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In the first volume are explained the rights and obligations of mankind, confidered as individuals.
He begins with the definition of a law, frorn Grotius ; distinguishes between laws and permissions; observes that laws are divided into natural and voluntary; explains the cause of moral obligation, by which we are bound to practise piety towards God, justice and benevolence in respect of mankind, and chastity and temperance with respect to ourselves. These causes are, first, the general desire of happiness ; fecondly, the fear of evil; and, thirdly, the belief of future existence, howsoever supported, whether by reason or revelation.
Then he considers voluntary laws, either divine or human ; thus divine voluntary laws are fuch rules as we are obliged to obferve by the immediate command of God. He shews, that some of the precepts of the Mosaic law were local, and could hot be obferved in any place but Jerusalem; and then he establishes this criterion : Since all such actions as are good in
themselves, in the sense already explained, are called virtues ; and all fuch, as are bad in themselves, are called vices; we
may say in general, that all virtues are moral duties, and all * vices are moral crimes; or that virtue and vice are the matter
either of the law of nature, or of God's moral law, which en joins the former, and forbids the latter. But such actions,
as are indifferent in themselves, such as in their own nature are neither virtueus nor vicious, are the proper matter of
God's positive law; they become duties, when he commands • them, or crimes, when he forbids them.'
Now the experience and the nature of mankind, may disco Ver this natural difference between good and bad actions, or be tween virtue and vice; and consequently it is pofsible for mankind, by the use of their reafon, to trace out the rules of moral duty; not that he would exclude revelation, which facilitates the progress of the human understanding.
In the 11th section he tells us from Grotius, that, “hunan voluntary laws are of three forts; either the civil law, or a law of less extent which is not derived from the civil power, or a law of greater extent than the civil law. The civil law is a rule
established by the civil power, to which the subjects of any .nation, who are under the authority of its civil power, are VOL. II.
obliged to conform their behaviour. By the civil power we meani • that power which governs what in latin is called civitas, in
english a state, a nation or a civil community. And by a nation
or civil community, we mean a complete or perfect society of « men, who are in possession of their personal liberties, and have
united themselves into one body for the purposes of securing their
rights, and of promoting a common interest. The name civil « law is now almost appropriated to the civil law of the Roman
empire; as chis has long been called so by way of eminence, 4 whenever we speak of the civil law, we are fupposed to mean
this. But whenever I have occasion to speak of this law, I • shall call it the common law, and shall use the words civil law, in the most extensive sense, for the law of the land in each par* ticular nation or country, that is, for the law which the civil power in that nation or country has established. * Human voluntary laws, which are of less extent than the civil law, and are different from it, as not being derived
froin the same power, are the rules which any one, who • has authority over others, different from civil authority,
prescribes to those whom he has a right to command. Such are the rules which the master of a family prescribes to his
children, or to his servants. The obligation of this sort of . laws does not extend so far as the obligation of civil laws;
for the former extends only to the family, of which the * father or the master is the head; the latter generally ex• tends to all the members of the civil community. Or if
in any instances the obligation of the civil law seems to • be confmed within narrower limits; yet even in these in
stances we may plainly distinguish it from the law, that we are now fpeaking of; if we only attend to the autho
rity from whence the law is derived. Thus military law, . tho' it is confined to the army, is to be reckoned a part of " the civil law, because it is derived from the civil power. • The particular laws of any body corporate, which is but a
part of the civil community, differs from the civil law only
as a part differs from the whole; because the power, which <such a body corporate has to make laws for itself, is granted "to it by the civil government.
The law of nations is a law of greater extent than the civil law, and is not derived from the civil power. By the law of nations, we mean such rules as nations or civil societies are
obliged to observe in their intercourse with one another. There " are several points relating both to civil laws, and to the law of
nations, which want to be explained. But our business in this
chapter was only to give the reader a general notion of laws, • to fhew him the several sorts into which laws may be divided ; • and to bring him acquainted with the general matter of the • law of nature. Such points as relate to civil laws, or to the • law of nations, shall be explained in their proper place.'
