291 



countries, and are In fact as susceptible of demonstration as the proposi- 

 tions of Euclid ; but it will be sufficient for our present purpose to establish 

 this, with reference to one of them only, viz., the right of self-ownership, 

 or of personal liberty or security, from which all others are derived. 

 This right is obviously essential, not merely to the welfare or happiness, 

 but even to the existence of the individual, and is therefore to be ad- 

 mitted ; nor can it be denied, without absurdity ; for the question, in its 

 ultimate analysis, may be reduced to this simple dilemma : Does a man 

 belong to himself, or to somebody else? And, obviously, the first alterna- 

 tive must be accepted, unless the second can be established ; and to estab- 

 lish the second, it is necessary affirmatively to show who is his master. 

 If any one, he is a slave, and it will make but little difference to him 

 whether his master be another individual, or the State, or rather, tlie in- 

 dividual or individuals who, for the time being, wield the political power 

 of the State, (e) 



Hence, as we have observed, it is a proposition universally accepted, 

 that the principal end of the State is to cause justice to be observed ; or, 

 in the language of the Constitution of the United States, to "establish 

 justice." Hence, as we have also observed, the difference between theo- 

 retical and positive right, or right as actually established under a given 

 system of positive law, is merely the ditlerence between the theory of 

 rights and its attempted realization, a difference not essential, but acci- 

 dental merely, and which is, in fact, much less considerable than is com- 

 monly supposed.* 



This proposition, which, it will be perceived, is of fundamental import- 

 ance, cannot, as we have observed, be denied, without denying, also, the 

 existence of natural rights ; and, accordingly, it is in fact not denied by 

 the jurists of any school, except that of Austin, who at the same time 

 denied the existence of rights, and of justice, otherwise than merely as 

 creatures of the governmental will ; but in this they are guilty of assert- 

 ing, not merely a false proposition, but a logical absurdity ; for these 

 jurists, like others, have their theory of morality, viz., the principle of 

 utility, and thereby assert the existence of moral distinctions, and conse- 

 quently the existence of a distinction between the just and unjust, which 

 are but species of right and wrong ; for to assert that certain acts of men 

 are just, and certain others unjust, is but to assert that within the sphere 

 of action defined by the former class of acts, men ought to be permitted to 

 act freely ; or, in other words, that it is right that such liberty be accorded 

 to them. But, as w>e have seen, this liberty, to which every man is justly 

 entitled, is but another name for the aggregate of what are called his 

 rights ; and hence, to assert the existence of any principle of morality 

 whatever, whether that of utility, or any other, is ex vi termini to assert 

 the existence of rights ; and to deny the latter is in effect to deny the 

 existence of morality, including even the special form of morality asserted 

 by them, the principle of general utility. Hence, as the jurists referred 



* See opinion of Leibnitz, infra, p. 299. 



