A section from Use And Abuse of Political Terms (1832)
by George Cornewall LewisRIGHT, DUTY, WRONG, RIGHTFUL, WRONGFUL, JUSTICE
When the sovereign power commands its subjects to do or forbear from certain acts, the claim1 for such performances or forbearances which one person thereby has upon another, is called a right; the liability to such performances or forbearances is called a duty; and the omission of an act commanded to be done, or the doing of an act commanded to be forborne, is called a wrong.
All rights, therefore, must be subsequent to the establishment of government, and are the creatures of the sovereign power; no claim upon another, which may not be enforced by process of law, i.e. by calling in the assistance of the sovereign, however recommended by moral justice, can, without an abuse of language, be termed a right. The existence of a moral claim may often be a matter of doubt when the facts are ascertained, and one party may demand what the other may not think himself bound in conscience to yield; but, the facts being given, the existence of a right, or a legal claim, can never admit of dispute, as it is defined and conferred by a third party, who will, if required, step in to enforce it.
Properly, therefore, right signifies a claim conferred or sanctioned by the sovereign power, i.e. a legal right. Sometimes, however, it is used to mean a claim recommended by the practice, analogy, or doctrines of the constitution, i.e. a constitutional right; and, sometimes, a claim recommended by views of justice or public policy, i.e. a moral right.
By the first and proper sense is meant a claim which may be enforced in a court of law, or by the proper authorities, and which actually exists: by the two last a claim which cannot be enforced by any public authority, and which does not exist. Thus, in the first sense, it is said that a man has a right to his own property, reputation, &c., meaning that he has an available claim which can be enforced by process of law. It is also said that, constitutionally, every British subject who pays taxes has a right to vote for a member of the House of Commons; meaning that such a claim is supported by the practice or doctrines of our constitution. It is also said that all the people have a right to be represented; that they have a right to choose their own governors, to cashier their governors for misconduct, and to frame a government for themselves; that the poor have a right to be maintained by the rich; that the poor have a right to spoil the land-owners, and divide their lands; that the poor have a right to spoil the rich, and divide their property, &c. In the latter cases, the persons who use these expressions mean that, in their opinion, there is a claim founded in justice and expediency, which they call a right; though, in truth, what they mean to express is, that it ought, by the sanction of the legislature, to be made a right.
Burke's explanation of rights, in fact, amounts to no more than that last stated, though he appears to have intended something very different; as his definition is perfectly consistent with the doctrines which he is professedly combating, and which he held in utter abhorrence. The following passage from his work on the French Revolution2, is in answer to those who maintained the doctrine of the natural rights of men. 'The pretended rights of these theorists are all extremes; and, in proportion as they are metaphysically true, they are morally and politically false. The rights of men are in a sort of middle, incapable of definition, but not impossible to be discerned. The rights of men in governments are their advantages; and these are often in balances between differences of good; in compromises sometimes between good and evil, and sometimes, between evil and evil.' If this doctrine were admitted, a man would have a right to everything which might appear advantageous to him, and private opinion would be the only rule of law3.
No objection, even on the score of inconvenience, can be made to the use of an equivocal word when its different senses are plain and palpable; as, for example, the word light, which sometimes means the contrary of heavy, sometimes the contrary of dark; or the word duty, which sometimes means a legal or moral obligation, sometimes a tax on a commodity. By such ambiguous terms as these, no one could be misled. But when the two significations lie on each other's confines, the one being perhaps a metaphorical or derivative use of the same word, there is great difficulty in marking the boundaries which the ambiguity always tends to confound; though the distinction is the more important, because, even if the names were different, such near neighbours would be likely to encroach on each other's territories. In the present case, the confusion of legal and moral rules, to which, at all times, mankind are sufficiently prone, is heightened by an additional meaning of the word in question.
