283 



there is always a presumptioa in its favor, the immediate problem is to 

 determine the exceptional cases in which the liberty of tlie individual 

 may be rightfully restrained. 



But the rightful liberty or power to restrain the free action of an in- 

 dividual, where it exists, like the liberty or power to do any other act, 

 is, ex m termini, a right ; and it follows, therefore, as a fundamental 

 principle of jurisprudence, that the rightful liberty of the individual is 

 limited, and limited only, by the rights of other individuals or of the 

 State. 



And as the presumption is always in favor of liberty, the burden 

 of proof is in all cases obviously upon the party asserting the right. In 

 this respect no distinction can be made between the rights of individ- 

 uals and the rights of the State ; but where a right is asserted in either 

 which derogates from the liberty of the individual, it cannot be admit- 

 ted unless a sufficient reason can be given for its existence. 



Tlie propositions above stated determine what may be called "the 

 Method of Jurisprudence." This is, in substance, the method of 

 Hobbes, who has been followed in this respect, and in the theory of 

 the State generally, by Kant and his followers. It is also the method 

 of Herbert Spencer, as explained both in his Social Statics and Justice. 

 The fundamental principle of Mr. Spencer is "that every man may 

 claim the fullest liberty to exercise his faculties compatible with the 

 exercise of like liberty by every other man." Or, as he elsewhere ex- 

 presses it: "Everyman has freedom to do all that he wills provided 

 that he infringes not the equal freedom of any other man ; " and ac- 

 cordingly every asserted right is to be proved "by showing tliat the 

 particular exercise of the faculties referred to is possible without pre- 

 venting the like exercise of faculties by other persons." (c) 



According to Hobbes and Kant the power or right of. the State is 

 absolute or unlimited, which, as we have seen, is a manifestly untenable 

 proposition. According to Spencer it is limited by the law of equal 

 liberty. But this also is untenable ; for the very existence of private 

 rights, ex vi termini, imports an inequality of liberty. All that can be 

 said is that the rights or rightful liberty of each is limited, and limited 

 only, by the rights of other individuals or of the State, {d) 



§ 46. Of Certain Principles of Right. 



There are numerous subordinate principles bearing peculiarly upon 

 the determination of private riglits which — tliough not properly belong- 

 ing to the immediate subject of our investigations, viz., the rights of 

 the State — must be briefly referred to. 



(1) Of these one of the most important is what may be loosely called 

 "the law of equal liberty" — a principle uniformly asserted but not 

 accurately expressed by jurists and philosophers. It may be formu- 

 lated and demonstrated as follows : 



In determining whether a right exists in any one which derogates 



