another. Especially, it may be asked whether Contracts do not necessarily imply Property; for we contract to buy and sell our property; and whether Property be not merely a general tacit Contract that each shall have his share. To this we reply, that Contract is really distinct from Property: We contract for services, for bodily labour, for mental labour, for knowledge and intelligence, as in hiring a teacher, or combining in a literary work. It may perhaps be said, that a man's limbs, his knowledge, his intelligence, his mind, are his property: so that, in these cases also, Contract implies Property. But to speak thus, is to introduce a lax and fanciful use of words, which renders all exact expression and rigorous reasoning impossible. Such a use of words annihilates the fundamental distinction of Persons and Things; and is inconsistent with our previous reasonings, in which we established the existence of Rights. For the right of Property was shown to be necessary, by considering that man cannot act without some command of the external world, the world of material objects. By the nature of our arguments, we spoke of Property as something external, visible, tangible ; or at furthest we included, (as we shall see,) only the inseparable appendages of such material Property. We cannot consider knowledge and mind as Property, without making Property cease to have any definite meaning at all. Hence Contract may exist where Property does not; the two Conceptions, and the corresponding Classes of Rights, are independent of each other.

Again: we reply, that Property cannot be said to depend upon tacit Contract, if we are to classify Rights at all. For Contract, as we now consider it, is the result of a Special Act; or at least of an Understanding founded on some distinct analogy. A Contract implies Language, or something equivalent to Language: Property does not imply the use of

Language, or any substitute for it. A tacit Contract, not understood from any special act, but, without any special ground, assumed as a universal fact among men, is not a Contract, in the sense in which we have used the term in our previous reasonings. Moreover, if we suppose the prevalent respect for the Right of Property to be founded upon a tacit general Contract, we must, for the like reasons, suppose the prevalent respect for the Rights of the Person, and for the Rights of Marriage, to be founded upon tacit general Contracts: and thus, all Rights would be identified with Rights of Contract. But such a use of terms would make all classification of Rights impossible. We must, therefore, make Contract a special and definite kind of Right: and if we do this, Property will be independent of Contract, and the corresponding Classes of Rights will be distinct from each other.

The Five Classes of Rights of which we have spoken do not occur, in that form, in the Roman Law. But we see in that Law indications which readily direct us to those Rights. The leading distinction of heads, in the Institutes of the Roman Law, is of Persons, Things, and Actions. Omne jus quo utimur vel ad Personas pertinet, vel ad Res, vel ad Actiones*. Here Actiones means legal proceedings; but we may take the term as representing peculiarly the Class of Rights of Contract; for these derive their reality especially from the support of the judicial authority. The Second Book of Justinian's Institutes is mainly concerning Property, De Rebus; and the Third, concerning Contracts. Family Rights also are distinguished in the Institutes from the other Rights of Persons. Thus, in the First Book, the ninth and tenth Titles are, De Patria Potestate and De Nuptiis.

111. In both the Roman Law and the English

* Inst. 1. 2.

Law, there is a distinction of Wrongs, as Private and Public Wrongs. For the Social order being established, in which respect for the Rights of all is commanded, those who transgress this respect, offend, not only against the particular persons whom they injure, but also against the State, the general protector of Rights. If one man violently beats or wounds another, he not only wrongs him, but violates the general order of Society. On the other hand, if one man claims another's field or house, he may do him wrong, but he puts forward his claim under the show of law and justice. The former is a Crime; a Public Wrong; and a Crime belongs to Criminal Law, and must be tried by Criminal Courts. The latter is a question of Private Rights, belonging to Civil Law, and to be decided by an Action or Suit, Actio. In England, the Office of the State as the guardian of Order, and of the Rights of all, is embodied in the person of the Sovereign. A person who commits violence, breaks the King's Peace.

Taking the Classes of Rights as we have stated them, we shall now notice some of the jural expressions and distinctions by which these Rights, and the corresponding Classes of Wrongs, have been practically carried into effect in particular circumstances.

CHAPTER II.

THE RIGHTS OF THE PERSON.

112. THE Rights of the Person are the Rights to Safety, Security, and Free Agency, which, as we have said (67), are requisite for the peace of Society, and the human and moral character of man's actions. These Rights are protected by the Laws, which pro

hibit deeds of force and violence in general. But from the extreme of violence, the infliction of death, there is a gradation to slighter acts, which also are Wi Vrongs or Injuries. The division of these Wrongs against the Person is very similar in the laws of most countries.

In the Laws given to the Jewish people, the primary Law upon this subject was the Command, Thou shalt not kill and this Law was followed out by various Rules concerning Smiting: which are given in the Book of Exodus, chap. xxi. verse 12, and the following verses.

In the English Law, proceeding from Homicide, which is the highest crime against the Safety of the person, the following offences are treated of: Maim ; (anciently Mayhem,) which is an injury depriving a man of the use of some bodily member: Wounding; which consists in giving a man some hurt with a weapon which breaks the skin: Battery; which is any, the least, Hurt or Violence unlawfully and wilfully done: Assault; which is an attempt to do such violence. Threats and Menaces, by which a man is put in bodily fear, are not punishable; but they may be the ground of compelling the person who uses them to give sureties that he will keep the peace.

The least touching of another person wilfully or in anger is Battery for the Law, as the Commentators upon it remark, cannot draw the lines between different lower degrees of violence, and therefore totally prohibits the lowest degree. In like manner among the Romans, the Cornelian Law, De Injuriis, prohibited Pulsatio, as well as Verberatio: distinguishing Verberation, which was accompanied with pain, from Pulsation which was not.

113. Besides the above, there are other Wrongs against the person, consisting in Violations of the Right of Personal Liberty. These come under the head of False Imprisonment; so called in opposition to true

Imprisonment, which is constraint put upon the person by the authority of the law.

To these offences may be added Kidnapping, the forcible abduction or stealing away of a man, woman, or child from their own country, and sending them into another. This offence was noticed also in the Jewish Law*:"He that stealeth a man and selleth him, or if he be found in his hand, he shall surely be put to death." So likewise in the Roman Law, Plagium, the offence of buying, selling, taking or keeping as a slave, a freeman, was severely punished. The Plagiarius was generally condemned to the mines.

114. The English Law also takes cognizance of injuries affecting a man's health, arising, not from Malice, but from neglect. Thus a remedy is given when a person is injured by selling him unwholesome provisions or wine; or by a neighbour's exercise of a noisome trade which infects the air. There is also a legal remedy given to a man for the neglect or unskilful management of his physician, surgeon, or apothecary, which is called mala praxis. The same is the course of the Roman Law†: Imperitia culpæ adnumeratur: veluti si medicus curationem deliquerit, male quampiam secuerit, aut perperam ei medicamentum dederit. The Injuries which are under our consideration, in this part of our work, are, for the most part, accompanied with Malice; but the physician's Indif ference to his patient's health, and Disregard of the Trust reposed in him, are held by the Legislator to give to such damage, so inflicted, the character of Wrong, as well as Damage.

Malicious Intention is requisite to the notion of the Wrongs or Crimes here spoken of. But in the cases

• Exodus xxi. 16.

+ Inst. iv. 3. Want of skill is accounted an offence; as in a case in which the physician leaves off his attendance on the patient while the cure is incomplete, or performs a surgical operation wrongly, or gives pernicious medicines.