Right is sometimes a substantive, sometimes an adjective. When used as a substantive, it properly signifies a legal claim, and answers to duty. Where the law confers a right on one person, it creates a corresponding duty in another. Wrong, the substantive, signifies the violation of a right. But, when used as an adjective, right expresses agreement with the standard of morality (whatever that may be), and is opposed to wrong, the adjective, that which disagrees with this standard. Thus a right may be right or wrong (i.e. a claim given by law may be just or unjust, politic or impolitic) in the judgement of different persons. The necessity of a legislative sovereignty, or of a power of altering old and enacting new laws, is entirely founded on the supposition that rights may be wrong—a truism which has sometimes been treated as a paradox and an antithesis. If the different senses of right, just pointed out, really coincided ; that is, if all claims founded on justice and sound policy were legal rights, and all legal rights were founded on justice and sound policy, there would be no necessity for deliberative assemblies or legislative enactments, and the whole business of government might be confined to the administration of existing laws.
This ambiguity, so manifest when pointed out, and so easily detected by a translation into Latin (which has different terms for the substantive and adjective)4 has yet misled many unreflecting persons, and even some writers of high authority, who might have been expected to keep clear of so obvious a fallacy. Thus Paley, in his Moral and Political Philosophy, b. I, chap. 9, says that 'right is a quality of persons or of actions;—of persons, as when we say, Such a one -has a right to this estate, &c.;—of actions, as in such expressions as the following: It is right to punish murder with death, &c.' The argument by which Blackstone proves the latter part of his definition of municipal law, that it is 'a rule of civil conduct.prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong5, 'proceeds entirely on this uncertainty of meaning. 'In order to do this completely,' he says, 'it is first of all necessary that the boundaries of right and wrong be established and ascertained by law. And when this is once done, it will follow of course that it is likewise the business of the law, considered as a rule of civil conduct, co enforce these rights, and to restrain or redress these wrongs6.' If, in defence of Blackstone, it should be said that by right and wrong he only means that which the law enjoins or forbids, then the latter part of his definition is superfluous, and to say that a law is right would be an identical proposition7. Hence also Crabb, in his Dictionary of English Synonyms, says, that ' right (the substantive) signifies what it is right for one to possess.' The same confusion of the two very different senses of right is well shown in the following passage, where the argument turns upon the double sense. 'If it be right that the property of men should be protected, and if this can only be done by means of government, then it must be right that some person or persons should possess political power. That is to say, some person or persons must have a right to political power8.' The apparent force of this argument rests on a mere verbal fallacy. So the author of the Dictionary of English Synonyms, just cited, states, that a certain conclusion cannot be received, 'unless we admit the contradiction that men have a right to do what is wrong9. This instance is perhaps the more worthy of notice, because it occurs in the work of a writer whose professed object was to point out and illustrate the different meanings of words10. In the celebrated verse which would represent as a paradox 'The right divine of kings to govern wrong,' the antithesis is only in sound and not in sense: if a sovereign has not the power to enforce his commands, whether right or wrong, that is, whether the subject thinks them right or wrong, he is not sovereign. 'When governors shall be so perfect, as never to propose a measure that is not faultless, and when subjects shall be so infallible in their judgements, and so candid in their dispositions, as universally to perceive and acknowledge this perfection—then, and not till then, may a peaceable and permanent government be established on such principles11.'
It may moreover be observed, that if all rights are the creatures of the sovereign power, and can only be enforced by calling in the assistance of a superior authority; no absolute monarchs or sovereign governors can be said to possess rights, or to be subject to duties, except in a moral sense. A claim which a man gives himself, of which he is alone judge, and which he can alone enforce, may undoubtedly be called a right, though it seems much more precise and simple, in such cases, merely to speak of power; but a sovereign, whether one or many, can never be liable to any legal duties, because a legal duty implies the legal means of enforcing it; and if a sovereign power should be legally forced to any act, it would not be sovereign. That governors have not, as governors, any legal duties, is distinctly stated by Dr. Whately, in a sermon preached before the University of Oxford, although he too speaks of the rights of a governor. 'The governor,' he says, 'is bound to make a good use of his power, no less than his subjects are to obey him; and he is accountable to God for so doing; but not to them; for if this merely conditional right to obedience be once admitted, it must destroy all government whatever12.' The attributing of rights to governors appears to have arisen from a confusion of the effects produced by the exercise of the power of a sovereign, and of the right of a subject. A man by hiring a servant acquires a right to his services and obedience; a sovereign issues its commands, and thereby has a claim on the submission of its subjects : whence it is inferred that the claim of the sovereign is of the same nature as the claim of the master; i.e. that they both have a right to the performance of the respective duties. But in the one case, the claim is given by a third party; in the other, it is obtained by -an exercise of individual volition: three parities are necessary to the existence of a legal right, as two parties are necessary to the existence of moral justice. A man cannot be just towards himself, nor can that be a right which A gives himself against B, and A alone can enforce13
In this country a mistaken notion as to the rights of subjects has arisen, from confounding the powers of the King and those of the Parliament. The people have rights as against the King; and hence it is correct to say that Charles the First and James the Second violated the rights of their subjects: without having the legislative sovereignty, they commanded acts to be done which were contrary to law. But the people have no rights as against the Parliament, or the whole sovereign body; and hence such expressions as the Parliament withholding or refusing the rights of the people, are not only unmeaning and absurd, but also mischievous, as they tend to encourage the idea that members of that body are legally, as well as morally, answerable for their acts.
