Only with reference to language can the attribute denoted by the word universal be with propriety attributed to the subject of law.
In each country, at each point of time, it is matter of accident whether a law to a given effect is in force; though, consideration had of the general effect, and not of the particular tenor, in no inconsiderable quantity, masses of the matter of law might be found, such as are not likely to be wanting in any country that has the use of letters. A mass of the matter of language expressive of law might be found, of which the equivalent cannot be wanting, in any country, among any assemblage of human beings, in the presence of each other, for any considerable length of time. This may be styled the language of universal law.
Follows the exposition of some of these terms, the use of which exposition upon this occasion is not so much to teach as to fix their import:---
1. Obligation.---Obligations may exist without rights;---rights cannot exist without obligations.
Obligation---a fictitious entity, is the product of a law---a real entity.
A law, when entire, is a command; but a command supposes eventual punishment; for without eventual punishment or the apprehension of it, obedience would be an effect without a cause.
Reward---eventual reward, is not capable of securing obedience to will signified,---is not capable of giving to will the effect of a command:---apprehension of the abstraction of reward already in possession or expectancy may do it. Yes: but though reward alone be the word employed in the description of the case, the operation signified is of the nature of punishment;---the effect of it not enjoyment, but suffering.
Obligation has place, when the desire on the part of the superior, the obliger, being signified to the obligee, he understands at the same time, that in the event of his failing to comply with such desire, evil will befall him, and that to an amount greater than that of any evil which he could sustain in compliance with that desire.
2. Right.---Otherwise than from the idea of obligation, no clear idea can be attached to the word right.
The efficient causes of right are two---1. Absence of correspondent obligation. You have a right to perform whatever you are not under obligation to abstain from the performance of. Such is the right which every human being has in a state of nature.
2. The second efficient cause of right is, presence of correspondent obligation. This obligation is the obligation imposed upon other persons at large, to abstain from disturbing you in the exercise of the first mentioned sort of right. The first mentioned right may be termed a naked kind of right---this second-mentioned right, a vested or established right.
The word right, is the name of a fictitious entity: one of those objects, the existence of which is feigned for the purpose of discourse by a fiction so necessary, that without it human discourse could not be carried on.
A man is said to have it, to hold it, to possess it, to acquire it, to lose it. It is thus spoken of as if it were a portion of matter such as a man may take into his hand, keep it for a time and let it go again. According to a phrase more common in law language than in ordinary language, a man is even spoken of as being invested with it. Vestment is clothing: invested with it makes it an article of clothing, and is as much as to say is clothed with it.
To the substantive word are frequently prefixed, as adjuncts and attributives, not only the word political, but the word natural and the word moral: and thus rights are distinguished into natural, moral, and political.
From this mode of speech, much confusion of ideas has been the result.
The only one of the three cases in which the word right has any determinate and intelligible meaning is that in which it has the adjunct political attached to it: in this case, when a man is said to have a right (mentioning it), the existence of a certain matter of fact is asserted; namely, of a disposition on the part of those by whom the powers of government are exercised, to cause him, to possess and so far as depends upon them to have the faculty of enjoying, the benefit to which he has a right. If, then, the fact thus asserted be true, the case is, that amongst them they are prepared on occasion to render him this service: and to this service on the part of the subordinate functionaries to whose province the matter belongs, he has, if so it be, a right; the supreme functionaries being always prepared to do what depends upon them to cause this same service to be rendered by those same subordinate functionaries.
Now, in the case of alleged natural rights, no such matter of fact has place---nor any matter of fact other than what would ha e place supposing no such natural right to have place. In this case, no functionaries have place---or if they have, no such disposition on their part, as above, has place; for if it have, it is the case of a political right, and not of a merely natural right. A man is never the better for having such natural right: admit that he has it, his condition is not in any respect different from what it would be if he had it not.
If I say a man has a right to this coat or to this piece of land, meaning a right in the political sense of the word,---what I assert is a matter of fact; namely, the existence of the disposition in question as above.
If I say a man has a natural right to the coat or the land---all that it can mean, if it mean any thing and mean true, is that I am of opinion he ought to have a political right to it; that by the appropriate services rendered upon occasion to him by the appropriate functionaries of government, he ought to be protected and secured in the use of it: he ought to be so---that is to say, the idea of his being so is pleasing to me---the idea of the opposite result displeasing.
