspond to the rights in question."

As matter of fact, every right is a right of a person, and Blackstone's division is into rights of persons and rights of things, the latter being a right with reference to its object, but still pertaining to the person. The original classification was into absolute and relative rights; the former being such as would belong to man in a state of nature, and which everyone is entitled to enjoy, in or out of society, or such as belong to individuals in a single, unconnected state. Relative rights are those that arise

from the civil and domestic relations. But, with us, all rights are such as we have as members of society, and while we speak of inalienable rights, all absolute rights are found guaranteed in our fundamental constitutional law. The law in reality deals only with relative duties, such as men owe each other in social relations. It is said that the absolute rights of men consist properly in a power of acting as one sees fit without any restraint or control, unless by the law of nature. But, as Blackstone says, everyone, when he enters society, gives up a part of his liberty, as the price of so valuable a purchase as the acquisition of social and municipal relations." Statesmen and judges have even doubted whether nature ever endowed us with any such right to do as we see fit. The law of nature contemplated that we should live as members of society, and it is the natural duty to contribute to the necessities of society. It is a principle of natural law, or as origi nating in municipal or social institutions, that the right of man in his conduct and in the use of his property is restricted by a due regard to the equal rights of others. When we contemplate absolute rights, it must be supposed that the promptings of men in the exercise of those rights naturally recog nize the principle of equality of right, which must of necessity be the basis of all society, and this, then, imposes upon all the duty of yielding certain things to others. The precedent for the declaratory bill of rights was first established in England by the Magna Charta making generous provision for all classes of freemen, and the Petition of Right asserting by statute the rights of the nation as contained in their ancient laws. The absolute rights were subdivided

2 Blackstone's Commentaries, 127.

8 Snyder v. Warford, 11 Mo. 513, 49 Am. Dec. 94. 42 Kent's Commentaries, 10.

into three: 1. The right of personal security; 2. The right of personal liberty; and 3. The right of private property. These were all embodied in the constitutions of our American states, together with some additions. This is not done in the way that the Bill of Rights was obtained by Englishmen as a guaranty from the Crown, but with us the people themselves are sovereign, and merely entered into a compact which none but themselves can change. The provision of the constitutions with which we are principally concerned in this subject is the first section of the Bill of Rights to the effect that: "All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety."

The

Thus we see that personal security is not mentioned in some constitutions, only liberty. two, it is contended by some, are in fact not easily distinguishable; and practically run together as the rights of the person, beginning and ending in the person without external object. Some writers have divided wrongs to persons into two kinds-absolute and relative; and the former into (a) wrongs to the body, subdivided into assaults and imprisonment; and (b) wrongs to his name or reputation, thus making liberty a mere division of security, and elevating reputation into its place.

6

$13. Absolute and Relative Rights Further Particularly Considered.-Blackstone was the first writer, perhaps, to mark this distinction between rights, and it has been criticised and questioned by other learned English and American writers. We

5 Ohio Const., art. 1, sec. 1.

6 1 Hammond's Blackstone, notes, p. 350.

have adopted it in this work as the most suitable division of rights to express the classes of primary rights in the law of torts, and justify its use from historical reasons, and as the most expressive and convenient term that has ever been devised in English and American law. Associated with absolute rights are those rights which are considered and claimed as inalienable-those rights which belong to man as man, anywhere and as against the whole world, rights which, in fact, rise higher than the government itself-absolute as against the government itself as well as against all persons. These rights having perched themselves so high in the opinion of men and government, it follows that any law which may be passed which in any wise infringes upon them must be held ineffective. These so-called absolute rights attach to the person, and have previously been enumerated, and need not now be repeated for the comparison which we here make. Having them in mind, can it be said that those rights which fall within the term "relative," occupy the same position in the estimation of the law, or are so intrenched in law, and are guarded and protected as are the absolute rights? This feature of difference, in our opinion, completely demonstrates the fallacy of all attacks made upon the division. Carrying the thought further into the practical field of jurisprudence, let us suppose that the legislative branch of the government should desire to make some change in the obligations existing in the domestic relations, as that the husband should be liable for the antenuptial torts of the wife; or that the wife should go back to her old legal status under the common law. Can it be said or claimed that these persons can rise up in their might, resting upon their relative rights, and

7 Ante, sec. 12.

insist that they may continue to maintain the same rights as they previously did, because these rights attach to them as individuals? Not at all. What

ever rights they have, they have as members of society and being relative, they are subject to change. Or, again, suppose, as it was first thought to be the case, that the legislature or Congress should enact a law providing that all contracts in partial restraint of trade, which have always been valid, should no longer be valid, but might give rise to some right of action in tort. Can business men turn to some inalienable, absolute right which they have to protect them? So might we go on with numerous like illustrations to demonstrate the soundness of Blackstone's division. But it is claimed that both the absolute rights and the relative rights are creatures of the same laws of society, and the rights which we enjoy under either class are equally relative.

Austin says: "These expressions ["absolute" and "relative" rights], as thus applied, are flatly absurd. For rights of both classes are relative; or, in other words, rights of both classes correlate with duties or obligations. The only difference is, that the former correlate with duties which are incumbent upon the world at large; the latter correlate with obligations which are limited to determined individuals."

Professor Pomeroy, the great American writer, speaking of the rules defining rights which Blackstone calls "absolute rights of persons," remarks that they "are no more absolute than their rights of property, or rights growing out of contract. The rules defining the rights and duties existing between husband and wife, parent and child, etc., . . . . also come within the law concerning things as truly as do

8 See sec. 489, post.

91 Austin's Jurisprudence, sec. 539.

H