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CHAPTER VII: Of the Original of Dominion, and the Moral Virtues. - Richard Cumberland, A Treatise of the Laws of Nature 
A Treatise of the Laws of Nature, translated, with Introduction and Appendix, by John Maxwell (1727), edited and with a Foreword by Jon Parkin (Indianapolis: Liberty Fund, 2005).
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Of the Original of Dominion, and the Moral Virtues.
A Comparison between the Animal Oeconomy, and the Society of all Rational Agents, in order to illustrate the Origin of Dominion and Property. As the Animal Oeconomy is truly, tho’ not sufficiently, explain’d by saying, That the whole Fabrick of the Body is supported by the continual Circulation of the Blood; so the Society of all Rational Agents is truly said to be preserv’d by a Circulation of Good Offices for the benefit of the Publick; yet is not sufficiently explain’d, ’till it be shewn what Kind of Actions are necessarily to be assign’d to the chief Parts of that Society, and allotted to the peculiar Uses of these Parts respectively, in order to obtain that End; as to a distinct Explanation of the Nature of Animals it is requisite to shew, what proportion of the Blood should circulate thro’ the Brain, and upper Parts of the Body, what thro’ the lower, as the Liver and Hypochondria, and how the Nourishment should be distributed to the other, at least to the more noble, Parts of the Body.
It ought, however, to be observ’d, That, as the Vessels, which convey the Spirits and Nourishment to one Part, are not subservient to the particular Benefit of that Part alone, but also to the Well being of the Whole at the same time, since every Part of the Body is of some Use to the Whole: so those Things, which become the Property of the particular Parts of this Society, do not cease to be subservient to the Whole in the most advantageous Manner.
The Origin of Property and Dominion over Things and Persons, is deduc’d from the Law of Nature, commanding the making and preserving a Division of Rights.§II. The Original of Right over Things and Persons, (which I take leave to call by the Names of Property and Dominion,) seems deducible in the following manner from what I have already said. It has been prov’d, “That in the Common Happiness are contain’d, both the highest Honour of God, and the Perfections, both of the Minds and Bodies of Men”; moreover, it is well known from the Nature of Things, “That, in order to these Ends, are necessarily requir’d, both many Actions of Men, and Uses of Things, which cannot, at the same time, be subservient to other Uses”; from whence it follows, “That Men, who are obliged to promote the Common Good, are likewise necessarily oblig’d to consent, that the Use of Things and Labour of Persons, so far as they are necessary to particular Men to inable them to promote the Publick Good, should be so granted them, that they may not lawfully be taken from them, whilst the aforesaid Necessity continues; that is, that those Things should, at least during such time, become their Property, and be called their own.” But such Necessity continuing by reason of the Continuance of like Times and Circumstances, a perpetual Property, or Right to the Use of Things, and to the Assistance of Persons necessary, will follow to each Person during Life. Farther; if the same Thing (as Lands, or Trees) can promote the aforesaid End for several Days, or Years, the same Reason, which gave a Right to them the first Day, will give a like Right the following Day, and so on, whilst Things continue as they were. And, by such Steps as these, does Reason lead Men to consent to the settling a plenary Dominion over Things, and at length also over Persons, or such Labours of Persons as are necessary to the Common Happiness. For the Obligation (which I have already demonstrated) to prosecute the End, obliges likewise to the absolutely-necessary Means, namely, the Consent of every Individual to some Division of Things and Human Labour; because it is impossible, “That the same Thing, or the Labour of the same Man, can serve the contrary Wills of many Men.” For the Things which we make use of, and the Members of Men, by which their external Labour is perform’d to the Benefit of others, are Bodies, and therefore limited at any one Time to one Place, and therefore their Motion, by which they can be subservient to any one, is at any given time directed to one Point only; hence it is, “That the same Nourishment and necessary Cloathing, which preserves the Life of one Man, cannot at the same time perform the same Office for any other”; tho’ remotely indeed, or by the Intervention of the Assistance of that Person, it may be useful to many. It is, therefore, evident, “That the Nature of Things discovers, that it is necessary to the Happiness, Life, and Health, of every particular Person, upon which all other Advantages depend, that the Uses of Things should be limited, at least for a time, to particular Persons exclusive of others.” It is hence further evident, “That the same is likewise necessary to the Common Happiness of All, because the Whole is not distinguish’d from all its Parts taken together.” Lastly, it is manifest by a parity of Reason, “That this Limitation, made for a time, ought necessarily to be continued thro’ all succeeding Times, in order to obtain the same End, either in the same Things, or in others equivalent.” But in this continued Limitation of Things and Human Labour, which are necessary to the Life and Health and intire Happiness of Individuals, is contain’d the whole Essence, Force, and Efficacy, of Property and Dominion, tho’ it may be cloathed with some additional Circumstances by Civil Laws. Nature, therefore, evidently teaches, “That a Dominion over Things and Persons ought necessarily to be settled for the Common Good of All,” (if it be suppos’d, that it was not settled at the very Beginning;) or rather, “That it should be received and continued as already settled by the First Cause.”
§III. These Things are thus reduc’d into the Form of a Law of Nature.
