Obrázky stránek
PDF
ePub
[blocks in formation]

T

HE objects of the laws of England are fo very numerous and extensive, that, in order to confider them with any tolerable ease and perfpicuity, it will be neceffary to distribute them methodically, under proper and distinct heads; avoiding as much as poffible divifions too large and comprehenfive on the one hand, and too trifling and ininute on the other; both of which are equally productive of confufion.

Now,

In

Now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or, as Cicero, and after him our Bracton, has expressed it, fanctio jufta, jubens honesta et prohibens contraria; it follows, that the primary and principal objects of the law are RIGHTS, and WRONGS. the profecution therefore of these commentaries, I shall follow this very fimple and obvious division; and shall in the first place confider the rights that are commanded, and secondly the wrongs that are forbidden by the laws of England.

RIGHTS are however liable to another fubdivifion; being either, first, those which concern, and are annexed to the perfons of men, and are then called jura perfonarum or the rights of perfons; or they are, secondly, fuch as a man may acquire over external objects, or things unconnected with his person, which are stiled jura rerum or the rights of things. Wrongs also are divisible into, first, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and secondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemesnors.

THE objects of the laws of England falling into this fourfold divifion, the present commentaries will therefore confift of the four following parts: 1. The rights of persons; with the means whereby such rights may be either acquired or loft. 2. The rights of things; with the means also of acquiring and lofing them. 3. Private wrongs, or civil injuries, with the means of redreffing them by law. 4. Public wrongs, or crimes and mifdemesnors; with the means of prevention and punishment.

We are now, first, to confider the rights of persons; with the means of acquiring and losing them.

a

11 Philipp. 12.

b. 1. c. 3.

Now

Now the rights of persons that are commanded to be obferved by the municipal law are of two forts; first, such as are due from every citizen, which are usually called civil duties; and, secondly, fuch as belong to him, which is the more popular acceptation of rights or jura. Both may indeed be comprized in this latter divifion; for, as all social duties are of a relative nature, at the fame time that they are due from one man, or set of men, they must also be due to another. But I apprehend it will be more clear and easy, to confider many of them as duties required from, rather than as rights belonging to, particular perfons. Thus, for instance, allegiance is usually, and therefore most easily, confidered as the duty of the people, and protection as the duty of the magistrate; and yet they are, reciprocally, the rights as well as duties of each other. Allegiance is the right of the magistrate, and protection the right of the people.

PERSONS also are divided by the law into either natural perfons, or artificial. Natural persons are such as the God of nature formed us: artificial are such as created and devised by human laws for the purposes of society and government; which are called corporations or bodies politic.

THE rights of perfons confidered in their natural capacities are also of two forts, abfolute, and relative. Absolute, which are fuch as appertain and belong to particular men, merely as individuals or fingle perfons: relative, which are incident to them as members of society, and standing in various relations to each other. The first, that is, absolute rights, will be the subject of the prefent chapter.

By the absolute rights of individuals we mean those which are so in their primary and strictest sense, such as would belong to their perfons merely in a state of nature, and which every man is intitled to enjoy whether out of society or in it. But with regard to the absolute duties, which man is bound to perform confidered as a mere individual, it is not to be expected that any human municipal laws should at all explain or enforce them. For the end and intent of fuch laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have confequently no bufiness or concern with any but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vitious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be fuch as seem principally to affect himself, (as drunkenness, or the like) they then become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws: private fobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. But, with respect to rights, the case is different. Human laws define and enforce as well those rights which belong to a man confidered as an individual, as those which belong to him confidered as related to others.

fidered

For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these abfolute rights of individuals. Such rights as are focial and relative result from, and are pofterior to, the formation of states and societies: so that to maintain and regulate these, is clearly a subsequent confideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are abfolute, abfolute, which in themselves are few and fimple; and, then, such rights as are relative, which arifing from a variety of connexions, will be far more numerous and more complicated. Thefe will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.

THE abfolute rights of man, confidered as a free agent, endowed with difcernment to know good from evil, and with power of choofing those measures which appear to him to be most defirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty confifts properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of freewill. But every man, when he enters into society, gives up a part of his natural liberty, as the price of fo valuable a purchase; and, in confideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more defirable, than that wild and savage liberty which is facrificed to obtain it. For no man, that confiders a moment, would wish to retain the absolute and uncontroled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power; and then there would be no security to individuals in any of the enjoyments of life. Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is neceffary and expedient for the general advantage of the publick. Hence we may collect that the law, which restrains a

* Facultas ejus, quod cuique facere libit, nifi quid jure probibetur. Inft. 1.3.1.

man

« PředchozíPokračovat »