The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• Acknowledgments
• Abbreviations
• General Note
• Advertisement By the Translator.
• Juventuti Academicae Salutem.
• To the Students In Universities.
• Philosophiae Moralis Institutio Compendiaria With a Short Introduction to Moral Philosophy
• Philosophiae Moralis Institutio Compendiaria
• Liber I: Ethices Elementa.
• Caput I: De Hominis Natura Ejusque Partibus.
• Caput II: De Summo Bono Et Virtute.
• Caput III: De Variis Virtutum Divisionibus.
• Caput IV: De Virtutibus Et Officiis Erga Deum.
• Caput V: De Officiis Erga Alios Homines Exercendis.
• Caput VI: De Officiis Cujusque Erga Se, Et De Animi Cultura.
• 1 {caput VII: De Virtutis Studio Excitando Et Retinendo.
• Liber II: Jurisprudentiae Naturalis Elementa.
• Caput I: De Lege Naturali.
• Caput II: De Juris Natura Et Divisionibus.
• Caput III: De Virtutum Et Vitiorum Gradibus, Inter Se Comparatis{; Iisque Quae Speciem Moralem Afficiunt}.
• Caput IV: De Jure Privato Naturali.
• Caput V: De Jure Adventitio Reali, Et Rerum Dominio.
• Caput VI: De Dominii Acquirendi Rationibus.
• Caput VII: De Jure Derivato, Ejusque Causis.
• Caput VIII: De Dominii Transferendi Rationibus, Per Contractus, Successiones, Aut Testamenta.
• Caput IX: De Contractibus.
• Caput X: De Sermocinantium Officiis.
• Caput XI: De Jurejurando Et Votis.
• Caput XII: De Rerum Pretio.
• Caput XIII: De Variis Contractuum Generibus Post Pretia Rerum Constituta.
• Caput XIV: De Obligationibus Quasi Ex Contractu Ortis.
• Caput XV: Jura Ex Damno Dato, Atque Ex Aliorum Injuriis Orta. Jura Belli.
• Caput XVI: De Jure Extraordinario Ex Necessitate, Omniumque Jure Communi.
• Caput XVII: De Juris Interitu. De Litibus In Libertate Dirimendis, Et Interpretatione.
• Liber III: Oeconomices Et Politices Elementa.
• Caput I: De Conjugio.
• Caput II: De Parentum Et Liberorum Officiis.
• Caput III: De Herorum Et Servorum Jure.
• Caput IV: De Civitatum Origine Et Causis.
• Caput V: De Interna Civitatum Structura, Et Summi Imperii Partibus.
• Caput VI: De Variis Rerumpublicarum Formis.
• Caput VII: De Summi Imperii Jure, Ejusque Acquirendi Rationibus.
• Caput VIII: De Legibus Condendis, Et De Jurisdictione.
• Caput IX: De Jure Belli.
• Caput X: De Foederibus, Legatis, Et Civitatum Interitu [deletione].
• A Short Introduction to Moral Philosophy.
• Book I: The Elements of Ethicks.
• Chapter I: Of Human Nature and Its Parts.
• Chapter II: Concerning the Supreme Good.
• Chapter III: Concerning the Chief Divisions of Virtue.
• Chapter IV: Our Duties Toward God.
• Chapter V: Our Duties Toward Mankind.
• Chapter VI: Concerning Our Duties Toward Ourselves, and the Improvement of the Mind.
• Chapter VII: Some Practical Considerations to Excite and Preserve the Study of Virtue.
• Book II: Elements of the Law of Nature.
• Chapter I: Of the Law of Nature.
• Chapter II: Of the Nature of Rights, and Their Several Divisions.
• Chapter III: Concerning the Various Degrees of Virtue and Vice, and the Circumstances On Which They Depend.
• Chapter IV: Concerning the Natural Rights of Individuals.
• Chapter V: Of Real Adventitious Rights and Property.
• Chapter VI: The Methods of Acquiring Property.
• Chapter VII: Of Derived Property.
• Chapter VIII: The Methods of Transferring Property, Contracts, Succession, Testaments.
• Chapter IX: Of Contracts In General.
• Chapter X: Our Obligations In Speech.
• Chapter XI: Of Oaths and Vows.
• Chapter XII: Concerning the Values Or Prices of Goods.
• Chapter XIII: Of the Several Sorts of Contracts.
• Chapter XIV: * Obligations Resembling Those From Contracts.
• Chapter XV: Of Rights Arising From Damage Done, and the Rights of War.
• Chapter XVI: Extraordinary Rights In Cases of Necessity, and the Common Rights of Mankind.
• Chapter XVII: How Rights and Obligations Cease: How Controversies Are to Be Decided In Natural Liberty: and the Rules of Interpretation.
• Book III: The Principles of Oeconomicks and Politicks.
• Chapter I: Concerning Marriage.
• Chapter II: The Duties of Parents and Children.
• Chapter III: The Rights of Masters and Servants.
• Chapter IV: The Original of Civil Government.
• Chapter V: The Internal Structure of States: and the Several Parts of Supreme Power.
• Chapter VI: Of the Various Plans of Government.
• Chapter VII: The Rights of the Supreme Power: and the Methods of Acquiring It.
• Chapter VIII: Of Civil Laws and Their Execution.
• Chapter IX: The Laws of War.
• Chapter X: Of Treaties and Ambassadors, and the Entire Dissolution of States.
• Bibliography of Modern Literature

BOOK II

Elements of the Law of Nature.

CHAPTER I

Of the Law of Nature.

I. That we may shew how all the several parts of life may be brought into a conformity to nature, and the better discern the several Rights and Duties of Mankind, we shall premise the more general Doctrine in Morals, <unfolding and> explaining some pretty complex notions {and terms constantly occurring}; and this is “the subject of this and the two following chapters.”1

In the preceeding book we shewed, how from the very structure of our nature we derived our first notions of right and wrong{, virtuous and vitious, in our affections and actions}: and that it was then right and just that any Person should act, possess, or demand from others{, in a certain manner}, “when his doing so tended either directly to the common interest of all, or to the interest of {some part or} some individual, without occasioning any detriment to others.”2 And hence we say in such cases that a man has a right thus to act, possess or demand: and whoever would obstruct or hinder him thus to act or possess, or would not comply with such demand, is said to do an injury or wrong.

But resuming this matter a little higher; ’tis plain that this structure of our nature exhibits clear evidences of the will of God {and nature about our conduct}, requiring certain actions and prohibiting others.3 The notion of a law to which our <wills or> actions may be compared, is, no doubt, artificial, formed upon observation: and yet it has in all ages been so obvious and familiar to men that it may also be called natural. For the notion of a just power, or right of governing others, is obviously intimated, from that power nature has invested the Parent with, over his children, so manifestly tending to their good. And this too is known to all by constant experience, that the bulk of mankind don’t by any nice reasonings or observation of their own discover what is advantageous or hurtful in life; nay that the greater part of the practical sagacity and wisdom of the generality depends upon the discoveries and instructions of a few, who have had greater penetration and sagacity: and since {’tis commonly known, and} even the men of less sagacity acknowledge it, {that there are great diversities of genius,} and that some few have superior abilities to the common herd: that moral [ruling] principle implanted in all must also recommend it as advantageous to all, that large societies of men united for their common interest, should commit the administration of their common concerns to {a council of} a few of the wiser sort, and compell any who may thereafter be refractory to submit to their orders, who have thus obtained a just right of governing. Hence the notion of just power, or of a right of governing, is among the most common and familiar with mankind, when from the very plan and model of power constituted, there’s tolerable precaution taken that the Rulers shall have either no inducements to abuse it to the detriment of the whole body, or no hopes of doing so with impunity. Hence the notion of [the force and nature of] law too is obvious to all, to wit, “The will of those vested with just power of governing, declared to their subjects, requiring certain actions and forbidding others with denunciations of rewards or punishments.”4

II. Now since ’tis generally agreed among men, that the Deity is endued with the highest goodness, as well as with wisdom and power; it must obviously follow that an universal compliance with the will of God must tend both to the general good, and to that of each individual; to which compliance also we are most sacredly bound in gratitude, as we were created <and preserved> by him, and are constantly deriving good from his munificent hand: it must also in like manner follow, that all disobedience to the will of God must be opposite to the common felicity, and shew a base ungrateful mind.5 Now these considerations plainly shew that it is perfectly just and right in the Deity to assume to himself the government of his rational creatures, and that his right is founded upon his own moral excellencies.

But since no man can give sufficient evidence to the satisfaction of all, that he is possessed even of superiour wisdom, and much less of his stable inflexible goodness; since ambitious dissimulation would always make the greatest shew of goodness, if this were a sure step to ascend to power; nor can men search into each others hearts to detect such hypocrisy: and since no power generally suspected and dreaded can make a people, who are diffident of their most important interests, easy or happy; no man can justly assume to himself power over others upon any persuasion of his own superior wisdom or goodness, unless the body of the people are also persuaded of it, or consent to be subjected to such power, upon some reasonable security given them, that the power intrusted shall not be abused to their destruction.

III. And further since it was God our Creator <and ruler> who implanted this sense of right and wrong in our souls, and gave us these powers of reason, which observing our own constitution, and that of persons and other things around us, discovers what conduct tends either to the common prosperity of all, or that of individuals, and what has a contrary tendency; and shews also that all sorts of kind offices generally tend to the happiness of the person who discharges them, and the contrary offices to his detriment: all these precepts or practical dictates of right reason are plainly so many laws,* enacted, ratified by penalties, and promulgated by God {in the very constitution of nature}. [As words or writing are not essential to the nature of a law, but only the most convenient way of notifying it.]6

In every law there are two parts, the precept and the sanction.7 The precept shews what is required or forbidden; and the sanctions contain the rewards or punishments abiding the subjects, as they observe or violate the precept. In Civil Laws, beside the peculiar rewards or premiums proposed in some of them, there is this general reward understood in them all, that by obedience we obtain {the defence and protection of the state}, with the other common advantages of a civilized life, and [all] the rights of citizens. The penalties of human laws are generally expressed. The sanctions of the law of nature are known and promulgated in like manner with the preceptive part. The rewards are all those internal joys and comfortable hopes which naturally attend a virtuous course; and all these external advantages whether immediately arising from good actions, or generally obtained by the good-will and approbation of others, or of the Deity, whether in this life or in a future state. The penalties are all those evils internal or external, which naturally ensue upon vice; such as remorse, solicitude, and distressing fears and dangers: in fine, all these evils which right reason shews may probably be expected to ensue through the just resentment of the Deity or of our fellow-creatures.

IV. The divine laws according to the different manners of promulgation are either natural or positive.8Natural laws are discovered by our reason observing the natures of things. Positive laws are revealed only by words or writing. Laws <revealed by words or writing> may again be divided according to the matter of them into the necessary and the not-necessary.9 Every sort of law indeed should have in view some real benefit to the state: but some laws point out the sole and necessary means of obtaining some great benefit{, or of averting some great evil}; so that contrary {or even different} laws could not answer the necessary purposes of society: while others only fix upon the most convenient means, where many others might have tolerably answered the end; or, where there’s a variety of means equally apposite, yet fix upon one set of them, when ’tis necessary that multitudes should agree in using the same means.10 Such is the case in appointing set times and places, and other circumstances, where matters of common concern are to be transacted jointly by many.11 These latter sort of laws are also called positive as to their matter, and the former natural, in the same respect.12

V. Laws generally respect alike a whole people, or at least all of a certain class or order; this holds as to all natural laws. But sometimes civil laws are made in singular cases, respecting only one person; these the Romans called privilegia; which were either out of singular favour, or singular resentment. If such privileges are granted for extraordinary merits, and have no pernicious tendency toward the body, they are very justifiable. Cases may happen too, tho’ seldom, in which it may be just to bring to punishment some very artful dangerous criminal by a special law{, which is not to be made a precedent in the ordinary procedure of justice}.

Equity is {sometimes understood as something distinct from strict law, being} “the reasonable wise correction of any imperfection in the words of the law, [by their being either not sufficiently extended, or too extensive in regard to the true reason or design of the law.] [when they are not adequate to the circumstances.]” This equity has place only as to laws promulgated in words; for the law of nature determines all points, not by words but, by right reason, and what is humane and good.13

VI. The doctrine of the <so called> dispensations was brought in by the Canon-law. A dispensation is “the exempting one {out of special favour} from the obligation of a law.”14 Dispensations <or immunity> are either from the preceptive part, or from the sanction, in remitting the penalty. Where the penalty is remitted or altered in such a manner as consists with the common safety, and does not weaken the authority and influence of the law, it is not to be blamed. Such a dispensing power {for singular important reasons} is frequently vested in the supreme Rulers or Magistrates of States. But for {previous}15 exemptions from the preceptive part of any wise law they can never be reasonable.

But first, we don’t count it a dispensation when any one, using his own right and the ordinary power vested in him by law, frees another from some legal obligation, or imposes a new one. As when a creditor remits a debt; or the supreme Governor <acts or> commissions subjects to act in his name what he has a right to execute, {tho’ without such commission these subjects had acted illegally in doing so}.

Again, sometimes by laws, whether divine or human, an external impunity may be justly and wisely granted to such conduct as is very vitious and culpable; if either through the stupidity or depravity of the people such vices could not be restrained without much greater inconvenience than what arises from the permission of them. But this comes not up to the notion of dispensation.

But in the third place, no grant or permission of any governor, human or divine, can make evil malevolent affections become morally good or innocent, or benevolent ones become evil: nor can the moral nature of actions flowing from them be any more altered by mere command or permission. The dispensations therefor, the Canonists intend, are then only justifiable, when the laws themselves are bad or imprudent, of which the Canon-law contains a great multitude.

VII. The Law of nature as it denotes a large collection of precepts is commonly divided into the primary and secondary; the former they suppose immutable, the latter mutable. This division is of no use as some explain it,* that the primary consists of self-evident <and noetic> propositions, and the secondary of such as require reasoning.16 Many of those they count primary require reasoning <and the other way round>: nor are just conclusions more mutable than the self-evident premises. The only useful sense of this distinction is, when such precepts as are absolutely necessary to any tolerable social state are called the primary; and such as are not of such necessity, but tend to some considerable improvement or ornament of life are called secondary. But these latter in the sight of God and our own consciences are not mutable, {nor can be transgressed without a crime, more than the primary;} altho’ there may be many political constitutions where the violation of these secondary precepts passes with impunity.

From the doctrine of the former book it must appear, that all our duties, as they are conceived to be enjoined by some divine precept [natural law ordered by God], are included in these two general [primary] laws, the one that “God is to be worshipped {with all love and veneration}”: and in consequence of it, that “he is to be obeyed in all things.”

The second is, that “we ought to promote {as we have opportunity} the common good of all, and that of particular {societies or} persons, while it no way obstructs the common good, or that of greater societies.”

CHAPTER II

Of the Nature of Rights, and Their Several Divisions.

I. Since it is manifestly necessary to the common interest of all that large numbers of men should be joined together in amicable societies, and as this is the sum of all our duties toward men that we promote their happiness {as we have opportunity}; it must follow that all actions by which any one procures to himself or his friends any advantage, while he obstructs no advantage of others, must be lawful: since he who profits one part without hurting any other plainly profits the whole. Now since there are many enjoyments and advantages naturally desired by all, which <in safe circumstances> one may procure to himself, his family or friends, without hurting others, and which ’tis plainly the interest of society that each one should be allowed to procure, without any obstruction from others, (since otherways no friendly, peaceable society could be maintained:) [since it is relevant to the preservation of a friendly society as well as to the happiness of individuals] we therefor deem that each man has a right to procure and obtain {for himself or his friends} such advantages and enjoyments; which Right is plainly established and secured to him by the second general precept above mentioned, enjoining and confirming whatever tends to the general good of all, or to the good of any part without detriment to the rest. In all such cases therefor men are said to act according to their right.1 And then, as the several offices due to others are <also> recommended to us by the sense of our own hearts [by our higher senses]; so others in a social life have a claim to them, and both desire, and naturally or justly expect them from us, as some way due to them: in consequence of this it must appear, that the several rules of duty, or special laws of nature [or laws of nature called special], <or natural jurisprudence>, cannot be delivered in a more easy manner than by considering all the several claims or rights competent either to individuals, to societies, or to mankind in general as a great body or society; all which are the matter of [deemed granted by] some special laws.

The several rights of mankind are therefor first made known, by the natural feelings of their hearts, and their natural desires, pursuing such things as tend to the good of each individual or those dependent on him: and recommending to all certain virtuous offices. But all such inclinations or desires are to be regulated by right reason, with a view to the general good of all <so that nothing is allowed or claimed against the common interest>.

Thus we have the notion of rights as [This is another notion of right besides the one just explained referred to the collection of laws, usually meaning some] moral qualities, or faculties, granted by the law of nature to certain persons.2 We have already sufficiently explained how these notions of our rights arise from that moral sense of right and wrong, natural to us previous to any consideration of law or command.<* > But when we have ascended to the notion of a {divine} natural law, {requiring whatever tends to the general good, and} containing all these <precepts or> practical dictates of right reason, our definitions of moral qualities may be abridged by referring them to a law; and yet they will be of the same import; if we still remember that the grand aim of the law of nature is the general good of all, and of every part as far as the general interest allows it.

