"The true idea of government and magistracy will be found to consist in this that some few men are deputed by many others to preside over public affairs" (1).

It is only when these relations are established by law and the conduct of magistrates regulated by fixed and positive rules which even the most exalted magistrates must obey that a country can be said to have a constitution. It is in this sense that it is said the sovereignty of Russia or Turkey is considering the propriety of granting a constitution. In England the charters which constitute the written part of the constitution take the form of charters granted or confirmed by the sovereign.

Vattel says: "Laws are regulations established by public authority to be observed in society. The laws made directly with a view to the public welfare are political laws, and in this class are those that concern the body itself, and the being of society or form of government and the manner in which the authority is to be exerted; those in a word, which together form the constitution of the state are the governmental laws. The civil laws are those that regulate the rights and conduct of citizens among themselves" (2).

As a distinction between the character of laws classified

11 Blk. Com. p. 307.

2 The idea to grasp is the distinction between political relations and private relations, and the consequent divisions of law. In accord. Heron says: "In time the relations between the Government and the people become subjected to certain positive laws. And the body of laws determining the relations between individuals and their government, is generally termed Constitutional Law or Political Law; the latter term is preferable." Heron on Jurisprudence, p. 70. Again he says: "The Political Law of a nation is the whole of the legal relations existing between the governors and governed."

according to their object this is immensely clearer than the more ancient division into public and private laws.

The reason for this change of thought and clearness of expression is found in the clearer conception of the fact that the regulation of the public relations could be by rules which were in the true sense law (3).

Neither Hale nor Blackstone recognizes any such division of law as public and private-their division being of the law governing men in political or public and in private relations.

The prominence given in American law to rights designated civil rights renders Hale's treatment peculiarly interesting.

Lord Hale says of the relation of persons and the rights thereby arising: "The rights thereby arising are of three kinds, viz.: Political, economical, and civil.

Hale's civil rights are not the same as civil rights under our system.

"Concerning Relations Civil. I have done with relations political and also economical, and therefore come now to those which I call civil. Though it is true that term, in a general acceptation, is also applicable to the two former relations. But in a limited and legal sense, I distinguish civil relations into four kinds, viz.: Ancestor and heir, lord and tenant, guardian and pupil, lord and villein."

Under the title economical Hale classes what we term domestic relations thus: "Of the rights of persons under relations economical; and first, of husband and wife.” 8 Id. p. 75.

"Thus far the rights of persons under a political relation; now concerning the rights of persons under a relation economical. And they are these: Husband and wife; parent and child; master and servant” (4).

In the United States these subjects are treated somewhat differently, all falling within the terms Political Relations, Domestic Relations and Civil Rights.

Illustrations of the manner in which jurists regard these matters. By political rights is meant the right, directly or indirectly, to participate in the government (5).

"A civil right under a government is a distinct thing from a political right in it. Thus, a state may deny to females the right to vote, but it cannot deny to them the right to sue in courts, or impose upon their property all the burdens of the community. To hold otherwise would lead to the affirmation of the right of the state to make race or color or religion or age or statute the criterion of civil rights, and to exert the absolute right of confiscation by classes or descriptions; for in such a case every person of that class or description would stand on an equality with his fellow-victims" (6).

In Luther v. Borden (7), Mr. Whipple, with whom was

4 Hale's Analysis, pp. 29-33.

"Political rights consist in the power to participate, directly or indirectly, in the establishment or management of government. These political rights are fixed by the constitution. Every citizen has the right of voting for public officers, and of being elected; these are the political rights which the humblest citizen possesses." [Bouvier's Dic., tit. Rights, p. 485.]

Santa Clara Co. v. So. Pac. Ry., 18 Fed. Rep. 429.

77 How. 1.

Mr. Webster, argued as follows: "There are three classes of rights; natural, such as those recognized in the Declaration of Independence; civil, such as the rights of property; and political rights. Society has nothing to do with natural rights except to protect them. Civil rights belong equally to all. Every one has the right to acquire property, and even in infants the laws of all governments preserve this. But political rights are matters of practical utility. A right to vote comes under this class. If it was a natural right, it would pertain to every human being, females and minors."

In harmony with this is the language of Justice Field in Ex parte Virginia (8): “In the consideration of questions growing out of these amendments much confusion has arisen from a failure to distinguish between civil and political rights of citizens. Civil rights are absolute and personal. Political rights, on the other hand, are conditioned and dependent upon the discretion of the elective or appointing power, whether that be the people acting through the ballot, or one of the departments of their government. The civil rights of the individual are never to be withheld, and may be always judicially enforced. The political rights which he may enjoy, such as holding office and discharging a public trust, are qualified because their possession depends on his fitness, to be adjudged by those whom society has clothed with the elective authority. The thirteenth and fourteenth amend

8100 U. S. 368. The distinction here sought to be made between political and civil rights is made still more clear in the so-called Insular Tariff Cases, especially in Downs v. Bidwell, 182 U. S. at pages 282-283.

ments are designed to secure the civil rights of all persons, of every race, color, and condition; but they left to the states to determine to whom the possession of the political powers were to be intrusted. This is manifest from the fact that when it was desired to confer political power upon the newly-made citizens of the states, as was done by inhibiting the denial to them of the suffrage on account of race, color and previous condition of servitude, a new amendment was required."

§ 93. Magistrate and people. British and American view. "The supreme magistrates," says Hale, "are legislative-the parliament (with whose rights I shall not here intermeddle) executive-the king."

Of the king he says: "Inasmuch as the king is by the law the head of the kingdom and people, the laws of the kingdom, eo intuitu, have lodged in him certain rights, the better to enable him to govern and protect his people" (9).

The next section is entitled, "Of such rights as relate to the king's person, ""because they do belong to a king under this relation as king" (10) And under this head Hale treats the capacities of the king as being of two kinds-his political capacity, his natural capacity; thus, "As to his political capacity, he is a sole corporation of a more transcendent nature and constitution than other corporations; whereby he is discharged from any incapacities which, in the case of other persons, would obstruct his succession, as alienee, etc.; disable his actions, as infancy or coverture."

Hale's Anal., sec. 2.