Here reduc’d to the Form of a Law of Nature,The Nature of Things made by the First Cause, plainly discovers, That it is his Will, that all voluntary Actions of Rational Agents, which are necessary to the establishing and preserving a Property in Individuals to some Things, or Persons, should be absolutely necessary to the enjoyn’d Pursuit of the Common Good; and, therefore, that all Rational Agents are oblig’d by the same Law, (by which they are oblig’d to promote the Publick Good, as far as in them lies,) and the same Rewards and Punishments, to establish (or acknowledge) and preserve some kind of Property, or Dominion. Or thus briefly, There being given a natural Law to procure the Common Happiness of All, there is given a natural Law, to establish and preserve, to particular Persons, Properties in those Things, which are evidently necessary to the Happiness of Individuals, as well in Persons and their Actions necessary to mutual Assistance, as in other Things.1
consisting of two Parts, relating to the Rights of God and Men.In this Law are contain’d these two Parts: 1. Let there be given to God such Things as are his: 2. To Men likewise such Things as are theirs: Both are necessary to be done, that God’s Honour may be preserv’d to him, and that those Advantages may be preserv’d to Men, by which they may preserve and perfect themselves, and be useful to all others; both which are contain’d in the End propos’d, the Common Good.
What is intended by the Words Property, or Dominion in this Argument.I chose to use those indefinite Words [some kind of Property, or Dominion,] because I readily acknowledge, “That Nature does not always discover it to be necessary, that such kind of Property as consists in an intire Division of Things should be establish’d”; all that is essential to true Property, or Dominion, is, “That any one should have a Right secur’d by Law, to possess or dispose of certain Advantages, in a Thing, for Example, an undivided Field, which we use and enjoy in Common with others, and from which others have no Right to exclude us.” If any one will contend, that this word Property, or Dominion, is improperly us’d in this Case, I will not dispute with him about Words, being solicitous about the Thing only. Grotius acknowledges “such a Restriction of the universal Right to be instead of Property.”2 I chose this Word, because I could not find one more convenient to signify, “That the Prosecution of the Common Good requires such an Appropriation of some Things to particular Persons, as makes it unlawful for others to deny them to them, or take them from them”; and that I might by this Method shew, “That Mr. Hobbes’s War, which would necessarily arise from his imaginary Right of every one to every Thing, was not lawful.” It is certain, “That in the best regulated States many Things are possess’d by many in Common, and that some of these have a Right to a greater Share of the Profit than others, and that they peaceably enjoy it”; and it is no question, but that the same may happen, when by Abstraction of Mind we suppose the Removal, or Non-existence, of Civil Power. Such Right (to the use and disposal of Things, and to some human Assistance,) which can be taken from no-one, without violating the Respect due to the Law of Nature, and to God its Author, I call by the Name of some kind of Property, or Dominion.
(Justinian’s Definition of Justice supposes this Law.)§IV. To these Things thus explain’d, I thought it proper to add, “That the Law of Nature, which I have now laid down, is the very same that enjoins Universal Justice.” For it enjoyns nothing but what is contain’d in Justinian’s Definition of Justice, when rightly explain’d, which runs thus. “Justice is the constant and perpetual Will to give every one his Right.”3 Now I have affirm’d, that all voluntary Actions are to be directed by the Law, which enjoins consummate Prudence, and, in consequence, Constancy, Moderation, Benevolence, &c. I have, therefore, taken sufficient Care, that the Will employ’d about these be both Constant and Perpetual. What he affirms ought “to be given to every one,” that I alledge respects all Rational Beings, and therefore God himself.4 Hence I affirm, That some Things ought to be look’d upon as belonging to God, others to Men; some Things as Sacred, others as Profane. Lastly, I thus understand that Right is to be given, that whatsoever has been made any one’s Property, either by God, or Man, should be acknowledg’d, and reserv’d to them inviolably; and besides, that we should consent that those Things, which have not become any one’s Property, should, in such Manner, be distributed amongst All, as may best conduce to the establishing and preserving the Common Peace and Happiness of All. The Words of the Definition may be thus conveniently explain’d; and it certainly belongs to the same Virtue and Disposition of Mind, to divide Things and human Services for the Common Good, and to keep up their Division for the same End; to make the Division, and to consent to it when made. Wherefore the same general Law of Nature commands either of these Actions, that, namely, which the present State of Affairs shall require, in order to that End, which it commands should be chiefly regarded.
Justice enjoins Repentance and Restitution.We may further add, “That the same Law does clearly enough direct Men to Repent, and to make Reparation of Damages, as far as we can, if in any Thing we have transgress’d the Law.” For, in the Laws of Nature, the Letter is not regarded, as is generally the Case in Positive Laws, but the most effectual Prosecution of the End propos’d: The Publick Good is best obtain’d by unerring Justice, but next by Repentance and Restitution, in case of Transgression, which often happens thro’ human Frailty.