A Right therefor may be defined “a faculty {or claim} established by law to act, or possess, or obtain something from others”; tho’<, as we explained before,> the primary notion of right [is prior to that of a law, nor does it always include a reference to the most extensive interest of the whole of mankind][has a reference to a law granting it or to the common interest coming forth from this right]. For by our natural sense of right and wrong, and our sympathy with others, we immediately approve any persons procuring to himself or his friends any advantages which are not hurtful to others, without any thought either about a law or the general interest of all. For as the general happiness is the result of the happiness of individuals; and God has for the benefit of each individual, and of families, implanted in each one his private appetites and desires, with some tender natural affections in these narrower systems: actions flowing from them are therefor naturally approved, or at least deemed innocent, and that immediately for themselves, unless they should appear hurtful to others, or opposite to some nobler affection. Hence every one is conceived to have a right to act or claim whatever does no hurt to others, and naturally tends to his own advantage, or to that of persons dear to him.

And yet this we must still maintain, that no private right <to act, possess, or demand from others> can hold against the general interest of all. For a regard to the most extensive advantage of the whole system ought to controll and limit all the rights of individuals or of particular societies.

II. Now since a friendly society with others, and a mutual intercourse of offices, and the joint aids of many, are absolutely necessary not only to the pleasure and convenience of human life, but even to the preservation of it; which is so obvious{* } that we need not reason upon it. Whatever appears necessary for preserving an amicable society among men must necessarily be enjoined by the Law of Nature. And in whatever circumstances the maintaining of peace in society requires, that certain actions, possessions, or claims should be left free and undisturbed to any one, he is justly deemed to have a right so to act, possess, or claim from others.3 As some law answers to each right <establishing and enforcing it>, so does an obligation. {This word has two senses,} 1. We are said to be obliged to act, or perform to others, “when the inward sense {and conscience} of each one must approve such action or performance, and must condemn the contrary as vitious and base”: in like manner we conceive an obligation to omit or abstain. This sort of obligation is conceived previous to any thought of the injunction of a law. 2. Obligation is sometimes taken for “a motive of interest superior to all motives on the other side, proposed to induce us to certain actions or performances, or omissions of action.” Such motives indeed must arise from the laws of an omnipotent Being.4 This latter meaning seems chiefly intended in these metaphorical definitions of great authors, who would have all obligation to arise from the law {of a superior},{* } “a bond of right binding us by a necessityof acting or abstaining” or an “absolute necessity imposed upon a man, to act in certain manner.”5

III. Rights according as they are more or less necessary to the preservation of a social life are divided into perfect and imperfect. Perfect rights are of such necessity that a general allowing them to be <disregarded or> violated must entirely destroy all society <and union>: and therefor such rights ought to be maintained <and preserved> to all even by violence: and the severest punishments inflicted upon the violation of them.6

Imperfect rights {or claims} are sometimes indeed of the greatest consequence to the happiness and ornament of society, and our obligation to maintain them, and to perform to others what they thus claim, may be very sacred: yet they are of such a nature that greater evils would ensue in society from making them matters of compulsion, than from leaving them free to each one’s honour and conscience to comply with them or not.7 ’Tis by a conscientious regard to these imperfect rights or claims of others, {which are not matters of compulsion,} that virtuous men have an occasion of displaying their virtues, and obtaining the esteem and love of others.

Yet the boundaries between perfect and imperfect rights are not always easily seen. There is a sort of scale or gradual ascent, through several almost insensible steps,8 from the lowest and weakest claims of humanity to those of higher and more sacred obligation, {till we arrive at some imperfect rights so strong that they can scarce be distinguished from the perfect,} according to the variety of bonds among mankind, and the various degrees of merit, and claims upon each other. Any innocent person<, even a stranger> may have some claim upon us for certain offices of humanity. But our fellow-citizen or neighbour would have a stronger claim in the like case. A friend, a benefactor, a brother, or a parent would have still a stronger claim, even in these things which we reckon matters of imperfect obligation.

There’s also a third kind of Right, or rather an external shew of it, which some call an external right: when some more remote considerations of distant utility require that men should not be restrained in certain actions, enjoyments; or demands upon others, which yet are not consistent with a good conscience, or good moral dispositions.9 These external shews of Right, which will never satisfy a good man as a foundation of conduct, often arise from imprudent contracts {rashly entered into by one of the parties}, and often even from the wisest Civil Laws.

’Tis plain here, that there can be no opposition either between two perfect rights or two imperfect ones. But imperfect rights may be contrary to these called external. Since however the imperfect rights are not matters of just force or compulsion; wars, which are violent prosecutions or defences of some alleged rights, cannot be just on both sides.

IV. Rights are also divided into the alienable, and such as cannot be alienated or transferred. These are alienable, where the transfer can actually be made, and where some interest of society may often require that they should be transferred from one to another.10 Unless both these qualities concurr, the Right is to be deemed unalienable. ’Tis plain therefor, for instance, that for defect of both these qualities, our opinions in matters of Religion <and worship> are unalienable; and so are our internal affections of devotion; and therefor neither of them can be matters of {commerce,} contract, or human laws. No man can avoid judging according to the evidence which appears to him; nor can any interest of society require one to profess hypocritically contrary to his inward sentiments; or to join in any external worship which he judges foolish or impious{, and without the suitable affections}.

From the general account given of the nature of Right, these must be the two fundamental precepts of a social life; first, that “no man hurt another” or occasion any loss or pain to another which is neither necessary nor subservient to any superior interest of society. The second is “that each one on his part, as he has opportunity, should contribute toward the general interest of society”; at least by contributing toward the interest of his friends or family. And he who innocently profits a Part, contributes also in fact to the good of the whole.

CHAPTER III

Concerning the Various Degrees of Virtue and Vice, and the Circumstances on which They Depend.

I. That inward power called Conscience, so much talked of, is either this very moral sense {or faculty} we have explained, or includes it as its most essential part; since without this sense we could discern no moral qualities. But when this is presupposed, our reason will shew what external actions are laudable or censurable according as they evidence good or evil affections of soul. Conscience is commonly defined to be a “man’s judgment concerning the morality of his actions”; or his judgment about his actions as to their conformity or contrariety to the law.1 And an action is then said to be imputable, <or matter of praise and censure> when by its proceeding from his will it evidences his temper and affections to be virtuous or vitious.2

The common divisions of conscience, into certain, probable, doubtful, or scrupulous, need no explication. When we deliberate about our future actions ’tis called antecedent: when we judge of past actions, ’tis called subsequent conscience.3

The antecedent conscience of a good man{, or his previous deliberations,} turn upon the tendencies of actions to the general good of all, or to the innocent enjoyments of individuals, {or of parts of this system}: and this tendency makes an action materially good. For actions are called good materially, by their having this tendency, or their being required by the law, whatever were the motives or views of the agent. The subsequent conscience regards chiefly the motives, design, and intention <of past actions>, on which depends what is called formal goodness. For such actions are called formally good as agree with the law in all respects, and flow from good affections.4

II. The circumstances regarded in comparing the morality of actions are of three sorts, as they relate either to the understanding, or to the will, or to the importance of the action itself considered along with the abilities of the agent.

But here ’tis previously certain, that such actions alone are matter of praise or censure, or can be imputed, which are done with knowledge and intention, and which had not happened if we had seriously resolved against them. And that in like manner no omission can be imputed where the most hearty inclination would have been without effect. Such actions or omissions are called free or voluntary, and such alone carry any evidence of the goodness or depravity of the temper. Necessary events therefor, which would happen even without our knowledge, or against our will, are no matter of imputation; nor is the omission of an [a so called] impossibility, which no desire of ours could have accomplished, any matter of imputation. But this is not the case with such actions as are only called necessary on this account, that the agent’s inclination and turn of temper that way, or his passions, were so strong, that during that temper of his he could not will otherways.5 Nor is it the case in omissions of such actions as are therefor only called impossible, because such was the person’s depravity of temper that he could have no inclination to them. Virtue and vice are primarily seated in the temper and affections [habits] themselves; and ’tis generally in our own power in a considerable degree to form and alter our tempers and inclinations.

There are three classes of actions called involuntary, to wit, such as we are compelled to by superior external force; such as we do ignorantly <or erroneously>; and such as are called mixed, when we do what of it self is very disagreeable in order to avoid some greater evil. What men are driven to by external force is imputable only to him who uses the violence. What is done through ignorance is imputed differently according as the ignorance is culpable or not. But the actions called mixed are all imputed, as they are truly free, and proceed from the will: but they are imputed as innocent or as criminal, according as the evil avoided was {in its whole effect} greater or less than the evil done to avoid it. Now moral evils{, and such as hurt the common interest,} are greater than the natural evils{, and such as hurt only the agent}.

III. {As to the circumstances relating to the understanding:} altho’ all moral virtue and vice is primarily seated in the will, yet frequently our ignorance or error about the nature of the things we are employed about may affect the morality of actions. And altho’ the best of men must intend what is in fact evil, if it appear to them to be good <and honourable>; yet such mistakes are frequently blameable, if the error or ignorance was any way voluntary<, and vincible>, what could have been avoided by such diligence as good men commonly use in such cases. That ignorance indeed which is wholly involuntary and invincible excuses from all blame.

Voluntary or vincible ignorance is either affected, when men directly design to avoid knowing the truth with some apprehensions of it: or what arises from gross negligence or sloth; when men have little solicitude about their duty, and take little thought about their conduct. The former no way diminishes the guilt of the action. The latter may be some alleviation of guilt, and that more or less, according as the sloth was greater or less, or the discovery of the truth was more or less difficult.

Ignorance truly involuntary is so either in it self but not in its cause, or it is involuntary in both respects. The former is the case when at present, and in the midst of action, men cannot discover the truth{, tho’ they earnestly desire it}; but had they formerly used the diligence required of good men they might have known it. The latter is the case when no prior culpable negligence occasioned our ignorance: and this sort excuses altogether from guilt, but not the former.6 There is indeed no moral turpitude at present shewn by a man’s acting what at present appears to him to be good; but ignorance or error, tho’ at present invincible, may be a strong evidence of a prior culpable negligence, which may discover a depravity of temper.

Ignorance is either about matter of law [right] or matter of fact. This division takes place chiefly in positive laws <according as the law or the nature of the fact is unknown>: for in the law of nature if the fact, or natural tendency and consequents of actions, beneficial or pernicious to society, are known [carefully examined], this it self makes the laws known.

IV. From these principles we may answer the chief questions about an erroneous conscience. 1. Error or ignorance of the law of nature is generally culpable; but in very various degrees, according to the different degrees of natural sagacity in men, and their different opportunities of information and inquiry, and as the laws themselves are more or less easy to be discovered.

2. To counteract conscience in doing what we deem vitious, or in omitting what we take to be our duty, must always be evil; as it shews such depravation of the temper that a sense of duty is not the ruling principle. But this guilt too is of very different degrees, according to the sanctity of the several duties omitted, or the turpitude of crimes we commit; and the different sorts of motives, more or less favourable, which excited us to this conduct. For sometimes ’tis only the terrour of the most formidable evils which almost enforce us, sometimes lovely principles of friendship, gratitude, filial duty, parental affection, or even love of a country, which induce us to act against our consciences; now in such cases the guilt is considerably alleviated.

3. In following an erroneous conscience, the guilt consists not in thus following it, or doing what we deem to be our duty; but it lies rather in something culpable in the error it self, or in the causes of it, and this in various degrees. For some errors of themselves shew a base temper, influenced directly by malice, pride, or cruelty: others shew only negligence and inattention, or that the nobler affections of heart are too weak.

4. ’Tis generally true that counteracting even an erroneous conscience is worse than following it. In both cases the guilt of the error is equal; and he who counteracts his conscience shews also <a poor concern for what is honourable and> a new contempt of the divine law. And yet where some of the more humane and lovely dispositions carry it against the commands of an erroneous conscience, guided rather by authority, and some confused <and deceitful> notions of duty, than any distinct view of moral excellence {in what it commands}, the disobeying it may be a better sign of the temper [a sign of a better temper] than following its dictates. {As in the case of one who deems it his duty to persecute for Religion, and yet is restrained from it by humanity and compassion.}7

V. The circumstances affecting the morality of actions which relate to the Will must appear from what was said above; that all kind affections of soul are amiable [honourable], and the contrary vitious; as is also excessive self-love, and a keen desire of sensual pleasures; that the calm stable affections of a friendly sort are more lovely{, than the turbulent passions}; and that the more extensive are the more honourable.8

1. Such duties therefor as are done deliberately, and from steddy purpose of heart, are more lovely than those which proceed from some sudden gusts of kind passions.9

2. And in like manner such injuries as are done deliberately and with premeditation, or from inveterate ill-will, are much worse than those which arise from sudden anger, fear, or some passionate bent toward pleasure.

As to all motions of anger and fear{, which aim at the repelling some impendent evil,} we may observe; that as the first step, and most necessary one, toward happiness and ease, is the warding off of pain, and the first office of virtue is the avoiding vice; the passions of aversion from evil are naturally stronger in their kind, than those pursuing positive good; and as ’tis harder to resist their impulses, they are greater alleviations of guilt, in vitious actions, tho’ none of them can wholly take it away; since it is always in one’s power, who has an hearty concern about virtue, and sets himself to it, to restrain these passions in a great measure, and prevent their breaking out into external actions.

3. We cannot expect the same degrees of beneficence, or a like extent of it, in all equally good characters, considering the different tempers of men, their different abilities, opportunities, leisure, or hurry of business.

4. There are great differences in point of moral excellence among the several narrower sorts of kind affections, according to their different springs or causes, some of which are far more honourable than others. That good will which arises from some conjunctions of interest, {so that we wish well to others only for our own interest arising from their prosperity,} tho’ it may be free from any moral turpitude, yet has nothing morally amiable; since such affection may be found in the worst of men, and may have the worst for its object: nor is there much moral beauty in the affections merely founded on the tyes of blood, or in the passions of lovers. These motions are generally turbulent and are all of a narrower kind: and such is the constitution of our nature, that they are often found among such as shew scarce any other virtues. And yet the want of such affections in such relations, would shew a great depravity. That heart must be singularly hard and insensible to kind affections which cannot be moved to them by these strong natural causes.

There is an higher moral beauty in that good-will and gratitude which arises from benefits received, where it is {truly sincere,} without any shew or ostentation designed to obtain further favours. In a like class we may reckon pity and compassion, with a desire of giving relief to the distressed. And yet these two are of a narrower nature: and such is the frame of the human heart, so strong are these impulses, that none but monsters are void of all degrees of such affections. In the common offices of these kinds there’s no eminent virtue; but in neglecting or omitting them{, contrary to such strong natural impulses,} there must be evidenced great depravation.

That <benevolence and> love arising from a conformity of virtuous dispositions{, which we call friendship,} is far more lovely: as it shews an high relish for moral excellence, and an affection which would extend to many in a considerable degree, if like virtues appeared in them. A strong love for one’s country, is yet more excellent. But of all social affections that is most amiable, which, conjoined with wisdom, is stedfastly set on promoting the most extensive happiness of all mankind, and doing good to each one as there is opportunity.

And yet the common interest of the whole, which both the nobler desires of the soul, and our moral sense [natural instinct] chiefly recommend to our care, plainly requires that each one should more peculiarly employ his activity for the interest of such whom the stronger ties of nature have peculiarly recommended, or entrusted to his care, as far as their interests consist with the general good, and that his ordinary occupations should be destined for their benefit. The bulk of mankind have no ability or opportunity of promoting the general interest any other more immediate way.

VI. These seem to be general rules of estimation in this matter. The stronger that the natural impulse is in any narrower ties of affection, the less there is of moral beauty in performing any supposed offices; and the greater is the moral deformity of omitting them. The stronger the moral obligation is to any performance, or the right by which others claim it, the less laudable is the performance, and the more censurable and injurious is the omission or refusal of it. And the weaker the right or claim of others is, ’tis the less vitious to have omitted or refused any office, and ’tis the more honourable to have readily performed it; provided we shew a readiness proportionably greater in performing such offices as others have a more sacred claim to.

In comparing [condemning] vitious actions or designs, other circumstances being equal, the turpitude is the less, the greater or the more specious the motives were which induced us to it. To have violated the laws of universal justice out of zeal for our country, or to have neglected the interest of our country from zeal for our friends, or from gratitude to our benefactors, is not so base and deformed, as if one had neglected or counteracted these more extensive interests for his own gain, or for any sensual gratification; this last excuse is indeed the meanest of all.

As far as any views of one’s own advantage have excited a man to such actions as are in their own nature good, so far the moral beauty is abated:10 and when there was no other affection moving him, there remains no moral beauty, tho’ the action may still be innocent, or void of any vice.

Where any such views of interest as must exceedingly move even the best of men, have excited one to what is culpable, the moral turpitude is diminished on that account. The passions excited by the present apprehension of some great evil <for us or those that are dear to us> make a much greater impression upon the best of men, than such as arise from prospects of any new advantages or pleasures; and therefor they are much stronger alleviations of guilt.11 Keen {selfishness, or} love of pleasures, are of themselves <very> dishonourable; and shew that the meaner parts of the soul have usurped a base tyranny over its nobler faculties.

