Property for Property in land, as we have seen, and purchase of Land, for the like reasons, are creations of the Law. 473. Thus the Conception of a Sovereign State, as the origin and guardian of Rights, is necessary, in order that we may conceive Rights as realities. We may add, that the State is necessarily conceived as a Moral Agent; since it makes war and peace, which it may do justly or unjustly; keeps Treaties, or breaks them; educates its children, or neglects them. What are the Rules of Justice in the actions of States, we must afterwards consider: but it is plain that we must consider the State as an Agent, to whose conduct such Rules are applicable.

474. Since the State is thus a Moral Agent, we may apply to it the Rules of Duty, and the doctrines of Morality, which we have already established. The State has its Duties; Duties of Truth and Justice, as all agree; for all hold it to be the Duty of a State to observe its Treaties, to abstain from the Possessions of another State; and the like. A State has also Duties of Benevolence; To relieve its poor, to liberate its slaves, are often urged upon a State, as manifest Duties of this kind.

And, as the condition of other Duties being performed, the moral Education of its citizens, and consequently of itself, is a Duty of the State. It is its Duty to establish in the minds of its children, and to unfold more and more into constant and progressive operation, the Moral Ideas of Benevolence, Justice, Truth, Purity, and Order.

475. Thus Moral Progress is the Duty of States, as well as of individuals. States, like individuals, have a continuous existence; a series of purposes and actions; a connected course of being; a Life. During this Life, it is their Duty to conform their being more and more to the Moral Ideas; and this Duty extends to all their actions, and all times of their action.

316

CHAPTER XXI.

JUSTICE.

476. RIGHTS are, as we have formerly said, necessary conditions of man's action as man; and the State is the necessary origin and basis of Rights: the State defines them and realizes them. But though Rights are thus, in each case, what, by the State, they are defined to be; there is yet, in men's minds, a fundamental conviction, that Rights are not arbitrary. It is conceived that there is a higher Rule, to which Rights ought to conform; that they should be, not only ordered, but just; that there are not only positive Laws, enacted by special bodies of men, but a Natural Law, depending upon the nature of man.

This conception of Natural Law, appears among the Greek philosophers. "There are," says Aristotle*, "two kinds of Law; that which is proper to each community; and that which is common to all. For there is, as all men perceive more or less clearly, a Natural Justice and Injustice, which men in common recognize, even if they have no society nor compact with each other. Thus the Antigone of Sophocles is made to say, that it was right for her, in spite of the tyrant's command, to bury her brother Polynices, as a part of a Natural Law:

"For this is no command of yesterday,

But everliving Law, its source unknown."

The Books of the Laws of Plato proceed upon the same supposition; and are an attempt to draw out, in detail, the Code of Natural Law which was thus assumed to exist.

477. This Conception of a Natural Law, derived from Reason, and universally valid for all men, was still more distinctly entertained by the Romans. This appears in

Cicero's Dialogues on the Laws in several places*, and still more emphatically in a passage in the work De Republica†: "Law is right Reason, congruous to Nature, pervading all minds, constant, eternal; which calls to Duty by its commands, and repels from wrong doing by its prohibitions; and to the good, does not command or forbid in vain; while the wicked are unmoved by its exhortations and warnings. This Law cannot be annulled, superseded, or overruled. No Senate, no People can loose us from it; no Jurist, no Interpreter, can explain it away. It is not one Law at Rome, another at Athens; one, at present, another at some future time; but one Law, perpetual and immutable, includes all Nations and all Times‡."

The Law, thus described by Cicero, includes Justice, as well as Law. In the notion of Natural Law, the distinction of Obligations and Duties is not recognized.

478. But it may be said that the Natural Law, thus described by Cicero, nowhere exists. The actual Law is different at Rome and at Athens, and in every different State. And since the Natural Law, of which we speak, cannot be the same as all these Codes, it cannot be the same with any; and is actually nothing.

The reply to this difficulty is contained in what we have already said (95, 96); That the Conceptions of the Fundamental Rights, which Law establishes, are necessary and universal for all men; but that the Definitions of these Rights are Facts, which grow out of the History of each Community, and may be different in different times and places. The Second Book of this Work contains a view of this Natural Law; the Laws of Rome and of England being there employed, as exemplification, not as the necessary form, of

*

Legg. 1. 6; 11. 4. † De Rep. 111. 22. quoted Lactant. Inst. vi. 8. I have omitted the concluding clause of the paragraph, "Of this Law the Author and Giver is God;" as belonging to another part of my subject.

Natural Law. We there saw, that in many instances, the Commentators on these Laws have announced Maxims of Natural Law, as the basis of the actual Law.

479. The Roman term, Jus, (in its sense of a body of Laws, and of Doctrines on which Laws depend,) is especially adapted to denote this Natural Law; for it implies, at the same time, Law and Justice (90). The consistency of the Law with Justice, is assumed throughout the Roman Jurisprudence. Thus in the commencement of the Institutes we read: "Justitia est constans et perpetua voluntas jus suum cuique tribuendi. Jurisprudentia est divinarum atque humanarum rerum scientia, justi atque injusti cognitio." But Justice, thus assumed as identical with Jus, in its results, is a conception which requires to be more exactly defined and developed than we have yet done, before we can so apply it. This we must now attempt to do.

480. As we have said, Law, in every form in which it exists, must involve actual Definitions, as well as the general Conception of Natural Law or Justice. These Definitions will depend upon past events. Thus, the tenure of land in each country depends upon past conquests, and migrations of the races which inhabit the country; upon many inheritances, many contracts of buying and selling, and the like, which have taken place among individuals: upon Laws which have been made, relative to such property, and such transfers; and upon various other circumstances. Justice gives to each his own; but the actual Law must define what is each person's own, according to all these circumstances. And the like may be said of all other branches of Natural Law.

481. According to our idea of Rights, as assigned by

* Inst. 1. 1. Justice is the constant and perpetual intention of giving to each his own Right. Jurisprudence is the knowledge of divine and human things, (as required for that intention): the science of what is just and unjust.

Natural Law, each person must have those Rights which it is just he should have. A person cannot have Rights which it is unjust he should have. If the actual Laws of any State give him such Rights, those Rights are unjust; and that they are so, is a reason for altering the Law, or its application. If a man has acquired a seeming Right, in violation of Justice, Natural Law rejects such Rights. According to Natural Law, Rights cannot be founded on Injustice.

482. On the other hand, existing Rights, in each country, as we have seen, depend upon its History and the History of every country contains many acts of injustice. It cannot be doubted that the present Rights of Property in Land, for instance, have, in every country, been brought into being by transactions, many of which have been unjust. Shall we say that Justice requires us to deprive persons of such Rights, when any Injustice can be discovered in their origin or transmission; however remote may be the blemish, and however blameless the present holders? If an estate were acquired by fraud centuries ago, and have since been possessed, without dispute, by generations of unconscious successors; or sold to a multitude of poor and honest purchasers; shall we say that it still, in Justice, belongs to the heirs of the defrauded person; and that, according to Natural Law, the present possessors ought to restore the property to those heirs? No one, probably, would assert it to be just to destroy supposed existing Rights on such grounds as these. All would allow that Justice is, in such a case, with the Possessors.

483. Indeed, to assert the contrary, would be to make that Law of Descent, by which the heirs of the defrauded person might claim the property, paramount over all other Laws. It would be to make that Rule of inheritance absolute and indestructible, while other Rules, as for instance, bonâ fide purchase, prescription, and the like, are comparatively rejected. There can be no reason, in Natural Law, for erecting