From this Law is prov’d the Justness of the Distinction between Things, or Persons Sacred, and those appointed to Common Use.§V. Here opens a spacious Field of Inquiry, 1. Concerning the Right of God over Things and Persons, and concerning the Manner how Men discover that such Right belongs to him: 2. Concerning the Dominion of Men, or those Things which are ours, either by a common Right of All, or our own particular Right; which are the Subject of the two Tables of the Decalogue, and of which Grotius treats at large.5 The First I pass over, to avoid falling into Theological Disputes; and the Second, lest the present Treatise should swell to too great a Volume. However, I think proper to observe, “That this general Law establishes some difference between Things and Persons which are consecrated to God, and those which are allow’d for the common Uses of Men.” For it is an Effect of this Division of Dominion, “That, beside the universal Dominion over all Things which belongs to God, which is consistent with a subordinate Property of Men in the same Things, there should, beside, be some Things peculiar to God, both among Persons, as Kings and Priests; and among Things, as Times and Places, as being consecrated to him.” And further, “That from this Fountain are deriv’d all good Laws, which limit, or direct, Men in Things to be set apart for God”; such are those, by which some Privileges are granted them; or, on the contrary, by which some Measure is prescrib’d to Things, which (to use a Law-Term) may fall into Mort-Main:6 I think it sufficient to mention these Things by the way, because my chief Aim is to shew, “That all Right acquir’d by us, either over our-selves, which is called Liberty; or over Things by Occupancy, or by Division; or in Persons distinct from ourselves, by Paternity, Consent, or Forfeiture; is granted to us by the Will of the First Cause, establishing that primary Law of Nature, enjoyning the Prosecution of the Common Good.” For hence is prov’d by an Induction of Particulars, “That every Right of Men is deduc’d from that Law, and that by the same Law the Rights of all particular Persons are so limited, that no-one has a Right to violate the Publick Good, or to take away from any other, who has not hurt the Community, either Life, or those Things which are necessary to enable him to promote the Common Happiness.”
The Divine Dominion is deduc’d from the Dictate of the Divine Wisdom,§VI. Altho’ I have adapted these Things (the Nature of Laws, properly so call’d, requiring it) to the Condition of Rational Creatures, yet I have taken care, that every Thing should be so laid down, as that they might all be ascrib’d to God in such an Analogical Manner, as the Observance of the Laws of Nature is ascrib’d to him, when he is by all acknowledg’d Just, Liberal, Merciful. Certainly, no-one in his Senses can imagine, “That the First Cause is bound by any Laws, if Laws be taken for practical Dictates (or Rules of Action) receiving the Sanction of Rewards and Punishments from the Will of a Superior”; from whence it follows, That no-one can imagine his Dominion over the Creatures to be founded in, or regulated by, a Law in that Sense. On the contrary, no-one can think honourably of God, who does not acknowledge, “That his Wisdom proposes to him the best End, namely, his own Honour, and the Happiness of other Rational Beings, by the Use of that Understanding and Will which is natural to them; and that the same Wisdom requires, as the Means necessary to this End, that Necessaries, at least, be so granted to each Individual, that it should not be lawful to violate them.” But this is to prescribe and establish the distinct Rights of Individuals, or Dominion.
approv’d of by his Will;Nor is there less necessarily included in the Perfection of the Divine Nature, “A Will to pursue this best End by proper Means, in concurrence with infinite Prudence,” in which Concurrence the greatest Benevolence is included. Because it is necessary to the supreme Honour of God, and to the Preservation and Perfection of the whole System of Things, that God should govern and dispose all Things, according to the Counsel of his own Understanding, his own Wisdom cannot but dictate this to him: Nor can there be suppos’d in him a Will dissenting from this Dictate of his own Wisdom.
which is Analogous to a Natural Law.It is further evident, “That the Dictate of the Divine Understanding concerning the End, and the Means conducing thereto, is Analogous to a natural Law, and that the Necessity of his continuing to Will perfectly, that is, agreeably to his Infinite Wisdom, does in Effect far surpass all the Sanctions of a Law by Rewards and Punishments.”7Consequently, “All his Actions will be conformable to the Dictates of his Understanding, concerning promoting the best End, the Common Good, and may be called Just, for the same Reason those Dictates are allow’d to have the force of Laws.” And, in like manner, his Power of disposing of all Things, as he shall think fit, in consistence with this End, and the Means necessary, may be called the Right of God, or his Dominion over Things and Persons, from all Eternity, proceeding (as I have shewn) from his essential Perfections, as from a natural Law. Upon the maturest Deliberation, I can find nothing to hinder, but that this Dictate of the Divine Understanding, It is necessary for the Common Good, that the most full and supreme Power of governing all Creatures should be assum’d by God, and reserv’d to him, has the full Force of a Law, and may, therefore, be a solid Foundation for the Divine Dominion; unless, perhaps, it be objected, “That it is not enjoin’d by, nor has receiv’d a Sanction from, any Superior”: But to give it the essential Force of a Law, it is sufficient, “That it is a true Proposition formed by the supreme and most perfect Being, concerning the best End, and the Means necessary thereto,” tho’ it proceed not from a Superior, which in this Case is impossible. Whereas this Dictate is in itself most perfect, (containing an evident Truth concerning the noblest Subject,) and has for its Author a Being infinitely superior in Perfection to all others, that can exist: It cannot need an external Recommendation from another Author, and it must as little need a Sanction by Punishments to be inflicted by another, because the intrinsick Propension of the Divine Will, to advance this greatest Good, will not suffer him to violate this Dictate. For, if it were suppos’d, “That the Divine Will had departed from the best End, and the Means necessary to it,” he would at the same time be suppos’d “to have fallen from his infinite Perfection,” (for he would have been more Perfect, if he had not so departed;) that is, he would be suppos’d “to have laid aside his Deity,” which implies a Contradiction. The Dictates, therefore, of the Divine Understanding, do in the same Manner pass into Laws, binding him by the Immutability of his own Perfections, as we use to say, that the Oath of God is ratified, when he swears by himself, or by his own Life; that is, by his immutable Perfections, which will endure for ever.8
and is free from Injury to any;However, this Dominion over All, which we assert God reserves to himself, is on this Account free from all suspicion of Injury, because “No Law can be imagin’d prior, which can be thereby violated, and no reason of Competition can be produc’d on the Part of the Creatures, who can yet be only considered as possible, whose future Existence, and all their future Right to any kind of Dominion, depends intirely upon the Bounty of the Divine Will.” Further; the very End, in order to which I affirm’d it necessary, that God should take to himself the Exercise of this Dominion, namely, the Common Good, has so full a View to the Happiness of the Creatures, that no-one (except thro’ his own Fault) can be hurt by this, or any other Means necessary to the Prosecution thereof.