In a like manner, the rule of the English constitution that the King can do no wrong, appears to be an absurdity, and startles some who hear it, only because a breach of legal right is confounded with a breach of moral duty. Neither the whole sovereign body, nor any part of the sovereign body, so far as it is sovereign, can do a wrong, that is, infringe a right; as that implies a superior power to redress the wrong or enforce the right, which, by the supposition, does not exist. All orders issued by a competent authority are necessarily dispunishable; but this immunity does not extend to those who execute them, if contrary to law. For example, the King may order his ministers to do an illegal act, but they will obey at their peril. The House of Commons may order their serjeant-at-arms to arrest a man for an act not falling within their jurisdiction, but their officer will obey at his peril. If the House of Lords, or House of Commons, were to go in a body and kill a man, they would be guilty of murder, because this would not be an act done in virtue of the sovereign power which in their collective capacity they severally possess for certain purposes14. This is stated in substance by Blackstone15, though his expressions are not strictly accurate. 'The supposition of law is,' he says, 'that neither the King nor either house of Parliament (collectively taken) is capable of doing any wrong ; since, in such cases, the law feels itself incapable of furnishing any adequate remedy; for which reason, all oppressions which may happen to spring from any branch of the sovereign power, must necessarily be out of the reach of any stated rule or express legal provision.' He afterwards states, that the maxim that ' the King can do no wrong,' means two things: 1. 'That whatever is exceptionable in the conduct of public affairs, is not to be imputed to the King, nor is he answerable for it, personally, to his people;' and, 2. 'That the prerogative of the crown extends not to do any injury16.' As to the first of these rules, it is clear that the King cannot be answerable for any act done by him in his capacity of sovereign; as this immunity is implied in the idea of supreme power: while the second is merely a statement, in different terms, of the proposition that 'The King can do no wrong'; for King, putting prerogative of the crown; and for 'wrong, 'injury. By 'injury,' a breach of law can only be meant; as all political parties think that the King does that which is hurtful to the nation, when he chooses his ministers from their opponents17. The statement of this rule by Hume, in his Essay on Passive Obedience, is very precise, and seems framed for the express purpose of cautioning persons against the superficial error, so often committed, of confounding a legal injury with a moral impropriety. The King of England, he says, 'though limited by the laws, is, in a manner, so far as regards his own person, above the laws, and can neither be questioned nor punished for any injury or wrong which may be committed by him18.'
