Our wide definition gives occasion for another verbal variation in the statement of the moral principle, thus: A man has a right to the free use of his powers, provided he commit no trespass. On further examination we shall find that this provision sets very narrow bounds to rightful liberty; indeed that there is no rightful liberty that does not conform to the limits and consist with the bonds of morality.

§ 37. The limit which moral principle puts to the gratification of desire, that it must not involve a trespass on the right of any one else, gives rise to many and grave practical difficulties. The line between me and my neighbor which neither should overstep, is often invisible and intangible. To settle it requires, in a numberless variety of cases, very thoughtful and careful consideration in which a respect for personal right must dominate the greed of personal interest. In the intricate, pressing, and ever-changing relations of men in society, it is almost impossible to guard and keep intact one's own rights, and to avoid a transgression of the bounds set by the rights of others. Contentions inevitably abound. Thence arise vast and costly systems of judicature among all civilized peoples, systems that become more and more intricate as civilization progresses, involving numerous courts of authoritative decision, whose business is little else than to mark the bounds of rights, and to enforce the law of trespass in its infinitely varied applications.

The practical difficulties attending questions that concern trespass on rights, may be lessened, especially as to our pri

for rights, and for the universal unwritten law forbidding infringement on them, which law prevails in all communities of moderate moral culture. This has developed the English Common Law, whose excellence Aristotle anticipates, saying: "Customary laws have more weight, and relate to more important matters, than written laws; and a man may be a safer ruler than the written law, but not safer than the customary law." Politica, bk. iii, ch. 3, § 17, Jowett's trans. Cf. Calderwood, Hand-book of Moral Philosophy, Pt. I, ch. 5, § 5 sq. (ed. 1872).

vate conduct, by clearing the conception in certain respects. To this end the following observations will be helpful.

Conflicting claims are seen on every hand, but rights never conflict. They touch each other, but never overlap. They limit by excluding each other, and indeed have no other limitation. The same right cannot pertain to different persons; and different rights, however similar, are always consistent. Wherever there is contention, there is trespass; somebody is doing a wrong; somebody is interfering in the rightful liberty of some one else. Even rights that are shared, and so-called common rights, do not and cannot conflict, but are entirely consistent in their exercise. Everybody has a right to drive on a public road, but not so as to interfere in the like liberty of any other.1

Original rights are inalienable in the sense that one cannot be unwillingly deprived of them, except by the extinction of the objects in which the rights inhere, thus rendering their exercise impossible, which is extreme trespass, as in murder, arson, and the like. One may be dispossessed of property, and otherwise violently limited in liberty, but the right remains whole, complete, intact so long as its object continues to exist. Derived rights or such as have been conferred by parental, civil, or other authority, may in many cases be withdrawn by resumption of the grant, by confiscation, or by exercise of eminent domain.

Rights in general may be alienated by the possessor himself transferring or forfeiting them. Property rights may be transferred by exchange, gift or bequest. Property may be alienated also by misdemeanor, the court imposing fines.

1 It is quite commonly supposed that a person often has a right to do either of two things as he may happen or please to choose. But on a close analysis, as we shall hereinafter see, it appears that in every case the right is limited to one of the two alternative actions, the other being, directly or remotely, a greater or less trespass on some related person. Contrary or opposed rights cannot coexist either for the same or for different persons.

Liberty of person may be forfeited by crime and the criminal imprisoned, or all liberty with life extinguished on the gallows. Being warranted, therein is no trespass.

§ 38. For more specific illustrations of rights in their subjection to trespass, we shall now briefly consider the ground of property and its patent liability to trespass. Property rights are found, in the last analysis, to consist in the original right of every man to the free exercise of his powers in the gratification of his normal desires. An infringement on them is an interference in this liberty, and so is a trespass.1

Much the larger part of any man's activity consists in appropriating, transforming, and using external objects. Natural objects, as land, fruits, ores, to which no one has an earlier claim, are withdrawn from the disposal of every other person, simply by the taking possession of them. For this act of taking possession, inasmuch as it does not involve a trespass on any one, is an original right, looking toward the gratification of normal desires. Things thus become private property, and any hindrance on the part of others to the taking possession is a trespass. Moreover, the proprietor must be left at liberty to transform his property, by his labor and skill, as he wills; the products arising therefrom being likewise his own, to be used freely in further production, or otherwise consumed. We shall find hereafter that all property is held in trust, to be used usuriously and consumed profitably, else the owner himself becomes a trespasser.