Lastly; I think this resolving the Divine Right into such a Dictate of the Divine Understanding, and the other incommunicable Perfections of his Will, ought, therefore, to be admitted, because “No Creature, from an Opinion of his own Wisdom, or Goodness, much less Power, can ever arrogate to himself, from this Example, a right of Dominion over other Creatures.” Whereas, on the contrary, “Hobbes’s(Hobbes’s Resolution of the Divine Dominion into his irresistible Power, absurd.) Resolving the Divine Dominion into his irresistible Power, so evidently leads Men to seek Dominion over others by Force, or Fraud, by Right, or Wrong, that I doubt not, but that it was invented by him, and ascrib’d to God, for that End only, that it might countenance his pretended Right of all Men to all Things.”9
to which his Creatures, judging according to the Dictates of the Law of Nature, cannot but consent,I may here add, “That the Law of Nature, properly so called, (which takes place in the Minds of Men, and which, because of the Will of God, whom we discover to be the supreme Governor in the Manner above-mention’d, obliges Men to pay him Honour and Worship,) may be justly said to give him this Right of Dominion, as it obliges us to acknowledge that Right in him, and voluntarily to offer him the same.” For it is evident, “That, if we would propose to ourselves this noblest End, as we ought, we could not in a more prudent Manner promote it, than by giving the Glory of Commanding to God, and by reserving to ourselves only the Praise of Obedience, and so a Right to Things and Persons, in Subordination to him, and to the Common Good.” For it is apparent, “That this subordinate Right to the Use of many Things, and of human Aid, is plainly necessary to support the Lives and Powers of Men, and, consequently, to all that Worship and Honour which they can give to God in this Life”; the Immortal God, however, standing not in the least need of these Things, and, therefore, not requiring them, except for the more liberal Support of those who in a more particular Manner serve and represent him upon Earth, namely, Civil Magistrates and the Ministers of Holy Things.
Reasons against the common Method of deriving the Dominion of God from his Act of Creation, and for deducing it from the Dictate of the Wisdom of God, in concurrence with his Goodness.§VII. Before I had universally and distinctly consider’d the Original of all Dominion and Right whatsoever, I us’d, indeed, as most others do, “to deduce the Divine Dominion intirely from his being the Creator”: For I thought it Self-evident, “That every one was Lord of his own Powers,” which are little different from the Essence of any Thing, and that, therefore, any Effect must be subject to him, from whose Powers it receiv’d its whole Essence, as is the case in Creation, by which the whole Substance of the Thing is produc’d into Being.
But, because all Dominion supposes some Right, and all Right is a Power granted or permitted by some Law, at least Analogically such; therefore, the Law granting or permitting Dominion ought first to be acknowledg’d. But Law there is none prior to the Natural Law, or that Dictate of the Divine Wisdom, concerning the Best End, and the Means thereto necessary, which is perfectly agreeable to the Law of Nature, and may Analogically be called, the Law of the Divine Actions; I, therefore, came to this Conclusion, “That the Dominion of God is a Right, or Power, given him by his own Wisdom and Goodness, as by a Law, for the Government of all those Things which ever have been, or shall be, created by him.” In the Divine Wisdom is necessarily contain’d “a Dictate to pursue the best End by the necessary Means”; and in the Goodness, or Perfection, of the Divine Will is by a like Necessity included “a ready Consent to promote the same”: And these, by a natural Analogy, answer to a Ratification of this eternal Law, whence the Divine Dominion may take its Original.
Nor can any one justly complain, “That the Dominion of God is contracted within too narrow Limits by this Explication, which amounts to this only, that no Part thereof consists in the Power of doing any Thing contrary to the best End, the Common Good, that is, his own Honour, and that Happiness of other Rational Beings, which both the Nature of Things made by himself admits of, and to the procuring whereof the Faculties given them by himself are fitted.” For it is plain, “That infinite Wisdom and Power can dispose of all Things and Men after infinitely-different Manners, yet so, that in each of these Ways the Common Good of the whole System might be equally obtain’d.” And it is as plain, “That perfect Liberty does not consist in the Power of doing better, or worse, but in the Power of equally doing for the best, whether God confers his own Benefits more abundantly upon these, or others, respect being always had to the best End.” We ought, however, to be cautious, lest we imagine, “That nothing is consistent with this End, which our Understanding does not comprehend, in what Manner it can promote it”; for we know, that the Weakness of our Mind is not able to comprehend an End so great, nor can reach that infinite Variety of Means, which can be fitted by God to the procuring of it; and we shall afterwards learn much concerning these Things, of which we are at present ignorant. Thus, for Instance, we know in general, that all the Parts of an Animal are some way useful to it, tho’ we do not yet distinctly and throughly understand the Use of many Parts, as the Spleen, Brain, &c. However, because the Perfection, both of the Divine Understanding and of his Will concurring therewith, is intrinsecal to God himself; it is evident, that his Dominion, explain’d in this Manner, is not understood to be receiv’d from without, nor to be less Eternal than those Perfections, from which it is discover’d and demonstrated by us, rather than properly deriv’d. The Question concerning the Original of the Divine Dominion, must needs be thus understood, for no Man in his wits would search for a Cause, properly so called, of a Right that had no Beginning.