In the English language, an imperfection perhaps peculiar to that language, contributes to the keeping up of this confusion. In English, in speaking of a certain man and a certain coat, or a certain piece of land, I may say it is right he should have this coat or this piece of land. But in this case, beyond doubt, nothing more do I express than my satisfaction at the idea of his having this same coat or land.
This imperfection does not extend itself to other languages. Take the French, for instance. A Frenchman will not say, Il est droit, que cet homme ait cet habit: what he will say is, Il est juste que cet homme ait cet habit. Cet appartient de droit a cet homme.
If the coat I have on is mine, I have a right by law to knock down, if I can, any man who by force should attempt to take it from me; and this right is what in any case it can scarcely be but that a man looks to when he says, I have a right to a constitution, to such or such an effect---or a right to have the powers of government arranged in such manner as to place me in such or such a condition in respect of actual right, actually established rights, political rights.
To engage others to join with him in applying force for the purpose of putting things into a state in which he would actually be in possession of the right, of which he thus pretends to be in possession, is at bottom the real object and purpose of the confusion thus endeavoured to be introduced into men's ideas, by employing a word in a sense different from what it had been wont to be employed, and from thus causing men to accede in words to positions from which they dissent in judgment.
This confusion has for its source the heat of argument. In the case of a political right, when the existence of it is admitted on all sides, all dispute ceases. But when so it is that a man has been contending for a political right which he either never has possessed, or having in his possession, is fearful of losing, he will not quietly be beaten out of his claim; but in default of the political right, or as a support to the political right, he asserts he has a natural right. This imaginary natural right is a sort of thread he clings by:---in the case in question, his having any efficient political right is a supposed matter of fact, the existence of the contrary of which is but too notorious and being so, is but too capable of being proved. Beaten out of this ground, he says he has a natural right---a right given him by that kind goddess and governess Nature whose legitimacy who shall dispute? And if he can manage so as to get you to admit the existence of this natural right, he has, under favour of this confusion, the hope of getting you to acknowledge the existence of the correspondent political right, and your assistance in enabling him to possess it.
It may, however, be said, to deny the existence of these rights which you call imaginary, is to give a carte blanche to the most outrageous tyranny. The rights of man anterior to all government, and superior as to their authority to every act of government these are the rampart, and the only rampart against the tyrannical enterprises of government. Not at all---the shadow of a rampart is not a rampart;---a fiction proves nothing---from that which is false you can only go on to that which is false. When the governed have no right, the government has no more. The rights of the governed and the rights of the government spring up together;---the same cause which creates the one creates the other.
It is not the rights of man which causes government to be established:---on the contrary, it is the non-existence of those rights. What is true is, that from the beginning of things it has always been desirable that rights should exist---and that because they do not exist; since, so long as there are no rights, there can only be misery upon the earth---no sources of political happiness, no security for person for abundance, for subsistence, for equality:---for where is the equality between the famished savage who has caught some game, and the still more famishing savage who is dying because he has not caught any?
Law supposes government: to establish a law, is to exercise an act of government. A law is a declaration of will---of a will conceived and manifested by an individual or individuals to whom the other individuals in the society to which such will has respect are generally disposed to obey.
Now government supposes the disposition to obedience:---the faculty of governing on the one part has for its sole efficient cause and for its sole measure, the disposition to obey on the other part.
This disposition may have had for its cause either habit or convention: a convention announces the will of one moment, which the will of any other moment may revoke;---habit is the result of a system of conduct of which the commencement is lost in the abyss of time. A convention, whether it have ever yet been realized or not, is at least a conceivable and possible cause of this disposition to obedience, from which government, and what is called political society. and the only real laws result. Habit of obedience is the cause, a little less sure---the foundation, a little less solid, of this useful, social, disposition, and happily the most common.
The true rampart, the only rampart, against a tyrannical government has always been and still is, the faculty of allowing this disposition to obedience---without which there is no government---either to subsist or to cease. The existence of this faculty is as notorious as its power is efficacious.