The honourable offices we undertake, if they are expensive, toilsome, or dangerous to ourselves, they are on this account the more honourable.12 And yet since the grand aim of the good man is the promoting the publick good, and not the pleasing himself with an high admiration of his own virtues; he must also endeavour to fortify his soul, as much as he can, to surmount all allurements or temptations tending a contrary way: and this is most effectually done by a deep persuasion that a perfectly just and wise Providence governs the world, will take care of the interests of the virtuous; and that the only path to an happy immortality is by virtue: the good man therefor will be far from excluding out of his counsels these glorious hopes, nay he will cherish and confirm them; that he may thus become the more inflexible and steddy in every virtuous design.

VII. As to the importance of actions and the abilities of the agents, these general rules seem to hold. 1. That, other circumstances being equal, the moral goodness of actions is proportioned to their importance to the common interest, which the agent had in view.13

2. When other circumstances are equal, the virtue of an action is inversely as the abilities of the agent: that is, when the importance of two actions is equal, he shews the greater virtue who with smaller abilities <and poorer resources>, equals the more potent in his beneficence.14

3. The like observations hold about the vice of evil actions, that it is directly as their importance to the publick detriment foreseen, and inversely as the abilities of the agents: or that these are worst which have the worst tendency; or which undertaken by persons of little power, shew that they have malitiously exerted all their force in doing mischief.15

4. In estimating the importance of actions, we must take in that whole series of events, which might have been foreseen to ensue upon them, and which without these actions would not have happened; whether these events be the natural direct effects of the actions, or happened by the intervention of other agents, who by these actions have been provoked or incited to take certain measures.16 For every good man will consider all that may ensue upon any steps he takes; and will avoid doing any thing contrary to the common utility, or which may without necessity give an occasion or temptation to any publick <or private> detriment{, either more or less extensive}.

As to the events or effects of actions, this holds; that any publick advantage ensuing, tho’ it had been foreseen, yet if it was not intended and desired, adds nothing to the virtue of the action, nor is it matter of praise; as it shews no goodness of temper. But publick detriment which might have been foreseen, tho’ it was not directly desired, nor perhaps actually foreseen, may add to the moral turpitude. Because that even a negligence and unconcernedness about the publick interest is of itself vitious, shewing either an entire want, or a great defect in goodness of temper.

5. But we must not pronounce every action to be evil from which some evil consequences were foreseen to ensue;17 unless these evils were directly desired for themselves. The consequences of most external actions are of a mixed nature, some good, some bad. There’s no course of life which has not its own advantages and disadvantages; all which are indeed to come into computation. These actions therefor alone are good, on account of their importance, whose good consequences foreseen overballance their evil consequences; and when the good could not have been obtained without these or equal evils: and those actions are evil in this respect, where the evil consequences overballance all the good; or where the good might have been obtained without such evils{, or with a smaller degree of them}.18

6. But in the sight of God and Conscience these events are imputed not as they actually happen, but according as there was a probable prospect that they might happen. For the moral good and evil consists not in the external events, but in the affections and purposes of the soul. And hence two persons may be equal in guilt, tho’ one of them, restrained by accident or the prudence of others, has done no damage, and the other has done a great deal. And he is equally laudable who has made noble attempts, to the utmost of his power, tho’ unsuccessfully, with those to whom all things have succeeded according to their wishes.19

VIII. Amongst the circumstances which affect both the will and the abilities of the agents, may be reckoned custom and habit: which tho’ they rather abate than increase the pleasure of particular enjoyments, yet increase the regret and uneasiness in the want of what we have been enured to, make us more inclined to pursue like enjoyments, and give us greater facility and readiness in any course of action. As the acquiring of such habits was voluntary, so it still remains in our power to abate their force or take them away altogether by cautious abstinence or frequent intermission of such actions and enjoyments. However therefor an habit of virtue, {making each office less difficult,} may seem to abate a little of the excellence of each particular office, yet it plainly adds to the beauty and excellence of the character: and on the other hand habits of vice, however they may a little abate the deformity of each particular vitious action, yet plainly shew the character to be the more deformed and odious.20

Sometimes it may happen that one is justly praised on account of the good actions of other men, nay that even the desirable effects of natural inanimate causes are imputed to him as honourable, when by some honourable actions of his own he has contributed to these events. And in like manner the damages or injuries immediately done by other men or inanimate causes, are imputed as crimes, when one has occasioned them by any action or omission contrary to his duty.21

CHAPTER IV

Concerning the Natural Rights of Individuals.

I. We have already shewn that the several duties of life may be naturally explained by explaining the several rights belonging to men, and the corresponding obligations, in all the several states and relations they stand in to each other. By a state we understand “some permanent condition one is placed in, as it includes a series of rights and obligations.”1 Our state is either that of the <unbound> freedom in which nature placed us; or an adventitious state, introduced by some human {acts or} institution.

The state of natural <and unbound> liberty, is “that of those who are subjected to no human power”: which plainly obtained at first in the world, among persons adult and exempt from the parental power. This state too must always subsist among some persons, at least among the sovereign Princes of independent states, or among the states themselves, with respect to each other.2

The character of any state is to be taken from the rights and laws which are in force in it, and not from what men may do injuriously contrary to the laws. ’Tis plain therefor {from the preceeding account of our nature and its laws}, that the state of nature is that of peace and good-will, of innocence and beneficence, and not of violence, war, and rapine: as both the immediate sense of duty in our hearts[of what is right or honourable], and the rational considerations of interest must suggest to us.{* }

For let us observe what’s very obvious, that without society with a good many of our fellows, their mutual aids, and an intercourse of friendly offices, mankind could neither be brought to life or preserved in it; much less could they obtain any tolerably convenient or pleasant condition of life. ’Tis plain too that no one has such strength that he could promise to himself to conquer all such as he may desire to wrong or spoil, and all such enemies as he may raise up against himself {by an injurious course of life}; since an honest indignation at wrongs will make many more enemies to him than those he immediately injures: and there are few who won’t find considerable strength to avenge themselves {or their neighbours}, when they have conceived a just indignation.3 And then men have it generally in their power much more certainly and effectually to make others uneasy and miserable, than to make others easy and happy. External prosperity requires a perfectly right state of the body, and all its tender and delicate parts, many of which may be disturbed and destroyed by very small forces; it requires also a considerable variety of external things, which may be easily damaged, taken away, or destroyed. A just consideration of this infirm, uncertain condition of mankind, so that their prosperity may so easily be disturbed, must engage every wise man rather to cultivate peace and friendship with all, as far as possible{, than to provoke any by unnecessary enmity or injury}.4

II. The rights of men according as they immediately and principally regard either the benefit of some individual, or that of some society or body of people, or of mankind in general as a great community, are divided into private, publick, and common to all.5 The private rights of individuals are pointed out by their senses and natural appetites, recommending and pursuing such things as tend to their happiness: and our moral faculty {or conscience},6 <and the kind motions of the soul> shews us, that each one should be allowed full liberty to procure what may be for his own innocent advantage or pleasure, nay that we should maintain and defend it to him.

{To discover therefor these private rights} we should first attend to the several natural principles or appetites in men,* and then <according to right reason> turn our views toward the general interests of society, and of all around them: that where we find no obstruction to the happiness of others, {or to the common good, thence ensuing,} we should deem it the right of each individual to do, possess, or demand and obtain from others, whatever may tend to his own innocent advantage or pleasure.

Private rights are either natural or adventitious. The former sort, nature itself has given to each one, without any human grant or institution. The adventitious depend upon some human deed or institution.7

III. The private natural rights are either perfect or imperfect. Of the perfect kind these are the chief.8 1. A right to life, and to retain their bodies unmaimed. 2. A right to preserve their chastity. 3. A right to an unblamished character for common honesty, so as not to be deemed unfit for human society. 4. A right of liberty, or of acting according to one’s own judgment {and inclination} within the bounds of the law of nature. 5. A right over life, so far that each one, in any honourable services to society or his friends [to more important men], may expose himself not only to dangers, but to certain death, when such publick good is in view as overballances the value of his life. This our {conscience, or} moral sense, and love of virtue will strongly recommend to us in many cases. 7. [6.] There’s also a sense deeply infixed by nature, of each one’s right of private judgment, {or of judging for himself in all matters of duty,} especially as to religion; for a {base} judgment or opinion cannot of itself be injurious to others: and ’tis plain no man can without guilt counteract his own conscience; nor can there be any virtue in dissimulation or hypocrisy, but generally there’s great guilt in it. Our sentiments therefor about religion and virtue cannot be matter of commerce {or contract, so as to give others a right over them}. Such commerce is no way requisite for any good in society; nor is it in ones power to judge or think as another shall command him. All engagements or contracts of this kind are null and void. <It is therefore evident that this right can not be alienable and that the acts of those that would impose contracts to opinions and leave them to the power of anybody are null and void.> Suppose one has judged amiss and has false opinions <as to religion>: yet while he injures no man, he is using his own external right; that is, {tho’ he acts amiss, yet} much greater evils would ensue if any power were vested in others to compel him by penalties or threatnings of tortures, either to a change of his sentiments, or to a profession of it [to a profession of contrary opinions].

Each one also has a natural right to the use of such things as nature intended to remain common to all; that he should have the same access with others,9 {by the like means,} to acquire adventitious rights; and that he should find equal treatment with his equals. Men have likewise rights to marriage with such as are willing to inter-marry with them, provided they be under no prior bonds of marriage, or hindred by any other just impediment: nor can any third person or society which has not acquired any just power over the parties, pretend a right to obstruct their designs of inter-marriage; or to hinder any who are not their subjects from entering into any other innocent associations or commerce of any kind for their own behoof.

The sense of every one’s heart, and the common natural principles, shew that each one has these perfect rights; nor without maintaining them can there be any social <and peaceful> life: so that they are also confirmed by considerations of common utility, and our more extensive [honourable] affections.

IV. In this respect all men are originally equal, that these natural rights equally belong to all, at least as soon as they come to the mature use of reason; and they are equally confirmed to all by the law of nature, which requires that we should consult the interest of each individual as far as the common utility will allow; and maintain to the feeble and weak their small acquisitions or advantages, as well as their greater acquisitions or advantages to the ingenious and active.10 For ’tis plainly for the common good, <and most sacredly> that no mortal endued with reason {and forethought} should without his own consent, or crime, be subjected to the will of his fellow, without regard to his own interest, except in some rare cases, that the [some great] interest of a society may make it necessary. None of mankind are so stupid and thoughtless about their own interests, as not to count it next to death to have themselves and all that’s dear to them, subjected to another’s pleasure or caprice, and thus exposed to the greatest contumelies. Nature makes none masters, none slaves: and yet the wiser and better sort of men have many imperfect rights superior to those of others, and superior offices and services of humanity are due to them.

But as nature has set no obvious or acknowledged marks of superior wisdom and goodness upon any of mankind; and often weak men may have high notions of their own wisdom; and the worst of men may make the greatest shews of goodness <and virtue>, which their fellows cannot discover to be hypocritical; ’tis plain that no pretences of superior wisdom or goodness will justify a man in his assuming power over others without their own consent; this would be plainly eversive of the common interest [happiness]{, and the source of perpetual wars}.

V. To every imperfect right of individuals there answers a like obligation or duty which our conscience [sense of right and honourable] <and the common utility of all> plainly enjoins, and in some cases most sacredly. These are the chief imperfect rights: each one may justly claim such offices as are profitable to him, and no burden or expense to the performer. Nay every innocent person has a right to such offices of others, as are of high advantage to him, and of small burden or expence to the performers.11 This is particularly the case of men under great calamities, needing the charitable aids of others. Men of eminent characters, tho’ under no calamity, have a right to some higher offices from others, as particularly to their friendly suffrages for their advantage or promotion. Each one whose vices have not made him infamous has a right to be admitted on equitable terms into any societies civil or religious, which are instituted in his neighbourhood, for his more convenient subsistence, or his improvement in piety. And lastly each one, who has not forfeited by some crime, has a right to be treated on an equal footing of humanity with his equals, and with others in proportion to their merits.

VI. Concerning beneficence and liberality, these general maxims are evident,{* } that the importance of any benefit to the receiver, is proportioned jointly to the quantity of the benefit and his indigence: and that benefits are less burdensome to the giver the smaller their value is and the greater his wealth. Hence liberality may be exceedingly advantageous in many cases to him [the needy man] that receives it, and yet of small or no burden to the giver.

Beneficence, which is peculiarly becoming a good man, and eminently displays the goodness of his heart, ought to be practised with these cautions; first, that it don’t hurt the persons it is employed about or the community. 2dly. That it be proportioned to our fortunes, so as not to exhaust its own fountain. 3dly, That it be proportioned to the merits or claims of others. Among these claims we regard, first, the moral characters of the objects, and next their kind affections towards us, and thirdly the social intercourses we have had with them, and lastly the good offices we formerly received from them. None of these considerations are to be neglected, and least of all the last one; since there’s no obligation more sacred than that of gratitude, none more useful in life; nor is any vice more odious than ingratitude, or more hurtful in society. When therefor in certain cases we cannot exercise all the beneficence we desire, offices of gratitude should take place of other offices of liberality.

CHAPTER V

Of Real Adventitious Rights and Property.

I. The adventitious rights constituted by some human deed or institution are either real or personal. The real terminate upon some certain definite goods: the personal terminate upon some person{, not peculiarly respecting one part of his goods more than any other}. <About these we will say more elsewhere.>

The principal real right is property; the spring [the source and cause] of which is this [we have to explain.], First the external senses and appetites of men naturally lead to the use of external things for the preservation of life: and the like senses <and appetites> in brute animals (who have no superior faculties which could controll these senses and appetites) lead to the same: this sufficiently shews that God has graciously created things inanimate for the use of <a pleasing and rich> animal-life: now man is plainly the chief animal in this earth. Reflection confirms the same; since all these {curious}1 vegetable forms must soon perish of their own accord, and therefor could be intended for no other use, so worthy of the divine goodness <and wisdom>, as that of supporting animal life agreeably, and chiefly human life.

II. There’s indeed implanted in men a natural kindness and sense of pity, extending even to the Brutes, which should restrain them from any cruelty toward them which is not necessary to prevent some misery of mankind, toward whom we must still have a much higher <concern and> compassion. But men must soon discern, {as they increase in numbers,}2 that their lives must be exceedingly toilsome and uneasy unless they are assisted by the beasts fitted for labour. They must also see that such beasts of the gentler kinds and easily tameable, whose services men need most, cannot be preserved without the provident care of men; but must perish by hunger, cold, or savage beasts: nor could men unassisted by work-beasts, and over-burthened in supporting themselves, employ any cares or labour in their defence. Reason therefor will shew, that these tractable creatures fitted for labour are committed to the care and government of men, that being preserved by human care, they may make a compensation by their labours. And thus a community or society is plainly constituted by nature, for the common interest both of men and these more tractable animals, in which men [animals endowed with reason] are to govern, and the brute animals to be subject.3

Such tractable [speechless] animals as are unfit for labours, must make compensation to men for their defence and protection some other way, since their support too requires much human labour; as they must have pastures cleared of wood, and be defended from savage creatures. Men must be compensated by their milk, wool, {or hair,} otherwise they could not afford them so much of their care and labour.

III. Nay, if upon the increase of mankind they were so straitened for food, that many must perish by famine, unless they feed upon the flesh of brute animals; Reason will suggest that these animals, slaughtered speedily by men for food, perish with less pain, than they must feel in what is called their natural death; and were they excluded from human protection they must generally perish earlier and in a worse manner by hunger, or winter-colds, or the fury of savage beasts. There’s nothing therefor of unjustice or cruelty, nay ’tis rather prudence and mercy, that men should take to their own use in a gentler way, those animals which otherways would often fall a more miserable prey to lions, wolves, bears, dogs, or vultures.

Don’t we see that the weaker tribes of <speechless> animals are destined by nature for the food of the stronger and more sagacious? Were a like use of inferior animals denied to mankind, far fewer of these animals fit for human use would either come into life or be preserved in it; and the lives of these few would be more exposed to danger and more miserable. And then, the interest of the whole animal system would require that those endued with reason and reflection, and consequently capable of higher <and more lasting> happiness or misery, should be preserved and multiplied, even tho’ it occasioned a diminution of the numbers of inferior animals. These considerations abundantly evidence that right of mankind to take the most copious use of inferior creatures, even those endued with life. And yet all useless cruelty toward the brute animals is highly blameable.

IV. The grounds of property among men are of a different nature. Compleat unlimited property is “the right of taking the full use of any goods, and of alienating them as we please.” Some degree of ingenuity and strength for occupying certain things, is granted by nature to every one; mankind also naturally are prone to action. Our desire of self-preservation and our tender affections excite us to occupy or acquire things necessary or useful for ourselves and those we love: every man of spirit naturally delights in such exertion of his natural powers, and applauds himself in the acquisition of what may be matter of liberality and friendliness. Our sense of right and wrong also shews, that it must be inhuman and ill-natured, for one who can otherways subsist by his own industry, to take by violence from another what he has acquired or improved by his {innocent} labours. ’Tis also obvious that the spontaneous fruits of the uncultivated earth are not sufficient to maintain the hundredth part of mankind; and that therefor it is by a general diligence and labour that they must be maintained. Whatever method therefor is necessary to encourage a general industry must also be necessary for the support of mankind;4 now without a property ensuing upon labour employed in occupying and cultivating things {fitted for the support of life}, neither our self-love, nor any of the tender affections, would excite men to industry; nay nor even the most extensive benevolence toward all; since the common interest of all requires that all should be obliged by their own necessities to some sort of industry.5 Now no man would employ his labours unless he were assured of having the fruits of them at his own disposal: otherways, all the more active and diligent would be a perpetual prey, and a set of slaves [laughing-stock], to the slothful and worthless.