I hope the Reader will pardon this Digression, which I have not made without reason, because it seem’d almost necessary, “To give some Account how a Right of imposing those Laws upon Men, which are the Subject of our present Inquiries, belongs to God,” which might be better grounded than what Hobbes has propos’d, where he contends, “That the irresistible Power of God gives him (and consequently any other) a Right to do any Thing, without any respect to the Common Good.” I, on the contrary, (by shewing that the Care of the chief Good, by Means naturally sufficient and necessary, is necessarily included in the Perfection of the Divine Nature, as it is Rational,) have pointed out that fundamental Principle, whence it may be demonstrated, “That Universal Justice, and, consequently, every Moral Virtue requisite in a Governor, display themselves in God above all others,” just in the same Manner, that I shall in what follows prove “Men are oblig’d to the Exercise of the same.” For that being what I have undertaken to explain in this Treatise, I resolv’d not to insist upon the Disputes which may be raised, concerning the Right of the Deity over his Creatures.
What Regulations the Law of Nature laid Men under, in a State suppos’d prior to a plenary Division of Property by Consent.§VIII. Let us, therefore, now resume the Consideration of the Law lately discover’d, which commands, “That Necessaries, at least, be allow’d to all without Violation”; that is, “That they become their Properties, at least for the Time they continue necessary to ’em, whence they are called their Rights.” The Reason of my proposing that Law in such general Terms, as I have used, was, “That the same Rule might oblige and direct Men, as well in that State which may be suppos’d prior to, as in that which follows, the Division of Things and mutual Offices made by consent.” In the former State it obliges only to a limited Occupancy and Use of Things and human Assistance, such as may be consistent with the Convenience of others: Such may be imagin’d the State of our First Parents, if nothing were suppos’d divinely Reveal’d of the Power of the Husband over the Wife.
The Reasons, from the Nature of Things, enforcing the coming to such a Division.And, in this State, many Things may be suppos’d to have happen’d, which would demonstrate it the Interest of all, “to make by consent a Division of Things and mutual Offices”; such as the Disputes of many, where it was not very evident, what was necessary to each; and the Sloth of some neglecting to cultivate the Common Fields, and the like. In such Cases, the Laws concerning the End and the Means necessary, being applied to the given Circumstances, would oblige to a further Division of Property, and the same Laws would oblige, both them and those who should be born after them, to preserve this Division, so highly conducive to the Common Good. After this Manner their Rights will be gradually settled, to each particular Man, Family, City, State, and that, both over Things and the Services of Men; whence will arise the Rights of Commerce and Friendship, and also the Rights of Government in Families, and States, both in Things Sacred and Civil.
The present Methods for making such a Division; when it is necessary, and the Parties cannot amicably agree it among themselves: Namely, by Arbitration, or Lots.§IX. Of the making this Division, I will not say much, because we all find it ready made to our Hands, in a Manner plainly sufficient to procure the best End, the Honour of God, and the Happiness of all Men, if they be not wanting to themselves. I will, therefore, offer only in few Words, That, “wherever such a Division is farther necessary, and a Difference arises between them, whose necessity requires that it should be made,” It is evident, “That it tends more to the Common Happiness, to entrust the Division to the Arbitration of any prudent Man, who has no Interest to favour either Party, than to commit the Event to Force, or Fraud.” For it is more probable, that any one’s Reason will prescribe that Method which is consistent with the known End, the Common Good, than that either of them should by blind Force hit that Mark, at which neither Aims: For I agree with Hobbes in supposing, “That, in such a War, each Party seeks only his own Safety in Victory.” But, “If it so happen, that the disagreeing Parties can agree upon no Umpire, it will be more reasonable to leave the Division, or the whole Property of the Thing in Dispute, if it cannot be divided, rather to Chance than to War”; because “In War both Parties may perish, and so fall short of the End propos’d, which cannot happen, if the Affair be committed to Chance.”10
Upon what Reason the Rights of Primogeniture and First Occupancy are grounded.I mention this, by the way, in order to shew the Reason, “Why we ought to acquiesce in some Methods of disposing of Things and Employments, which partake more of Chance than of Rational Choice”; such are, beside casting Lots, Primogeniture, and First Occupancy.
It is unjust, to attempt any innovation in the present settlement of Property.“The same Reason and Law of Nature, which commands the establishing a distinct Dominion over Things and Persons, commands also more evidently to preserve them inviolable, now that they are establish’d and prov’d by Experience to answer the design’d End.” For it is evident, “That the Division of Dominion, which we find made by our Ancestors, and establish’d by the Consent, or Permission, of all Nations and States, has been sufficient for the Procreation and Preservation of all that now exist, and to the Procuring all that Happiness, which we now see Mankind possess’d of; and, beside, that it affords such Intercourse among Men, such Opportunities of mutual Assistance, that all may attain greater Degrees of Happiness, both in this Life and a future.”