Many perplexing questions arise in the adjudication of

1 "Freiheit bedeutet nur die allgemeine Möglichkeit des Gebrauchs unserer Fähigkeiten. Aber auch von jeder einzelnen Handlung gilt, dass sie ursprünglich respectirt werden muss, so lange nicht besondere Motive des Gegentheils vorhanden sind, und dass es daher sittlich unrecht ist, sowohl sie zu hindern, als auch sich so zu benehmen, als wäre sie überhaupt gar nicht geschehen. Hieraus folgen zuerst eine Menge kleiner Regelen der guten Lebensart, die wir übergehen, dann aber der Ursprung unserer Begriffe vom Eigenthum." — LOTZE, Grundzüge der praktischen Philosophie, § 43.

property. It may be that an original appropriation is excessive, more than a fair share, and so a trespass beyond bound, but this is very difficult to determine. Moreover, it constantly happens that there are long pauses in the useful activity of the proprietor of certain material, because of the greater or less complexity of his plans, or from lack of continuous energy; still it is evident that during such indefinite pause, his right of property must be respected, and the material thus reserved be left unmolested for his future use. But if, within a time sufficiently great for the ordering of all circumstances, he give no sign of making that use, the right of property lapses; though it is needful that the invalidity of the claim be determined and decreed under special legal enactment. Finally, it is evident that, while possession is proof presumptive of ownership, material may pass from the possession of the rightful owner without loss or surrender of the ownership; and therefore, while the presumptive right of the possessor is to be recognized, it should be superseded by ownership established in action of trover.1

§ 39. Setting aside felonies or high crimes, such as murder which utterly destroys all rights and liberty, and robbery which lessens the means of their exercise, the most familiar form of trespass is that kind of injury which is done to a man's land or house by intruding into it against his will. It is an old legal maxim that every man's house is his castle, and he is entitled to treat as an enemy any one who attempts to enter it without his consent. As to land, the owner is not bound to fence it, and whether inclosed or not, a neighbor is not at liberty to enter on it himself, or to permit his cattle so to do. For in all such cases the liberty of the owner in the use of his house or field is at least liable to infringement, is jeoparded, which is trespass.

1 See infra, § 120.

It is perhaps not quite so clear that vice is trespass, yet sufficiently clear. Gambling is a transfer of property determined by an event whose occurrence is believed by all parties to the transfer to be due to chance.1 Therein is a misuse of means, a transfer, without equivalent, of property held in trust for beneficial ends. This alone makes gambling or betting wrong, even in its lightest forms, when there is no unfairness and when the stake is small. Any disregard of the claim of others on a productive use of one's means, restricts their privileges, and thus is a trespass. Intemperance, the excessive indulgence of an appetite or of any desire, is an abuse, a weakening, a degradation of powers, to whose fully efficient service others have a rightful claim, and hence it is an overstepping the bounds of liberty, a transgression, an infringement on the privilege of other persons, a trespass. The vice of lying, the hearer having a right to the truth, is clearly, even when no further injury appears, a checking or perverting of the hearer's privilege. Slander is of like character, doubling the trespass in the injury to both hearer and subject, and in its grosser forms is a misdemeanor, liable to legal action for damages. Much more might be said on the ethics of vice, but it is sufficient here to point out that it is essentially trespass.

A great many actions of trifling consequence, and hence usually overlooked, have nevertheless essentially the nature of trespass. They differ from crime and vice in degree rather than in kind, all having the specific mark of unwarranted interference in liberty. When I have a right to go first, and another, who knows or might know this, steps in before me, my right is violated. Even if the attempt is thwarted by my stepping more quickly, still the integrity of my right, the entirety of my liberty, has suffered. One who alks through my garden without leave, or enters my door

1 See infra, § 85, note.