Without thus ensuring to each one the fruits of his own labours with full power to dispose of what’s beyond his own consumption to such as are dearest to him, there can be no agreeable life, no universal diligence and industry: but by such ensurance labours become pleasant and honourable, friendships are cultivated, and an intercourse of kind offices among the good: nay even the lazy and slothful are forced by their own indigence, to bear their share of labour. Nor could we hope, in any plan of polity, to find such a constant care and fidelity in magistrates, as would compell all impartially to bear their proper shares of labour, and make a distribution of the common acquisition in just proportion to the indigence or merits of the several citizens, without any partial regards to their favourites.6 And could even this be obtained in fact, yet the citizens could scarce have such confidence in their magistrates wisdom and fidelity, as would make their diligence and labour so agreeable to them, as when they are themselves to make the distribution of their profits, according to their own inclinations, among their friends or families.

CHAPTER VI

The Methods of Acquiring Property.

I. Property is either original or derived. The original property arises from the first occupation <and culture> of things formerly common. The derived is that which is transferred from the first [former] Proprietors.1

Whosoever either from a desire of preserving himself, or profiting any who are dear to him, first occupies any of the spontaneous fruits of the earth, or things ready for human use on which no culture was employed, either by first discovering them with intention immediately to seize them, or by any act or labour of his catching or enclosing them so that they are more easily attainable and secured for human use, is deemed justly the proprietor for these reasons; that if any other person, capable of subsisting otherways, would wrest from him what he had thus acquired, and defeat and disappoint his labours, he would plainly act inhumanly, break off all friendly society, and occasion perpetual contention. What this person pretends to now, he may attempt anew every hour: and any other person may do the same with equal right: and thus all a mans pains in acquiring any thing may be defeated, and he be excluded from all enjoyment of any thing unless he perpetually defend his acquisitions by violence.

’Tis trifling to imagine2 that property is any physical quality or bond between a man and certain goods, and thence to dispute that there’s no such force or virtue in first espying, touching, striking, or inclosing anything, as to constitute a sacred right of property; or to debate which of all these actions has the greatest virtue or force. For in all our inquiries into the grounds or causes of property, this is the point in question, “what causes or circumstances <and what conditions of goods> shew, that it is human and equitable toward individuals, <fit> and requisite also to the maintainance of amicable society, that a certain person should be allowed the full use and disposal of certain goods; and all others excluded from it?” and when these are discovered, our road is cleared to find out the causes and rules about property.

II. Thus therefor we should judge about the different methods of occupation: that ’tis inhuman and unjust, without the most urgent necessity, to obstruct the innocent labours others have begun and persist in, or by any speedier attempt of ours to intercept their natural profits. If therefor any person in search for things requisite for himself, first discovers them with intention immediately to seize or pursue them; one who had employed no labour about them, nor was in search for them, would act injustly and inhumanly, if by his greater swiftness he first seized them for himself. If severals at once were searching for such things, and at once discover them by sight <easy to be seized>, they will be common among them, even altho’ one swifter than the rest first touched them; unless by civil laws or custom such points be otherways determined. If one first espies them, and another conscious of his design, but also in search for such things for himself, first seizes them, the things will be common to both, or in joint property: for there are no more potent reasons of humanity on one side than on the other. If one by his labour or ingenuity incloses or ensnares any wild animals, or so wearies them out in the chase that they can now easily be taken; ’tis a plain wrong for another <unless pressed by a more grievous necessity> to intercept them, tho’ the former had neither seen nor touched them <first>. If it is known to many that certain lands or goods lay common to be occupied by any one; and severals, not conscious of each others designs, at once are preparing to occupy them, and set about it: by the custom which has obtained, he that first arrives at them is the proprietor. But, abstracting from received customs {and laws}, such things should be common to all who without fraud or imprudent negligence employed their labours in occupying them, whether they came earlier or later; and should either be held in common, or divided among them in proportion to expence and pains prudently employed by each of them for this purpose. Nay tho’ each of them were aware of the designs of the rest; ’tis right that each should proceed and acquire a joint title with others. Nor should those who without any fault of their own came too late, or such whose wise and vigorous attempts have been retarded by accidents, be precluded from their share.

In such disputable cases we should first inquire what reasons of humanity give the preference to any one above the rest; and this chiefly, “that the natural fruits of no man’s honourable or innocent labours should be intercepted; or any honest industrious attempts defeated.” If this plea belongs alike to all, the goods should be deemed in joint property of all. If some accidents or circumstances make the point very doubtful; and some sorts of goods can neither be held in common, nor divided or sold without great loss; we should follow some implicite conventions of men, appearing by the laws or customs which prevail; and assign the property to him who has on his side such circumstances the regarding of which prevents many inextricable disputes and violent contentions. Hence it is that law and custom so generally favour the first seizer, the publick purchaser, and the person to whom goods have been publickly delivered. And this conduces to [requires] the common utility.

If different persons intending to occupy agree that the whole should fall to him who first occupies; they ought also to specify the manner of occupation; otherways different methods may be deemed equally valid, and constitute a joint property. These rules seem the most conducive to peace.

No doubt inextricable questions may arise about what the several parties insisting on their utmost rights may do, without being chargeable with injustice. But such as sincerely aim at acting the virtuous part, will always easily discern what equity and humanity require, <what is worthy of a good man,> unless they are too much influenced by selfishness. Nor have we reason to complain, that, in these and such like cases, nature has not precisely enough fixed the boundaries, to let us see how very near we may approach to fraud or injury, without actually incurring the charge of it; when we are so loudly exhorted to every thing honourable, liberal and beneficent.3

III. But as man is naturally endued with provident forethought, we may not only justly occupy what’s requisite for present use, but may justly store up for the future; unless others be in some extraordinary distress. There are also many things requiring a very long course of labour to cultivate them, which after they are cultivated yield almost a perpetual and copious use to mankind. Now that men may be invited to such a long course of labour, ’tis absolutely requisite that a continual property be allowed them as the natural result and reward of such laborious cultivation. This is the case {in clearing woody grounds} for tillage or pasture; {preparing} vineyards, oliveyards, gardens, orchards{; in rearing or breaking} of beasts for labour (and many others similar).4

Property is deemed to begin as soon as one begins the culture of what before was unoccupied; and it is compleated when the cultivator has marked out such a portion as he both can and intends to cultivate, by himself or such as he can procure to assist him. As ’tis plainly injust to obstruct any innocent labours intended, or to intercept their fruits.

But the abilities of the occupier with his assistants must set bounds to his right of occupation. One head of a family, by his first arriving with his domesticks upon a vast island capable of supporting a thousand [many] families, must not pretend to property in the whole. He may acquire as much as there’s any probability he can cultivate, but what is beyond this remains common. Nor can any state, on account of its fleets first arriving on a vast continent, capable of holding several empires [states], and which its colonies can never sufficiently occupy, claim to itself the dominion of the whole continent.5 This state may justly claim as much as it can reasonably hope to cultivate by its colonies in any reasonable time: and may no doubt extend its bounds beyond what it can cultivate the first ten or twelve [fifteen] years; but not beyond all probable hopes of its ever being able to cultivate. The just reasonable time to be allowed to the first occupiers, must be determined by prudent arbiters, who must regard, not only the circumstances of this state, but of all others who may be concerned, according as they are more or less populous, and either need new seats for their colonies, or have already sufficient lands for their people. If many neighbouring states are too populous, they may justly occupy the uncultivated parts of such a new discovered continent, leaving sufficient room for the first occupiers; and that without the leave of the first discoverers. Nor can the first discoverers justly demand that these colonies sent by other states should be subjected to their empire. ’Tis enough if they agree to live amicably beside them as confederated states [under a few common laws]. Nay as in a free democracy [nation], ’tis often just <by agrarian laws> to prevent such immoderate acquisitions of wealth by a few, as may be dangerous to the publick{, even tho’ these acquisitions are a making without any private injuries}: so neighbouring states may justly take early precautions, even by violence if necessary, against such acquisitions of any one, as may be dangerous to the liberty and independency of all around them; when sufficient security cannot be obtained in a gentler way.6 Nothing can be more opposite to the general good of mankind than that the rights, independency, and liberty of many {neighbouring] nations should be exposed to be trampled upon by the pride, luxury, ambition, or avarice of any [only one] nation.

’Tis plain however, that both individuals and societies should be allowed to acquire stores of certain goods far beyond all their own consumption; since these stores may serve as matter of commerce and barter to obtain goods of other kinds they may need.

IV. From these principles about property it appears, that such things as are inexhaustible by any use, are not matters of occupation or property, so that others could be excluded from them: for this further reason too, that such things can scarce be improved by any human labour. If indeed for the more safe use of any of them labour or expences are requisite; those who wisely employ labour or expence for this purpose, may justly require that all others who use them should in a just proportion contribute to make compensation. The air, the light, running water, and the ocean are thus common to all, {and cannot be appropriated:} the same is the case of straits or gulphs. And yet if any state is at the expence to build fortified harbours or to clear certain seas from Pyrates for the behoof of all traders, they may justly insist on such taxes upon all traders who share the benefit as may proportionally defray the said expences, as far as they really are for the benefit of all traders, but no further.7 Now no man should be excluded from any use of things thus destined for perpetual community, unless this use requires also some use of lands which are in property.

These reasonings also shew that all things were left by God to men in that community called negative, not positive. Negative community is “the state of things exposed to be appropriated by occupation.” Positive community is “the state of things in the joint property of many”: which therefor no person can occupy or acquire without the consent of the joint proprietors. At first any one might justly have occupied what he wanted, without consulting the rest of mankind; nor need we have recourse to any old conventions of all men, to explain the introduction of property.8

V.9 The goods called by the Civilians res nullius, which, as they say, are not in property, and yet not exposed to occupation;{* } such as temples, the fortifications of cities, and burial-places [sacred, holy or religious buildings or places], are truly the property either of larger societies, or of families; altho’ this property is often so restricted by superstitious laws, that it can be turned to no other use.10 ’Tis vain to imagine that any such things afford use to the Deity, or that his supreme right over all can be enlarged or diminished by any human deed.

The goods belonging to states{* } are not in the property or patrimony of any individuals, nor come into their commerce. But they are the property of the community, which may transfer them as it pleases. Such are publick theatres, high-ways, porticos, {aqueducts,} bagnios.

Things formerly occupied may return into the old state of community if the proprietor throw them away, or abandon his property; and this intention of abandoning may sometimes sufficiently appear by a long neglect of claiming it, when there’s nothing to obstruct his recovery. A long possession in this case will give another a just title. Goods unwillingly lost fall also to the fair possessor, when the proprietor cannot be found. There are also other reasons why civil laws have introduced other sorts of prescription{† } for the common utility, and to prevent inextricable controversies.

In the occupying of lands, a property is also constituted in such things as cannot be used without some use of the ground; such as lakes, <pools,> and rivers as far as they flow within the lands in property; nay such parts also of things otherwise fit for perpetual community, as cannot be left open to promiscuous use without indangering our property; such as bays of the sea running far into our lands, and parts of the ocean contiguous to the coast, from whence our possessions might be annoyed. But by occupying lands we acquire no property in such wild creatures as can easily withdraw themselves beyond our bounds, and are no way inclosed or secured by our labour. And yet the proprietor may justly hinder others from trespassing upon his ground for fouling, hunting, or fishing.

All {natural, accidental, or artificial} improvements, {or adventitious increase}, are called accessions, such as fruits of trees, the young of cattle, growth of timber, and artificial forms [such as fruits, increases, floods, mixtures, fusions, specifications].{‡ } About which these general [very easy] rules hold, 1. “All accessions of our goods which are not owing to any goods or labours of others, are also our property; unless some other person has acquired some right which limits our property.”

2. When without the fraud or fault of any of the parties, the goods or labours of different persons have concurred to make any compound, or have improved any goods, “these goods are in joint property of all those whose goods and labours have thus concurred; and that in proportion to what each one has contributed.” Such goods therefor are to be used by them in common, or by turns for times in the said proportion, or to be thus divided among them, if they will admit division without loss.

3. But if they admit no such common or alternate use, or division, they to whom they are least necessary should quit their shares to the person who needs them most, for a reasonable compensation, to be estimated by a person of judgment and integrity.

4. When by the fraud or gross fault of another, his goods or labours are intermixed with my goods, so that they are less fitted for my purpose; the persons by whose gross fault this has happened is bound to compensate my loss{* } or make good to me the value of my goods, nay{‡ } all the profit I could have made had they been left to me entire as they were; and let him keep to himself the goods he has made unfit for my purpose. But if by the intermedling of others my goods are made more convenient for me, my right remains; and I can be obliged to compensate to them no further than the value of the improvement to my purposes, or as far as I am enriched.

Full property originally contains these several rights: first, that of retaining possession, 2. and next, that of taking all manner of use. 3. that also of excluding others from any use; 4. and lastly, that of transferring to others as the proprietor pleases, either in whole or in part, absolutely, or under any lawful condition, or upon any event or contingency, and of granting any particular lawful use to others. But property is frequently limited by civil laws, and frequently by the deeds <or contracts> of some former proprietors.11

CHAPTER VII

Of Derived Property.

I. The derived <adventitious> rights are either real or personal. The materials whence all real rights arise is our property. Personal rights are founded on our natural liberty, or right of acting as we choose, and of managing our own affairs. When any part of these original rights is transferred to another, then a personal right is constituted <to him>.

To apprehend this distinction, which has place in the law of nature, as well as in civil law, ’tis to be observed, that the common interest of all constantly requires an intercourse of offices, and the joint labours of many: and that when mankind grow numerous, all necessaries and conveniences will be much better supplied to all, when each one chooses an art to himself, by practice acquires dexterity in it, and thus provides himself great plenty of such goods as that art produces, to be exchanged in commerce for the goods produced in like manner by other artisans; than if each one by turns practised every necessary art, without ever acquiring dexterity in any of athem.1

’Tis plain too, that when men were multiplied considerably, all lands of easy culture must soon have been occupied, so that {there would none remain in common; and that} many could find none to occupy for their support, such persons therefor would have no other fund than their own bodily strength or ingenuity, that by <exchanging> their common or artificial labours <with the goods of others> they might procure necessaries for themselves: the more opulent too{, for their own ease,} would more frequently need the labours of the indigent, and could not with any conscience expect them gratuitously. There must therefor be a continual course of contracts among men, <the nature of which has to be explained afterward> both for the transferring of property or real rights; and the constituting claims to certain services, and to certain quantities or values, to be paid in consideration of these services; which are personal rights.

Now it would often happen that a proprietor without entirely transferring his property in lands or other goods, would yet consent so to subject them to certain claims of his creditor, that unless the debt be discharged at the time agreed, the creditor by the possession or sale of such lands or goods might secure himself: by a transaction of this kind a real right is constituted <to the creditor>. Sometimes the creditor would have such confidence in the wealth and integrity of his debtor, that he would demand no such real security as {a pledge or} mortgage, but accept of a personal obligation, which had no more peculiar respect to any one piece of goods or property of the debtor than another. In like manner; from any damage done there would arise only a personal right. But further, when it was found absolutely necessary to maintain the faith of <swelling> commerce, certain publick and notour2 forms have been received, to make full translation of property: which must have always been deemed so valid and sacred, that no prior latent contracts with others could defeat them. Were not such forms thus agreed upon, no man would buy any thing; since he could have no security that it would not be wrested from him by a third person upon some prior latent contract. A good man no doubt will sacredly regard all his {contracts and} obligations personal or real{; and avoid what may defeat any right of another of any kind}. But there’s such a necessity of maintaining the faith of publick commerce,{* } that all contracts entered into publickly and without fraud, in order to transfer real rights, must take place of {latent contracts and} personal rights, tho’ prior in time.

II. Derived real rights are either certain parts of the right of property, subsisting separately from the rest; or compleat property transferred. The parts which often subsist separately are four, the rights of possessing what [the goods of another that] one obtains without force or fraud; the rights of heirs in entail [hereditary rights]; the rights of the pledge or mortgage; and servitudes.

[1.] He that possesses the goods of another without fraud or violence, either knows that they are the property of others; or upon probable ground believes them to be his own. And this latter is the bonae fidei possessor, or the presumptive proprietor.3

Whosoever by fraud or violence possesses the goods he knows belong to others, has no manner of right. The proprietor, or any other honest man for the proprietor’s behoof, has a right to demand and take them from him by force, to restore them to the proprietor. But when we get possession of any goods without fraud or violence, which we know belong to others, (as when one finds goods lost at land, or wrecks at sea), these we may detain till they are claimed by the proprietor, or some person commissioned by him; and if no such person ever appears, the goods fall to the possessor. But in such cases the possessor is bound to give publick notice that he has found such goods, and is ready to restore them to the owner: to conceal them would be equal to theft. But he may justly insist to have all his prudent charges in the keeping or advertising them refunded to him.