It is beside manifest, “That the Happiness we now enjoy, and have the greatest Reason to expect from the present Division, is greater than any prudent Man could hope to obtain, by violating and overturning all settled Rights, Divine and Human, and endeavouring to introduce a new Division of all Property, according to the Judgment, or Affections, of any one Man whatsoever.”
For it is obvious, “That this is an Undertaking, to which the Understanding of no one Man, or Assembly of Men, is equal”; and it is easy to foresee, “That the Opinions of so many Men would differ so widely upon this Head, that all would immediately be reduc’d to a State of War and Misery.” Wherefore, “A Desire of Innovation in Things pertaining to Property, is unjust, because it is inconsistent with this Law, which is inseparable from the Common Good.” I do, therefore, not only highly approve (with Grotius) of that Sentence of Thucydides, “It is just for every one to preserve that Form of Government in the State, which has been deliver’d down to him.”11 But I am of Opinion, that what he has affirm’d of one State only, ought to be extended to the great Society of all Rational Beings, (which I call the Kingdom of God;) and that it ought not to be limited only to the Form of Government, which contains the Division of the principal Offices in the Administration, but extended universally to the Division of Things: And in this Latitude I assert it Just, “To preserve inviolably the antient Division of Dominion over Things and Persons, both among different Nations, and in particular States.” For Experience has shewn it conducive to the best End, and no Laws of Nature can be conceiv’d, which, consistently with this End, could prohibit such a Division’s being at first made; That, therefore, could be injurious to no-one. But the same Reason, which first oblig’d Men to make this Division, (since they who rightly judge must unavoidably agree,) will also oblige their Successors to approve and confirm the same.
Of transferring Property by Compacts, whose Obligation,I own, indeed, That the various Vicissitudes of Human Life and Actions, do necessarily introduce various Alienations of antient Rights, and many new Regulations concerning them; but, because all Conveyance of Rights and new Regulations are made by the Will of them, to whom they were (at least Mediately) at first granted, the antient Division of Property is still preserv’d, for this very Reason, “That their Will is observ’d.” For it must be suppos’d, “To have been the Intention of the Authors of the first Division, along with the Property to have conferr’d a Power of conveying it, and of making many new Regulations, with respect, both to the first Possessors, and to their Successors.” For Dominion contains a Power to dispose of that Thing, or Labour, which is Ours, but a Compact consists in the Consent of two concerning such Disposal; the same Law, therefore, ratifies such Compact, which gives a Man Power to dispose of that Thing, or Labour, which is his.
and Limitations, are deduced from the same Law.But, because this Power, or the Dominion it-self, which is conferr’d on any, is only in order to the Common Good, it follows, “That no Compact (whose Obligation is intirely owing to that) can oblige any One to such Things as are inconsistent with that End, or which are forbid by the Law of Nature”; and, consequently, both the Obligation and Restrictions of Compacts are deriv’d from the same Fountain.12
From the same Law is deriv’d the Obligation to Beneficence and Gratitude;§X. A Dominion over Things and Persons being establish’d, from the General Law of Nature, particular Persons have somewhat of their own to Give, or to Promise, Absolutely, or upon Condition. A Property in Things is suppos’d, before there is any room for keeping Faith. For, seeing the very same Reason, that establishes Dominion, in which the Power of bestowing is included, namely, the Common Good of all Rational Beings, but of those especially, to whom this Power is allow’d in any particular Case, renders a free Gift valid; it is, evidently, the perpetual Will of God, and of all Authors of Dominion subordinate to him, “That Men should in all Giving and Receiving aim at this End, without which the Law of Nature would allow no place for such Actions.” Wherefore, “He who accepts of a Benefit, is understood, by the very Action, to have consented to accept it under this Limitation, and upon this Condition, that it should be better for the Publick, but especially for his Benefactor.” But this Consent includes a kind of tacit Compact, “To return the Benefit, as occasion offers,” in which the whole Force of Gratitude displays itself: And, beside, such Consent is only “an Approbation of the general Law, to promote the Common Good, and to settle Dominion, or Property, for that very End”; Gratitude, therefore, is hence clearly enough enjoin’d. It is “Another’s giving, of his own, what we were not intitled to,” that lays us under Obligations of Gratitude to him, and makes us know, and acknowledge, his Benevolence.
to a limited Self-love (including Frugality, Temperance, and Chastity;)To proceed; the Measure of our Property being fix’d and determin’d by its respect to the Common Good, (as I have already shewn,) we hence learn the Limits of a laudable Self-love: For we must always, in providing for our-selves, “Abstain from invading another’s Property,” and take care, “That we promote the Publick Good.” This limited Self-love displays it-self chiefly in Temperance, Frugality and Modesty.
to a limited Natural Affection;Lastly; the same Law of Nature, which distributes Property, and the same Justice, (or Will to preserve Property so distributed to each,) which takes care, both of our selves and others (as I have shewn) does farther enjoin and limit the natural Affection of Parents towards their Children, which is highly subservient to the Common Good. Our Children are something compounded of our-selves and others; and it is therefore necessary, that the Virtue, by which we are inclin’d to the Care of our-selves and others, should in a particular Manner regard those, in whom we ourselves are, as it were, united and mix’d with others, and both Branches of the Object of this Virtue meet. To this is owing that eminent Care of Posterity, which all States manifest in their Laws concerning the Succession to the Goods, and often to the Employments, of the Deceased.
From what has been said upon this Head, it is obvious to any One.
