by the State. The Swift and Loewe cases dispose of this. In such cases this added wrong is "negligible."
One other question of great interest yet to be settled is whether the infringement of the constitutional right to pursue happiness through national trade is actionable per se, or requires proof of actual damage?
That, of course, is a mere question of policy, and depends upon the quality and importance of the right. More accurately, of whether there is such a right; for if there is, there must be an action for its invasion.
Professor Bigelow says, in his wonderful little work on "Torts," p. 26:[1] "Speaking broadly, the cases in which it is not necessary to prove special damage in an action for tort are cases in which the act done is manifestly dangerous, so much so that instinct calls at once for redress, and would take it but for the law. Rights of life, liberty, property, and reputation furnish the subjects of such redress."
The Supreme Court has, indeed, itself regarded this right as property: "The fundamental rights to life, liberty and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws. * * * The very idea that one man may be compelled to hold his * * * means of living or any material right essential to the enjoyment of life at the mere will of another, seems to be intolerable in any country where
- ↑ Bigelow, "Torts," p. 26.
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