BOOK II.

JUS.

OF RIGHTS AND OBLIGATIONS.

CHAPTER I.

RIGHTS IN GENERAL.

105. WE have seen (94) that Rights are defined by Positive Laws; but we have seen also, that according to the Conception of Rights (78), they are to be conformable to the Supreme Rule of human action. The Law assigns to each person his Rights; but the Law also aims at giving to each person what it is right he should have. That which is legally fixed, is also intended to be morally right. Jus has for its object to conform to the idea of Justice.

Hence it appears as if Law must depend upon Morality; whereas we have previously stated (90) that we must treat of Rights before we treat of Duties. We must explain this apparent inconsistency.

Law must be considered, in the first place, as positively and peremptorily fixed; it judges everything according to its own legal Rules and Definitions. But these Rules and Definitions may change from time to time; and in the course of the moral cultivation and education of man, of which we have spoken (104), do change. Men change their Rules, with the view of making them more nearly conformable to the

Supreme Rule of human action. They endeavour to determine Rights more rightly; to make Laws more just. And thus, for the moment, at any time, Morality depends upon Law; but in the long run, Law must be regulated by Morality. The Morality of the individual depends on his not violating the Law of his nation; but the National law must be framed according to the National view of Morality. The moral offence of coveting my neighbour's goods, as well as the crime of stealing, extends to everything which the Law determines to be his goods. But the Law which gives him everything, and leaves me to starve, may be an unjust Law; and if so, may be altered by the progress of time, and by the improved Morality of the legislative body.

106. Hence, in the first place, we must consider the Law as fixed and given; and this we shall do in the present Book. But even in presenting the Law under this aspect, we shall find indications of that moral aim, which, as we have said, the Law has. We shall often find expressions of the Legisla tor, or of the Jurists who comment upon the Law, which imply that they could not conceive a Law which did not aspire to be just. We shall find Reasons given for Laws, all of which depend upon the Supreme Reason for a Law, that it is right.

107. Of the Systems of Law actually established in the world, two especially deserve our notice, and may throw light upon our subject, if we follow them into some detail; namely, the System finally established in the ancient world, and the System actually established in our own country. The former Body of Law was that which prevailed when the whole civilized world was one single State; the latter is that which prevails in the State in which we live. I speak of the Roman Law, and the English Law. These two Systems of Law are those in which we are most interested, as past and present re

alities. They are the Laws of two nations, both of them eminent for the clearness of their jural perceptions, and their vigorous habits of jural action. We may also take some examples of Laws from the Laws of the Jews; for these are of importance, in consequence of their antiquity, their authority, and their influence upon Christians. And for the reason just mentioned, we shall take into our review some of the Comments of Jurists, as well as the Decrees of Legislators.

108. In order conveniently to survey the legal Definitions of Rights, we must divide Rights into their kinds, and arrange them in order. The Division and Arrangement of Rights in different Codes, and different Jurists, have been various. We shall have before us the Division and Arrangement which are most suited to our purpose, if we take those Classes of Rights to which we have been led by our survey of the Springs of Human Action. Of these Classes, the principal are, as we have said (80), the Rights of Personal Security, the Rights of Property, the Rights of Contract, the Rights of Marriage, and the Rights of Government. To these we might add, as has been said, other Rights, arising from less simple and universal springs of action, as the Right of Freedom of Opinion, and the Right to Reputation. But these are less important; and we shall for the most part confine our attention to the Five Principal Classes of Rights which we have mentioned.

In the Roman and in the English Law, all the five Classes of Rights are, for the most part, clearly and fully established; and the same is the case in all communities, in which Law has made any considerable advance. In rude and turbulent conditions of Society, it may happen that some of these Rights are very imperfectly defined, and very precariously held; or it may be, that from a portion of the community some of them are withheld altogether. Thus, in coun

tries where Slavery exists, the Slave has not the Rights of Personal Security. The constraint which Slavery implies, is of itself an entire violation of the Rights of Security. And the Slave is further liable to blows and wounds at the will of his master. He has no legal remedy for such inflictions, which would be Wrongs, if any Rights of the Person existed for him. And with the loss of this class of Rights he loses all. He can have no Property; for he can have nothing which his master may not take from him, using violence if other courses fail. He cannot Contract to do anything; for what he is to do, must depend on the Will of his master. He cannot even have the Rights of Marriage; for his master may at any time separate him from the sharer of his bed.

109. Thus, in such cases, we have an absence of all the Classes of Rights. Such cases are recognized in the Roman Law, for Slavery was one of the elements of Roman Society. One of the distinctions laid down as the basis of the Roman Code is, that all men are Freemen or Slaves. "Summa divisio de jure personarum hæc est, quod omnes homines aut liberi sunt aut servi*." But this state of things was afterwards altered, by the improved condition of the national morality. The steps of transition in the abolition of slavery are gradual. In many countries, there exist classes which, without being Slaves destitute of Rights, have Rights inferior in kind to the Classes above them. In many cases these inferior Classes are the successors of a vanquished race: for in ancient times, by the custom of nations, the conquered in war became the slaves or servants of the conquerors. The stages by which, from this condition, men pass to an equality of Rights, are generally connected with the Right of Property, and especially with the tenure of property in land. Thus, in many

VOL. I.-H

* Inst. 1. 3.

countries, in which the land is cultivated by Serfs, who are allowed to raise their own subsistence from the soil, but compelled also to labour for the Master to whom the land belongs, men are often ascripti glebæ; bought, sold, and inherited with the land: yet they are not slaves. They have a right to their own share of the produce; and, under favourable circumstances, pass by various gradations into the condition of Freemen; a change which is taking place extensively at present, in the state of the cultivators of Europe. Property in Land is a Right which exists in all States; yet in some States the Right of Property of individuals has been much limited. In some of the ancient Republics, as for instance Sparta, the land belonged in common to all the citizens. And in another form of Society, which prevailed in India, the Ryots or Cultivators generally occupied the land in common, and were collected in villages under officers who distributed to the cultivators and tradesmen their respective shares of the produce*. Out of the earlier forms of tenure of land, emerged the more complete Rights of Property of modern times; bearing traces however, in many respects, of their historical origin.

The Rights of Marriage are justly considered as essential to settled Society: and those who look back to the origins of things, speak of those men as the founders of Society, whose office it was to establish this institution: concubitu prohibere vago. Yet the female slave has been at the mercy of her master, wherever slavery has existed: polygamy has been a practice extensively prevalent, and has only gradually given way to more perfect forms of the Rights of Marriage.

110. It may be asked whether the Five Principal Classes of Rights, which we have mentioned, are entirely distinct; whether one Class does not run into

* Jones On Rent, P. 116.