forming the Laws of any State, has operated in each generation upon the materials which the existing state of the Community supplied, and has thus more or less modified the Laws in each generation. It would not be the Idea of Justice, if it did not produce such modifications; for it is not just that there should be arbitrary inequalities among men. But differences among men and classes of men, arising from the events of former times, can never be removed; because the present condition of man is, in all cases, determined by their past condition: and among the features of this present condition, are their convictions as to their Rights and Obligations, which necessarily are derived from the past. For example, it is not just that there should be arbitrary differences in the distribution of Property. But there must be vast inequalities in the distribution of Property; for Property being a permanent thing, the inequalities of its distribution go on accumulating for ages; and this is not unjust. Yet still, these Rules of permanence in Property must not be regarded as absolutely fixed. Justice or Humanity may require such fixed Rules to bend; as we have seen that fixed Rules of Law bend in cases of necessity, as self-defence and the like (118 and 152). And it may be just or humane, not merely to make an exception to the Law, but to alter the Law; and the Law itself may thus become more just and more humane.

222. Thus the Law, in so far as it is a given fixed Fact, is a means of Education, by giving shape and substance to our Ideas. But again, it is to be a means of Moral Education, and is to give shape and substance to our Ideas of Justice: and for this purpose it must be fixed only so far as Justice makes it fixed. The Law must perpetually and slowly tend towards the idea of Justice ;-slowly, because it must always be fixed enough to afford a standing ground for our thoughts and a means of education ;-perpet

ually, because there will never cease to remain some portion of the arbitrary historical element, on which it is its office still to operate.

Since we are thus brought to views in which the Idea of Justice comes under our consideration, (and by the like reasonings we should be led to other Moral Ideas,) we shall now proceed to the part of our subject to which these Ideas belong,-Morality.

223. Before we proceed, it will be proper to observe that there are other Classes of Rights, which we have not yet considered, because they are of a less extensive and fundamentel kind than the Five Principal Classes. Also, they involve Moral notions and offices of the Reason not yet treated of. Of these we may briefly notice the Right of Reputation.

The Right of Reputation.


We have noticed the Desire of Esteem, and the Fear of Condemnation and Infamy, as Springs of Human Action (55). Although the objects to which these Desires tend are notions which are not unfolded in our minds without the operation of reflection; they are, still, so universal, that the tranquillity of man in society cannot subsist, except the objects of these, as of other Desires, are established as Rights. Contumely, the expression of condemnation and scorn, naturally provoke acts of violence; and may often, on that account, be prohibited, as the first step in a violation of personal Rights. To take away a man's Good Name, or Good Repute, may prevent his neighbours trusting him, and may bring on him great loss. Hence the law forbids such acts*. "Si quis librum

* Dig. XLVII. 10. 5. If any one shall have written, composed, put forth, or by any trick cause to be written, composed, or put forth, any book tending to the defamation of another, even though it be put forth in the name of another person, or without a name, he may be proceeded against.

ad infamiam alicujus pertinentem scripserit, composuerit, ediderit, dolove malo fecerit, quo quod eorum fieret, etiamsi alterius nomine ediderit, vel sine nomine,

uti de eâ re agere liceret." But the Commentator adds, that this is punishable only if the infamy be undeserved: "Eum qui nocentem infamaverit, non est bonum æquum ob eam rem condemnari; peccata enim nocentium nota esse et oportere et expedire." But a man's good Reputation, when deserved, is protected as a personal rightt: "Est enim famæ, ut et vitæ, habenda ratio." In like manner, the English Law takes cognizance of injuries affecting a man's Reputation, committed by malicious, slanderous, and scandalous words, spoken, or otherwise published, and tending to his damage and derogation. The Rule with regard to the ords which the Law thus considers injurious, is, that they are such as may endanger a man by subjecting him to the penalties of the Law; may exclude him from Society; may impair his Trade, or may affect him as a Magistrate, or one in public Trust. But it is added by the Lawyers, that mere Scurrility, or opprobrious words, which neither in themselves import, nor are in fact attended with any hurtful effects, are not punishable by the common Law. Such Scandals are however cognizable in the Ecclesiastical Courts; as for instance, to call a man an adulterer or a heretic. By the Common Law, words uttered in the heat of passion, as to call a man Rogue or a Rascal, if productive of no ill consequences, are not punishable. Nor are words of ad vice or admonition punishable, in consequence of any ill spoken of the person admonished; for, say the Lawyers, they are not maliciously spoken. More

*Dig. XLVII. 10. 18. For defaming a guilty man, it is not right and fit that a man be condemned: for the crimes of guilty men ought to be known.

+ Dig. XLVII. 10. 18. For reputation, as well as life, is to be protected by Law.

over, if the person who has spoken ill of another, be able to prove the words to be true, he justifies himself, even though special damage have ensued; for then it is no slander or false tale; as we have seen is the provision also in the Roman Law.






225. By the constitution of our human nature, we are necessarily led to assume and refer to a Supreme Rule of human action; and to conceive human actions, our own and those of other men, to be absolutely right, when they are conformable to this Rule. In order that such a Rule may have a definite form, in human Society, men must have rights; and must also have their Obligations, corresponding, in each man, to the Rights of others. The real existence of Rights and Obligations is a condition requisite for the definite application of the Supreme Rule of Human Action: for, by the existence of Rights and Obligations, the objects of human desire and affection assume such a general and abstract form, that they may be made the subjects of Rules of Action. These points have been discussed and established in the First Book.

The Rights and Obligations which really exist among men are regulated by Laws, or Customs equivalent to Laws. Some of the most important of such Laws have been stated in the Second Book. Laws regard external actions only. But external actions

« VorigeDoorgaan »