Shall this habit of obedience be continued unbroken, or shall it be discontinued upon a certain occasion? Is there more to be gained than to be lost in point of happiness, by its discontinuance? Of the two masses of evil,---intensity, duration, certainty, all included---which appears to be the greatest, that to which one believes one's self exposed from continued obedience, or that to which one believes one's self exposed by its discontinuance?
On which side is the greatest probability of success? On the side of the satellites of the tyrant, who will endeavour to punish me in case of disobedience? or on the side of the friends of liberty, who will rally around me to defend me against oppression?
It is an affair of calculation: and this calculation each one must make for himself according to circumstances. It is also a calculation that no one can fail to make, either ill or well, whatever may be the language he employs, or whosoever he may be.
But this calculation is not sufficiently rapid for those who choose for their amusement the destruction and reconstruction of governments. Rights of men strongly asserted, but ill-defined, never proved; rights of men of which every violation is an act of oppression---rights ready to be violated at every moment---rights which the government violates every time it does anything which displeases you---right of insurrection ready to be exercised the first moment that oppression occurs;---this is the only remedy which suits those who would make equality to flourish at any rate, by taking the power of governing for themselves, and leaving obedience for all others.
It is the weakness of the understanding which has given birth to these pretended natural rights; it is the force of the passions which has led to their adoption, when, desirous of leading men to pursue a certain line of conduct which general utility does not furnish sufficient motives to induce them to pursue, or when, having such motives, a man knows not how to produce and develop them, yet wishes that there were laws to constrain men to pursue this conduct, or what comes to the same thing, that they would believe that there were such laws,---it has been found the shortest and easiest method to imagine laws to this effect.
Behold the professors of natural law, of which they have dreamed---the legislating Grotii---the legislators of the human race: that which the Alexanders and the Tamerlanes endeavoured to accomplish by traversing a part of the globe, the Grotii and the Puffendorffs would accomplish, each one sitting in his arm chair: that which the conqueror would effect with violence by his sword, the jurisconsult would effect without effort by his pen. Behold the goddess Nature!---the jurisconsult is her priest; his idlest trash is an oracle, and this oracle is a law.
The jurisconsult in his arm-chair is an individual sufficiently peaceable: he lies,---he fabricates false laws in the simplicity of his heart;---desirous of doing something, ignorant how to do better, hoping to do well, he would not willingly injure any one. From his hands the instruments he employs have passed into hands of a far different temper.
The invention was fortunate: it spared discussion---it saved research and reflection---it did not require even common sense---it spared all forbearance and toleration:---what the oath is on the part of the footpad who demands your purse, the rights of man have been in the mouth of the terrorist.
Those who govern allege legal rights---the rights of the citizen---real rights: those who wish to govern allege natural rights---the rights of man---counterfeit rights---rights which are sanctioned by the knife of the assassin, as well as the gibbet and the guillotine.
Those to whom the faculty of making these imaginary laws, instead of real laws, has been transferred, have not much trouble in making them. Constitutions are made as easily as songs: they succeed each other as rapidly and are as speedily forgotten.
For the making of real laws, talent and knowledge are requisite: for making real laws good or bad, labour and patience are requisite: but for the making of forgeries sources of the rights of man, nothing more is required than ignorance, hardihood, and impudence.
Rights of men, when placed by the side of legal rights, resemble assignats, whether false or genuine, placed by the side of guineas or Louis dor.
Two passions have laid claim to the giving birth to the declarations of rights---to the substitution, of the declaration of particular rights to the preparation of real laws----vanity and tyranny: vanity, which believes it can lull the world asleep, by being the first to do what all the world has always had before its eyes---tyranny, glad of finding a pretext for punishing all opposition by directing against it the force of public hatred. Rights, there yon have them always before your eyes: to deny their existence, is either to exhibit the most notorious bad faith or the most stupid blindness; the first a vice which renders yon deserving of the indignation of all men---the other a weakness which consigns you to their contempt.
It is because without rights there can be no happiness, that it is at any rate determined to have rights: but rights cannot be created without creating obligations: it is that we may have rights, that we submit to obligations; and in respect to obligations, not to those alone which are strictly necessary for the establishment of the rights of which we feel the want, but also obligations such as those which may result from all the acts of authority exercised by government, which the general habit of obedience allows it to exercise.
