natural distinction between classes of rights. It is also clear that it does not obtain as a basis of classification in English or American law.

§ 82. Right and obligation correlative; a right is a possession; an obligation is a burden. In the Roman law obligation was a generic word embracing in its scope several species, distinguished from each other by the manner in which they arose. The first class arose out of transactions between persons, which gave rise to contracts express or implied. The second class arose from conduct inimical to the rights of another, and gave rise to what we term wrongs or torts.

In the English law, obligation was degraded from its position as a great generic term to the position of the designation of a single class of agreements under seal (21).

In the United States the word has again acquired vast importance by reason of its introduction into the constitution, whereby the states are prohibited from passing any law impairing the obligation of a contract.

The peculiarity of the phrase obligation of a contract seems to imply that the obligation is something distinct from the stipulation, agreement or contract, and con

21 Ingraham v. Edwards, 64 Ill. 526. The narrow meaning of the word in the common law is for the present sufficiently pointed out by the following definition: "An obligation, obligato, onis, f. Obligation is a word of its own nature, of large extent, but it is commonly taken in the common law for a bond containing a penalty, with condition for payment of money, or to do or suffer any act or thing, and a bill is most commonly taken for a single bond without condition, Coke on Lit., lib. 3, cap. 1, sec. 259.❞ From an Old Dictionary by F. O. [1701].

tinues after the contract is executed (22). This subject will be treated in the. proper place, but it may be excusable to here observe that the constitution does not mention obligations arising ex delicto.

Illustration and application. In Ogden v. Saunders. (23), Mr. Justice Johnson says: "Right and obligation are considered by all ethical writers as correlative terms; whatever I, by contract, give another a right to require of me, I, by that act, lay myself under an obligation to yield or bestow. The obligations of every contract will then consist of that right or power over my will or actions which I, by my contract, confer on another. And that right and power will be found to be measured neither by moral law alone, nor universal law alone, nor by the laws of society alone, but by a combination of the three-an operation in which the moral law is explained and applied by the law of nature, and both modified and adapted to the exigencies of society by positive law. The constitution was framed for society, and an advanced state of society, in which I will undertake to say that all the contracts of men receive a relative and not a positive (24) interpretation; for the rights of all must be held and enjoyed in subserviency to the good of the whole. The state construes them, the state applies them, the state controls them, and the state decides how far the social exercise of the rights they give us over each other can be justly asserted. I say the social exercise of these

22 See Fletcher v. Peck, 6 Cranch, 87; Ogden v. Saunders, 12 Wheat. 213-217.

28 12 Wheat. 281 24 1. ., absolute.

rights, because in a state of nature they are asserted over a fellow creature, but in a state of society over a fellow citizen. Yet, it is worthy of observation how closely the analogy is preserved between the assertion of these rights in a state of nature and a state of society in their appliIcation to the class of contracts under consideration."

Use made of the distinction. As pointed out above, English jurists set aside and disregarded entirely the above distinction so far as it related to the classification of rights, but it is retained and made the basis of one of the most important distinctions between actions to enforce rights.

Actions in rem and actions in personam depend for their distinguishing features upon the identical principles above pointed out, and involve respectively rights in rem and rights in personam.

These matters will be considered in their appropriate places, but the student may the better understand this matter by examining the cases cited below (25).

In place of this classification we find, in Blackstone's classification, a separation differing entirely in its expression and taking a double form, viz.: First, the right of persons and the right of things, which has been examined. Second, the right of persons is by him classified as absolute and relative. This latter classification will next require our attention.

§ 83. Absolute and relative rights. There is another designation of the nature of rights of individuals which

25 Grigg v. Arnett, 134 U. S. 316; Woodruff v. Taylor, 20 Vt. 63; Cooper v. Reynolds, 10 Wall. 308.

has come to us from England and exists as a sort of tradition of the legal profession, and which constitutes a stumbling block in the way of a proper understanding of the law of private rights or the nature of constitutional law. This is the so-called absolute right, which forms such a prominent feature of Blackstone's treatment.

He very properly distinguishes between natural persons and artificial persons and corporations. The rights of natural persons he classifies as absolute rights and relative rights. He includes under and as a part of the absolute rights of individuals, personal security, personal liberty, and the right of private property, without any hint that a portion of these rights belong as well to corporations as to individuals; for example, the inviolability of contracts, and protection against unreasonable seizure and searches.

For this reason alone the classification of rights into absolute and relative, as applied by him, is defective.

There is, however, a more powerful reason for discarding the whole notion of absolute rights. The first book of the Commentaries treats of all of those reciprocal rights, duties, preogatives and jurisdictions which make up the sum of governmental relations, including the entire attributes of sovereignty, legislative, executive, judicial, and also the rights of individuals, a portion of which are there designated absolute rights, another class of which are called relative rights or domestic relations, and finally in the same book the subject of corporations is treated.

Absolute rights are there explained to be such as pertain or belong to particular men as individuals or single

persons, and such as would belong to them merely in a state of nature.

Relative rights-those which are incident to them as members of society and standing in various relations to each other (26).

Hammond says this division into absolute and relative rights depends on a theory common to all writers of his time, English and Continental (27). This was the obsolete theory of natural rights, and he says the definition may be set aside with the obsolete theory to which it belongs (28).

§ 84. All rights are relative, not absolute. This division into absolute and relative rights we shall show is neither a natural division, nor yet is it one which accords with reason or the facts. There is no such thing as natural rights or absolute rights existing within organized society; all rights within the body politic are relative and subject to the law of the land (29). What one has a right to is his; and to call it absolute does not make it any more his own. What Blackstone probably meant was that these were rights inviolate, even against the government (30).

James Wilson, afterwards justice of the supreme court of the United States, in his address in vindication of the colonies, says: "Liberty [the equivalent of absolute right] is by the constitution (of England) of equal sta

261 Blk. Com. 123.

27 Int. to Sandars' Justinian, Hammond's ed., p. lii.

28 Id., p. liv.

29 Calder v. Bull, 3 Dall. 386; People v. Town of Salem, 20 Mich. 452; 4 Am. Rep. 400-10.

30 People v. Town of Salem, 20 Mich. 452; 4 Am. Rep. 410, 411.