The obligations on the presumptive proprietor are, first to restore to the owner the goods, with all their unconsumed fruits{, profits and increase}.

2. If the goods or their increase be consumed, to refund to the value of what he is inriched by the use of them, in sparing so much of his own property; or as much as it can be deemed valuable to him to have so long lived with more elegance or pleasure, considering his circumstances. For ’tis a just maxim, that “no person should derive to himself any pleasure or advantage at the expence of another without his consent.”

3. If both the goods and their increase have perished by accident, the presumptive proprietor {who holds no profit by them} is not obliged to make good the value: nor is he accountable for such profits as he neglected to take: for he used these goods {believing them to be his own, even} as he would have used his own. But one ceases to be deemed presumptive proprietor as soon as he has any probable intimation that the goods are not his own{, by any plausible claim put in by another}: and whatever is culpably lost, squandered or grosly neglected thereafter he is bound to make good.

4. When the presumptive proprietor restores to the true owner any goods he bought or obtained for valuable consideration; he may justly insist to have the price or consideration restored to him by his author, or the person from whom he obtained them.

5. Where this person is bankrupt, {or can’t be found,} the cause of the presumptive proprietor is as favourable as that of the true one. Nor does the true proprietor hold by any title more sacred than by purchase, succession, testament, or donation, which are the ordinary foundations of the true property, as well as of the presumptive. And since a certain loss must fall upon one or both parties, nor is there any reason of publick interest pleading for one more than the other; the loss should be equally divided between them, unless some reasons of humanity <and liberality> recommend a different decision; especially since it often happens, that the presumptive proprietor has done a most valuable service to the proprietor, in purchasing his goods, which otherways might have been lost to him for ever. If one pleads the general advantage of making purchasers look well to their titles, that they may not purchase goods injuriously obtained: ’tis on the other hand an equal publick advantage that the proprietors be made more vigilant about their goods, least when they are lost or stollen through their negligence, fair purchasers may be involved in losses by their means.

6. Where the presumptive property has been obtained [bestowed to another] gratuitously, and the goods are claimed by the true owner, they must be restored. Nor has the person who got them gratuitously in this case any recourse for their value.

III. Concerning the right of heirs in entail,4 these points seem clear; that one who has full property may transfer his goods to any person upon any contingency, or under any lawful conditions. The right therefor of persons in remainder is as sacred as any right founded in donation: nor is it less inhuman to hinder the proprietor to convey his property to a person dear to him, upon any contingency, than to hinder a friendly immediate donation, or conveyance to his first heir upon the event of his death. It is no less inhuman to defeat the hopes of the second or third in remainder, without any demerit of theirs, than to intercept other donations to friends. And yet there may be prudent reasons why civil laws should prevent making such perpetual entails as may be very inconvenient to the several successors in their turns, or pernicious to the community; even as courts of equity often make void prodigal and inconsiderate donations.

IV. For further security to creditors pledges {and mortgages} were introduced, or goods so subjected to the power of the creditor{* } that, if the debt is not discharged at the time prefixed, the goods should become the property of the creditor. In this there would be no iniquity, if the creditor in such cases were also obliged to restore to the debtor whatever surplus of value there was, upon a just estimation of the goods, beyond the sum of the debt.{† } <Yet often the goods are not transferred to the creditor, but by some public forms a real right is conferred on him, called hypotheca or mortgage>. Where such real security is given, it takes place of all prior debts, which have not been publickly intimated before the mortgage. Nor can prior creditors justly complain <that their personal rights yield to the following real right>: let them blame themselves that they insisted not on higher security, and thus are postponed to creditors who using more caution insisted on higher, <without which they would have not trusted the debtor,> and who had no notice of their prior claims.

V. The last class of real rights are servitudes that is “rights to some small use of the property of others”; which generally arise from contracts; or from this that in the transferring of property they have been reserved by the granter; or sometimes from civil laws. All servitudes are real rights, terminating upon some definite tenement. And yet with regard to the subject they belong to, and not the object they terminate upon, they are divided into real and personal. The personal are constituted in favour of some person, and expire along with him: the real are constituted for the advantage of some <near> tenement, and belong to whatever person possesses it.{‡ } An instance of the former is tenantry for life impeachable for waste <usufructus, usus, habitatio and similar others>.5 The real servitudes are either upon town-tenements, or farms in the country. Instances of the former are the rights of putting beams or rafters into a neighbouring gable or wall; a right that our windows shall not be obstructed by any building in the adjacent tenement; and such like.6 The rural servitudes, are chiefly that of roads for passage or carriages, or of little channels for rivulets, brought through a neighbouring farm [The rural servitudes consider founds, as iter, actus, via and others more copiously treated by jurists].7

CHAPTER VIII

The Methods of Transferring Property, Contracts, Succession, Testaments.

I. Property may be transferred, either by the voluntary deed of the former proprietor, or without any deed of his, by appointment of law either natural or civil: and in each of these ways it is transferred either among the living, or upon the event of death.

By the deed of the proprietor among the living, property is transferred either gratuitously in donations; or for valuable consideration in commerce, wherein a price, or goods of equal value, or rights, are transferred in consideration of it. This power of alienating, we formerly shewed, is included in the right of property. We treat of contracts and commerce hereafter.

II. By the deed of the proprietor upon the event of death property is transferred in testaments or last-wills. According to the law of nature “any declaration of a man’s will how his goods should be disposed of upon the event of his death,” is a valid testament; provided there be sufficient documents or proof made of this will. For that of which no proof can be made must be deemed as if it were not.1

The nature of property itself, and the known intention of mankind in their acquiring goods beyond their own use, that they may contribute to the happiness of such as are dearest to them, shew that the wills of the deceased which contain nothing iniquitous should be observed. ’Tis cruel and inhuman, and destructive to industry to hinder men to transfer as they incline what they have acquired by their innocent labours, and that upon any contingency. It would be disagreeable and often highly inconvenient to oblige men while they are living, and perhaps in good health, to make irrevocable conveyances of their property to their kinsmen <or friends>: It would also be cruel to deprive the dying of this satisfaction that their acquisitions should be of advantage to their <kinsmen or> friends: it would be inhuman <and unjust> toward the surviving friends, the heirs or legatees, to frustrate or intercept the kindnesses intended them by the deceased. Without regard therefor to the metaphysical subtilities of such as object, that ’tis absurd men should then be deemed to will and act when they become incapable of will or action, we conclude that the law of nature grants this power of disposing by will.2

But as many obligations both of a perfect kind, and such as are pretty near of equal sanctity, must be discharged out of our goods, all just debts must be paid, <damages repaired,> our children, or indigent parents maintained: wills are therefor justly made void as far as they interfere with these obligations. Nay tho’ there were no surviving parents or children, ’tis reasonable that other near indigent kinsmen, who have given no just cause for their being thus neglected, should be admitted to certain shares of the fortune of the deceased, even contrary to an inhuman capricious will. The law of nature too as well as civil laws invalidate any thing in wills which may be detrimental to the community; and enjoin that wills be made with such solemn forms {and circumstances} as may be necessary to prevent forgeries: and, where these forms are omitted without necessity, deems the will to be void.

III. Property is transferred among the living, even against the will of the proprietor, by appointment of <natural> law, for the performance of whatever the proprietor was strictly bound to perform, and yet declined. This branch will be more fully explained when we treat of contracts, and the rights arising from damage done either injuriously or without a crime{, and the manner of prosecuting our just rights* }.

Upon the event of death, without any deed of the proprietor, property is transferred by the law in the successions to the intestate.3 The natural grounds of which are these: ’tis well known that the intention of almost all mens acquisitions beyond their own use, is to profit those whom they love. This universally known intention of mankind is a continual declaration of their will <where nothing opposite is clearly testified>: now according to the general temper of mankind, our children and near kinsmen are dearest to us, and ’tis for them we universally endeavour to obtain not only the necessary supports, but even the pleasures and ornaments of life. Nay {God and} nature, by making these tyes of blood bonds also of love and goodwill, seems to have given our children and kinsmen if not a perfect {claim or} right, yet at least one very near to perfect, to obtain not only to the necessary supports, but even the conveniencies of life from their wealthy parents or kinsmen, unless they have forfeited it by their vitious behaviour. ’Tis therefor cruel to deprive men of this general consolation upon the event of sudden death, against which no man can take certain precautions, that the fruits of their industry shall fall to their children or kinsmen. And ’tis plainly cruel and unjust to defeat these rights of children and kinsmen which {God and} nature have given them <and cheat the just expectations of benevolence from kinsmen>.

Nay where the custom has prevailed of admitting children and kinsmen to succeed; ’tis justly presumed that this was the very intention of the deceased <if there is not any witness against it>. And this right of succession has the same foundation in justice with testaments.

Where there are no children or very near relations, like arguments of humanity would plead for friends, if it were known that any such had been singularly dear to the deceased. But where by custom or law the remotest kinsmen are preferred to friends; ’tis presumable that this was the intention of the person deceased, unless proof can be made of his hatred to his kinsmen. The causes of this law or custom prevailing every where, are these; that nature almost universally endears our kinsmen to us; that ’tis easy to compute the degrees of kindred, but impossible those of friendship; and that we so frequently see that men who seemed most to delight in the company of friends and not of kinsmen, yet when they declare their own will about their goods, they leave them almost always to kinsmen.

Kinsmen should succeed according to their proximity, those of equal degrees equally. First our children, among whom grandchildren by a child deceased should be admitted, at least to the share their parents would have had: nay sometimes humanity would appoint them a greater share, where many such orphans are in straits. Along with children some share is due to indigent parents, at least as to the necessaries of life; nay <good> brothers in distress should have some share. When there are no children or parents surviving, brothers and sisters <surviving>, with the children of any such deceased, at least for their parents share, should be admitted: and when none such survive, cousin-germans by brothers or sisters, and their posterity.

IV. The constitution and civil laws and customs of some states may require that a far larger share of the goods of persons deceased should go to sons or other heirs male, than what goes to daughters, or to females in the same degrees with the males, and to the eldest of males beyond what goes to the younger. And yet there can scarce be any reason for that vast difference made on these accounts in many nations. The law of nature scarce makes any difference among persons in equal degrees on account of sex or seniority: nor does it establish the lineal succession, where some one must always as it were sustain the person of the deceased and succeed to his real estate. This succession is wholly a{* } human contrivance, often absurd and iniquitous. In the first degree all other differences yield to that of the sex. But in the second and remoter degrees, both the preeminence of sex in the successors themselves and seniority, <and even the closeness of relationship> give place to the preeminence of sex and the seniority of the deceased parent, so that an {infant-} grand-daughter or great grand-daughter <or even the infant daughter of the latter> by an eldest son deceased takes place of a grandson <or of a great grandson> {of mature years and wisdom} by a second son, nay of the second son himself <of mature years and wisdom>.4 And the like happens among nephews and nieces and their children, in succeeding to the fortunes of their uncles{: and in the successions of cousins-germain or more remote}.

CHAPTER IX

Of Contracts in General.

I. Since a perpetual commerce and mutual aids are absolutely necessary for the subsistence of mankind, not to speak of the conveniencies of life, <the goodness of> God has indued men not only with reason but the powers of speech <and language>; by which we can make known to others our sentiments [opinions], desires, affections, designs, and purposes. For the right use of this faculty we have also a sublime <and ruling> sense implanted, naturally strengthened by our keen desires of knowledge, by which we naturally approve veracity, sincerity, and fidelity; and hate falshood, dissimulation, and deceit. Veracity and faith in our engagements, beside their own immediate beauty thus approved, recommend themselves to the approbation and choice of every wise and honest man by their manifest necessity for the common interest and safety; as lies and falshood [frauds] <not only displease us by their ugliness, but> are also manifestly destructive in society.

In an intercourse of services, in commerce, and in joint labour, our sentiments, inclinations and designs must be mutually made known: and “when we affirm to others that we will pay or perform any thing, with that professed view, that another shall pay or perform something on his part” then we are said to {promise or} contract. A covenant or contract is the “consent of two or more to certain terms, with a view to constitute or abolish some obligation.”1 Nor does the law of nature distinguish between{* } contracts and pactions.

Contracts are of absolute necessity in life, and so is the maintaining of faith in them. The most wealthy must need the goods and labours of the poor, nor ought they to expect them gratuitously. There must be conferences and bargains about them, that the parties may agree about their mutual performances. Suppose all men as just and good as one could desire, nay ready for all kind offices: yet without contracts no man can depend upon the assistance of others. For when I need the aid of a neighbour, he may be engaged in some more important services to a third person, or in some services to those who can give him a recompense more requisite in his affairs.

The sacred obligation of faith in contracts appears, not only from our immediate sense of its beauty, {and of the deformity of the contrary,} but from the mischiefs which must ensue upon violating it. ’Tis plainly more contrary to {the social} nature, and frequently a <more serious and> baser injury, to break our faith, than in other equal circumstances to have omitted or declined a duty we owe another way. By violating our faith we may quite defeat the designs of such as trusted to our integrity, and might have otherwise obtained the aid they wanted: and, from the necessity of commerce, it must appear, that the rights founded on <pactions and> contracts are of the perfect sort, to be pursued even by force. The perfidious for his part breaks of all social commerce among men.

II. And further; tho’ a good man would not take any advantage of another’s weakness or ignorance in his dealings, nay would frequently free another from a bargain which proved highly inconvenient to him, and not very necessary to himself, provided any loss he sustained were made good; yet there’s such a manifest necessity of maintaining faith in commerce, and of excluding the cavils which might be made from some smaller inconveniences to one or other of the parties, that in the proper matters of commerce, the administration of which the law of nature commits to human prudence <and power>, our covenants tho’ rashly made must be valid, and constitute at least such external rights to others, as must for the common utility be maintained, tho’ perhaps a good man would not insist on them. But if the person who claims them persists in his claim to the utmost, we can have no right to oppose him violently; but ought to observe our covenants; according to an old rule, that “what ought not to have been done, yet in many cases when done is obligatory.”2

The proper matters of commerce are our labours and goods, or in general, all such things as must be frequently interchanged among men for the interest of society; and by a commerce in which we neither directly violate that pious reverence due to God, nor the perfect right of another; and about which no special law {of God} deprives us of the right of transacting.

III. We must distinguish from contracts the bare declarations of our future intentions; which neither transfer any right to others nor bind us to continue in the same purpose. What come nearer to contracts are {these} imperfect promises,3 in which from <received words or> custom ’tis understood, that we convey no right to others to oblige us to performance, but only bind ourselves in honour and veracity; and that too only upon condition, that the person to whom we make such promises so behave as to be worthy of the favour designed him, and don’t by his bad conduct give us just cause of altering our intentions: and in this point the promiser reserves to himself the right of judging; nor does he bring himself under an higher perfect obligation, than that of compensating any loss the other may sustain, even tho’ he should without cause alter his purpose.

IV. The circumstances to be considered in explaining the nature of contracts and the just exceptions against their obligation, <are three and> relate either to the understanding, or the will, the two internal principles of action, or the matter about which they are made.

As to the understanding; the common interest, as well as humanity, requires, that no person should sustain any damage on account of any ignorance in his own affairs which is no way faulty. And hence the contracts of minors <unwary and> unacquainted with the nature of the business, are not obligatory; nor of those seized with madness or dotage, nor of ideots, nor even of men quite disordered by drunkenness so as to have lost the use of their reason.4 And altho’ there may be a great crime in drunkenness which may justly be punished; yet this is no reason why the fraudulent and covetous should be allowed to make a prey of them. The case is very different as to crimes or injuries done by men intoxicated. For tho’ we are not bound with respect to others to preserve ourselves always in a condition fit for transacting of business, yet we are bound to preserve ourselves innocent continually, and to avoid doing injuries. If one of the parties was not aware that the other was intoxicated; this later will be bound to make good any loss the other sustained by his nonperformance of the contract. But there are many degrees of intoxication, some of which tho’ they may abate our caution and prudence, yet don’t deprive us of the necessary use of reason. If all these degrees also made contracts void, there could be no sure transactions among men. Questions concerning these degrees, must be decided in the several cases by the judgment of prudent arbitrators.

The same might be said concerning the imprudence of youth, previous to civil laws: since the degree of prudence requisite for commerce appears in different persons at very different ages. That therefor commerce may be ascertained, and such endless evasions prevented, ’tis absolutely necessary that in every society some certain age be agreed upon, to which whosoever attains must be deemed his own master, and capable of managing his own business. This age must be determined with this view, that as few as possible of ripe judgment be excluded from the administration of their own affairs, and yet as few as possible admitted before the maturity of judgment. The medium fixed by the Roman law is as good as any; that minors, <also called wards,> before fourteen years of age in males, and twelve in females, should have no management of their affairs, but be under the natural guardianship of their parents; or, if they are dead, under that of the guardians their parents or the law has appointed: and after these years, till twenty-one, or as it was in their earlier times, till twenty-five, they should be so subjected to curators, that no deed of theirs intended to bind themselves or their fortunes, should be deemed valid without the consent of their curators.