The end of all these acts of authority should be to produce the greatest possible happiness to the community in question.
This is the true, and the only true end of the laws. Still, of the operations by which it is possible to conduct men towards this end, the effect---the constant, necessary, and most extensive effect, is to produce evil as well as good; to produce evil, that good may be produced, since upon no other conditions can it be produced.
The mystic tree of good and evil, already so interesting, is not the only one of its kind: life, society, the law, resemble it, and yield fruits equally mixed. Upon the same bough are two sorts of fruits, of which the flavour is opposite---the one sweet and the other bitter.
The sweet fruits are benefits of all kinds---the bitter and thorny fruits are burthens. The benefits are rights, which under certain circumstances are called powers---the burthens are obligations---duties.
These products, so opposed in their nature, are simultaneous in their production, and inseparable in their existence. The law cannot confer a benefit, without at the same time imposing a burthen somewhere;---it cannot create a right, without at the same time creating an obligation---and if that right be of any value, even a numerous train of obligations.
But if among these moral as well as among physical products, the sweet cannot exist without the hitter,---the bitter can exist---it exists too often---without the sweet. Such is the case with those obligations which may be called pure or barren, which are not accompanied by rights, those benefits, those advantages, which sweeten and conceal the bitterness:---obligations which are fulfilled by useless efforts or sufferings, the fruit of every law produced by tyranny, neglecting or despising the counsels of utility, and yield to the suggestions of caprice---unless the gratification of this caprice can be considered as a benefit.
Benefits being in themselves good, the well-instructed legislator (I mean, directed by utility) would create and confer them freely with pleasure. If it depended upon himself, he would produce no other fruits: if he could produce them in infinite quantity---he would accumulate them in the bosom of society, but as the inexorable law of nature is opposed to this course, and he cannot confer benefits without imposing burthens, all that he can do is to take care that the advantage of the benefit exceed the disadvantage of the burthen, and that this advantage be as great, and the disadvantage as small, as possible.
When, in order that a burthen may produce its effect---that the advantage expected from it may be produced, it is necessary that its weight be felt, it is called punishment.
It is thus that the non-penal branch of the law and the penal are both of them occupied in the establishing and securing every man in possession of his rights of all sorts. These rights are so many instruments of felicity---they are the instruments of whatsoever felicity a man can derive from government.
A man's political rights are either his private rights, or his constitutional rights. Under every form of government, every man has his private rights;---but there are forms of government, in which no man but one, or some other comparatively small number, have any constitutional rights.
Of private rights these five sorts have been distinguished:---
All these rights have for their efficient cause certain services, which by a general and standing disposition on the part of the functionaries of government in the supreme grade are understood to have been rendered o every man, and which, in consequence, on each particular occasion the functionaries of judicature, and upon occasion the functionaries belonging to the army, hold themselves in readiness to render to him. These services consist in the giving execution and effect to such ordinances of the government as have been made in favour and for the benefit of every individual situated in the individual situation in which in all respects he is situated.
In virtue and by means of that same standing and all-comprehensive
Rights are, then, the fruits of the law, and of the law alone. There are no rights without law---no rights contrary to the law---no rights anterior to the law. Before the existence of laws there may be reasons for wishing that there were laws---and doubtless such reasons cannot be wanting, and those of the strongest kind;---but a reason for wishing that we possessed a right, does not constitute a right. To confound the existence of a reason for wishing that we possessed a right, with the existence of the right itself, is to confound the existence of a want with the means of relieving it. It is the same as if one should say, everybody is subject to hunger, therefore everybody has something to eat.
There are no other than legal rights,---no natural rights---no rights of man, anterior or superior to those created by the laws. The assertion of such rights, absurd in logic, is pernicious in morals. A right without a law is an effect without a cause. We may feign a law, in order to speak of this fiction---in order to feign a right as having been created; but fiction is not truth.
We may feign laws of nature---rights of nature, in order to show the nullity of real laws, as contrary to these imaginary rights; and it is with this view that recourse is had to this fiction:---but the effect of these nullities can only be null.