In the second chapter he settles the meaning of the word right, in its different acceptations. He demonstrates, that it sometimes means a quality in actions ; but commonly, a a quality in perfons. Then he makes a proper distinction between rights that are perfect, and rights that are imperfect. Our right is perfect, when we can carry it into execution without breaking in upon the rights of other men; but it is imperfect, if the rights of other men stand in the way of it, so that we cannot carry it into execution without breaking in upon them. Obligation and right are correlatives.' Where any person has a right, fome one or more persons are under obligation, which corresponds to that right: and, on the contrary, where any person is under an obligation, some other person or persons have a right which corresponds to that obligation.
He observes, that as justice consists in doing no harm to others, all the precepts of justice are negative, and consequently of the perfect fort; but as kindness and favour confist in doing good, the precepts of benevolence are affirmative, and upon that account the obligations to such duties imperfect. He goes on to explain the maxims of natural law, which are often injudiciously applied : he points out those actions that are void : he divides rights into natural and adventitious, alienable and unalienable ; and distinguishes between things that are corporeal, and things that are incorporeal.
In the third chapter he treats of the nature of property, which is an exclusive right of things; impowering the proprietor to exchange, give, or throw them away. He con
cludes, that all things originally belonged to all mankind in common; and that the exclusive right of property was introduced by some act of man, He fays, that in a community of goods, a right to use them fupplies the place of property; but he enumerates the inconveniences that attend a community of goods, which inconveniencies are remedied by property; and, by a very ingenious conjecture, fupposes Jubal to have been the inventor of poffeffion. Supposing the
reasons for introducing this expedient to have been rightly
assigned, (fays be, p. 45.) we should look for the origin of property amongst them, whose wants were the greatest, • who were most scantily provided for, and who were least • likely to practise the duties of benevolence and equity towards
one another. All these circumstances concur in the posterity of Cain. Their ancestor had killed his brother; and his fears, left the rest of mankind fhould punith this crime
him and his pofterity, induced him and his family to (unite themselves together, and to build a city for their de• fence. By living in society, their manners were polished; 6 and a refined way of living was introduced amongst them. « This seems to be evident; because we find, that they were the inventors of arts and sciences, both of such
as are useful, and of such as administer to pleasure.
Tubal Cain was the instructor of every artificer in brass " and iron; and Jubal was the father of all such as handle, the harp and organ. This family had separated them• selves from the rest of mankind, and were shut up together (within a narrow district: where, if there had been but • a few of them, and they had been contented with coarse «fare and ordinary cloathing, they would have found it difficult enough to fupply themfelves. But the difficulty was "rendered greater, not only by their elegance and luxury, (but by the constant increase of their numbers. We s have no reason to imagine, that this family had any great « sense of duty: it is much more likely, that, as they lived < with a bad parent, the influence of his example had indisposed them to observe the rules of equity and benevolence in their behaviour towards one another. Here there
<fore we are to look for the beginning of property, or of an “exclusive right to things. And the sacred historian informs 'us accordingly, that “ Jábal was the father or inventor of “ poffeffion." Yet property could not be introduced confistently with justice, unless by the common consent; and this compact is called divifionor in consequence of a man's having taken and kept poffeffion without molestation, and fuch a tacit agreement is called occupancy.
Our author, in explaining the introduction of property, differs in opinion from Mr. Locke, who says, that labour exercised on things moveable and immoveable, invests the • labourer with the exclusive property of the said things.' Dr. Rutherforth has, we apprehend, fully demonstrated the fallacy of Mr. Locke's reasoning on this subject, and plainly proves, that, ' supposing the labour of him who cultivates • the land to be worth ninety-nine parts in a hundred of the whole value of the land, after it is cultivated, all that
could be due to the labourer would be no more than the . produce of his own labour : the ninety-nine parts which belong to him would not swallow up the hundredth part, “to which he had originally no exclusive right.' Even making a thing does not convey a right to the maker, unless the materials were his own.' He divides acquisitions of property into original and derivative: the first begins the property of things that were common; but derivative acquisitions are such as convey the property of things from one person to another. Then he distinguishes general property from particular property : and shews how far property is loft by dereliction or extinction of the proprietors.
The fourth chapter treats of the limitations of property, in respect of continuance, use, and disposal, arising from the proprietor, or some other person; in respect to services, which are divided into personal and real. The principal personal service is usufruct; which takes place only in goods that may be used without being consumed, such as lands, houses, slaves, horses, books, &i. Real services are certain advantages which one man has over the estate of another. Such as the right of letting his house rest on another's wall; of receiving dropping water ;