’Tis on one hand unjust that minors should sustain losses in contracts; but ’tis on the other hand unjust that they should be enriched at the expence of others. If therefor any contract has been made with them, and something paid or performed by the other party, if it is not detrimental to them to confirm the contract, they ought to do it when they come to maturity: if it be found detrimental, they should restore or compensate what was received on that account, or as far as they were profited. Minors before the legal years often have sufficient judgment in certain matters; and when it is so, nor was there any thing fraudulent or faulty on the the other side, they are bound before God and their own consciences by their contracts, even as the adult.

When parents or curators are at hand, one can scarce without a gross fault enter into any important contracts with a minor without their consent. As generally the passions of the young are impetuous and incautious; they are rash in promising, keen in their desires, improvident, liberal, full of hopes and void of all suspicion.

V. He who was engaged into a contract by any mistake or error about the very nature of the object or goods, or these qualities which are chiefly regarded in them, is not bound: and<, when the mistake is discovered,> whatever he has paid on that account should be restored. But no man has this plea who was engaged only by a secret expectation of such qualities as he did not openly insist on, or of such as are not commonly expected in such goods. If the mistake was about some different matter or event, which moved him to the bargain; when the mistake is discovered, humanity may require it of the other party to set him free, especially if he is ready to compensate any damage occasioned by his mistake. But this is not a matter of perfect obligation, unless the person in the mistake made it an express condition of the bargain.

The nature of the goods, and the qualitys upon which their value depends, and the defects of such qualitys, are, as they speak, essential points in contracts. Where one of the parties has been in a mistake about them he is not bound. Where the mistake has been only about the current price; the person deceived {and sustaining the loss} has a perfect right to have the price reduced to equality; which if the other party refuses the bargain may be made void.5

Whoever by any fault or rashness of his caused the mistake of the other party, or fell into a mistake himself, is bound to compensate any loss the other thereby sustains: but he that dealt fraudulently, is bound further to make good any profit the other could have made, had the bargain been executed with integrity.{* } Any promises or contracts obtained from us by the fraud of the person with whom we contracted, are plainly void; because through his fraud we wanted the due knowledge requisite in contracting, and he is bound to compensate our damage occasioned by his fraud{, which is easiest done by making the bargain void}.

Where the fraud of a third person has moved us to a contract without any collusion with the other party; the bargain is valid. But we have a right of demanding compensation of any loss from that third person who deceived us.6

VI. We always deem that all such voluntarily consent who voluntarily use such signs of consenting as by custom import it. Nor could there be any faith maintained, if we allowed exceptions from a secret dissent contrary to our expressions.

Words and writing are the fittest methods of declaring consent: but any other sign agreed upon by the parties, or received by common custom is sufficient. Nay some actions in certain circumstances are justly deemed to declare consent, when they are such as no man of common sense or equity would do, unless he also consented to certain terms. From such actions therefor we justly conclude a person’s consent, unless he timously premonish all concerned of the contrary. Covenants or contracts founded on consent thus declared are called tacit: which are distinguished from another set of obligations, to be presently explained, said to arise{* } after the manner of contracts, by this, that in tacit contracts the obligation is prevented by an express declaration to the contrary; but not in the others.

Beside the principal expressed articles in contracts, there are frequently others plainly understood as adjected from the very nature of the transaction, or from the prevailing custom among all who are engaged in such business.

The consent of both parties, of the receiver as well as the giver, is necessary in all translation either of property or any other rights, whether gratuitous or not. For from one’s intention of bestowing any thing on a friend, we cannot conclude any design of throwing it away in case he don’t accept, or of forcing it upon him. But a lower sort of evidence will serve to prove a consent to accept any thing valuable; and we may always presume upon it, if the thing was previously requested; provided the offer answer the request.

But as in full property there’s included a right of disposing under any lawful conditions, or upon any contingency; and of giving in trust to a friend, till some future event happens: inheritances and legacies may thus be left with trustees, till it be found whether the heirs designed, or the legatees are willing to accept. Nay goods may thus be kept in favours of persons not yet existing; as it is unjust to hinder the proprietor to appoint his goods thus to be reserved for the offspring of his <kinsmen or> friends if they shall happen to have any: and ’tis injurious toward such offspring to have defeated or intercepted any benefits destined for them by their deceased parents, kinsmen, or friends. And yet no heir or legatee can be forced to be proprietor of any thing thus left to him without his own consent. Mankind however, and each one as he has opportunity, when no special trustee is appointed, ought to take this care of infants, or persons unborn, to preserve such inheritances or legacies for their behoof{, till they can accept them}.

VII. As the obligation of contracts plainly depends on the consent of the parties{, and without it is void}; so when it was only given under certain conditions, if they don’t exist, there’s no obligation. But such conditions must be known as such on both sides, otherways there could be no faith in our transactions. These conditions therefor alone are {of such force as that their non-existence makes the transaction void} <valid>, which were either expresly made conditions by one or other of the parties, or which the person who insists on them did in conscience believe the other party understood as adjected from the nature of the affair; and not every one which one of the parties might secretly expect would exist, tho’ the like is not ordinarily expected in such transactions. Whatever indeed one party has undertaken for to the other, or positively affirmed to him to engage him to the bargain, that the other party may justly be deemed to have made a condition of his consenting.

In the known division of contracts into absolute and conditional, by a condition is understood “some event yet uncertain to one or both the parties, distinct from the prestations covenanted, upon the existence of which the validity of the contract depends.”7 A condition known to be naturally impossible, shews that there’s no engagement. We shall presently speak of another sort of impossibility <sometime called morally impossible> from the prohibition of law, or moral turpitude. But a vitious action of any third person, to be done without any aid of the parties contracting, may be a just condition; provided nothing in the contract give any invitation to such actions.

Conditions in the power of either party are called voluntary; others are involuntary; and some are of a mixed nature. But neither side is understood to be obliged to make these conditions called voluntary or mixed to exist,{* } {for then they would be absolute covenants of the bargain}.

VIII. The due freedom of consent may be taken away by fear.8 But of this there are two sorts, one denoting a suspicion that when one party has fulfilled his part of the bargain, the other party won’t fulfil his: the other denotes a terror occasioned by some great evil threatened. As to the former sort these observations seem just: 1. He that voluntarily contracts with openly unjust and impious men, whose characters he previously knew, is plainly obliged by his contract{, as he must have tacitly renounced any exception from their character, which was previously known}. But 2ly. If he only comes to the knowledge of their characters after the contract, ’tis not indeed void; but he may justly delay performing on his part, till they give such security for the performance of theirs as a wise arbiter judges sufficient. To maintain that all contracts entered into with the unjust, or heretical or impious, are void, would destroy all faith among men; since there are no such obvious characteristicks to distinguish the good from the bad as all will agree in: and considering the weaknesses of mankind, they have always had the most opposite opinions about the moral and religious characters of men around them{; as in all ages there have been the greatest diversities and contrarieties of opinions}.

As to the second sort of fear; when I have been forced into a contract by fear of evil threatened; there are two cases, according as the evil is unjustly threatened either by him I contract with, or by a third person {without any collusion with the person I contract with}. In the later case when by contract I obtain the aid of an innocent man against dangers threatened by another, no doubt I am bound; unless there be something very exorbitant in the terms. For the giving aid in such perils is no doubt a most useful service well deserving compensation.

If indeed I am threatened unjustly with some great evil by any man unless I enter into a certain bargain, or make a promise, to a third person, who is in no collusion with him who threatens me, while yet I am forced to conceal from him the terror I am under; the bargain or promise is void, because by this terror I am deprived of that liberty which is necessary in commerce. But any damage this innocent person sustains by the disappointment, I am bound to make it good, as it was occasioned by me for my own safety. The same holds, when through my cowardice I have been excessively afraid without cause.

Any contracts entered into from fear of a just magistrate, {or the sentence of a judge,} are plainly valid, since we are deemed subjected to such civil power.

IX. But when I am forced to contract through fear of evils unjustly threatened by the very party I contract with, we must distinguish whether these evils are threatened under some such plausible shew of right as might possibly impose upon an honest man, or on the other hand, by openly avowed injustice, without any such shadow of right. In the former case, tho’ the author of such violence acquires no right by it, which he can use with a good conscience; yet on account of some more distant interests of mankind, he may have a sort of external right{, with which the other party may be bound to comply}. Nothing is more incident to mankind than to mistake about their rights; and hence arise wars too frequently, while yet neither side is sensible of the injustice of their cause. These wars must either be composed by treaties and contracts, or must end with the ruin of one side. Now ’tis highly eligible that they should be ended rather by some treaty: and treaties could be of no use if they still lay open to this exception of unjust force, which either side might plead {whensoever they inclined to renew the old controversy}. This exception therefor must not be allowed against treaties of peace, when there were any plausible pretences on both sides for the preceeding war.9 If indeed the terms of peace are manifestly iniquitous and oppressive, contrary to all humanity, making life quite miserable and slavish to the less fortunate side; such treaties have no plausible shews of justice, and lay open to the exception.{* }

But where violence is used or threatened, without any pretence of right, to extort promises or contracts, they cannot be obligatory. By such violence the author of it plainly abdicates or forfeits all the rights of men; all the benefits to be claimed from the law of nature, or the humanity of his fellows; as he openly professes himself a common enemy to all, free from any social tye. The common safety therefor requires that such monsters should be cut off by any means. Suppose that such {extorted} promises were valid, yet whatever upon such a promise is due to the author of the violence, he is always indebted at least as much to the person thus compelled, upon account of damage done him unjustly: these two claims therefor extinguish each other by compensation. Nor can one here allege that by the act of promising under this terror the promiser tacitly renounces this exception of unjust force previously known; for this forced renounciation alleged is one part of the damage: and what pretence is there of alleging an obligation by tacit compact, to one who in such a cause is incapable of acquiring a right by the most express contract, and who in this very affair abdicates or forfeits all human rights?

But, however that no regard is to be had to such persons in thus trampling upon all the rights of mankind, yet when they sufficiently appear to be returning to a soberer mind, asking pardon of what’s past, offering to quit their fastnesses, to deliver their arms, and to give security for their future conduct; and when such {confederacies} cannot be otherways destroyed without shedding much innocent blood of our citizens; the common interest may sometimes require to enter into such treaties with them, and to observe them faithfully <in order to avoid greater evils>: and as to any of our citizens who by this means are excluded from prosecuting them for reparation of damages, they ought to obtain it from the community.

X. Contracts or promises cannot be of force unless the matter of them be possible to the parties: and therefore no man can be obliged to{* } what he cannot accomplish tho’ he seriously desired it. If one has promised any thing, which by some subsequent accident without his fault becomes impossible, he is only obliged to restore or compensate the value of any thing he received in consideration of it. Where the fraud or other gross fault of one party either made the matter impossible, or concealed the impossibility, he is obliged to make good{* } the profit which would otherways have arisen to the other.

The matter of contracts must also be lawful: that is, our contracts or promises should be only about the natural matters of commerce, which can be alienated, the administration of which is committed to human prudence, and not prohibited by any special law. No obligation therefor can arise from any promise, to violate directly the reverence due to God, or the perfect rights of others, or to do what any special law prohibits, or what is not committed to our power.

1. If therefor both parties know the unlawfulness of the terms of any contract, or ought to have known it; the contract is void. The one who employed another to commit a crime, may redemand what he gave to the person hired, before he has committed the crime. And if the crime be previously committed, the executor ought not to have the hire; nor if he previously received it, can the person who hired him redemand it. Both equally deserve the highest punishments; {nor should either hold any advantage by such engagements}.

If after the contract the iniquity of it appears to either side, which they had not formerly considered; before execution either of them may free himself from it: and any reward given should be restored. Nor after execution can the person employed claim his reward, unless the moral turpitude affect only the hirer and not himself [if the moral turpitude affects himself as well as the person who hired him];10 {or} unless his ignorance was no way culpable. But where the turpitude only affects the person who employed him, then he may justly claim his hire. ’Tis the general interest of mankind that there should be no allurements to such crimes, nor dependence upon such contracts.11

But if the vice in any performance of covenant only consist in this, that a man has managed imprudently and contrary to the duty of a discreet cautious man, in these matters which naturally fall under commerce; ’tis of such importance to maintain the faith of commerce, that in this case, too “our transactions and covenants are obligatory, tho’ we were faulty in entering into them.”

Covenants about the goods or actions of others which are not subjected to our power, are in the same case with those about impossibilities. Whoever has acted fraudulently in such covenants is lyable to make good all the profit would have accrued from the faithful performance of them: and he who has deceived others by any culpable negligence is obliged to compensate the damages.

XI. Every sort of contracts about one’s goods or labours does not immediately divest him of all moral power of transacting about them in a different manner with others. This is the case only in such as convey the intire property at once, or a real right; or such as give another the whole right to one’s labours for a certain time, or during life, so as to preclude his contracting with others about the same. But when one has only made a contract constituting a personal right against himself, he may thereafter convey a valid real right, to such as knew nothing about the former contract, which will take place of the personal right tho’ prior.12 Where indeed this new grantee has acted fraudulently, being apprized of the former contract; the subsequent one should be void. For the law of nature can never confirm frauds, or any* contracts plainly contrived and designed to elude any obligations of humanity, when this design must be known to both parties in the contract. But in other cases, “of two covenants entered into with the same person, the later derogates from the former.” But of contracts entered into about the same thing with different persons, “such as convey a real right take place of those which only convey a personal”; provided there has been no fraud on his part to whom the real right is transferred. And lastly in contracts of the same nature entered into with different persons, “the prior takes place of the posterior.”13

XII. We may contract by factors or agents, or persons commissioned for that purpose, as well as in our own persons. Where full powers are given, and no special instructions to be shewn to all he deals with, expressing the extent of our agent’s commission, and how far we subject our rights to his transactions; we are deemed to be obliged to ratify what he does in our name, unless we can make proof that he acted fraudulently, or was bribed by the other party; or the manifest iniquity of his deeds satisfy a prudent arbiter that he must have been corrupted. As to any smaller injuries we sustain, we must impute them to our agent, while we ratify what he has done with others.

But when the powers of the agent are specially declared to all concerned, what he transacts beyond these bounds does not oblige his constituent.

CHAPTER X

Our Obligations in Speech.

I. Our duties in the use of speech have a near affinity to those in contracts. Mankind enjoy this preeminence above other animals, that they have the powers of reason and speech, by which chiefly a social life, commerce, and an intercourse of kind offices are maintained. ’Tis in general plain that we are bound to use these excellent gifts of God in such manner as is most conducive to the general good, and suitable to our several obligations in life.

In this important matter we have very manifest indications of what God requires of us, in the very structure of our nature: an immediate sense seems to recommend that use of speech which the common interest requires. In our tender years we are naturally prone to discover candidly all we know. We have a natural aversion to all falshood and dissimulation, until we experience some inconveniency from this openness of heart, which we at first approve. Reflection [Right reason], a regard to the common good, and a prudent care of our own safety, will often persuade us to conceal or be silent about certain things; and to restrain the first impulse of our mind. But {when we resolve to speak to others, then} both the immediate sense of our hearts, and a rational [right reason and a] regard to the common interest, will recommend and enjoin upon us this steddy rule or purpose, of speaking nothing contrary to the sentiments of our heart, or which will deceive others. These are our natural sentiments whether we are judging of our own conduct or that of others.

For as a great share of the most useful knowledge in the affairs of life, as well as that of a more speculative kind, is acquired from the conversation of others who are under no special obligations of communicating to us their sentiments; this advantage of a social life, not to mention the pleasures of conversation with mutual confidence, must be entirely lost, unless men maintain truth and fidelity in all their discourse with each other.

What we say of speech holds also concerning other signs used for the same purpose of communicating our sentiments, viz. common writing, or hieroglyphicks[, or symbols].

II. We must also observe here that there’s a twofold use of signs, whether natural, or artificial and [or customary or] instituted:* one in which the person who causes the appearance is never imagined to make any profession, or to have any intention of communicating his sentiments to others. The spectator according to his own sagacity concludes from the appearances some fact or other, without imagining that the person who occasioned these appearances did it with a view to give him any information. The other use of signs is of such a nature [has such a strength] that it plainly contains this profession, or gives the observer just ground to conclude that such signs were made designedly to intimate something to him<, which the same use of the signs seems to reveal>.

In the former way of making signs, there’s no peculiar obligation: we are only under that obligation common to all parts of life, to do no hurt to our neighbour without a just cause. But when there is just cause, as in the case of a just war, we may without blame use such arts of deceiving, which are called <commander’s in chief plans or> stratagems. Nay provided we do no hurt to any innocent person, there’s no crime in deceiving{† } by such sort of signs our very best friends.

But we are under very different obligations as to the other use of signs. For without presupposing any old covenant or formal express agreement, the very use of signs in certain circumstances may plainly contain the nature of a tacit convention, and he who exhibits them is justly understood to covenant with the other to communicate his sentiments, according to that interpretation of these signs which is either natural or customary, unless there be some special reason{* } in the case, known on both sides, why we should depart from the ordinary interpretation. For did we not universally understand such an agreement as to speech, it would be a ridiculous action either to address speech to another or to listen to it. And the same holds as to{† } other signs natural or instituted, used in this manner.