3. Possession.---``Better,'' says a maxim of the old Roman, called civil law---``better (meaning in comparison with that of any other person,) is the condition of the possessor''---better his condition, that is to say, better the ground and reason which a person in his situation is able to make for the enjoyment of the thing, than any that can be made by any one else.
Of the propriety and reasonableness of the notion, scarcely by any one who hears of it how far soever from being learned, can a sort of feeling fail of being entertained---by no one, even of the most learned, has expression it is believed, been ever given to it. This omission the greatest-happiness principle, and that alone, can supply. In the case of loss of the possession, he who has the possession would feel a pain of privation---or say, regret, more acute---than a man of the same turn of mind, whose expectation of obtaining it was no stronger than the possessor's expectation of keeping it, would, in the event of his failing to obtain possession of it.
Of so many hundred millions of persons, each of whom, in case of his having had possession of the thing and then lost it, would upon the losing of it have felt pain in a certain shape proportioned to the value of the thing, not one feels pain in any shape at the thoughts of not having it: not one of then but might, in the shape in question, feel pain in any quantity more or less considerable, if after having the thing in possession, he were without receiving or expecting any equivalent for it, to cease to have it.
The horse you have bred, and still keep in your stable, is yours. How is it constituted such---constituted by law? Answer: The naked right---the right of making use of it the law has left you in possession of,---to wit, by the negative act of forbearing to inhibit you from using it: the established right the law has conferred upon you by the order given to the judge to punish every person who shall disturb or have disturbed you in the use of it.
The horse which was yours, but by the gift you have made of it is become the horse of a friend of yours,---how has it been constituted such---constituted by law? Answer: By a blank left as it were in the command to the judge,---that blank being left to be filled up by you in favour of this friend of yours or any other person to whom it may happen to be your wish to transfer the horse, either gratuitously or for a price.
So long as the law in question has this blank in it, it is an incompleted, an imperfect law---it waits on act an your part to render it a perfect one. The law in its completed state is the result of two functions, into which the legislative function in this case is divided---the initiative to it, and the consumative. By the legislator, the initiative is exercised---by you, the consumative.
In the same way in which, according to this example, rights and powers are given to individual persons, they may be and are given to classes of persons. On classes of persons, the correspondent obligations not only may, but must be imposed: in short, exceptions excepted, they must be imposed on all persons of all classes;---for supposing but a single person excepted from the obligation, your right is not entire,---it is shared by you with the person so excepted. If, for example, in transferring the horse to your friend, you kept yourself from being included in the obligation to abstain from the use of the horse---if, in a word, you kept yourself excepted from the obligation imposed on other persons in general, the horse is not your friend's alone any more than yours; but, in the language of English law, you and he are joint tenants of the horse.
4. Power.---In common speech, the word power is used in two senses;---to wit, the above sense, which may be called the proper and legal sense---and another sense more ample, which may be styled the popular sense.
In the strictly legal sense, which is used in the penal and civil branches of law---in the popular sense, which is used in the constitutional branch.
In both cases, the fruit of the exercise of the power is looked to, and that fruit is compliance: on the part of the person subject to power, compliance with the wishes expressed, or presumed to be entertained, by the person by whom the power is possessed. For convenience of discourse, say in one word the power-holder.
The force of the remunerative sanction, it has above been observed, is not sufficient to constitute an obligation; it is, however, in a certain sense, sufficient, as everybody knows to constitute power: the effect of power is produced, in so far as, by the will declared or presumed of him who in this sense is the power-holder, compliance is produced.
Power may be defined to be the faculty of giving determination either to the state of the passive faculties, or to that of the active faculties, of the subject in relation to and over which it is exercised;---say the correlative subject.
Power is either coercive or allocative.
Coercive power is either restrictive or compulsive.
Of the correlative subject, the passive faculties are either insensitive or sensitive.
If merely insensitive, it belongs to the class of inanimate beings, and is referred to the still more general denomination of things.
If sensitive, to the class of animals.
If the animals of the class in question are considered as belonging to the class of reasonable beings, the correlative subject is a person---including human beings of both sexes and all ages.
If considered as irrational, it has hitherto by lawyers been confounded with inanimate beings, and comprehended under the denomination of things.