1. That Beneficence towards others, the Obligation and Faith of Compacts, Gratitude, Temperance, Frugality, Modesty, Natural Affection, cannot be clearly explain’d, unless a Division of Property, by which what is ours may be distinguished from what is anothers, be first establish’d, or suppos’d.
2. That the same General Law, by which this Division is made and preserv’d, obliges Men to the Exercise of all these Virtues, and to all others, that are either contain’d in them, or may be deduc’d from them.
to the Laws of Nations and of Civil Societies, whether they regard Sovereigns, or Subjects.§XI. Lastly; all particular Moral Rules, or Laws; as well those, by which the Rights of different Nations are guarded from mutual Invasion; as those, by which the Authority of the Supreme Powers is founded and preserv’d from the Attempts of the Seditious, and the Rights of Subjects are protected from the Violence of the Powerful; are deriv’d from the same Command to distribute and settle Property, with a view to the Common Good.
I affirm’d, “That Civil Authority was founded on this Command,” because it is evident, “That the establishing Civil Government is a much more effectual Means to promote the Common Happiness of Mankind, and to preserve Peace, than an equal Division of Things, which is inconsistent with Civil Dominion.” Yet Hobbes contends, “That such an equal Distribution of all Things and Rights is commanded by the Law of Nature,” and would have natural Equity to consist in this; led, truly, by the likeness of Words, as became him, who is frequently inculcating, “That all Reasoning depends upon Words.” This Doctrine of the equal Distribution of Property, he gradually instills, Lib. de Cive. Cap. 3. a §. 13. ad 19.13 Which I care not to spend time in refuting, both because he has nothing there which can deceive a prudent Man, and because the very Foundation, on which all the rest is built, “That it is necessary to promote Peace, that Men be look’d on as equal,” §. 13. does not seem even to Hobbes himself, a Means proper to that End, “The procuring Peace and Security,” but he requires the establishing a coercive Power, which must immediately destroy such an equality, as is evident from his Fifth Chapter. It is, however, dangerous to teach, “That an equal Distribution is commanded by the Laws of Nature,” because, by his own Confession, they are wholly Unchangeable, C. 3. §. 29.14 and, therefore, according to his Principles, an unequal Distribution of Dominion, altho’ it be absolutely necessary to a Monarchical Constitution, can never be Lawful, because it is contrary to the Laws of Nature.
It is necessary, “That the forming and preserving States be enjoin’d by a Natural Law, obliging to the Performance of External Actions, before the Foundations of such States.” Hence, not receiving its Force from the Magistrate, it binds him indispensably, as also all Nations, with respect to one another.§XII. I ought rather to observe, “That the Division of all Kind of Property, or Dominion, is by me deduc’d from a Law, which does not suppose the Erection of any Civil Government, and, therefore, depends not upon the Will of the Civil Magistrate, and is, consequently, a Rule proper to direct the Actions of different States, and impose Restrictions which are not to be broke thro’, even by Princes.” Because “such a Law only, can guard those Things that are necessary to the Happiness of every One, from the Invasion of all Others”; it follows, “That Peace amongst all can be establish’d, only by such a Law, and that it actually will be establish’d, as far as can be done by Virtue of a Law, and the Power, or Right, thence granted to Men”; nor can more be desired. On the contrary, “If Property may be arbitrarily settled and unsettled by the sole Will of the Supreme Powers in every State, and the Nature of the Best End, or of the Common Good, and of the Means naturally leading thereto, fixes no Rule,” (as Hobbes every where teaches,15 ) “Which even their Wills are obliged to obey in external Actions,” there is no Law to restrain States from perpetual War; no Law to oblige the Rulers of States to seek the Publick Good of their Subjects, and to preserve them their Rights by external Acts; (for their Will, which only, Hobbes acknowledges for a Law, may lead them to the contrary:) No Law to forbid a Faction, powerful enough to overturn the State, to commit Treason. For, on this very Account, that a Faction is suppos’d too Powerful for the State, there is no longer any coercive Power in the State, either to protect the Obedient, or to punish the Disobedient; and, therefore, according to Hobbes’s Principles, there is no Security to be had, such as is necessary to oblige to the Observance of the Laws of Nature, (for Example, to keep Faith,) by external Actions, and, therefore, this Law will not oblige, but it will be lawful to dissolve that State, which was founded upon Compact: And, therefore, any State may be crumbled into Parts less and less without end, and that lawfully, according to Hobbes’s Doctrine; because no Law, of Force in that Case, will be violated; not the Law of Nature, which for want of Security, in that Case, will not oblige to external Actions, (so he tells us de Cive, Cap. 3. §. 27;16 ) nor the Law of the State, because they are not violated by Rebellion, or Treason, according to his Assertion, c. 14. §. 21.17
The same Law of Universal Justice teaches to acknowledge and preserve Natural Governments;§XIII. This Law of Universal Justice (which I have laid down, for this Reason, that it lays the Foundation of Dominion Divine and Human, both over Things and Persons, in the Respect due to the Common Good,) teaches us to acknowledge and preserve all Government establish’d naturally, (such as is that of God over all Creatures, and of Parents over their Children:) And by this Means chiefly does this Law provide for the Necessities of Human Nature, and admonishes us, where they are wanting, to erect the most convenient Forms of Government according to these Patterns, and to preserve Peace with them who are not under the same Civil Power.and, after these Patterns, to establish Civil Government: Hence it is, that the Dictates of ReasonGives the Dictates of Reason the Force of Divine Laws;, (naturally, that is, from the Will of the First Cause establishing the Nature of Things,) laying down many clear and general Precepts concerning the Common Good, are justly esteem’d Divine Laws: And that large Room is left for Divine Revelation, or Human Authority, to superadd, in order to the same End, Positive Laws, (as they are called,) which shall, in the given Circumstances, be our special Rule of Action.18
Moreover; these general Laws of Nature, concerning the Care of the Publick Good, and the settling and preserving Dominion, require, “That both God and Men take care,and leaves room for Positive Laws by God and Men; whenever they please to enact any Positive Law, to give sufficient Evidence of their doing so”; for such Discovery is necessary to the Promulgation thereof, without which no-one can be oblig’d. Hence it is necessary, that, “if God would command any Thing by a Revelation,” it must first appear plain, “That the Command is perfectly consistent with his unchangeable Laws known from Nature.”all which must be plainly promulg’d; For it is certain, “That the Divine Reason cannot contradict it-self.” And it is farther required, “That his Will to enforce this new Law be discover’d to those for whom it is enacted, by enabling his Messengers to foretel future Contingencies without Mistake, or Deceit, or else to work true Miracles.”and also consistent with the Laws of Nature. Hence also Human Legislators, when they enact Laws, do in the first Place declare, “that they tend to the Publick Good,” and, therefore, have the same View with the Laws of Nature; and then add “some Signs, or Testimonies, to make it known, that they have been actually promulg’d by their Authority.”