These therefor are the laws of speech and writing. 1. “Where others have a right to know the whole sentiments of the speaker, he is obliged not only to speak truth but to reveal the whole truth.” This holds as to witnesses in courts of justice, and such as have engaged to communicate the whole mysterys of any art.1

The second law is. “Tho’ others may have no peculiar right to know our sentiments, yet when we speak to them, we should say nothing but what agrees with our sentiments according to the common interpretation which obtains among men of understanding [honest and prudent].”2 One is therefor guilty of falshood or lying who speaks what is thus contrary to his sentiments, altho’ by some unusual way of interpreting the words, or by some mental reservation, it might agree with them. If such arts were allowed, a gate would be opened to all deceit and fraud.

III. That our duty in this point may the better appear, we must <carefully> observe, 1. that all signs, especially <spoken or written> words should be used in the customary manner, without regard to antient obsolete meanings or etymologies. Expressions of civility and courtesy, or titles of honour, deceive no body. They are known not to signify what the same words do on other occasions.

2. If ’tis known to all concerned that in some affairs certain persons are allowed to deceive; nor does the person deceived, when he comes to discover it, complain of it as an injury; what artifice or false-speaking is used in these affairs is not deemed criminal. This is the case in many diversions; and sometimes in serious business, when we commit ourselves entirely to the conduct of others, in whose wisdom and fidelity we confide; as patients do to physicians, and soldiers to their commanders in chief.

3. Nay if the custom has prevailed in war, that enemies deceive each other by false narrations when they can, nor do the deceived complain of it as a violation of the laws of civilized nations: one may judge that by a new tacit convention enemies have remitted to each other that right otherways founded in the general convention contained in the addressing of speech to others. But a candid mind would not without the most urgent causes use such methods, since they have a strong appearance of moral turpitude.

4. But the deceiving of enemys by any pretence of a treaty or covenant, never was nor can be allowed. As it is by treaties alone that we can maintain the more human methods of carrying on war, and prevent the most savage cruelties; or restore peace again without the destruction of one side, or reducing them to miserable slavery.3

5. But this obligation about speech, as all others founded in tacit conventions may be prevented or taken away, by a{* } timely premonition of all concerned.

6. Beside the above mentioned exception of unjust force in matters of contracts, some plead for another exception from some grievous and extraordinary necessities; when without false-speaking we cannot preserve the innocent, or the most worthy perhaps of mankind, or even a whole nation, from ruin. Whatever force there is in this exception, ’tis plain it is not peculiar to this subject; since it seems, as we shall† hereafter shew, that this exception takes place in most of the other special laws {of nature}.

7. Where men with malicious intentions, and without having any right to demand it, are endeavouring to discover a person’s sentiments by captious and insidious questions; when even his silence would discover all they want to his ruin: if there occurr to him such answers as to good unprejudiced men would bear a true signification according to his sentiments, while yet they will appear to these insidious enemies to signify something very different;{* } he may use such evasive answers, tho’ he foresees that his unjust enemies will be deceived by them.

8. Since maintaining veracity in all our conversation is of such importance in society, ’tis plainly unlawful to use false-speaking from any of those smaller motives which frequently occurr in life; such as, to pacify men in a passion of anger, or to comfort the sorrowful; or in general to obtain any advantages or avert any evils which are not of the very highest kinds.4 For we may by other means consistent with all candour and sincerity generally obtain these ends more effectually, and either prevent these evils, or assist men to bear them with fortitude. And however such false-speaking may at first have some effect, before it becomes known that we make no conscience of speaking truth in such cases; yet, when this is once known, and when men generally take this liberty, they lose all credit in such cases with others, and mutual confidence is destroyed. So much concerning veracity.

IV. But there are other sacred duties in the use of speech; and this in the first place, that we study to make our speech profitable to others, in recommending and cherishing sincere virtue, in correcting the vain imaginations of men about the true happiness of life; in teaching, admonishing, exhorting, comforting, and sometimes reproving sharply, and all these shewing an hearty intention of doing good. These too are among the most honourable offices, to reconcile friends who have been at variance, to prevent animosities, or to compose them. Nor is there any thing a good man will more conscientiously avoid than hurting the characters of others. Nay he will not only avoid the spreading of false calumnies, but will conceal the secret faults of others, unless he be forced to divulge them to prevent the seducing the innocent{, or to avert some publick evil}. For men who have lost their characters and are publickly infamous, are on this account far harder to be reclaimed to virtue; and the more that vice appears to abound in the world, the vitious grow the more impudent.5

Criticks have observed that many words, beside their primary meaning, have also an additional signification of the dispositions of the speaker: and hence there are often three sorts of names for the same things, or actions. One of a middle nature, barely denoting its object; another denoting the speaker’s delight in it, or his keen passion for it; the third denoting his aversion and hatred of it.6 And from this we see {how to answer the reasonings of the old Cynicks, against supposing any crime in obscenity of language;}7 that tho’ it be true, there’s no work of God, or natural action, which may not be a proper subject of inquiry and speech to a good man, {on some occasions,} yet we may evidence [give birth to a] great depravation and turpitude of mind in speaking about the dissolute actions of others: to wit, by using such words as betray a like dissolute temper in ourselves, and a delight in such vices, and kindle like vitious passions in the minds of the hearers. And in this consists obscenity, which is hateful and detestable in conversation.8

CHAPTER XI

Of Oaths and Vows.

I. Oaths are deemed a natural confirmation of <pactions,> promises or testimonies, in the more important affairs: an oath is “a religious act in which for confirmation of something doubtful, we invoke God as witness and avenger{, if we swerve from truth.}” A truly good man indeed will so strictly regard veracity, that such as know him well need not require his oath. But when the interests of those are at stake who know not his character, they may justly demand his oath, in confirmation either of his testimony or his promise. Since the using of oaths in such cases contains no impiety toward God; but is rather an expression of pious reverence; as we acknowledge in swearing his universal knowledge, and government, <providence,> and justice.

And since this persuasion has obtained, in all nations and ages, that God exercises a just government over the world, inflicting punishments on the wicked; this invocation of God as witness and avenger must raise in mens minds an higher sense of their obligations, and <by fear of punishments> deter them from falshood. But we must not imagine that our invocations make God more attentive in observing, or more keen in punishing of perfidy; or that by our voluntary consent, we give him any new right of punishing he had not before.1 Our own guilt indeed is made much greater when, after the confirmation of an oath, we either violate our promises, or falsify in our testimony.

To swear about trifling matters, or without any cause, is very impious; as it plainly tends to abate that awful reverence which all good men should constantly maintain toward God; and is a plain indication of contempt. Where perjuries in serious matters grow frequent in any state, the magistrates or legislators are generally chargeable with much of the guilt, if they either frequently exact oaths without necessity in smaller matters, or when the oaths give no security in the point in view;{* } when the engagement designed may either be impracticable, or appear to the persons concerned to be unlawful; or if oaths are required{† } where there are great temptations to perjury, with hopes of impunity from men. They also do bad service to religion who don’t appoint an awful solemn form of words, fit to strike the minds of men with reverence in such an action.

II. ’Tis no doubt vain {to exact from others, or} to swear by any being whom the swearer judges not invested with divine power, so as to invoke that being as witness and avenger. And yet there are some forms of oaths {truly valid and} not unlawful, tho’ not the most convenient, where without expressing the name of God, the swearer either names something very dear or necessary to himself{‡ } upon which he is understood to imprecate the divine vengeance{, or that he may be deprived of it if he should act perfidiously}; or truly invokes God under some{§ } metonymical expression.

Tho’ it be idle to exact an oath from any one by any being whom he conceives not as endued with divine power, nor exercising any providence; yet there are certain general descriptions of the Deity in which men {of the most opposite religions} agree: such therefor ought to be used, when persons of different religious sentiments are required to swear.

As in covenants, so in oaths, he is justly deemed to have sworn, and to be liable to the penalties of perjury should he falsify, who professing an intention of swearing makes such signs as ordinarily signify to others that one swears.2

Altho’ an oath and a promise, or an assertion, may often be expressed by one and the same grammatical sentence; yet the act of swearing is plainly a distinct one from that of promising or asserting; as it consists in the invocation of God <as witness> to avenge if we violate our faith. This shews therefor that mens duties are not altered as to their matter by an oath; nor any new matter of obligation produced; nor any covenant or promise otherways void confirmed; nor just exceptions excluded; nor conditional contracts made absolute; nor any obligation imposed to act contrary to the perfect rights of others, or about matters not subjected to our power, or what would be a direct piece of irreverence and impiety toward God, or a violation of any special prohibition, by which we are precluded from transacting in certain affairs.3 But in matters naturally subjected to our power {and committed to human prudence}, as we may bind ourselves by a common contract, so much more by one confirmed by oath, even when we have entered into it imprudently and rashly, contrary to the rules of discretion; unless when there has been a plain obvious fraudulent design of defeating some obligations of humanity.{* }

III. A promise {tho’ confirmed by oath} can produce no obligation, unless it has been accepted by the other party, who also after his acceptance may remit to us his right, and free us from the promise. A promise in like manner is void, upon the declared dissent of a person whose consent was necessary before the promiser could oblige himself, or the other party accept of it.

Where one requires of us an oath by his just authority, and prescribes to us the form of words; if we understand his sense of the words, and can sincerely swear in that sense, ’tis well; if not, we should not take the oath. No inferior magistrate deputed to take an oath in the name of the state has a right to give explications of the formula prescribed by the supreme powers.

Oaths according to their different purposes are divided into promissory and assertory. Oaths of this later sort when required by a judge are called necessary: and when one party in judgment refers the cause to the oath of the other, ’tis called judicial. If this be done, not in judgment, but by the private deed of the parties, ’tis called voluntary. When an oath is demanded from the person accused in a criminal action, to refute imperfect proof; ’tis called a purgatory oath, or oath of purgation.4

But in such cases where a person’s life or character is concerned, as there are very high temptations to perjury; this way of exacting purgatory oaths in tryals is highly improper and unjust. By this means the impious and wicked will always be absolved; and those only convicted who retain such a sense of piety that they won’t even for preservation of life or character perjure themselves. A good man surely would rather choose that such persons should escape punishment for a doubtful crime, (of which{, if they have really been guilty,} they will probably soon repent sincerely), than that they should be brought to suffer by their very sense of religion.

IV. A vow is a religious promise made to God about something to be done or performed. In vows we don’t conceive a right transferred to men, unless they have been also attended with a contract. The main use of vows is this, that by a serious consideration of a just and holy Deity beholding all our actions, we may further confirm all our pious and virtuous resolutions; and be the more cautious of neglecting our duty, lest we should also involve ourselves in the horrid guilt of perjury.

But as no promise not accepted by the party to whom ’tis made can be obligatory; and as we are sure God will not accept any promises made to him rashly, out of any sudden fear, or other passion, which is contrary to the mans duty; and ’tis most unworthy of the Deity to imagine him as it were insidiously watching to catch advantages of the incautious, timorous, wrathful, or superstitious; or that, contrary to the <humanity or> common interest of all, he has some favourite orders of men for whose advantage he is acting the part of a sharping agent, snatching at all opportunities of gain to them; hence it must appear, that vows can produce no obligation to such actions or performances as would not antecedently have been pious, humane, and prudent.5 Much less are vows of any avail which men take on themselves from hatred, envy, groundless or excessive anger, or contrary to either the perfect rights of others, or even any obligations of <equity and> humanity.{* } Vows therefor produce no new matter of obligation.

CHAPTER XII

Concerning the Values or Prices of Goods.

I. To maintain any commerce among men in interchanging of goods or services, the values of them must be some way estimated: for no man would give away things of important and lasting use or pleasure in exchange for such as yielded little of either; nor goods which cost much labour in acquiring, for such as can easily be obtained.

The ground of all price must be some fitness in the things to yield some use or pleasure in life; without this, they can be of no value. But this being presupposed, the prices of things will be in a compound proportion of the demand for them, and the difficulty in acquiring them. The demand will be in proportion to the numbers who are wanting them, or their <agreeableness or> necessity to life. The difficulty may be occasioned many ways; if the quantities of them in the world be small; if any accidents make the quantity less than ordinary; if much toil is required in producing them, or much ingenuity, or a more elegant genius in the artists; if the persons employed about them according to the custom of the country are men in high account, and live in a more splendid manner; for the expence of this must be defrayed by the higher profits of their labours{, and few can be thus maintained}.1

Some goods of the highest use, yet have either no price or but a small one. If there’s such plenty in nature that they are acquired almost without any labour, they have no price; if they may be acquired by easy common labour, they are of small price. Such is the goodness of God to us, that the most useful and necessary things are generally very plentiful and easily acquired.

Other things of great use have no price, either because they are naturally destined for community, or cannot come into commerce but as appendages of something else, the price of which may be increased by them, tho’ they cannot be separately estimated;{* } or because some law natural or positive prohibits all buying or selling of them. Of this last sort are all religious offices, actions, or privileges; and even the salaries of religious offices, which are either deemed only what is necessary for the support of persons in such offices, or are committed to their trust as funds of liberality and charity toward the indigent. Buying and selling of such things from a well known piece of history is called simony.

II. But as it may often happen that I want some goods of which my neighbour has plenty, while I have plenty of other goods beyond my own use, and yet he may have no need of any of my superfluous stores; or that the goods I am stored with beyond my occasions, may be quite superior in value to all I want from my neighbour, but my goods cannot be divided into parcels without great loss: for managing of commerce there must some sort of standard goods [outstanding price] be agreed upon; something settled as the measure of value to all others; which must be so generally demanded, that every one will be willing to take it in exchange for other goods, since by it he may obtain whatever he desires. And indeed as soon as any thing is thus made the standard of all values, the demand for it will become universal{, as it will serve every purpose}.

The goods which are made the standard, should have these properties; first, they should be of high value, that so a small portable quantity of them may be equal in value to a great quantity of other things; again, they should not be perishable, or such as wear much in use; and lastly they should admit of all manner of divisions without loss. Now these three properties are found only in the two more rare mettals, silver and gold; which therefor have been made the standards of commerce in all civilized nations.2

III. {At first they have dealt in them by* weight;} but to prevent the trouble of making accurate divisions of the several barrs or pieces of mettal, and to prevent frauds by mixing them with baser mettals, coinage has been introduced. For when the coining of money is committed under proper regulations to trusty hands, there’s security given to all for the quantities of pure mettal in each piece, and any broken sums agreed upon can be exactly paid without any trouble.

But the real value of these mettals and of money too{, like that of all other goods,} is lessened as they are more plentiful; and increase when they grow scarcer{, tho’ the pieces keep the same names}. The common necessaries of life have a more stable natural price, tho’ there are some [not] little changes of their values according to the fruitfulness of the several seasons. Were one to settle perpetual salaries to certain offices, <or secure revenues,> which should support men perpetually in the same station in respect to their neighbours, these {salaries} should be constituted in certain quantities of such necessary goods as depend upon the plain inartificial labours of men, such as grain, or other necessaries in a plain simple way of living.

IV. No state which holds any commerce with its neighbours can at pleasure alter the values of their coin in proportion to that of goods. Foreigners pay regard, not to the names we give, but to the real quantities of pure mettal in our coin, and therefor the rates of goods must be proportioned to these quantities. But after a legal settlement of the denominations of coins, and many contracts and obligations settled in these legal sums or denominations, a decree of state raising the nominal values of the pieces will be a fraud upon all the creditors{, and do much gain to the debtors}; and the lowering their nominal values will have just the contrary effects [will be a fraud upon the debtors].3

The values too of these two mettals may alter their proportions to each other; if an extraordinary quantity of either of them be brought from the mines; or a great consumption made only of one of them in the ornaments of life, or great quantities of it exported. And unless the legal denominations or values of the pieces be changed in like manner, such coin as is valued with us too low in proportion to the natural value of the mettal, will be exported; and what is valued with us too high will remain, or be imported, to the great detriment of the country.

Wheresoever a coinage is made in baser mettals, the quantities in each piece must be made so much the greater; otherways the trade with foreigners must be lost. When notes or tickets pass for money, their value depends on this, that they give good security for the payment of certain sums of gold or silver.

CHAPTER XIII

Of the Several Sorts of Contracts.

I. Contracts are divided into the beneficent and onerous: in the former some advantage is gratuitously designed for one of the parties; in the later the interest of both is equally regarded, and the parties profess to transfer mutually things [good or labours] of equal value [price].

There are three species of beneficent contracts,{* } <mandate or> commission undertaken gratuitously, <commodatum or> gratuitous loan for use, and <deposit or> gratuitous custody of the goods of others <among which we may count mutuum gratuitum>.

<In mandate, that is> “in undertaking gratuitously to manage the business of others by their commission,” if they have prescribed a particular manner of executing it, we are obliged to follow their orders; or if we depart from them we are liable to compensate what damage thence arises. Where the matter is left to our prudence; we are deemed bound to use such care as a wise man uses in like matters of his own, nor are we liable for every accident which might possibly have been prevented by the utmost care; unless we have expressly undertaken for the utmost diligence, or the high nature of the business plainly required it; or we have obtruded ourselves officiously, when others more capable might have been obtained.1

We must observe this about all beneficent contracts, that he who intends a favour to others, is not deemed to undertake an higher obligation than he expressly consents to, or than the nature of the business commonly requires: but the person on whom the favour is conferred, out of gratitude should deem himself more strictly bound, and make good all losses occasioned by any {the lightest} fault of his; that none may have occasion to repent of their intended favours to him.

