Images de page


with the will of God’ to punish murder with death; his behaviour on that occasion was consistent with the will of God ;' it is not consistent with the will of God' to send an unfortunate debtor to jail; he did, or acted, “consistently with the will of God, who gave up his place rather than vote against his judgment.

In the former set, you must vary the construction a little, when you introduce the definition instead of the term. Such a one has a 'right' to this estate—that is, it is consistent with the will of God that such a one should have it ; parents have a 'right' to reverence from their children—that is, it is consistent with the will of God' that children should reverence their parents; and the same of the rest.



Rights, when applied to persons, are-
Natural or adventitious : alienable or unalienable: perfect or

I. Rights are natural or adventitious.

Natural rights are such as would belong to a man although there subsisted in the world no civil government whatever.

Adventitious rights are such as would not.

Natural rights are—a man's right to his life, limbs, and liberty ; his right to the produce of his personal labour; to the use, in common with others, of air, light, water. If a thousand different persons, from a thousand different corners of the world, were cast together upon a desert island, they would from the first be every one entitled to these rights.

Adventitious rights are—the right of a king over his subjects ; of a general over his soldiers ; of a judge over the life and liberty of a prisoner; a right to elect or appoint magistrates, to impose taxes, decide disputes, direct the descent or disposition of property; a right, in a word, in any one man, or particular body of men, to make laws and regulations for the rest. For none of these rights would exist in the newly-inhabited island.

And here it will be asked how adventitious rights are created : or, which is the same thing, how any new rights can accrue from the establishment of civil society; as rights of all kinds, we remember, depend upon the will of God, and civil society is but the ordinance and institution of man? For the solution of this difficulty, we must return to our first principles. God wills the happiness of mankind, and the existence of civil society as conducive to that happiness. Consequently, many things which are useful for the support of civil society in general, or for the conduct and conservation of particular societies already established, are, for that reason, 'consistent with the will of God,' or ‘right,' which, without that reason—i.e., without the establishment of civil society-would not have been so.

From whence also it appears, that adventitious rights, though immediately derived from human appointment, are not, for that reason, less sacred than natural rights, nor the obligation to respect them less cogent. They both ultimately rely upon the same authority—the will of God. Such a man claims a right to a particular estate. He can shew, it is true, nothing for his right, but a rule of the civil community to which he belongs; and this rule may be arbitrary, capricious, and absurd. Notwithstanding all this, there would be the same sin in dispossessing the man of his estate by craft or violence, as if it had been assigned to him, like the partition of the country amongst the twelve tribes, by the immediate designation and appointment of Heaven.

II. Rights are alienable or unalienable.
Which terms explain themselves.

The right we have to most of those things which we call property, as houses, lands, money, &c., is alienable.

The right of a prince over his people, of a husband over his wife, of a master over his servant, is generally and naturally unalienable.

The distinction depends upon the mode of acquiring the right. If the right originate from a contract, and be limited to the person by the express terms of the contract, or by the common interpretation of such contracts (which is equivalent to an express stipulation) or by a personal condition annexed to the right; then it is unalienable. In all other cases, it is alienable.

The right to civil liberty is alienable; though, in the vehemence of men's zeal for it, and in the language of some political remonstrances, it has often been pronounced to be an unalienable right. The true reason why mankind hold in detestation the memory of those who have sold their liberty to a tyrant, is, that together with their own, they sold commonly, or endangered the liberty of others; which certainly they had no right to dispose of.

III. Rights are perfect or imperfect.

Perfect rights may be asserted by force, or, what in civil society comes into the place of private force, by course of law.

Imperfect rights may not.

Examples of perfect rights :-A man's right to his life, person, house ; for, if these be attacked, he may repel the attack by instant violence, or punish the aggressor by law; a man's right to his estate, furniture, clothes, money, and to all ordinary articles

[ocr errors]

of property; for, if they be injuriously taken from him, he may compel the author of the injury to make restitution or satisfaction.

Examples of imperfect rights :-In elections or appointments to offices, where the qualifications are prescribed, the best qualified candidate has a right to success; yet, if he be rejected, he has no remedy. He can neither seize the office by force, nor obtain redress at law; his right, therefore, is imperfect. A poor neighbour has a right to relief; yet if it be refused him, he must not extort it. A benefactor has a right to returns of gratitude from the person he has obliged; yet, if he meet with none, he must acquiesce. Children have a right to affection and education from their parents, and parents, on their part, to duty and reverence from their children; yet, if these rights be on either side withholden, there is no compulsion by which they can be enforced.