Before the word 'right' is dismissed, it may be useful to notice some of the epithets applied to it; the number, variety, and discordancy of which are almost past belief: though,' when they come to be examined, most of them will be found to be either unmeaning or inapplicable. The following passage occurs, as spoken by Dr. Johnson, in a conversation preserved by Boswell19: 'Every man has a right to liberty of conscience, and with that the magistrate cannot interfere. People confound liberty of thinking with liberty of talking; nay, with "liberty of preaching. Every man has a physical right to think as he pleases; for it cannot be discovered how he thinks. He has not a moral right, for he ought to inform himself, and think justly.' Here 'physical right' must mean power; 'moral right' appears to mean 'legal right,' for Johnson never could have intended to say that a man is, in conscience, bound to conceal opinions which he thinks true: the doubt would rather be the other way, whether a man is justified in concealing what he thinks true. On another occasion he said that 'there seems to be in authors a stronger right of property than that by occupancy; a metaphysical right, a right, as it were, of creation, which should, from its nature, be perpetual20.' This expression is manifestly founded on the erroneous supposition, that a right to a tangible is more corporeal than a right to an intangible object; but elsewhere he uses a more common epithet, when, speaking of government, he says that 'if the abuse be enormous, Nature will rise up, and, claiming her original rights, overturn a corrupt political system21.' It is, however, a contradiction to speak of original rights, if by original is meant anterior to government; for, as has been shown above, the notion that 'right is altogether an abstract thing, which is independent of human laws and institutions22,' is not only not true, but is the direct contrary of the truth. The verse of .Dryden, in the Wife of Bath's Tale, that 'Sovereign monarchs are the source of right,' expresses the truth, but not the whole truth; as not only sovereign monarchs, but all sovereign legislatures, whether of one or many, are, and are alone, the sources from which all rights flow. Yet we hear of original rights, natural rights, indefeasible rights, inalienable rights, imprescriptible rights, hereditary rights, indestructible rights, inherent rights, &c., where there is no pretence of legislative sanction: indeed the only object of using these names is to induce the legislature to convert these supposed rights into real rights, by giving them the sanction of law. The phrase, natural right, takes its origin from the doctrine of a state of nature, which will be more fully explained below23- It appears to signify a claim recommended by natural law, or by those rules which were recognized by common consent, when mankind were in a state of nature, An indefeasible right-is a right which man enjoyed in a state of nature, and which he only surrendered conditionally at the making of the social compact; so that nothing has since been able to defeat or destroy it, and it is ready to be revived at any time. An imprescriptible right is a right which was prior to the social compact, and which continues to exist without being subject to prescription or failure by lapse of time. An inalienable right is a right which cannot be alienated from a man. Indestructible rights, inherent rights, hereditary rights, birth rights of liberty, &c., appear to have nearly the same meaning; viz. that they are dormant rights, never exercised by the possessors, and not extinguishable by any law. In fact, however, these imprescriptible, inalienable, indefeasible, rights, in most cases never have been rights, or, if they have, long since were alienated and defeated by the sovereign power. These various expressions have all taken their origin from the theory of the state of nature and the social compact; but they are frequently used by persons who have never heard of this absurd and mischievous doctrine, and would perhaps reject it if they knew it. All that those persons mean is, that, in their opinion, the claims which they call rights ought, in sound policy, to be sanctioned by law. It is the duty of such persons to show that sound policy requires what they require; but as this would require a process of reasoning, and as reasoning is often both hard to invent and to understand, they prefer begging the question at issue by employing some of the high-sounding phrases just mentioned.
Rights are, moreover, divided into political or civil rights, and private rights: the meaning of which division will be explained elsewhere24.
'Vested rights'25 is another expression which has been much used of late years. In its legal sense, 'vested' is opposed to 'contingent,' and expresses a right of which the next possessor is ascertained, whenever the prior right to the same object may determine; as opposed to a right of which the next possessor is not so ascertained26. But its political sense (with which alone we are now concerned) is widely different from its legal acceptation, and appears to have no connexion with it whatever27. When a legislature passes a law, not for any temporary purposes, nor limited as to the time of its operation, and which therefore may be reasonably expected to be permanent—and persons, confiding in its permanency, embark their capital, bestow their labour, or shape the course of their life, so that their only hope of success is founded on the existence of the law—the rights which they have acquired in the reliance upon its continuance are termed 'vested rights'; and persons in this situation are considered as having a moral claim on the legislature for the maintenance of the law, or at least for the allowance of a sufficient time to withdraw their investments, and to take the measures necessary for guarding against the loss consequent on so large a change. When duties are imposed for the purpose of excluding a cheap foreign commodity, in order to enable it to be produced at a higher price at home, the persons who carry into effect the intentions of the legislature, by engaging in the favoured manufacture, are considered as having a vested right in their undertakings, and possessing a claim to notice of a reasonable length, before the duties are removed; for although their profit is not larger than it would have been in any other unprotected branch of trade, and although the public lose the difference between the prices of the foreign and native commodity; yet having, in consequence of the encouragement of the legislature, once engaged in the protected trade, they cannot, at a moment's warning, withdraw their capital and invest it elsewhere, without incurring a certain loss. In consequence of the high duties on French, Portuguese, and Spanish wines, many persons were induced to invest their capital in the making of wine at the Cape of Good Hope. They produced an inferior commodity at a higher price: but when it was proposed to equalize the import duties on wines, it was allowed that the vested rights of these persons ought to be respected, and that they were fairly entitled to have a sufficient time to engage in new speculations. All preferences given to particular classes of traders create vested rights of this description; and it is for this reason that, although the existence of such preferences is an unmixed evil, their abolition is very far from being an unmixed good.
