negative precepts is precise and determinate, such precepts allow of no liberty at all; they take away the whole moral power of acting, and consequently produce a perfect obligation. But the matter of affirmative precepts is not so precise and determinate: such precepts are to be complied with as we have proper opportunities; and our judgment is to direct us as to the opportunities: whilst, therefore, they direct us how to behave, they allow some liberty of choosing; and, upon that account, the obligation produced by them can only be imperfect. The law says Thou shalt do no murder. The obligation here is of the perfect sort; for the matter of the law is so precise and determinate, as to leave no moral power of acting. The law says-Honour thy father and thy mother. The obligation here is imperfect; because, as the matter of the law is not precise and determinate, instead of leaving no power of acting, it supposes us to have such a power, and directs us how to make use of it as we have opportunity. From what has been said already concerning the nature of justice, that it consists in doing no harm to others, it appears that the precepts of justice are, all of them, negative ones; and, consequently, that all of the obligations of justice are of the perfect sort. But as kindness and favour consist in doing good, the precepts of benevolence are affirmative, and upon that account the obligations to any of those duties, by which any kindness or favour is done, are imperfect ones. ex VI. There are two maxims of natural law, which are Two maxims of often applied very injudiciously, and which want there- natural law fore to be explained. One of these maxims is, That no plained. right can be founded on an injury. The other is, That what could not be done lawfully, is valid after it is done. To understand the meaning of these two general rules, and the proper application of them, it will be necessary to observe, that some actions, which are contrary to law, are not only wrong, but void; that is, the law considers them as if they never had been done, as to any moral effect that might have been produced by them: but some actions, which are contrary to law, are only simply wrong; they ought not to have been done; but after they are over, they produce the same moral effect as if they had been right. Where the obligation of the law is perfect, such acts as are contrary to it, are void; or no moral effect is produced by them. The law says, Thou shalt not steal. The obligation is of the perfect sort; and upon that account the act of theft, as to any effect which the possession of goods might have produced, is void; the thief gains no property in the goods which he has stolen. The reason of this is plain: in the use of our natural power we can break the law; but since the obligation, as it is a perfect one, has taken away the moral power of acting, the law does not suppose us to have any power left, and consequently does not suppose any thing to have been done with any effect, where we have made use of such natural power. Now an injury, properly so called, is a breach of justice; that is, it is a breach of a perfect obligation, and the production of a right is a moral effect. But since no breach of a perfect obligation can produce any moral effect, it follows that no right can be produced by an injury. Where the obligation of the law is imperfect, such acts as are done contrary to it, are simply wrong, and are commonly not void, but produce their proper effects as if they had been right. The law says, Obey your parents. A son of full age contracts himself in marriage, contrary to the commands of his parent: such a contract, though it is unlawful, is valid. The reason is, because imperfect obligations do not take away a man's power of acting, but only direct him in the use of it. And when the law supposes a power of acting, it cannot suppose nothing to have been done, where such power has been made use of. The act therefore is commonly not void, but will obtain its proper effect. Thus we see that these two general rules, though at first sight they may appear inconsistent with one another, are both of them true when they are properly applied. The former rule, That no right can be founded on an injury, is to be applied to cases of perfect obligation. The latter, That what was unlawful to be done, is valid after it has been done, is applicable only to those cases where the obligation is imperfect. void. What actions are VII. *We have already seen, that such actions as are contrary to any precepts of natural law, where the precept is of perfect obligation, are void; but that such as are contrary to precepts of imperfect obligation, though they are wrong, are however commonly valid. I say commonly valid, because in some cases, even such actions as these are void. The way to know whether actions, that are contrary to a law of imperfect obligation, are void or not, is to consider the effect of them. If the effect is consistent with the law, then the act is valid; because as the obligation was imperfect, there was a moral power in the agent; the act therefore does not want a valid foundation: and because the effect is consistent with the law, by the supposition, the law will not hinder its effect. But if the effect is illegal, as well as the act, then, notwithstanding, there seems to be no defect of moral power on the part of the agent, yet the act will be so far void as not to produce any effect: because the effects cannot proceed or take place where the law disallows them. The law says, Honour thy father and thy mother. The obligation is imperfect. But yet, in virtue of this precept, the marriage of a son with his mother will be void; because the effect of such a contract is as inconsistent with the law as the act is. The superiority which such a marriage would give to the son over his mother, is inconsistent with the honour which the law requires him to pay to her. This may be expressed otherwise. What is done contrary to a precept of imperfect obligation will be void, if the validity of the act would discharge us from the obligation of such precept for the future. Thus the law says, as above, Honour thy father and thy mother. A man vows that whatever he gives to his father or his mother out of his substance, shall immediately be consecrated to God, so as to make it unlawful for them to use it, or to receive benefit from it. Such a vow as this is a void one, notwithstanding the precept with which it is inconsistent, is only of imperfect obligation. The general reason is, because the validity of it would make void a precept of the law of nature. And, consequently, as no man can have a moral power of releasing himself from that law, no man can have a moral power of doing any act which will make that law void, or which, if t was to obtain its effect, would for the future release him from the obli gation of observing that law. So that, in reality, even in these instan * Grot. Lib. II. Cap. V. § X. ces, as in those where we transgress a precept of perfect obligation, the act is void from a defect of moral power in the agent. VIII. Another division of our rights is into natural Rights are natural and adventitious. Those are called natural rights which or adventitious. belong to a man by the gift of nature; those which belong to him originally, without the intervention of any human act. Adventitious rights are such as presuppose some act of man from which they arise, and upon which they