311 



any government continue to exist if the rights of life, liberty or property, 

 or those arising out of tlie family relations should become insecure, either 

 by reason of the inefficiency of the government or otherwise. Indeed, 

 as we have observed, the most characteristic distinctness of modern 

 civilization consists in the clear and more definite conception of rights 

 generally prevailing, and the controlling power of this conception over 

 government. It is Nomos, therefore (to use again the familiar saying of 

 Hesiod), that is the only absolute king ; and Leviathan is but his vice- 

 gerent ; who, like other subordinate ministers, may, within certain limits, 

 abuse the powers entrusted to him, but, if he undertakes to resist and 

 defy the will of the true king, is sooner or later made to know and sub- 

 mit to his power. Briefly, therefore, the sentiment of rights in the human 

 heart and the conviction that it is the right and the duty of every man, 

 when there is no other resort, and where the infringement upon them is 

 intolerable, to vindicate them by force, constitutes at once the rightful, 

 and the only practical limit upon the power of the State ; and hence — to 

 quote again the expression of an eminent jurist — no State is capable of 

 constitutional government unless composed of "men who know their 

 rights," " and knowing dare maintain them." (e) 



Opposed to this view is the modern doctrine of sovereignty as generally 

 held in Europe and this country ; which has been already fully con- 

 sidered. 



NOTES. 



(a) " By the term 'juridical (moral or fictitious) persons,' is meant everything other than 

 a human being, which is regarded by the State as the proper subject of rights. To this class 

 belong first, the State itself ; then, in a monarchy, the ruler as holder for the time being of 

 the highest power of the State ; the treasury, or fiseus ; and all State offices as regards the 

 rights connected with them. It includes moreover corporations of every kind, all pious and 

 charitable institutions (j^ice casuce) recognized and approved of by the State ; and lastly, the 

 inheritance of a person deceased, while it lies unacquired by the heirs {heredilas jacens). A 

 corporation (universitas, corpus collegium) is a body of persons united for some permanent 

 object, invested with the capacity of acting as a single person and recognized as a moral 

 juridical person by the State" (Kaufmann's Mackeldey, §§ 141, 142). 



" Artificial, conventional, or juristic persons, are such groups of human beings, or masses 

 of property as are, in the eye of the law, capable of rights and liabilities " (Holland's Jur., 

 pp. 74, 75). 



In our law a corporation is defined by Chief Justice Marshal as " an artificial being, invis- 

 ible, intangible and existing only in contemplation of law " (Dartmouth iw. Woodward, 

 4 Wheal Re})., 626). 



" It was chiefly," says Chancellor Kent, " for the purpose of clothing the bodies of men in 

 succession with the qualities and capacities of one single artificial and fictitious being that 

 corporations were originally invented, and for the same convenient purjiose they have been 

 brought largely into use. Accordingly, in the law, persons are divided into natural and fic- 

 titious (' persons in fact and persons by fiction of law ')" (Muirhead's Inst, of Oaiiis, p. 570). 



The distinction is thus admirably expressed "by Hobbes, Levialhan, Chap, xvi : 



" A person is he whose words or actions are considered either as his own, or as represent- 



