Sivut kuvina

of which I shall first premise a few observations, before I proceed to distribute and consider its several objects.

word, and trace, through all its transitions and accessorial modifications, a correspondence, more or less close, with such original. Researches of this kind must, generally, be of fatiguing intricacy; but, upon the present occasion, a clue to guide us through the labyrinth is offered by Horne Tooke, who, however inflamed and exaggerated his political notions may have been, was, as a philosophical grammarian, not only subtile, but learned, cautious and deliberate; his philological researches, as he informs us, were not published till thirty years after their plan was sketched out, and their foundation established. His account of the word "right" is, substantially, as follows.

"Right" is no other than rectum (regitum) the past participle of the latin verb regere. Whence in Italian you have ritto; and from dirigere, diritto: whence the French have their antient droict, and their modern droit. The Italian dritto and the French droit being no other than the past participle directum."

"Thus, when a man demands his right, he asks only that which it is ordered he shall have:-to have right in one's favour is, to have in one's favour that which is ordered:" but, he adds, "the same thing may be commanded to be done by one authority, and commanded not to be done by another authority:-and therefore, as a short method of determining disputes between well-meaning men, concerning questions of right, we shold at once refer to the order, or to the authority which ordered."

"In the same manner," he says, "our English word just is the past participle of the Latin verb jubere; and law is merely the past participle of the Anglo-Saxon verb Leczan ponere, and means any thing laid down, as a rule of conduct." (So, the grammarian Festus informs us, the antient Roman writers, instead of jura, used the word jussa. In like manner, the German word Recht includes in it the idea of law, or the will of a superior. J. G. Wachter, Gloss. 1251.) And Heineccius, book 1, c. 3, s. 70, observes, an action antecedent to, or independent of a law, is not just; those actions only are just to which we are impelled by external obligation."


Hence, Horne Tooke infers, that "it is improper to say, God has a right; or that, God is just. For, nothing is ordered, directed, or commanded concerning God." These expressions he considers "inapplicable to the Deity; though they are common, and those who use them have the best intentions. They are applicable," he contends, "only to men; to whom alone language belongs, and of whose sensations only words are the representatives; to men, who are by nature the subjects of or. ders and commands, and whose chief merit is obedience."

He further says, "I follow the law of God, (what is laid down by him for the rule of my conduct,) when I follow the laws of human nature; which, without any human testimony, we know must proceed from God; and upon these are founded the rights of man, or what is ordered for man. I revere the

Their origin.

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the

constitution and constitutional laws of England; because they are in conformity with the laws of God and nature; and upon these are founded the rational rights of Englishmen." But, he vehemently adds, "If princes or ministers, or the corrupted sham representa tives of a people, order, command, or lay down any thing contrary to that which is ordered, commanded, or laid down by God, human nature, or the constitution of this government, I will still hold fast by the higher authority. If the meaner authorities are offended, they can only destroy the body of the individual; but can never destroy the right, or that which is ordered by their superiors."

Grotius (in the 10th section of his 1st book) says, "natural right is the rule and dictate of reason, shewing whether an act is forbidden or commanded by God."

Upon the strength of general principles and reasoning, Paley, in his "Moral Philosophy," seems to have come, pretty closely, to that conclusion which Horne Tooke reached by aid of etymology. "Right," says Paley, " means no more than the rule we go by, whatever that rule may be." And again he says, "right only means consistency with the will of God." Yet, whilst resting his whole doctrine upon the position, that "it is the divine will which determines the distinction of right and wrong," he follows Heineceius, (book 1, c. 3, s. 65), and his commentator, Turnbull, (though he does not think it necessary to cite them), in an attempt to palliate, perhaps without

entirely removing, the objection to the use of the word right, and its correlative wrong, when speaking of the actions of God. Paley says, the terms are "intelligible and significant" when so used; but he does not affirm, that such an application of those words is proper; on the contrary, he seems, virtually, to concede, that it is inaccurate and unobservant so to speak. For, he puts the case thus: "By virtue of the two principles, that God wills the happiness of his creatures, and that the will of God is the measure of right and wrong, we arrive at certain conclusions; which conclusions become rules; and we soon learn to pronounce actions right or wrong, according as they agree or disagree with our rules, without looking any further; and when the habit is once established of stopping at the rules, we can go back and compare with these rules even the Divine con duct itself; and yet it may be true, (only not observed by us at the time), that the rules themselves are deduced from the Divine will."

Upon the whole result, no difference of opinion appears to exist between Horne Tooke and Paley, respecting the primary and proper sense of the word "right:" their definitions vary in expression, but the formula of one may be easily, and perhaps advantageously, consolidated with that of the other; and we may safely rest in the conclusion, that right, properly speaking, is the rule we go by, whatever that rule may be; but that every rule imposed by human authority should be consistent with the Divine will, to which, as the

right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. And yet there are very few, that will give themselves the trouble to consider the original and foundation of this right (2). Pleased as we

force, dispassionately to examine whether, by the same act of disobedience which would render him amenable to

ultimate source of all dominion, every question of right must be finally referred. Rights, then, may be divided into human laws, he may not, also, incur three classes:the divine displeasure.

1st. Rules expressly given by God himself, constitute rights, admitting no debate. 2ndly. Rules which, though not expressly laid down by God, are necessary deductions from that which is so ruled, are rights equally peremptory; unless the rules be of such a nature as to allow those in whose favour they are inferred to wave the benefit of them; this is the case with respect to many of those rules which are commonly called "natural" rights; and these, as is shewn infra, in note (16), may, by express or implied compact, be modified. Srdly. Rules which have not been expressly given by God, and are not evident deductions from what has been so ruled, constitute rights which, when declared by competent human authority, cannot be infringed without crime, provided there be nothing in such rules inconsistent with the will of God.

