CHAP. III. CHA P. III. Of Syftems of Natural Jurifprudence. YSTEMS of natural jurisprudence, of the rights of peace invention, which foon acquired fuch reputation, as gave occafion to many public establishments for teaching it along with the other sciences. It has fo close a relation to morals, that it may answer the purpose of a system of morals, and is commonly put in the place of it, as far, at leaft, as concerns our duty to our fellow-men. They differ in the name and form, but agree in substance. This will appear from a flight attention to the nature of both. The direct intention of morals is to teach the duty of men : that of natural jurifprudence, to teach the rights of men. Right and duty are things very different, and have even a kind of oppofition; yet they are fo related, that the one cannot even be conceived without the other; and he that understands the one muft understand the other. They have the fame relation which credit has to debt. As all credit fuppofes an equivalent debt; fo all right fuppofes a corresponding duty. There can be no credit in one party without an equivalent debt in another party; and there can be no right in one party, without a corresponding duty in another party. The fum of credit fhews the fum of debt; and the fum of mens rights fhews, in like manner, the fum of their duty to one another. The word right has a very different meaning, according as it is applied to actions or to perfons. A right action is an action Ccc 2 agreeable CHAP. III. agreeable to our duty. But when we speak of the rights of men, the word has a very different and a more artificial meaning. It is a term of art in law, and fignifies all that a man may lawfully do, all that he may lawfully poffefs and use, and all that he may lawfully claim of any other person. This comprehenfive meaning of the word right, and of the Latin word jus, which corresponds to it, though long adopted into common language, is too artificial to be the birth of common language. It is a term of art, contrived by Civilians when: th ecivil law became a profession. The whole end and object of law is to protect the subjects in: all that they may lawfully do, or poffefs, or demand. This threefold object of law, Civilians have comprehended under the word jus or right, which they define, Facultas aliquid agendi, vel poffidendi, vel ab alio confequendi: A lawful claim to do any thing, to poffefs any thing, or to demand fome prestation from fome other perfon. The first of these may be called the right of liberty, the second that of property, which is also called a real right,. the third is called perfonal right, because it refpects fome particu lar perfon or perfons of whom the preftation, may be demanded.. We can be at no lofs to perceive the duties correfponding to the feveral kinds of rights. What I have a right to do, it is the duty of all men not to hinder me from doing. What is my property or real right, no man ought to take from me; or to moleft me in the use and enjoyment of it. And what I have a right to demand of any man, it is his duty to perform. Between the right, on the one hand, and the duty, on the other, there is not only a neceffary connection, but, in reality, they are only different expreffions of the fame meaning; juft as it is the fame thing to fay I am your debtor, and to say you are my creditor; or as it is the fame thing to fay I am your father, and to fay you are my fon. Thus Thus we see, that there is fuch a correspondence between the CHAP. III. rights of men and the duties of men, that the one points out the other; and a system of the one may be substituted for a system of the other. But here an objection occurs. It may be faid, That although every right implies a duty, yet every duty does not imply a right. Thus, it may be my duty to do a humane or kind office to a man who has no claim of right to it; and therefore a system of the rights of men, though it teach all the duties of strict justice, yet it leaves out all the duties of charity and humanity, without which the fyftem of morals must be very lame. In answer to this objection, it may be observed, That, as there is a strict notion of justice, in which it is distinguished from humanity and charity, fo there is a more extenfive fignification of it, in which it includes those virtues. The ancient moralists, both Greek and Roman, under the cardinal virtue of justice, included beneficence; and, in this extensive fenfe, it is often used in common language. The like may be faid of right, which, in a sense not uncommon, is extended to every proper claim of humanity and charity, as well as to the claims of ftrict juftice. But, as it is proper to distinguish these two kinds of claims by different names, writers in natural jurisprudence have given the name of perfect rights to the claims of strict justice, and that of imperfect rights to the claims of charity and humanity. Thus, all the duties of humanity have imperfect rights correfponding to them, as those of strict juftice have perfect rights. Another objection may be, That there is ftill a clafs of duties to which no right, perfect or imperfect, correfponds. We are bound in duty to pay due respect, not only to what is truly the right of another, but to what, through ignorance or mistake, CHAP. III. mistake, we believe to be his right. Thus, if my neighbour is poffeffed of a horse which he ftole, and to which he has no right; while I believe the horse to be really his, and am ignorant of the theft, it is my duty to pay the same respect to this conceived right as if it were real. Here, then, is a moral obligation on one party, without any corresponding right on the other. To fupply this defect in the fyftem of rights, so as to make right and duty correspond in every instance, writers in jurisprudence have had recourfe to fomething like what is called a fiction of law. They give the name of right to the claim which even the thief hath to the goods he has stolen, while the theft is unknown, and to all fimilar claims grounded on the ignorance or mistake of the parties concerned. And to distinguish this kind of right from genuine rights, perfect or imperfect, they call it an external right. Thus it appears, That although a fyftem of the perfect rights of men, or the rights of strict juftice, would be a lame substitute for a fyftem of human duty; yet when we add to it the imperfect and the external rights, it comprehends the whole duty we owe to our fellow-men. But it may be asked, Why should men be taught their duty in this indirect way, by reflection, as it were, from the rights of other men? Perhaps it may be thought, that this indirect way may be more agreeable to the pride of man, as we fee that men of rank like better to hear of obligations of honour than of obligations of duty (although the dictates of true honour and of duty be the fame); for this reason that honour puts a man in mind of what he owes to himself, whereas duty is a more humiliating idea. For a like reason, men may attend more willingly to their rights, rights, which put them in mind of their dignity, than to their CHAP. III duties, which fuggeft their dependence. And we fee that men may give great attention to their rights who give but little to their duty. Whatever truth there may be in this, I believe better reafons can be given why systems of natural jurifprudence have been contrived and put in the place of systems of morals. Systems of civil law were invented many ages before we had any system of natural jurifprudence; and the former feem to have fuggefted the idea of the latter. Such is the weakness of human understanding, that no large body of knowledge can be easily apprehended and remembered, unless it be arranged and methodised, that is, reduced into a fystem. When the laws of the Roman people were multiplied to a great degree, and the study of them became an honourable and lucrative profeffion, it became neceffary that they should be methodised into a system. And the most natural and obvious way of methodising law was found to be according to the divifions and fubdivifions of mens rights, which it is the intention of law to protect. The ftudy of law produced not only fyftems of law, but a language proper for expreffing them. Every art has its terms of art for expreffing the conceptions that belong to it; and the Civilian must have terms for expreffing accurately the divifions and fubdivifions of rights, and the various ways whereby they may be acquired, transferred, or extinguished, in the various tranfactions of civil fociety. He must have terms accurately defined, for the various crimes by which mens rights are violated, not to speak of the terms which exprefs the different forms of actions at law, and the various steps of the procedure of judica tories.. Thofe |