In so far as the power is exercised with effect, the possessor of the power---say the power-holder---may, relation had to the correlative subject, be termed the director---the correlative subject the directee.
5. Command.---An instrument which as above has been mentioned as necessary to the generation of the fictitious entities, called a right and a power, is, as has been seen, a command. But a command is a discourse, expressive of the wish of a certain person, who, supposing his power independent of that of any other person, and to a certain extent sufficiently ample in respect of the subject matters---to wit, persons, things moveable and immoveable, and acts of persons, and times---is a legislator;---say a legislator in the singular: for simplicity sake, the case of a division of the legislative power among divers persons or classes of persons, may on this occasion be put aside.
6. Quasi Commands.---Now then comes a doubt, and with it a question:---in the state of things you have hitherto been supposing, the law in question is of that sort called statute law: and in the case of statute law the print of a command is sufficiently visible. But obligations are created---rights established, not only by statute law, but by another species of law called common law: Where in this case is the command?---where is the person by whom it has been issued?---where, in a word is the legislator? The judge is not a legislator. Far from claiming so to be, he would not so much as admit himself to be so: he puts aside if not the function, at any rate the name.
Hitherto we have been in the region of realities: we are now of necessity transported into the region of fictions. In the domain of common law, everything is fiction but the power exercised by the judge.
On each occasion the judge does, it is true, issue a command:---this command is his decree; but this decree he on every occasion confesses he would not on any occasion have the power of issuing with effect, were it not for a command, general in its extent, and in such sort general as to include and give authority to this individual decree of his.
To be what it is, a command, general or individual, must be the command of some person. Who in this case is this person? Answer: Not any legislator; for if it were the law would be a statute law. A person being necessary, and no real one to be found, hence comes the necessity of a fictitious one. The fictitious one, this fictitious person is called the common law---or more generally that he may be confounded with the real person in whose image he is made, the law.
To warrant the individual decree which he is about to pronounce, the judge comes out with some general proposition, saying, in words or in effect, thus saith The Law. On the occasion of the issuing of this sham law the pretext always is, that it is but a copy of a proposition, equally general, delivered on some former occasion by some other judge or train of successive judges.
In this proposition there may be or may not be a grain of truth, but whether there be or be not the individual decree has in both cases alike the effect of a law---of a real law---issued by a legislator avowing himself such, and acknowledged as such.
A command being the generic name of the really existing instrument of power called a law, let a quasi command be the name of that counterfeit instrument feigned to answer the purpose of it, to produce the effects of it, for the purpose of enabling the judge to produce in the way of exacting compliance, the effect of a law.
Of this appellation the use and need will be seen in the procedure code on the occasion of the formula called the demand paper provided for the purpose of giving commencement to a suit in that same code.
Supposing the connexion between a command in the mandatory form, and a proposition in the assertive form, made out and explained: whatsoever proposition would, if emanating from the legislator, have constituted an apposite ground for the demand---to wit, the demand made in the demand paper elsewhere spoken of---a proposition to that same effect might equally well serve, if stated as being a proposition conformable to the doctrine of the common law. In the one case the proposition would be a reality, in the other case a fiction: in the one case, what were the proper words of it could not be a subject-matter of dispute in in the other case it might, and would frequently be the subject-matter of dispute: still however, in the character of a ground of inference, it would in both cases be equally intelligible.
Be this as it may---not to the plan here proposed would the imperfections of this part of the instrument of demand with propriety be ascribable. The root of the imperfection is in the very nature of the common law, To its supreme inaptitude, by the proposed instrument, such remedy as the nature of the ease admitted is applied, and the use thus made of the common law is the result---not of choice, but of unresistible necessity. How sadly inadequate a portion of this fictitious law is, in the character of a succedaneum, to a correspondent and equivalent portion of real law, would on each occasion be visible to every eye; and as often as it came under the eye, so often would the urgency of the demand for the substitution of real to sham law be forced upon the attention. What would be in the power of the legislature to do at any time, and in the compass of a day is to substitute this plain speaking form of demand to the existing absurd and deceptious one: what it is not in his power to do in the compass of a day, nor perhaps till at the end of some years, is the complete substitution of real to sham and impostor's law---substitute, and audacious rival of the only genuine law.