To one of these three classes of rules, all rights, properly so predicated, may be referred; and, though the obligations imposed by rules belonging to the last class are to be postponed, whenever they are clearly in opposition to rules of higher authority; it behoves every one, before he presumes to violate any rule, as conceiving it of subordinate

No one should forget, that the Evangelist (1 Ep. John, iii. 4,) places all sin in avoia, i. e. in the transgression of a law, and see Rom. iv. 15; reflecting that even if it were certain the inspired writers, when they penned the passages just cited, had principally in contemplation the divine law, it is at least as certain, that the Scriptures abound in passages plainly inculcating the duty of submission (unless in extreme cases) to the ordinances of all constituted au thorities.

(2) Our author himself instructs us, in the subsequent pages of this chapter, that, the right or rule which assigns to an individual exclusive dominion over particular possessions, is not to be inferred in every instance by the same process of reasoning. He tells us, that, "when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of permanent dominion; and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used. Otherwise innumerable tumults must have arisen, and the good order of the world must have been continually broken and disturbed." Again he says, with respect to moveables, that

are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect

"bodily labour, bestowed upon any subject which before lay in common to all men, is universally allowed to give the fairest and most reasonable title to an

[ocr errors]

exclusive property therein." Subsequently he tells us, agriculture, by a regular connexion and consequence, introduced and established the idea of a more permanent property in the soil, than had hitherto been received and adopted. Had not a separate property in lands, as well as moveables, been vested in some individuals, the world must have continued a forest, and men have been mere animals of prey." He then repeats, that, "necessity begat property," and adds, that, "although the writers on natural law have arrived at the same result by various courses, still, it is agreed upon all hands, that occupancy gave the original right to the permanent property in the substance of the earth itself, which excludes every one else but the owner from the use of it." Further on, he tells us, "the permanent right of property is no natural, but merely a civil, right:" and, shortly afterwards, he says, "rights of inheritance and successions are all of them creatures of the civil or municipal laws;" and, adverting to the power of the laws in regulating the succession to property, he intimates," how futile every claim must be, that has not its foundation in the positive rules of the state."

Whether there be, or not, any discrepancy between the assertions, that occupancy gave the original right to permanent property," and the declaration, that "the permanent right of property is no natural, but merely a civil,

right," it might be captious to discuss, did not that passage in the text, which gives occasion to this note, seem to invite the inquiry. Occupancy, in a state of established society, is, no doubt, governed by civil or municipal laws; but, the claim to permanent property, by reason of the first occupancy thereof, appears to have been derived, originally, from natural right. Our author himself says, that, "in the case of habitations in particular, it was natural to observe, that even the brute creation, to whom every thing else was in common, maintained a kind of permanent property in their dwellings; that the birds of the air had nests, and the beasts of the field had caverns, the invasion of which they esteemed a very flagrant injustice, and would sacrifice their lives to preserve them." Necessity is not a bad argument to support an inference of natural right. But our author, as we have seen, agrees with Heineccius, (who follows all other writers on natural law, and in the 9th chapter of his first book informs us), that absolute private property was introduced, and negative community of things abolished, by necessity itself. Heineccius also maintains the right of any one to appropriate to himself whatever previously belonged to no other person; and his commentator adds, that thing ceases to be no one's, which I, by personal occupancy, have manifested an intention of applying to my own uses, in the exercise of the right granted to me by God; and he certainly injures me who interferes with my possession. No one disputes, what Locke has laid down, (in

in our title; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or

his Treat, on Gov. book 2, cap. 5, parag. 50,) that, "in governments, the laws regulate the right of property, and the possession of land is determined by positive constitutions;" but the same authority tells us (in chap. 11, sect. 135), "The obligations of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to enforce their observation. Thus, the law of nature stands as an eternal rule to all men, legislators as well as others, The rules that they make for other men's actions must be conformable to the law of nature; i. e. to the will of God, of which that law is a declaration."

It follows then, if, in conformity to the law of nature declaratory of the will of God, occupancy really was, as Blackstone informs us all authorities agree it was, the first foundation of the right (or rule) of property; notwithstanding that original right may have been qualified by municipal regulations, it is not "merely a civil right."

Still, it is clear, rights of property were not promulgated, with respect to all "the external things of the world," at one and the same time. The general dominion of man over the whole, no doubt, has its original and foundation solely in the declared, or reasonably inferred, will of God; and, " of the things which God has provided for the use of all, he has of consequence, so long as they remain in common, given each man leave to take what he wants;" and further, whenever it would defeat the purposes for which the general do

minion was given, if no one were allowed to appropriate to his own use certain productions, whether entirely natural or partly made by art or obtained by labour; in all such cases, the right of sole property may be fairly understood to be implied in the general declaration of the divine will.

Rights of property, then, may be referred, ultimately, to a divine origin, and finally traced back to the only true source of all dominion; but these rights have been differently modified in different stages of society, and have been called into operation with reference to different objects at several times, as occasion required.

"The first objects of property," (says Paley, Mor, and Pol. Phil. book 3, cap. 3, following in the main, but with some qualifications, the doctrine of Locke, who had himself been preceded in the same safe track by earlier investigators), "the first objects of property were the fruits which a man gathered, and the wild animals which he caught; next to these, the tents or houses which he built, the tools he made use of to catch or prepare food; and afterwards weapons of war and offence. Many of the savage nations of North America have advanced no farther than this yet. Flocks and herds of tame animals soon became property. As the world was peopled in the East, where there existed a great scarcity of water, wells probably were next made property. Land, which is now so important a part of property, and which alone our laws call real property, was probably not made property in any country, till long

« EdellinenJatka »