originally depend. The rights which a man has to his life, to his liberty, to his health, to freedom from pain, to the integrity of his body, to his good name, &c. are natural ones. Property, or the right which he has to his goods, either moveable or immoveable, sovereignty, or the right which he has to command others of his own species, and many more of the like sort, which arise from some previous bargain or contract, either express or tacit, are adventitious ones. But though some of our rights are thus called adventitious, and are by this means distinguished from natural rights; we must not imagine that only the natural rights of mankind are under the protection of the law of nature; or that it is no offence against the law of nature to violate such adventitious rights. This law equally forbids the violation of our rights of either sort: such things as we acquire consistently with the law of nature, are as much our own, as if nature had given us them originally: as much causeless harm, that is, as much injustice, is done to a man, by causelessly taking from him what he has fairly acquired a right to, as by causelessly taking from him what he had a right to by nature. And since the law of nature equally forbids every instance of injustice, it forbids not only the violation of men's natural rights, but of their adventitious ones too.. IX. Some of our rights are alienable, others are un- Rights are aliena. alienable. Those rights are alienable which the law ble or unalienable. does not forbid us to part with. Those only are unalienable which we cannot part with consistently with the law. There seems to be no other foundation, for such a distinction of our rights, but this. I know not how any one can show that any of our rights, either natural or adventitious, are unalienable; unless he can produce some law which forbids our parting with such right. Certainly where a man's right to possess a thing, or to do an action, is absolute, or is not restrained or limited at all by the law; he may part with it, if he pleases, either by giving it up entirely, or by transferring it to some other person. An absolute right is otherwise unintelligible: since the power of doing as we please, makes up the whole notion of such a right. This, therefore, may be laid down as a general and fixed rule, that none of our rights are unalienable but such as are, in some respects, restrained and limited by law. X. Before we go on to consider the several rights of Things are either mankind, and the manner of acquiring them; it may be corporeal or incorof use to us to observe, that things, in the science of poreal. natural law, are divided into corporeal and incorporeal. Our senses will best inform us what things are corporeal; for such things are called corporeal as are the objects of our senses. Of this sort are a man's cattle, his house, his furniture, his lands, his implements of husbandry, his money, &c. Incorporeal things are such, as cannot be seen or handled; they consist of rights, and no real thing exists without us, con formable to that idea of them, which is in the mind: only for better dispatch, we frequently speak of our rights as if they were real things. Thus sovereignty is spoken of as if it was a real thing; though there is no corporeal existence which answers to our idea of it: it consists wholly of a right to do certain actions, or to give and enforce certain commands. An advowson, which is a right of presentation or collation to a church, is an incorporeal thing. An ecclesiastical benefice is itself an incorporeal thing; there is no real thing existing, which answers to the whole notion of it; it consists not only in a right to receive certain profits, but in a right likewise to do certain actions. Our rights being divided, *as above, into rights to possess certain things, and rights to do certain actions, we will go on to consider them under these two general heads. CHAPTER III. OF PROPERTY. I. Property what.-II. Things not appropriated originally.-III. In Property what. II. It does not appear that the *Author of Nature, Things not approwhen he provided for mankind such things as are ne- priated originally. cessary for the support or comfort of life, appropriated particular things to particular persons, or gave to any one a right to any part of this provision exclusive of the rest of the species. The world which we inhabit, the trees, herbs, and fruit, which the earth produces; the soil itself, from whence they are produced, the inferior animals, such as birds, beasts, and fishes, which supply us with food, or labour for us, or clothe us, or serve for our pleasure, were given to all alike. As the Author and Giver of these things stands in the same relation to all mankind; his gifts, as far as reason can judge, must belong to all alike: nor can we conceive any of them to belong originally to any part of the species or to any individual exclusive of the rest; unless we could find that he had made some express division and assignment of them. Now as reason can never collect such an express or positive division and assignment, so neither does revelation teach us that any such was made, either from the beginning of the world, or in any subsequent period of it, by the Lord of all things. We therefore conclude, that all things belonged originally to all mankind in common, and that the exclusive right of property was introduced by some act of man. III. If things had continued in this state of commu- In a community of nity, they would have been used and enjoyed by us goods, a right to only as we had occasion for them: each person might use supplies the place of property. have taken out of the joint stock as much as he wanted, and no more; and might have applied to his own purposes what he had so taken, as long as he wanted it, and no longer. For these common goods are his in no other respect, and for no other purposes, but to supply his wants; and they belong to the rest of mankind in the same respect, and for the same purposes, as much as they belong to him. These purposes, therefore, limit his claim to them; since all his claim is only to use what he has occasion for. And consequently he can have no right to take more than is necessary, or to keep what he has so taken longer than is necessary. Whilst things continued in this state of community, the general claim of all mankind to use what they wanted, so far supplied the place of property, that each individual, though he could not accumulate possessions, had an opportunity of furnishing himself with the necessaries of life, and even with the conveniences of it too; provided no person had any occasion for what he had taken beyond what was barely necessary. From hence we may understand, that a man might possibly be injured in respect of these common goods, even though, by the supposition of their being common, he had no exclusive right of property in any of them, but only a claim in common with the rest of mankind to use what he wanted. If they belong to him, as they belong to the rest of mankind, they, who hinder him from using what he wants, when they do not want it themselves, do him a causeless harm; he has a right in common with them to use what he wants, and they take his right from him. IV. Such a community of goods as we have been Inconveniences aspeaking of, would necessarily become inconvenient as rising from a comthe wants of mankind increased, and as the love of jus- munity of goods. * Grot. Lib. II. Cap. II. § II. |