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

any one Rule of Derivation of Rights into this absolute Supremacy over all others.

484. Thus the maxim, that Rights cannot be founded in Injustice, is not to be applied in such a way as to make every past Injustice overturn present possession. Injustice is an arbitrary act, done in disregard of Rule and Reason. Justice abhors all that is arbitrary; for it requires all things to be done according to Reason, and therefore, according to Rule. But then, the Law of Inheritance is an arbitrary thing, as well as the Act of Fraud. The Law of Inheritance is quite different in different countries; and might, in this country, have been different from what it is, if the Law had so ordered it. Justice accepts, in general, the Law of Inheritance, as her Rule; yet not absolutely, as Supreme, but relatively, as a means to her end. Justice annuls, in general, the Effect of acts of Fraud; but still, not without limit in the contemplation of Effects; but only, so far as the condemnation of such effects is a means to her end. Justice cannot disregard the existing state of possessions, and turn her attention only to their origin. She cannot found her sentence on one particular past event, and take no account of the more recent events and the present conditions. On the contrary, it is the present with which she has especially to do. She has to pronounce upon existing Rights, as to whether they are valid or not; and she must look at them, as they exist. And hence, as a balance to our former maxim, we must lay down this: Justice assigns Rights according to existing conditions.

485. Thus Justice rejects that which is arbitrary, alike in the past and in the present. She condemns the ancient fraud, from which the present possession is derived: she limits the Rule of inheritance, on which the opposing present claim is founded. She pronounces that no Right can be founded in Injustice: but she pronounces the Right

of the present holders to be founded, not on the ancient Injustice, but on the recent transactions; which are free from the stain of Injustice, and by which the ancient stain may be diluted or obliterated. A thing unjustly acquired, may, by long undisturbed possession, and bonâ fide tenure, become a just property: and accordingly, so the Laws of States decide (151).

486. The opposition of the two maxims respecting Justice, which have just been stated, is a result of the universal opposition of Ideas and Facts which exists in every subject of Thought (97). In the Idea, Justice cannot admit of anything arbitrary; for what is arbitrary is unjust. In the Fact, every transaction must have in it something arbitrary, for it must depend upon external circumstances, which are not governed by our Ideas. In Idea, Justice would assign Property without regard to previous possession; but in Fact, by rejecting the regard to previous possession it ceases to be Property.

The same opposition may be remarked, in other parts of Natural Law. In Idea, for instance, Justice requires that all classes of men should have equal Rights: but in Fact, men form themselves into Classes, and by that very act make their Rights unequal. In Idea, men should make and perform their Contracts according to perfect Equality; but in Fact, the Terms of the Contract must be regarded by Justice, because Equality is too obscure and indefinite a foundation for a just decision. And the like may be said in other cases.

487. The Steps by which the Conception of Justice has been unfolded and defined among men, have involved a recognition of both the maxims which have been stated. The Laws of all Countries annul Rights acquired in violent and illegal ways; and the Laws of all Countries allow undisturbed Possession, in the sincere belief of Right, to give,

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at least in some cases, and after some lapse of time, a complete Right. To all men, when the origin of existing Rights is shewn to be some violent and unjust act, the Rights appear to be unjust. But when it is shown, on the other hand, that the traces of this arbitrary origin are only such as inevitably exist in all Rights, the Rights again seem just. When we consider how greatly the existing tenure of Land, in this country, depends upon the violent confiscations which took place in the Norman Conquest, the Rights of many of our landlords may appear to be unjust. But when we recollect that the Saxons, whom the Normans conquered, had themselves obtained possession of the land by a similar conquest; and that the transactions respecting property in England have, for nearly eight hundred years, assumed the validity of the Rights acquired by the Norman Conquest; we see that it would be unjust to fix our attention on that particular event, as especially vitiating Rights.

488. The remoteness of an act of violence in point of time; the complexity of the events which have succeeded it; the degree in which it has faded into oblivion; the habit of disregarding it established in the community;—all these, are circumstances which make it just to disregard the bearing of the event upon existing Rights. Every circumstance, by which the effect of a past event upon men's thoughts and actions is enfeebled, makes it less of a reality in the present condition of things; and therefore, less an element for consideration in the assignment of Rights according to justice.

489. What has now been said, agrees with what was said formerly (218) in speaking of the Idea of Justice; namely, that though, in general, Justice is determined by Law, the Law must be framed in accordance with Justice. Justice is directly and positively determined by Law; for a man's just Rights are those which the Law gives him.