a Natural Justice and Injustice, which men in common recognize, even if they have no society nor compact with each other. Thus the Antigone of Sophocles is made to say, that it was right for her, in spite of the tyrant's command, to bury her brother Polynices, as a part of a Natural Law:

"For this is no command of yesterday,

But everliving Law, its source unknown."

The Books of the Laws of Plato proceed upon the same supposition; and are an attempt to draw out, in detail, the Code of Natural Law which was thus assumed to exist.

477. This Conception of a Natural Law, derived from Reason, and universally valid for all men, was still more distinctly entertained by the Romans. This appears in Cicero's Dialogues on the Laws in several places*, and still more emphatically in a passage in the work De Republicat: "Law is right Reason, congruous to Nature, pervading all minds, constant, eternal; which calls to Duty by its commands, and repels from wrong doing by its prohibitions; and to the good, does not command or forbid in vain; while the wicked are unmoved by its exhortations and warnings. This Law cannot be annulled, superseded, or overruled. No Senate, no People can loose us from it; no Jurist, no Interpreter, can explain it away. It is not one Law at Rome, another at Athens; one, at present, another at some future time; but one Law, perpetual and immutable, includes all Nations and all timest."

The Law, thus described by Cicero, includes Justice, as well as Law. In the notion of Natural Law,

* Legg. 1. 6; 11. 4.

+ De Rep. 1. 22. quoted Lactant. Inst. vi. 8.

I have omitted the concluding clause of the paragraph, " Of this Law the Author and Giver is God;" as belonging to another part of my subject.

the distinction of Obligations and Duties is not recognized.

478. But it may be said that the Natural Law, thus described by Cicero, nowhere exists. The actual Law is different at Rome and at Athens, and in every different State. And since the Natural Law, of which we speak, cannot be the same as all these Codes, it cannot be the same with any ; and is actually nothing.

The reply to this difficulty is contained in what we have already said (95, 96); That the Conceptions of the Fundamental Rights, which Law establishes, are necessary and universal for all men; but that the Definitions of these Rights are Facts, which grow out of the History of each Community, and may be different in different times and places. The Second Book of this Work contains a view of this Natural Law; the Laws of Rome and of England being there employed, as exemplification, not as the necessary form, of Natural Law. We there saw, that in many instances, the Commentators on these Laws have announced Maxims of Natural Law, as the basis of the actual Law.

479. The Roman term, Jus, (in its sense of a body of Laws, and of Doctrines on which Laws depend), is especially adapted to denote this Natural Law; for it implies, at the same time, Law and Justice (90). The consistency of the Law with Justice, is assumed throughout the Roman Jurisprudence. Thus in the commencement of the Institutes we read*: "Justitia est constans et perpetua voluntas jus suum cuique tribuendi. Jurisprudentia est divinarum atque humanarum rerum scientia, justi atque injusti cognitio." But Justice, thus assumed as identical with

* Inst. 1. 1. Justice is the constant and perpetual intention of giving to each his own Right. Jurisprudence is the knowledge of divine and human things, (as required for that intention): the science of what is just and unjust.

Jus in its results, is a conception which requires to be more exactly defined and developed than we have yet done, before we can so apply it. This we must now attempt to do.

480. As we have said, Law, in every form in which it exists, must involve actual Definitions, as well as the general Conception of Natural Law or Justice. These Definitions will depend upon past events. Thus, the tenure of land in each country depends upon past conquests, and migrations of the races which inhabit the country; upon many inheritances, many contracts of buying and selling, and the like, which have taken place among individuals: upon Laws which have been made, relative to such property, and such transfers; and upon various other circumstances. Justice gives to each his own; but the actual Law must define what is each person's own, according to all these circumstances. And the like may be said of all other branches of Natural Law.

481. According to our idea of Rights, as assigned by Natural Law, each person must have those Rights which it is just he should have. A person cannot have Rights which it is unjust he should have. If the actual Laws of any State give him such Rights, those Rights are unjust; and that they are so, is a reason for altering the Law, or its application. If a man has acquired a seeming Right, in violation of Justice, Natural Law rejects such Rights. According to Natural Law, Rights cannot be founded on Injustice.

482. On the other hand, existing Rights, in each country, as we have seen, depend upon its History and the History of every country contains many acts of injustice. It cannot be doubted that the present Rights of Property in Land, for instance, have, in every country, been brought into being by transactions, many of which have been unjust. Shall we

say that Justice requires us to deprive persons of such Rights, when any Injustice can be discovered in their origin or transmission; however remote may be the blemish, and however blameless the present holders? If an estate were acquired by fraud centuries ago, and have since been possessed, without dispute, by generations of unconscious successors; or sold to a multitude of poor and honest purchasers; shall we say that it still, in Justice, belongs to the heirs of the defrauded person; and that, according to Natural Law, the present possessors ought to restore the property to those heirs? No one, probably, would assert it to be just to destroy supposed existing Rights on such grounds, as these. All would allow that Justice is, in such a case, with the Possessors.

483. Indeed, to assert the contrary, would be to make that Law of Descent, by which the heirs of the defrauded person might claim the property, paramount ever all other Laws. It would be to make that Rule of inheritance absolute and indestructible, while other Rules, as for instance, bonâ fide purchase, prescription, and the like, are comparatively rejected. There can be no reason, in Natural Law, for erecting any one Rule of Derivation of Rights into this absolute Supremacy over all others.

484. Thus the maxim, that Rights cannot be founded in Injustice, is not to be applied in such a way as to make every past Injustice overturn present possession. Injustice is an arbitrary act, done in disregard of Rule and Reason. Justice abhors all that is arbitrary; for it requires all things to be. done according to Reason, and therefore, according to Rule. But then, the Law of Inheritance is an arbitrary thing, as well as the Act of Fraud. The Law of Inheritance is quite different in different countries; and might, in this country, have been different from what it is, if the Law had so ordered it. Justice accepts, in general, the Law of Inheritance, as her Rule; yet

not absolutely, as Supreme, but relatively, as a means to her end. Justice annuls, in general, the Effect of acts of Fraud; but still, not without limit in the contemplation of Effects; but only, so far as the condemnation of such effects is a means to her end. Justice cannot diregard the existing state of possessions, and turn her attention only to their origin. She cannot found her sentence on one particular past event, and take no account of the more recent events and the present conditions. On the contrary, it is the present with which she has especially to do. She has to pronounce upon existing Rights, as to whether they are valid or not; and she must look at them, as they exist. And hence, as a balance to our former maxim, we must lay down this: Justice assigns Rights according to existing conditions.

485. Thus Justice rejects that which is arbitrary, alike in the past and in the present. She condemns the ancient fraud, from which the present possession is derived: she limits the Rule of inheritance, on which the opposing present claim is founded. She pronounces that no Right can be founded in Injustice: but she pronounces the Right of the present holders to be founded, not on the ancient Injustice, but on the recent transactions; which are free from the stain of Injustice, and by which the ancient stain may be diluted or obliterated. A thing unjustly acquired, may, by long undisturbed possession, and bonâ fide tenure, become a just property: and accordingly, so the Laws of States decide (151).

486. The opposition of the two maxims respecting Justice, which have just been stated, is a result of the universal opposition of Ideas and Facts which exists in every subject of Thought (97). In the Idea, Justice cannot admit of anything arbitrary; for what is arbitrary is unjust. In the Fact, every transaction must have in it something arbitrary, for it must depend upon external circumstances, which are not