...It is true also that moralists, not having attached any great importance to the guidance of the Civil Law, have not much troubled themselves to interpret the lessons which jurisprudence might have taught them in the arrangement of their subject; while the jurists themselves have studied their system as applicable to law, not to morality: so that neither jurists nor moralists have sufficiently made it their business to define, and improve, and trace to their philosophical foundations, the systematic arrangments of the Law considered as a portion of Morals. Still I think we shall find that in later times nearly the same arrangements have been suggested to moral philosophers by an entirely different line of speculation; and thus by the convergence of different testimonies, we have that kind of evidence which in the history of knowledge rarely or never fails us,t hat there is a real value and significance in the general lines of the system which thus demand our notice.
The leading distinction of which I speak is this:--Rights are either those which belong to the condition of the
Persons, or which have reference to
Things, or which arise out of
Acts by which one man has a claim upon another: "Omne jus quoutimur, vel ad Personas attinet, vel ad Res, vel ad Actiones:" the
actio being here the legal process for enforing claims which men possess. We may call the first kind of Rights, Rights of Persons, but we must not, as Blackstone has done, oppose to these the Rights of Things: for Things can have no rights. The Rights which pertain to things are rights of persons, no less than the rights of persons which arise out of their relation to other persons. The Rights which pertain to things may all be included uner the general term, Rights of Property. The third kind of Rights, which the Law terms Actions and Obligations, arise mainly from
Contract; althought ehre are some forms of those not rigorously included in this term. And thus the division of which we speak becomes the division into Rights of Persons, of Property, and of Contract.
...The rights arising from the condition of persons are either those which have their origin in the ties of
Family, or those which depend upon the Public Condition of the persons, their relation to the
State. It will be seen, by a moment's attention, that the former head is one of great extent, and one which brings together a large class of closely connected questions of morals and rights. For it not only includes the relations of Husband and Wife, but of Parents and Children, of Brothers and Sisters, of Guardian and Ward; nor can we refer to any other head the questions of Inheritance and Testament....
We thus have before us a fourfold division of Rights, into those of
Property, of
Contract, of
Family, and of
Public Condition; and that this division of rights is fundamentally philosophical and sound, is proved by the manner in which, by the doctors of the Law, the rules founded upon this division have been traced to their consequences and built up into a vast and coherent system of scientific reasoning. This list of Rights implies a corresponding list of Duties, and thus may be made the basis of a moral system, at least as far as such duties go. And thus it will appear that an attention to the Roman Law, so far as I have no brought it before your notice, is highly instructive to us as a part of the subject of Morality.
It will perhaps be said that the
duties correlative with such rights as have here been spoken of,--a bare regard for the property of others, for our own contracts, for the ties of faimily,--does not amount to
morality at all. A course of conduct limited merely by the condition that it does not transgress the law in outward acts, is fitly named
legality, and is not worthy to form a leading part of such a system of ethics as that to which we ought to aspire. Now this is perfectly true. The performance of such duties as those of which the law takes cognizance, which are those we have been describing, is legality, and nothing more. But yet such duties as we have mentioned above necessarily form a part of every system of ethics. Morality must include legality, however much its range be wider, its principles deeper, its aims higher. If therefore these legal duties readily lend themselves to a philosophical arrangment, this arrangement may fitly, so far at least as theya re concerned, form a portion of our ethical system, and may perhaps put in our hands a thread which may guide us through the more labyrinthian portions of the subject. And this may the more confidently be expected, if we find that the arrangement thus employed for the pracitcal uses of law agrees with that to which we are led by examining into the springs of action by which human conduct is determined. If the ancient Roman lawyeres and the moder psychologists are led towards the same point, we cannot help supposing that htey are tending to some doctrine which affords a natural resting-place for the human mind.