It may be at first view difficult to apprehend how a person should have a right to a thing, and yet have no right to use the means necessary to obtain it. This difficulty, like most others in morality, is resolvable into the necessity of general rules. The reader recollects, that a person is said to have a right' to a thing when it is consistent with the will of God' that he should possess it. So that the question is reduced to this—how it comes to pass that it should be consistent with the will of God that a person should possess a thing, and yet not be consistent with the same will that he should use force to obtain it? The answer is, that by reason of the indeterminateness, either of the object or of the circumstances of the right, the permission of force in this case would, in its consequence, lead to the permission of force in other cases where there existed no right at all. The candidate above described has, no doubt, a right to success; but his right depends upon his qualifications, for instance, upon his comparative virtue, learning, &c.; there must be somebody, therefore, to compare them. The existence, degree, and respective importance of these qualifications, are all indeterminate; there must be somebody, therefore, to determine them. To allow the candidate to demand success by force, is to make him the judge of his own qualifications. You cannot do this but you must make all other candidates the same, which would open a door to demands without number, reason, or right. In like manner, a poor man has a right to relief from the rich; but the mode, season, and quantum of that relief, who shall contribute to it, or how much, are not ascertained; yet these points must be ascertained before a claim to relief can be prosecuted by force. For, to allow the poor to ascertain them for themselves, would be to expose property to so many of these claims, that it would lose its value, or rather its nature—that

[ocr errors]



is, cease indeed to be property. The same observation holds of all other cases of imperfect rights; not to mention, that in the instances of gratitude, affection, reverence, and the like, force is excluded by the very idea of the duty, which must be voluntary, or cannot exist at all.

Wherever the right is imperfect, the corresponding obligation is so too. I am obliged to prefer the best candidate, to relieve the poor, be grateful to my benefactors, take care of my children, and reverence my parents; but in all these cases, my obligation, like their right, is imperfect.

I call these obligations “imperfect,' in conformity to the established language of writers upon the subject. The term, however, seems ill chosen on this account, that it leads many to imagine that there is less guilt in the violation of an imperfect obligation, than of a perfect one, which is a groundless notion. For an obligation being perfect or imperfect, determines only whether violence may or may not be employed to enforce it; and determines nothing else. The degree of guilt incurred by violating the obligation, is a different thing, and is determined by circumstances altogether independent of this distinction. A man who by a partial, prejudiced, or corrupt vote, disappoints a worthy candidate of a station in life, upon which his hopes, possibly, or livelihood depended, and who thereby grievously discourages merit and emulation in others, commits, I am persuaded, a much greater crime than if he filched a book out of a library, or picked a pocket of a handkerchief; though in the one case he violates only an imperfect right; in the other, a perfect one.

[The original meaning of the terms perfect' and 'imperfect,' as applied to laws, obligations, and rights, may be seen from the following extract from Mr Austin's work on the Province of Jurisprudence:

* An imperfect law-with the sense wherein the term is used by the Roman jurists—is a law which' wants a sanction, and which, therefore, is not binding. A law declaring that certain acts are crimes, but annexing no punishment to the commission of acts of the class, is the simplest and most obvious example.

“Though the author of an imperfect law signifies a desire, he manifests no purpose of enforcing compliance with the desire. But where there is not a purpose of 'enforcing compliance with the desire, the expression of a desire is not a command. Consequently, an imperfect law is not so properly a law, as counsel, or exhortation, addressed by a superior to inferiors.

· Examples of imperfect laws are cited by the Roman jurists. But with us in England, laws professedly imperative are always, I believe, perfect or obligatory. Where the English legislature



affects to command, the English tribunals not unreasonably presume that the legislature exacts obedience. And, if no specific sanction be annexed to a given law, a sanction is supplied by the courts of justice, agreeably to a general maxim which obtains in cases of this kind.

• The imperfect laws, of which I am now speaking, are laws which are imperfect, in the sense of the Roman jurists; that is to say, laws which speak the desires of political superiors, but which their authors, by oversight or design, have not provided with sanctions. Many of the writers on morals, and on the socalled law of nature, have annexed a different meaning to the term imperfect. Speaking of imperfect obligations, they commonly mean duties which are not legal; duties imposed by commands of God, or duties imposed by positive morality, as contradistinguished from duties imposed by positive law. An imperfect obligation, in the sense of the Roman jurists, is exactly equivalent to no obligation at all; for the term imperfect denotes simply, that the law wants the sanction appropriate to laws of that kind. An imperfect obligation, in the other meaning of the expression, is a religious or a moral obligation. The term imperfect does not denote that the law imposing the duty wants the appropriate sanction. It denotes that the law imposing the duty is not a law established by a political superior; that it wants that perfect, or that surer or more cogent sanction which is imparted by the sovereign or the state.'—Pp. 23–25.]

As positive precepts are often indeterminate in their extent, and as the indeterminateness of an obligation is that which makes it imperfect, it comes to pass, that positive precepts commonly produce an imperfect obligation.

Negative precepts or prohibitions, being generally precise, constitute accordingly perfect obligations.

The fifth commandment is positive, and the duty which results from it is imperfect.

The sixth commandment is negative, and imposes a perfect obligation.

Religion and virtue find their principal exercise among the imperfect obligations, the laws of civil society taking pretty good care of the rest.

« PrécédentContinuer »