upon natural principles, we find no intimation of the right of primogeniture, no preference in succession, but what tends to an equal enjoyment of the goods of fortune. We may repeat that the equal laws of nature, if rightly understood and practised in government, tend to prevent every dangerous The more we examine these laws, the more will appear their coincidence with the best feelings of the human heart, and the genuine principles of equal law and government. excess. CHAPTER IV. Of the extension of the right of property and its abuse. It should seem at first view, that the right of property could attach on no subject, which is not an object of sense; no subject of a mere incorporeal nature, and that man, the only being in whom nature has vested a right of property, could not himself become the subject of that right; and yet the right has prevailed in both kinds.-There are many instances of the right of property recognized in the laws of civilized countries, in which the subjects of that right exist only in the contemplation of the mind. They are not objects of sense; and such right is called an incorporeal right. The right may be temporary or perpetual. If perpetual, it is called an incorporeal hereditament; which has been defined by Judge Blackstone, to be " a right issuing out of a thing corporeal, whether real or personal, or concerning, or annexed to, or exercisable within the same. It is not the thing corporate itself, which may consist in lands, houses, jewels or the like; but something collateral thereto, and issuing out of those lands or houses, or an office relating to those jewels ;"*—and farther on he says An annuity, for instance, is an incorporeal hereditament; for though the money, that is, the fruit of that annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand." However abstract the notion, yet I think the conception of it very easy; and although it cannot be supposed to exist in the very early stages of society, or until the right of property has become general and permanent, yet when it comes into existence, so far as it is connected with, or issues out of a thing corporeal, a natural subject of property, it will readily be perceived to be comprehended in the natural right of property. But no grant of an annuity merely personal and not issuing out of something corporeal, comes within the natural right, of which it partakes no more than the right acquired by one man to a sum of money, which another has by contract promised to pay him. There is the same distinction, as to the nature of the right, where it issues not out of the thing corporeal, but is annexed to some office or trust concerning it. The right is to a reward for care and pains, whether it be in the shape of a pension, or salary, or of perquisites, as fees for services to be performed in the exercise of the office. The reward issues not out of a thing corporate-for the jewel, mentioned as an instance, yields nothing, nothing issues out of it. The reward, or wages if in the shape of a salary, is paid by the owner or employer; it is a personal concern between the employer and the person employed, and that, whether the employment be of a public or a private nature. If the reward of an office be in the shape of perquisites as fees, it is then paid by those for whom the official services are performed. There is no differencein the nature of the thing from the right of a laborer in agriculture, or an artificer hired for certain wages, or as it sometimes happens, for a certain share of the profits, by the day, month, or year. If the office be for life, it has an analogy to a freehold, a life estate. If it be granted to one and his *2 Comm. 20. heirs, it has, in that respect, an analogy to an estate of inheritance; but as in this case the right does not inhere in, or issue out of, anything corporeal, any natural subject of property, the analogy is imperfect. It is true, these offices and employments produce something that is property, the wages paid or recieved. Such is the case with all offices and employments, whether of a public or a private nature. Under the inducements of these analogies, the laws have generally classed these rights with the rights of property, and have provided remedies, accordingly, in cases of ouster and violation. These analogies have been extended much farther. Monarchs and independent princes are held to have a sacred right of property in their authority, and that inheritable; not only so, but to inherit the states and kingdoms over which they preside, and the allegiance and services of their subjects, who are left to inherit the duty of submission. The same observations will apply to the members of a sovereign aristocracy. With respect to a hereditary nobility under a monarchy, forming a branch of the government, they inherit certain subordinate powers, which they exercise conjointly with the monarch, or in a mixed government, with the prince, and the popular branch, and their rights are supported by the same principles, and the same analogies. There are also, in most, if not all monarchies, enjoyed hereditary titles, of mere rank, connected with no authority, no power, no office, either of trust or profit. The analogy here consists merely in