In one remarkable instance, too, nature has made an additional provision for keeping alive among men a sense of those obligations which justice imposes. That the good offices which we have received from others constitute a debt which it is morally incumbent on us to discharge by all lawful means in our power, is acknowledged in the common form of expression employed on such occasions, both by philosophers and the vulgar. As the obligations of gratitude, however, do not admit (like the rules of honesty, strictly so called) of support from the magistrate, nature has judged it proper to enforce their observance by one of the most irresistible and delightful impulses of the human frame. According to this view of the subject, gratitude, considered as a moral duty, is a branch of justice recommended to us in a peculiar manner by those pleasing emotions which accompany all the modes of benevolent affection. It is at the same time a branch of what was formerly called rational benevolence, not interfering with the duty we owe to mankind in general, but tending, in a variety of respects, to augment the sum of social happiness. The casuistical questions to which this part of ethics has given rise, however perplexing some of them may appear in theory, seldom, if ever, occasion any hesitation in the conduct of those to whom a sense of duty is the acknowledged rule of action:-Such is the harmony among all the various parts of our constitution, when subjected to the control of reason and conscience; and so nearly allied are the dispositions which prompt to the different offices of a virtuous life.

As the rules of justice, when applied to questions involving the rights of other men, admit in their statement of a degree of accuracy peculiar to themselves, that part of ethics which relates to them has been formed in modern times into a separate branch of the science, under the title of Natural Jurisprudence. The manner in which this subject has been hitherto treated has been much influenced by the professional habits of those who first turned their attention to it. Not only have its principles been delivered in the form of a system of law,

but the technical arrangements of the Roman code have been servilely copied.

What I mean by stating the principles of Jurisprudence in the form of a system of law will appear from the following observations.

In the case of justice there is always a right on one hand corresponding to an obligation on the other. If I am under an obligation, for example, to abstain from violating the property of my neighbour, he has a right to defend by force his property when invaded. It therefore appears that the rules of justice may be laid down in two different forms, either as a system of duties, or as a system of rights. The former view of the subject. belongs properly to the moralist, the latter to the lawyer. It is in this last form accordingly that the principles of justice have been stated by the writers on natural jurisprudence.

So far there is nothing to be reprehended in the plan they have followed. On the contrary, a considerable advantage was gained in point of method by adopting that very comprehensive and accurate division of our rights which the civilians had introduced. As the whole object of law is to protect men in all that they may lawfully do, or possess, or demand, civilians have defined the word jus, or right, to be facultas aliquid agendi, vel possidendi, vel ab alio consequendi,—a lawful claim to do any thing, to possess any thing, or to demand something from some other person. The first of these may be called the right of liberty, or the right of employing the powers we have received from nature in every case in which we do not injure the rights of others; the second, the right of property; the third, the rights arising from contract. The two last were further distinguished from each other by calling the former (to wit, the right of property) a real right, and the latter (to wit, the rights arising from contract) personal rights, because they respect some particular person or persons from whom the fulfilment of the contract may be required.

This division of our rights appears to be comprehensive and philosophical, and it affords a convenient ar

rangement for exhibiting an indirect view of the different duties which justice prescribes. "What I have a

right to do, it is the duty of my fellow creatures to allow me to do without molestation. What is my property, no man ought to take from me, or to disturb me in the enjoyment of it. And what I have a right to demand of any man it is his duty to perform." * Such a system, therefore, with respect to our rights, exhibits (though in a manner somewhat indirect and artificial) a system of the rules of justice.

But the writers on natural jurisprudence have not been contented with copying from the Roman law the great divisisons of their subject. In consequence of that influence of professional habits which we may remark daily on the most vigorous, and in other respects the most enlightened understandings, they have been led to follow the Roman code in many unnatural and capricious arrangements; and what is worse, they have substituted some of its most absurd principles as maxims of natural justice. To the same cause may be ascribed the frivolous discussions with respect to minute and imaginary questions, which so often occupy the place of those general and fundamental disquisitions that are suggested by the common nature and the common circumstances of the human race. It is sufficient to mention the space which is occupied in most systems of jurisprudence, with an explanation of the different methods of acquiring property by accession, and with a discussion of the various imaginary cases that may be supposed when the properties of different individuals may happen to be thus confounded.

A still more material inconvenience has resulted from the professional habits of the early writers on jurisprudence. Not contented with stating the rules of justice in that form and language which was most familiar to their own minds, they have attempted to extend the same plan to all the other branches of moral philosophy; and, by the help of arbitrary definitions, to supersede the necessity of accommodating their modes of inquiry to

* Reid on the Active Powers, p. 338. Quarto Edition.

the various nature of their subject. Although justice is the only branch of virtue in which there is always a right on the one hand, corresponding to an obligation on the other, they have contrived, by fictions of imperfect and of external rights, to treat indirectly of all our different duties, by pointing out the rights which are supposed to be their correlates. It is chiefly owing to this that a study which, in the writings of the ancients, is the most engaging and the most useful of any, has become in so great a proportion of modern systems as uninviting and almost as useless as the logic of the schoolmen.

Besides these defects in the modern systems of jurisprudence, (defects produced by the accidental habits of those who first cultivated the study) there is another essential one arising from the object of the science. Although the obligations of justice are by no means resolvable into considerations of utility, yet in every political association they are so blended together in the institutions of men, that it is impossible for us to separate them completely in our reasonings. And accordingly (as Mr. Hume has remarked) the writers on juris prudence, while they profess to confine themselves entirely to the former, are continually taking principles for granted which have a reference to the latter. It seems, therefore, to be proper, instead of treating of jurisprudence merely as a system of natural justice, to unite it with politics, and to illustrate the general principles of justice and of expediency, as they are actually combined in the constitution of society. This view of the subject (which properly belongs to the consideration of man as the member of a political body) will show, at the same time, how happily these principles coincide in their application; and how partial those conceptions of utility are, which have so often led politicians to depart from what they felt to be just, in quest of what their limited judgment apprehended to be expedient.

SUPPLEMENT TO CHAPTER SECOND.

THE following observations on the Right of Property are introduced here chiefly with a view of illustrating a remark in the foregoing chapter, that we possess rights antecedent to the establishment of the political union. The greater part of them have a reference to the Essay on Property in Lord Kames's Historical Law Tracts.*

It cannot, I apprehend, be doubted, that, according to the notions to which we in the present state of society are habituated from our infancy, the three following things are included in the idea of property.

1. A right of exclusive enjoyment.

2. A right of inquiry after our property when taken away without our consent, and of reclaiming it wherever found.

3. A right of transference.

We do not consider our property in any object to be complete, unless we can exercise all these three rights with respect to it.

Lord Kames endeavours to show that these ideas are not agreeable to the apprehensions of the human mind in the ruder periods of society, but imply a refinement and abstraction of thought which are the result of improvement in law and government. The relation (in particular) of property, independent of possession, he thinks of too metaphysical a nature for the mind of a savage. "It appears to me," says he, "to be highly probable, that among savages involved in objects of sense, and strangers to abstract speculation, property, and the rights or moral powers arising from it, never are with accuracy distinguished from the natural powers that must be exerted upon the subject to make it profitable to the possessor. The man who kills and eats, who sows and reaps, at his own pleasure, independent of another's will, is naturally deemed proprietor. The grossest savages understand power without right, of which they are made sensible by daily acts of violence; but

Tract iii. Third Edition.