A vested right may therefore be described as a right of investment28; giving to its possessor a moral claim upon the legislature, for the permanency or tardy abolition of a law, which he has gained by employing his capital or labour in adventures only compatible with the existence of the law. Being founded on the principle of not disappointing expectations, it is founded on a principle of the wisest and most enlarged policy; but the doctrine of vested rights must not be stretched too far, as there is scarcely a right on which some expectations are not founded, and which does not, in some degree, serve as a guide of conduct: it can only be admitted where the loss would be great, and the probability of the law being repealed or modified was inconsiderable.
Of vested rights, that on which the greatest number of calculations and expectations is founded, and which, in most states, offers the fairest hope of permanency, is the right of property. There is scarcely a step in a man's life, if it has any prospective view, which is not taken in reference to his property. His bodily and mental habits, his connexions, whether of friendship or marriage, are all formed with reference to the rank of society in which his property places him. A man is brought up by his parents, and insensibly adapts himself, to the situation - which he is likely to fill, A poor man suddenly made rich is not more likely to be happy, and is much less likely to do good to others, than a rich man suddenly made poor29. There is no change in the condition of human life, except the change from freedom to slavery or imprisonment—no deprivation of rank, honours, dignity, political power, military power, or sovereign dominion—which blights so many prospects, which chills so many hopes, which brings such bitter disappointments, and such painful humiliations30, which offers such violence to a man's familiar habits and thoughts, and forces him into courses for which he is so little fitted, as the change from affluence to beggary. The interruption of this right takes a man from a station 'where he is contented,, and which he is fitted to fill, to put him in a station where he will be discontented and dangerous, and which he is not fitted to fill, The effect on the person who is supposed to be benefited by his loss, need not be considered; as, at times when this right is interrupted, the resistance is usually so great, that although the plundered are impoverished, the plunderers are seldom enriched. It is for these, among many other reasons, that the right of property is one of those vested rights which should be most sparingly and tenderly interfered with by a wise legislature; but, like all other rights, it is the mere creature of the sovereign power, which can at any moment destroy what it created: and to deny the power of the legislature to dispose of it at pleasure, is to confound expediency and justice with fact, and to conclude that what ought not to be done, cannot be done.
Wrongful and rightful are the adjectives of wrong and right the substantives; and differ from wrong and right the adjectives, inasmuch as the former signify that which agrees or disagrees with the rule of law, the latter that which agrees or disagrees with the rule of morality.
Justice is commonly used by political writers in the sense of moral justice. In this sense alone it is applicable to acts of the legislature. Sometimes, however, it is used as identical with law, as when we speak of the administration of justice, of courts of justice, &c.31
1 There does not appear to be any reason why claim or requisition should not be considered as the genus of rights; though Mr. Bentham (Principles of Morals and Legislation [224 n. in the Clarendon Press edition]) says, that right has no superior genus.
2 Reflections on the Revolution in France, ed. 1792, p. 94.
3 'When I went into the house first,' says one of the witnesses examined on the trial of Watson for high treason, ' I went in company with a nobleman's servant who wore a livery; they seemed discoursing among themselves for a little while, and then turned round and observed that the crest upon his button was the crest of a lord, and they asked him who made his master a lord. He could make no answer, not readily, to this question that was put to him. After a little while they turned to me, upon which I explained it as well as I knew how: and after my explanation, they asked me how this nobleman came to be possessed of so much landed property as he was possessed of; and they turned round to the servant, and told him he had a right to as much land as his master, and that the time was now fast approaching when he would be as good a man as his master, and possess as much property; and also asked by what right he held this property.'—2 Watson's Trial, 65. This passage affords a striking example of the effect which may be produced on ignorant persons by the ambiguity of imposing terms, and the employment of (what Mr. Bentham has termed) question-begging appellatives, [James Watson, surgeon, was tried for high.treason in 1817, and acquitted: see State Trials, ed. Howell, vol. xxxii.]