the hereditary quality of a factitious rank, which has been aptly compared to a mouthful of moon-shine ;-yet they are considered as having a property in this rank. All these rights of property in offices, in power, ranks, titles, and dignities, will with one consent, be pronounced, by all those who have been born and educated under a free and well regulated popular government, to be flagrant abuses; while the subjects of a mild, or a mixed monarchy, although they may acknowledge them to be factitious, yet from the force of education and habit, will consider them inventions of wisdom almost super-human, for the peace and happiness of mankind. Still they will admit the abuse under a despotic government; but will attribute the abuse, not so much to the nature of the institution as to the character of the reigning prince, or the absence of certain preventives of the evil, certain checks and balances, consisting of the like institutions. We cannot here omit an enquiry concerning the other species of property mentioned at the beginning of this chapter; which claims a right of prescription beyond all authentic history, beyond the most remote tradition; the right of property, which one human being claims in another being of the same species; the right which the master claims in his slave. is also deemed an hereditary right, but of a corporeal nature. The master has an inheritance in his slave extending through him to his children, and children's children, to the remotest generation. This The practice of slavery is indeed, very ancient, has prevailed generally if not universally, and has been confirmed by the civil institutions of most countries. The antiquity and general reception of the custom of holding slaves, has been, and still is urged as a proof, that it is just, and founded in the laws of nature. It is acknowledged, that the antiquity and generality of a custom is a strong, but by no means, a conclusive proof that it is so founded. It has been observed that circumstances very general may happen, that will produce a general perversion of sentiments, and the consequence will be, the adoption of customs equally perverse. Such circumstances were found in the early ages of society, which introduced the ferocious custom that subjected to the mercy-mercy did I say?—to the brutal fury of the conqueror, the lives of the vanquished, from the soldier taken in arms, to the child in the womb of the mother, of which the practice of slavery is the legitimate offspring. But a more particular discussion of this subject will be deferred, until we come to treat of the laws of nature and the laws of nations. Notwithstanding the antiquity of the practice of slavery, and confirmed as it is, and has been, by the civil institutions of so many countries, we cannot hesitate to say, it is supported by no right, no principle, acknowledged by the laws of nature; that it is inconsistent with all natural right;-the right of personal liberty, of personal security, and of private property,-all are violated or rather annihilated in the person of the slave. Not only does it violate rights and principles allowed natural, but it fails in that safe and sure test of every law of nature, and of all civil institutions as founded in those laws, its tendency to promote the general interest and happiness of the society where it prevails, as well as of mankind in general. Its general tendency is, in every just view, directly the reverse,-so generally is this now understood, that to attempt the proof, would be as tedious as it is unnecessary. An Is it necessary then, to support the institution of slavery in any country, to discard the general tendency of a law or action as a moral test? or shall we say that those rights, which have so generally been considered as appertaining to every individual, whether in society or out of it, and which are still claimed even by slave holders themselves, in their own case as founded in the irreversible laws of nature are but a vain illusion, and adopt the opinion of a modern writer, "That all right is founded upon power, and all obligation upon self interest ?"* opinion that explodes the benevolent and divine precept,— "Thou shalt love thy neighbor as thy self," which has so generally, and it seems so weakly been considered as inculcating one of the first principles of morality and religion, and substitutes in its place, as a universal precept-" Thou shalt love thyself alone”—a precept, which the most ferocious tribe of savages would, in their intercourse among themselves, reject with contempt. What then shall we say of this species of private property? is it wholly condemned by morality? is there no moral obligation to respect it ?-certainly there is. In a country where slavery is introduced and permitted by law or general custom, the right of the master to his slave is as complete, while remaining within the limits of the law or custom, as to any, the most common subject of property, considering the right, as before explained, a title, an allowed claim, the jus suum of the civil law. The private right in a moral view, is distinct from the moral of the law or custom, and its tendency to *Cooper's Justinian.-Note 412. vide. Note at the end of this chapter. |