[1. ][Maxwell] “See Carmichael ’s and Barbeyrack’s Puffendorf upon this Head of the Original of Dominion upon which our Author is very General.” Maxwell refers to Gershom Carmichael’s lectures on Pufendorf, published as Supplements and Observations upon Two Books of Samuel Pufendorf’s On the Duty of Man and Citizen (1724); see also Pufendorf, De Jure Naturae, IV.4.
[2. ]Grotius, De Jure Belli ac Pacis, II.2.2. no. 1.
[3. ]Justinian, Institutes, I.1.
[4. ]For the Ciceronian lineage of these comments, see Cicero, De Finibus Bonorum et Malorum, V.xxiii. 65–66; Tusculan Disputations, I.xxxvi and III.xvi.
[5. ]Grotius, De Jure Belli ac Pacis, II.2.
[6. ]Mort-main: Inalienable ownership, from Old French and medieval Latin for “dead hand.”
[7. ]Cf. Pufendorf, De Jure Naturae, II.1.3, II.3.5–6.
[8. ]Cumberland adopts the quasi-voluntarist “middle way” between voluntarism and intellectualism detailed in Suarez, De Legibus ac Deo Legislatore (1612), II.2.4, and taken up by several English writers; Culverwell, An Elegant and Learned Discourse of the Light of Nature (1651), p. 65; Parker, An Account of the Nature and Extent of the Divine Dominion and Goodnesse (1666), pp. 150–51.
[9. ]Hobbes, On the Citizen, 15.5, pp. 173–74; Cf. Pufendorf, De Jure Naturae, I.6.10.
[10. ]Cf. Pufendorf, De Jure Naturae, III.2.5.
[11. ]Thucydides, The History of the Peloponnesian War, VI.89; Grotius, De Jure Belli ac Pacis, II.4.8.
[12. ][Maxwell] “There are certain Affairs, in which ’tis necessary for the Publick Good, that Men should be constituted valid Disposers; such as concerning their Labours and Goods: Concerning the disposition of these there are many general Laws, both of Nature and Revelation, but scarce any special Laws, determining any precise Quantities, or Proportions of either. These General Laws leave all Men valid Disposers, since they leave all precise Determinations to their own Prudence. Now, to know whether we are oblig’d by a Contract, we are only to inquire, whether the Parties were valid Disposers, or not: for Men are often obliged to observe very foolish Contracts, when they are valid Disposers, and by such Contracts others do acquire external Rights. But no Man can be a valid Disposer, so as to oblige himself to any Violation of the Honour of God, or perfect Right of another.”
[13. ]Hobbes, On the Citizen, 3.13–18, pp. 49–51.
[14. ]Ibid., 3.29, p. 54.
[15. ]For Hobbes’s views on property, see On the Citizen, 12.7, pp. 136–37; Leviathan, ch. 18, p. 114; ch. 24, pp. 160–63.
[16. ]Hobbes, On the Citizen, 3.27, pp. 53–54.
[17. ]Ibid., 14.21, p. 166. Here Hobbes argues that treason is an offense against natural law rather than civil law, because civil law presupposes obedience.
[18. ]Cumberland manuscript addition: “It is from the natural laws, inasmuch as they establish the estate of God, that flows the obligation on men to obey the precepts revealed in the Gospel. Consequently it is on them that the strength of the ecclesiastical power also depends originally, which power is immediately inferred from the precepts and examples that are to be found in the books of the New Testament. It should not be suggested that the primitive basis of this power is the authority of every Civil Government, since we are also obliged to recognise it in all states to which the laws of the Gospels are sufficiently published: but we must relate it to the Natural Laws, or the Right of Men, which, according to Roman jurisconsults, encompass the precepts of natural religion.” Cumberland, Trinity College MS.adv.c.2.4, p. 355. The Roman law reference can be found in Justinian, Digest, I.1.2.