4 Jus means a right, the substantive ; honestus' or rectus, right, the adjective. On the other hand, the Latin language has an ambiguity of jus, from which the English is free, viz. that it means both law and right, an ambiguity which has led Blackstone into the most fearful errors.—See Mill's British India, vol. i. p. 195; and Austin's admirable Outline of a Course of Lectures on Jurisprudence in the London University, p. 48. (London, 1831.) The French droit, and the German recht, have the ambiguities both of the Latin and English words, for they signify lex, jus, and rectus. Ambiguities of words are often brought out in translation ; for instance, lingua in Latin and Italian, in English is sometimes rendered by tongue, sometimes by language. The most perplexing ambiguities, however, run through all the commonly known languages of civilized nations. It may be remarked as a singular circumstance, that the Greek language should possess no term for right, or jus. The treatise of Aristotle entitled δικαιώματα πόλεων appears to have heen upon the rights, or privileges, of different states (see Neumann, Aristotelis πολιτειών fragments,, p. 43): but the word δικαίωμα never came into general use in the sense of jus. Sir J. Mackintosh, misled by a false reading Πολέμων for πόλεων, represents this as a treatise on the laws of war.—On-the Law of Nature and Nations, p. 16.
5 I Com. 44. Introd. § 2.
6 I Com. 53.
7 It is however obvious, that he uses right and wrong in the former sense, as he quotes the words of Cicero, repeated by Bracton, that a law is ' sanctio justa, jubens honesta, et prohibens contraria.'—1 Com. 122.
8 Edinburgh Review, vol. lii. p. 364. [The quotation is from Macaulay's article on the Civil Disabilities of the Jews.]
9 Crabb's English Synonyms, in Right.
10 Mr. Bentham, in ins Principles of Morals and Legislation [p. 323, Clarendon Press edition], points out an ambiguity of the English word law, which signifies both a single law, and the whole body of laws, or (as we say) the law ; and appears to lament that we have not, like the Germans, appropriated the word right to the entire corpus juris, i.e. to law in its collective sense. Doubtless it would be desirable to have two different words to express the two ideas distinguished by Mr. Bentham; but it cannot be wished that any additional burden should be laid on the term right, which has already a sufficient weight of meanings to sustain.
11 Whately's Sermon on Obedience to Rulers [in Bamplon Lectures, &c, third edition, p. 295].
12 Ibid. p. 289.
13 [It must not be forgotten that a civilized government voluntarily submits to the rules of law which it applies to subject persons. Thus, for example, in employing a member of the civil service, the government virtually makes a contract with him, and acts as if it were bound by the contract.]
14 [If the Queen were to kill a man, the act would he murder, but the Queen could not he tried for it, because she is personally exempt from the jurisdiction of the courts.]
15 I Com. 244. Boswell, in his Life of Johnson [ed. Birkbeck Hill, i. 423], reports a conversation on this point, between Goldsmith and Johnson. Goldsmith argued, that 'as the King might, in the exercise of his regal power, command and cause the doing of what was wrong, it certainly might be said, in sense and in reason, that he could do wrong.' (This is what the logicians call an ignoratio elenchi; the question was, whether the King could do a wrong.) Johnson in answer, among other things, said, 'We hold the King can do no wrong, that whatever may happen to be wrong in government may not be above our reach by being ascribed to majesty. Redress is always to be had against oppression by punishing the immediate agents. The King, though he should command, cannot force a judge to condemn a man unjustly; therefore it is the judge whom we prosecute and punish.' Johnson's sentiments are quite accurate; -though he too falls into the common errors of confounding wrong, an injury, with wrong, improper.
16 1 Com. 246.
