صور الصفحة
PDF
النشر الإلكتروني

but not against a third party, who, proceeding to occupy the fub- PART II. ject relinquished, had not come under any obligation to deliver it to him.

Upon this ground it is obferved, that the mere law of nature will not fupport a legatee, in claiming the poffeffion of an inheritance from any third party, who may have occupied it on the death of the teftator. His action could lie only against the perfon, whose confent he could plead; but that person is no more, and, upon his demife, the fubject in question became open to the first occupier, who may not have confented to put the supposed legatee in poffeffion.

But fuch questions, in the ordinary course of things, are for the most part precluded. Even among rude nations, where property is least established, the family of a person deceased are naturally the first occupiers of his effects; and inheritance gets a footing, not upon any principle of right excluding the first occupier, but upon a principle of fact, that the family of the deceased are, for the most part, actually in poffeffion.

Among nations more advanced in the progress of property and of arts, the will of a perfon deceased is admitted as a fufficient ground of conveyance to the legatee. This favour is due to the industry, with which property is acquired; and it has a falutary tendency, among commercial nations, to reward and encourage that industry. Upon this footing, the effect of a laft will is derived from convention, fuch as the living have admitted; not from the destination of a person who is no more, and against whom no action at law can be raised.

A claim of right, founded in compact, is valid only against the

CHAP. III,
SECT. XII.

party

SECT. XII.

PART II. party contracting; and the right pertains only to the party acceptCHAP. III. ing. Such only as have at once a right, in the subject of compact, and power to dispose of it, are competent to an effectual act of conveyance.

As every perfon may perform what fervices he thinks proper, and has power to dispose of his fervices by previous consent ; perfonal fervice is the principal and immediate object of conventional obligation.

The right to command we have obferved, cannot arife from occupancy or from labour bestowed. It may arife by confent fo far as one perfon may, by compact, bind himself to obey the commands of another. Thus the artizan has right to the fervice of his apprentice upon the ground of his indenture. The master has a right to the labour of a fervant he has hired, and perfons stipulating the performance of any task or the fupply of dity, have a right to all the effects of their contract.

any commo

In the fame manner, we are told that the right of government is founded in the confent of the people; and this though true in many respects is not true in all. It is true in respect to all the pofitive fervices and contributions due from the fubject. If in these the rights of government are questioned they must be evinced on the principle of convention exprefs or tacit: For on that principle alone the right of command can be established. The confent of those by whom government was firft acknowledged is frequently expreffed in formal capitulations, charters or statutes ; and the confent of those over whom it continues to be exercifed, though tacit, is no less real from age, to age in the continued acceptance of protection in return for allegiance and political duties. But a

right to protect the innocent or to reftrain crimes, which the magiftrate by his power, alone, is in condition to exercife, he is likewife entitled to hold on the principle of the law of defence alone, and need not recur to any fuppofed confent of the people to abftain from crimes.

Amidst the relations in which mankind are placed, by agreement either exprefs or tacit, it may be asked, whether upon the principles of the law of nature the relation of master and slave, can be justly admitted?

This relation is understood to be the fame with that of proprietor to the subject of his property, * and feems to have originated in violence or force, and not in confent. Barbarous nations make war to enflave their captives, and dispose of them at market, like cattle or other fubjects of property.

Violent institutions, we have obferved, if they be fuch as men in the fequel are reconciled to, and willingly adopt, may become matter of fair convention and be established in cuftom. How far the institution of flavery may come under this defcription is the question which we are now confidering.

It cannot be doubted, that perfons may be found under the denomination of flaves, as much in appearance reconciled to their ftate, as men are ever obferved to be in any other condition of VOL. II. Hh life:

*In the language of the Roman law a flave was faid to be a thing and not a per

PART II.

CHAP. IH. SECT. XII.

[blocks in formation]

PART II.
CHAP. III.
SECT XII.

life: Shall we therefore suppose them to have given their con- · fent to fervitude in the full extent of that term?

To this question, we may anfwer in the negative, for manifold reafons.

First, If the nominal flave may in fact be reconciled to the fpecific command or treatment he has experienced ; and, if he be fuppofed by tacit confent to have agreed to fubmit to fuch treatment, the mafter must be fuppofed alfo to have agreed not to change that treatment for any other. The flave has not yet experienced, nor has the master yet atteinpted, all the uses that may be made of a property; and what has not at all been practised, cannot be justified upon the foundation of custom. What has never been tried, cannot be matter of ufage. So much for the condition of flaves, who are in appearance reconciled to their lot.

he

In other inftances, it is well known, that flaves, tho' under good ufage patient and tractable, are yet by extreme feverities driven into a fense of injury and refentment, which is inconsistent with the fuppofition of affent to the pretended condition of unlimited fubjection. The injured feels himself to be a perfon, and not a thing ; and, tho' may feem to confent in terms to put his fervices, his perfon, and his life, at the discretion of another, yet he cannot abide the effects of capricious cruelty, without a pungent sense of his wrongs, and a just effort of nature to defend himself. Such fentiments are in reality what characterise a perfon, and place him in contradiftinction to a thing or fubject of property.

The

fuch were fuppofed to

PART II.

CHAP. III.

The contract of mafter and slave, if any exist, is fuch, on the part of the flave, as is not confiftent with SECT. XII. free will or the exercise of reason. It is the refignation of every thing, in exchange for nothing.

If any one should formally ftipulate to forego his right of defence, and debafe his mind to the fufferance of every act of injuftice, this were to betray the want of reason, or at least to betray ignorance of the sense in which terms were employed to enfnare him. If fuch a compact therefore, were pleaded as the ground of an obligation to unlimited fervitude, it should undoubtedly be fet afide under the exception of fraud on the part of the fuppofed mafter, or of infanity on the part of the fuppofed flave.

But what is still more than this, a flave, according to the definition adopted, where the inftitution of flavery took place, and agreeably to the practice of purchafe and fale, established in the market for flaves, is confidered as a thing, and not a perfon. The fuppofition is impoffible, and cannot be realized by the confent of any party, even relating to himself. He may confent to do what another commands, within the limits of poffibility; but must continue to be a perfon, having original if not acquired rights, and inspired by nature with a difpofition to revolt, whenever he is galled with the sense of infufferable injury or wrong.

The claim of a mafter or proprietor is founded, perhaps, with more plaufible appearances, on the supposed forfeiture of personal rights, when the reparation of a wrong may support the exaction of fervitude: A title which yet remains to be confidered, and is the fubject of the fection that follows.

[blocks in formation]
« السابقةمتابعة »