tive in consistency. As the Rules of Equity thus become fixed, Equity ceases to be able to correct all the defects of Law; and becomes itself, as Law was at first, an imperfect expression of Justice; and thus we have, in the notion of Equity, a recognition of two Maxims to a certain extent opposite to each other; that Fixed Rules are requisite for the expression of Justice; and that No Fixed Rules can so completely express Justice, but that the conception of Justice will, in some particular cases, seem to require exceptions to the Rules. 503. The administration of Equity has led to the currency of many Maxims, which may be considered Maxims of Moral, as well as Jurisprudential Equity; since their acceptance in the Courts of Law has been due to their presumed agreement with Justice. We may notice some of these Maxims; not as being always universally true, or free from doubt and difficulty in their application; but as bringing forwards some of the points on which Equity must principally depend; and as showing, by examples, the kind of Equality in which it consists. Among such maxims are the following. 66 504. Equitas sequitur legem; Equity follows the Law." And this may be understood in two senses; either that Equity is based upon the Relations which the Law establishes; or that Equity follows the Analogy of the Law. We have already said, that Justice assumes the Definitions of Rights which Law gives. Hence Equity supposes that to be a man's Property, that to be a Marriage, that to be a Contract, which the Law makes such. Yet if there be merely some formal defect in a Contract, moral Equity will still hold it valid. Again, Equity follows the Analogy of Law; thus in England, where the Law gives the whole landed property to the eldest son, that would not be an equitable decision which should divide the property amongst the children equally. 505. In equali jure melior est conditio possidentis; "Where Rights are equal, Possession is a ground of preference." As if two persons have been equally innocent and equally diligent, the one in trying to recover a property lost by fraud; the other in transacting a bona fide purchase of the property; he who is in possession is preferred. But there are other maxims, which throw the task of judging of deficiencies in the property on one side especially: for instance, in matters which are apparent on due examination, the Rule is Caveat emptor, Let the buyer take care of himself (172). 506. Qui sentit onus, sentire debet et commodum; qui sentit commodum, sentire debet et onus; "He who bears the burthen ought to receive the profit; he who reaps the profit ought to bear the burthen." Thus, if a man, dying, leaves his wife pregnant, so that it is uncertain who will be heir to his lands; if the next presumptive heir, in the mean time, sow the land, it is equitable that the harvest also shall be his. And on the other hand, they who enjoy the benefit of any improvement of land arising from public works; as, for instance, from a general drainage; ought to contribute to the expense of the works. 507. There are other maxims which refer to the general responsibility of actions, as for instance, Necessitas non habet legem; "Necessity has no law;" which we have referred to in speaking of cases of necessity (418). And again: Qui facit per alium facit per se; "What a man does through the agency of others is his act." Others refer to the mode of interpreting Laws or Contracts, and administering Justice: as, Expressio unius est exclusio alterius; "The mention of one person is the exclusion of another." Nemo debet esse judex in propriâ causâ; "A man is not to be judge in his own cause." All these maxims may be looked upon as indications and fragments of a supposed Natural Law; which can never be expressed except by indications and fragments; since, as we have said, no Rules can express Equity, so as not to require exceptions. 508. Other Indications of the assumed existence of a Natural Law, the necessary result of Justice and Equity, may be traced in expressions, which are often used in moral and political discussions. Thus, we hear of the Natural Rights of man; and as examples of these, of the Right to Subsistence, the Right to Freedom, and the like. In speaking of these Rights as Natural, it is not meant that they are universally recognized by the Laws of States. In truth, Rights of the citizens to Subsistence and to Freedom, are so far limited and modified by the Laws of most States, that they can hardly be said to exist as general Rights. By speaking of such Rights, and describing them as the dictates of Natural Justice, as is often done, it is meant that the Laws ought to recognize and establish them. But something more than this seems to be meant, by speaking of the Natural Right to Subsistence, and the like; for to say that such a Right is what the Law ought to establish, is merely to class the recognition of this Right with all the other prudential improvements, of which the Laws of any State are susceptible. The Laws ought to aim at securing the Purity and Rationality, as well as the Subsistence, of the people. By speaking of the Claim of men to Subsistence as a Right, it appears to be meant that it is not only conformable to the Duty of States, in the general sense in which it is their Duty to make their laws constantly better; but that it is conformable to Justice in some more special sense, in which Justice is expressed by definite and universal Principles. 509. Yet the Principles of Justice which have been propounded as the basis of the Natural Rights of Men, are such as it is difficult to establish, in a definite and universal form. It has, for instance, been said, that All men are born equal. But it is evident that this is not true as a fact. For not only are children, for a long time after birth, necessarily in the power of parents and others; but the external conditions of the society in which a man is born, as the laws of property and the like, determine his relation to other men, during life. If it be said that these are extraneous and accidental circumstances, not born with the man; we answer, that if we reject from our consideration, as extraneous and accidental, all such conditions, there remains nothing which we can call intrinsic and necessary, but the material conditions of man's existence; and if we were to adopt this view, the principle might more properly be stated, All men are equally born. The relations of Family, Property, and the like, are as essential to man's moral being, as Language, without which his mind cannot be unfolded to the apprehension of Rules, and the distinction of right and wrong. If therefore our assumed equality rejects the former circumstances, it must reject the latter. 510 But though in Fact men are not born equal, they are all born with a capacity for being moral agents: and this Idea is the basis of all Morality. And we may lay it down as a universal Principle, from which we may hereafter reason, that All men are moral beings. This Principle may be perhaps considered as rather a Principle of Humanity, than a Principle of Justice. For this, and any other Principle from which we derive the claims of men to Subsistence, Freedom, &c., must involve a recognition of that Common Human Nature, by which all mankind are bound together. We shall therefore treat of such Rights in treating of the Conception of Humanity. 337 CHAPTER XXIII. HUMANITY. 511. Ir has already been stated, that a universal Benevolence towards all men, as partakers of the same Common Human Nature with ourselves, is a part of the Supreme Law of human being. But the lapse of time, the growth of institutions, and the development of man's moral nature, are requisite to bring this affection into its due prominence. The affections of men, in a rude condition, are confined within narrower limits; and have, for their main or sole objects, the persons who are bound to them by especial ties. The family affections which connect parent and child, husband and wife, brothers and sisters, have their force in every form of human society. The sympathies which bind together a kindred in a wider sense, the feelings of clanship, are powerful, in communities in which a more comprehensive kind of benevolence is unfelt. In rude and half-savage tribes, in which clansmen assist each other with unbounded zeal, the stranger is looked upon as naturally an object of enmity. The historians of Greece and Rome notice indications of this having been the early condition of man's feelings in those countries. But the progress of the culture of those nations led to a more moral state of the affections. The Greeks had a name for the Love of man as man. This affection they termed piλavepwría, and reckoned it a virtue. Aristotle expresses this by saying that all men have a feeling of kindred and good-will to all. And the Stoics called this tie of general good-will by a name borrowed from the word which Aristotle here uses (oikéiwσis), as kindness is connected with the word kin. The Romans in * Anth. Eth. Nich. VIII. 1. ὡς οἰκεῖον ἅπας ἄνθρωπος ἀνθρώπῳ καὶ φίλον. VOL. 1. Ꮓ |