17 'The Attorney-General, in his speech in Hardy's trial, cites a passage from an American work communicated to an English political society, where it is said, that 'in government, the maxim being that a King can do no wrong, the maxim ought to be that he can do no good.'—See Erskine's Speeches, vol. iii. p. 199. If the author of this passage had understood the maxim which he objects to, so far from thinking that his remark was pointed and antithetical, he would have seen that it is absolutely unmeaning. Mr. Hallam, in his History of the Middle Ages, vol. ii. p. 243, 4to ed., says, that 'In the prudent fiction of the English law, no wrong is supposed to proceed from the source of right.' This statement is not correct; it is not a legal fiction, bnt a plain truth, that the King can do no wrong. It is another maxim of English law, that there is no wrong without its remedy: and against the acts of the King, no remedy is, or can be, provided by law.
18 [Essays, ed. Green and Grose, i. 463.]
19 [Life of Johnson., ed. Hill, ii. 249.]
20 [Ibid. ii. 259.] Burke, in his Reflections on the French Revolution, also speaks of metaphysical rights; where, by metaphysical, he appeals to mean imaginary, or unreal.
21 [Life of Johnson, ed. Hill, i. 424.]
22 Crabb's English Synonyins, in Right.
23 In the word Nature.
24 In the word Political.
25 This passage is noticed and commented upon by Austin, in his fifty-third lecture.
26 [Rights in expectancy are vested or contingent; rights generally are said to be vested when there is an existing ascertained person entitled to exercise them.]
27 [The two are really the same. It is a rule of policy, commonly observed by legislative authorities, that valuable rights, vested in private persons, should not be taken away without compensation.]
28 [This is quite incorrect. If I give a penny to a beggar, he acquires a vested right to the coin ; but there is no question of investment on my part or on bis.]
29 [The author must have meant to say, 'than a rich man who has received the training which befits his position.']
30 It is to this that Juvenal probably refers, when he so feelingly says 'hat ' Nil habet infelix paupertas durius in se
Quam qnod ridicnlos homines facit.'—iii. 152. Men are not ridiculous simply by being poor; it is when they become poor, that the shifts and expedients to which they are driven, in order to conceal their poverty and keep up a semblance of their former wealth, too frequently make them ridiculous.
31 'The legal criminal intention necessary in criminal law is not identical in strictness with the evil intention imputable in morals. It is enough, that there exists an intention to do the act. It is not necessary that the party should know that the act is morally wrong. It makes no difference even if the party believe that the act is morally virtuous. ... A case like that of Martin the incendiary will illustrate the distinctions. There could be no pretence for his acquittal, supposing the jury of opinion that he believed that it was morally or religiously right to burn York Minster, but knew, at the same time, that it was legally wrong. If they meant by their verdict to express that his understanding was too disturbed to be capable of knowing that it was legally wrong, the acquittal was correct.'—Edinburgh Review, vol. liv, p. 221. 'There Could be no doubt that Martin was aware that the burning of York Minster was a criminal act, as his contrivances for escaping observation in committing the deed evinced considerable forethought; and the same remark applies to nearly all cases of crimes committed by madmen. If madmen were acquitted only when proved to be ignorant of the law, they would be acquitted, not on the ground of their madness, but on quite a different plea, of which others, besides madmen, might avail themselves. The true state of the question seems rather to be, whether, when a man's mind is so diseased that he believes himself to be driven by an overwhelming duty, whether moral or religious, to the commission of an act which he knows to'be illegal, he is to be considered as a person whose punishment can be useful to society, and whom society can hold as responsible for his acts. A merely depraved man may think murder or robbery indifferent acts; he may deny the existence of right and wrong, or of all moral rules whatever; but if he commits murder or robbery, he is properly amenable to punishment. But a madman is not indifferent to a moral duty; he is hurried on to a violation of law by the suggestions of a deranged understanding and a heated imagination, which seem to him far to outweigh all other considerations. A man in this state of mind is no more an accountable political agent, and a fit subject for the animadversion of the law, than he is an accountable moral agent, and a subject for moral disapprobation: as a moral agent, his errors can only be pitied; as a political agent, he must only be prevented from doing further mischief. [For the trial of Jonathan Martin, see the Annual Register for 1829, p. 301.]
