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from the liberty of another, or, in other words, wliether restraint may, 

 in any given case, be riglitfully imposed, the obvious principle suggests 

 itself that such a right cannot be affirmed unless it can be equally 

 affirmed of all others standing in the same jural relations ; for the bur- 

 den of proof lies upon him who asserts the existence of such a right, 

 and according to the hypothesis it is impossible to assign any reason 

 why such a right should exist in one case and not in all similar cases. 

 The principle may, therefore, be expressed by saying that the jural or 

 rightful liberty of all men in the same case is equal ; or, in other words, 

 that restraint cannot be rightfully imposed upon any one unless it may 

 be equally imposed upon all others in the same case — meaning by the 

 term "the same case" a similarity of circumstances material to the 

 question of right. Thus, the circumstance of infancy, or of mental 

 unsoundness, clearly distinguishes the case of the infant or non compos 

 from that of the ordinary man, and so the circumstance that one has 

 manufactured an article of personal property clearly distinguishes him 

 from others. But obviously the principle can have no application to 

 the State, which stands in a case peculiar to itself. 



(3) Another principle is that of restitution in case of delict — i. e., 

 that where one is deprived of his property, or liberty, or other right, 

 he should be restored to its enjoyment. And it seems equally obvious 

 that, where restitution in kind is impracticable, restitution in value or 

 compensation should be made, and the injured party restored, as far as 

 possible, to his original condition. 



(3) Another and most important principle is that in certain cases 

 custom must be considered in the determination of rights. This is not 

 only true in the case of contract, where custom is important in deter- 

 mining the intention of the parties, and in cases of delict, where it is 

 important in determining the question of negligence, but it is also true 

 generally that custom should be observed as law, and this is, in fact, its 

 most important aspect. Its efficiency in this respect is generally attrib- 

 uted to the fact that it necessarily implies a general consent or agree- 

 ment as to the particulars to which it relates, Avhich is undoubtedly 

 true. But the most important reason for its efficiency is that human 

 nature is so constituted as to act involuntarily with reference to custom, 

 and hence that a violation of custom must result in a disappointment 

 of men's legitimate expectations; and on this account, and because it 

 is also the most perfect expression of the general will, custom should 

 have a superior efficacy to legislative enactments. And this, in fact, is 

 substantially the case ; for, with regard to private right, statutes be- 

 come operative only when they conform to an existing custom or gen- 

 erate a new one. Otherwise they may for a while, at the expense of 

 infinite injustice and hardship, be imperfectly enforced, but ultimately 

 they must give way and become obsolete. Thus, if we compare the 

 common law, or rather the arbitrary and accidental part of it (the jus 

 civile), of the time of Edward III, or of Elizabeth, or even of Black- 