II. <Commodatum or gratuitous loan for use is a contract by which one gratuitously allows another the use of any of his goods. It> {The gratuitous loan for use where the very same goods are to be restored} binds the borrower (1) to the highest care and to make good all losses occasioned by any negligence of his: (2) nay also to make good such accidents as the goods had escaped had they remained with the lender, except he generously remit his claim: nor (3) can the borrower take any other use than the lender granted: and (4) he ought to restore them in good order at the time agreed, no further impaired than they must be by the use allowed. (5) Nay humanity would oblige to restore them sooner if the owner needs them; or {if we need them more and keep them,} to make good the loss he sustains by wanting them.

The gratuitous lender is to refund any expences made upon the goods lent, except such as are ordinarily requisite in the use of them; or at least to refund the value of any improvements made upon them as far as they are bettered for his purposes, and so he is inriched. The civilians distinguish between this contract and <mutuum gratuitum or> a loan for consumption, in which the same individual goods are not to be restored, but equal quantities, weights or measures <of goods of the same kind, called res fungibiles>.2

III. <Deposit, which is a sort of mandate, is “a contract, by which one undertakes gratuitously to keep the goods of another, by his commission.” It> {Depositing of goods for gratuitous custody,} obliges the keeper to such diligence as a wise man uses in keeping like goods of his own, and to make good any losses by any gross negligence of his. He ought to make no use of them without the owner’s consent, and restore them when demanded; except it be for such purposes [crimes] wherein he might have a right by force to resist the owner. And he justly insists to be indemnifyed as to all expences wisely employed for preservation of the goods.{* }

<In these contracts, as also in guardianship and in managing business, the primary objective is obtained by distinguishing between actiones directae, such as legal actions against the person undertaking a commission to get compensation for damages arising from his undertaking, or against the lender or the custodian for restoration of goods loaned or kept; and actiones contrariae for compensation for damages and expenses borne by mandatarius, lenders or keepers.>

IV. In the honorous contracts, or these for valuable consideration, the parties profess or undertake to transfer mutually goods <corporeal or uncorporeal things, as civilians say> or rights of equal value. And therefor honest men should conceal nothing, or give no false representations about the qualities estimable in such goods, or their defects: and when they inadvertently have departed from equality, according to the judgment of a wise arbiter, he who had less value than he gave, should have something further paid him till the contract be brought to equality; and this he has a perfect right to demand; tho’ no courts of justice could have time to give redress to every little iniquity in such matters.

Mutual donation is not to be reckoned among onerous contracts, as in it there is no regard had to equality between the things mutually given.

From what we said about the grounds of price, ’tis plain that in estimating the values of goods {in any place}, we are not only to compute the disbursment made in buying, importing, and keeping them safe, with the interest of money thus employed; but also the pains and care of the merchant; the value of which is to be estimated according to the reputable condition in which such men live, and to be added to the other charges upon the goods. This price of the merchant’s labour <and care> is the foundation of the ordinary profit of merchants. But as goods exported or imported are subject to many accidents, by which they may even perish altogether; this is a natural reason for advancing the price of such goods as are safe. And as merchants are liable to losses when the prices of such goods, as they are well stored with, by any unexpected plenty happen to fall; to make good such casual losses they have a right to take a larger profit, when the goods they are well stocked with happen by any accidental scarcity of them to rise in their prices.3

V. These are the principal onerous contracts.4 1. Barter or exchanging goods for goods. 2. Buying and selling <or exchanging goods for money>; the simplest form of which is at once paying the money and receiving the goods. If ’tis agreed that the goods are to be delivered on some future day, the price being previously paid, or such security given for it as the seller accepts; before the day fixed the seller must run the hazard of what accidents befal the goods; but after the day, if the seller was ready then to deliver them, he is only in the case [position]5 of one with whom they were deposited; as he would have been from the first if he was then ready to deliver them.{* }

<Many agreements and conditions may be added to buying and selling; such as addictio in diem or a provisional sale, in which payment is delayed until some future day; before the fixed day the buyer or the seller has the right to accept any better offer; if there is none, they are bound by the contract. Another is lex commissoria or the forfeiture clause, by which, if the price is not paid before the fixed day, the contract is void. Likewise lex item retractus or agreement about return6 is well known. Finally jus protimesios, by which if the buyer wishes to re-sell the good, the former owner has the precedence over other buyers at equal prices. Goods sold sub hasta or in auction are given to the best bidder among many>.

Sometimes men purchase no certain goods but an hazard, or some advantage upon a contingency [but an expectation of goods uncertain]. In such contracts <the necessary> equality may be preserved if the price is abated below the real value of the advantage in a just proportion to the hazard of our gaining no advantage at all.7

VI. In location, or setting to hire, for a certain price we allow one the use of our goods, or our labour. The setter should make the goods fit for use, and uphold them so; and the hirer is bound to use them as discreet men use like goods of their own, and to make good any losses occasioned by any gross negligence of his. If the goods perish without any fault of his, he is no longer liable for the price of the hire than he had the use of them: or if without his fault they become less fit for use, he may insist on an abatement of the price or rent. But as in lands all the profits of a plentiful year fall to the tenant, so he must bear the casual losses of a less fortunate one. Indeed the rarer cases of extraordinary calamities, such as of wars, inundations, pestilence, seem to be just exceptions; as the tenant cannot be presumed to have subjected himself to rents in such cases.{* } {And in most of contracts the agreements of parties alter the obligations.}

<One who has contracted for a piece of work and received another’s material, is bound to such diligence as a wise man uses in keeping like goods of his own, and to make good any losses by any gross negligence of his.> One who is hired for a certain piece of work, if he is hindered from it by any accident, has no claim for the hire. But when one hires a person by the year, or for a longer time, the hirer seems bound to bear the loss occasioned by any such short fits of sickness as the most firm constitutions are subject to, nor can he on that account make any deduction from the price agreed upon.

VII. In loans for consumption,{* } we don’t expect the same individual goods, but equal quantities by weight or measure.8 If the loan is not designed as a favour, there’s a right to demand interest. <Money is the most fungible thing.> {Nor is it necessary to make interest lawful that the goods lent be naturally fruitful: for} tho’ money {for instance} yields no natural increase; yet as by it one may purchase such goods as yield increase; nay by employing it in trade {or manufactures} may make a much higher gain; ’tis but natural [not unjust at all] that for such valuable advantages accruing to us by the loan, we should give the owner of the money some price or recompence proportioned to them. The prohibition of all loans for interest would be destructive to any trading nation, tho’ in a democracy of farmers, such as that of the Hebrews was, it might have been a very proper prohibition.

The just interest of money is to be determined according to the quantity of wealth employed in trade. Where there’s a small quantity of money in a nation, and consequently all goods very cheap, a great profit is made by any small sums employed in trade with foreigners. And therefor a great interest may well be paid. But where much money is employed in trade, a smaller profit is made on each sum thus employed, as the prime cost of goods is high; and therefor a smaller interest can be afforded for it. If civil laws settling interest don’t regard these natural causes, they will not have their effect.

The <rights and> obligations in the contracts of partnership are abundantly known by <the agreements of the partners and> the rules of arithmeticians.

VIII. We said above that contracts about hazards may maintain the just equality: and some of them are of great use in society, these particularly which ensure against shipwreck, robbery, or fire: as by their means many active industrious hands have their stocks preserved to them, which otherways had perished. These contracts seem of the same effect with a humane and salutary partnership among multitudes to share among them any losses may happen; since ’tis by the premiums paid by those whose goods are safe that the ensurers are enabled to make good the losses of the unfortunate.

Nor is there any thing blameable in this that a large number for diversion contribute to purchase any piece of goods, and then cast lots who shall have it: provided none of them expose to such hazards so large a portion of their goods that the loss of it would occasion any distress to themselves or families.

The same may be said of wagering, and of various games in which there’s hazard; which are not always blameable on the account of the hazard, or of any inequality. But then there is nothing more unworthy of a good man than, without necessity, to expose to uncertain hazard such a share of his goods, as the loss of it would distress his family; or to be catching at gain from the foolish rashness of others, so as to distress them. All such contracts therefor are to be condemned, unless they are about such trifles as men of wealth can afford to throw away upon their amusements. And besides, ’tis highly unbecoming a good man to give himself up entirely to diversions, or waste much time upon them; or so to enure himself to amusements, as {to contract habits of indolence and trifling,} making him less fit or inclined for serious business.9

As to these more publick projects of lottery in which great multitudes may be concerned; as they bring in no new wealth to a state, and only enrich some few of the citizens by the losses of others; and as men thro’ some vain opinions of their own good luck are generally very prone to them; they should be every where under the restraint of laws; lest that wealth, which were it employed in manufactures or commerce would be adding new strength to the state, should be turned into this useless and dishonourable channel, exposed too to innumerable frauds, and an insociable, foolish, and slothful avarice be encouraged among the citizens.

IX. In confirmation of contracts men often give bail or sureties, and pledges. The bail or surety is bound to make good what is due, in case the principal fails. And as the creditor frequently trusts more to the surety than to the principal, his obligation is equally sacred: nor may he use any evasive arts more than if the debt were wholly his own: nor can he justly even delay the payment; unless he finds a fraudulent collusion between the creditor and the principal to distress him.

The obligation of the surety may be stricter than that of the principal, if he has given either a pledge or an oath for performance; but as he is surety he cannot be bound in a different sum or different goods, or payable at a different time or place, or upon a different foundation. He may justly insist that a suit be first commenced and judgment given against the principal; and where more than one are sureties, each one may insist that the loss be divided either equally among them{, or in the proportion in which they bound themselves} <unless he renounced these benefits>.

Sureties were sometimes given in criminal actions <and called vades>. They may be justly liable to pay the fines. But it would be inhuman to allow them to be subjected to any corporal punishments for the crimes of others <unless they favoured crime>.

We formerly touched at the subject of pledges and mortgages.<* > If the things pledged yield increase, this is to be deducted annually from the interest or principal of the debt. The clause of forfeiture at the day fixed has no iniquity in it, provided any surplus of value in the pledge be restored to the debtor after the debt is thus discharged. The pledgee is bound to keep the pledge with such diligence as a discreet man keeps like goods of his own, and not answerable for any thing further; as this contract equally regards the utility of both parties.10 <A hypotheca or mortgage differs from a pledge as the good is not delivered to another but simply subject to the payment of debt>. Pledges and mortgages constitute real rights not to be defeated by any prior personal rights.

CHAPTER XIV

*Obligations Resembling those from Contracts.

I. Beside these obligations and rights already mentioned, there are others which arise from some lawful action of the person bound: of such as arise from unlawful actions we treat in the next chapter. These rights arising from lawful actions, arise either from the nature [right] of property, or from some manifest interest of society, and common social laws. The obligations answering to them the civilians feigned to arise from contracts, that the forms of the actions might be the same. They are quite different from those of tacit conventions, as in tacit conventions we truly conclude consent from some action; but in those ’tis plainly feigned, {tho’ we know there was no consent,} as the matter itself is equitable.1 The obligation by a tacit convention is quite prevented by a previous contrary declaration of the party: but not so in these we now speak of; as they have another just foundation, independent of the consent of the person obliged.

Of these there are two classes, one arising from this, that a person intermeddles without any contract with the goods of others, or such upon which others have a just claim: the other, from a person’s taking to himself and holding some valuable advantage at the expence and loss of others, who consented not to sustain such loss gratuitously. In the former class is included the obligation of such as possess the goods they know belong to others, to restore the goods with their profits; as also his obligation† who without commission manages any business for an absent <and unaware> person, or for a minor [for someone who, wanting the fit reason and prudence, can not consent]. All these are bound to account, and to restore the goods with their increase and profits <and that is considered in actiones directae concerning the management of others’ business and of guardianship>.2

The like is the obligation of the heir or executor, toward the creditors or legatees of the deceased; and it arises from his entering heir{, or undertaking the execution of the will}. For ’tis plain, all the effects of the deceased are naturally chargeable with his debts, and with whatever others have a perfect claim to. He therefor who takes possession of the effects, the only fund whence these debts are to be paid, is bound to pay them, as far as the effects go, deducting for himself the necessary expences of management. The heirs or executors however may always claim the benefit of an inventary, that they may not be bound further than they find effects of the deceased. Nor need we feign {any contracts} to explain the just grounds of these obligations, {nor} that the heir {or executor} is the same person with the deceased.3

II. As to the second class; where a man is bound by deriving to himself some advantage at the expence of others, who did not consent that it should be gratuitous: under this is included the obligation of those on the other hand whose business was managed by others without commission, and that of minors [or that of those who, wanting the fit reason and prudence, were not able to consent] toward their guardians, to indemnify them, and compensate their labours in all useful services, and to ratify any contracts prudently made for their behoof; and refund any prudent expences in their education <and instruction. That is considered in actiones contrariae of managing other’s business and of guardianship>.4

What parents <who are not in straitened circumstances> expend in educating their own children, we conclude from the tender parental affection, that ’tis intended as a donation, when the parent has not declared the contrary. Nay parents are naturally bound to support and educate their children suitably to their condition, and to convey to them at death what remains of their goods. But if a parent is in great straits, or if any child has some other way obtained a plentiful fortune, a parent in these cases may justly charge a child with the whole expence of its support and education, and exact it for his own maintainance in old age, or to support his other children.

III. But if one maintains and educates the <poor> child of another; there’s no presumption here that it was done as a donation; ’tis more presumable that a debt is hereby constituted, to be discharged by the {goods or} future labours of this child, as far as the expence was truly made for the behoof of the child; but not what was intended for the splendor of his family who maintained it.5 Nay further, as generally all this expence upon an indigent orphan would be lost entirely if it died before it were capable of labour; the maintainer might perhaps, in the rigour of justice, be allowed to charge something more on account of this hazard; and by this allowance men will be more encouraged to such necessary care of indigent orphans. But then this hazard continually decreases as the child advances in years, and cannot increase considerably the charge, except for a few of the first years. An indigent orphan thus maintained is therefor in no worse case than that of any indigent person who without any fault of his is involved in a great debt, from whom the creditor may justly demand payment by his labours, while the debtor retains all the other natural rights of mankind, and whensoever either by his labours, (of which, he may justly choose to turn himself to such as may be most beneficial to him, and soonest discharge the debt), or by the liberality of any friend, he can discharge it, he can no longer be justly detained in service. Now were an account of all the necessary charge of maintainance, and of the value of labour, justly stated, it would appear, that such an orphan sound in body and mind could always fully discharge such debt by his labours before he were thirty years of age: and consequently that this can never be a foundation for perpetual hereditary slavery; even allowing an extraordinary interest were charged upon the expences because of the hazard, as is done upon contracts of bottomry in trade.6 And yet this charge must appear pretty inhuman upon persons in any grievous distress: nor can any distress be conceived greater than that of an indigent child destitute of all aid from its parents.<* >

Under this branch too is included the obligation of him who using the plea of necessity, (of which hereafter) has done damage to others; and of one who received what appeared due, but afterward ’tis found was not due; or what was paid upon a contract against which there lay a just exception making it void; or received any price, in consideration of something which is not paid or performed by him{: who are all obliged to indemnify and restore}.

When one partner in a company has preserved or improved at his own expence any of the common goods of the company; the obligation of the other partners toward him is of the later class; and his to them of the former.

The obligations contracted for us by others, if they are done by our commission, are manifest contracts; if not, they come under the case of business managed without commission already mentioned.7

CHAPTER XV

Of Rights Arising from Damage Done, and the Rights of War.

I. From the former principles ’tis plain, that each one is obliged to repair any damages he may have done to others, if they desire it. But cases often happen when a good man justly may, and ought to do, what may occasion some damages to others; if, for instance, some goods of his of incomparably greater value cannot be preserved, or some of the greatest evils threatening him or his friends be prevented, otherways than by doing what may occasion some small loss to others. He has a perfect right to act thus; and yet he always in such cases becomes liable to make good their losses sustained for his safety or that of persons dear to him. Since this is a sacred social principle of equity [Since common interest as well as a principle of equity requires], that “no man for his own advantage should impair the advantages of others; or if any necessity force him to it, that he make good their loss as soon as possible.”

The same is more manifest in damages done injuriously. Human <union and> society cannot be maintained unless men are obliged to compensate all such damages, <that therefore are rightly claimed by violence>. Laws prohibiting <all violence> and injuries would have no effect, if after they were done, the injurious could enjoy their gain with impunity.

Nay the safety of society further requires that the injust should be restrained from injuries by the terror of severe punishment; lest the good should be continually exposed as a prey <and a laughing-stock> to them. And therefor altho’ God and nature require of us good-will, clemency and lenity, even toward the evil, yet surely they require a superior degree of these affections toward <the innocent and> the good. And the injust may be restrained by violence and punishments, and obliged to compensate the injuries done and give security for their innocent behaviour for the future, without any malice or ill-will toward them; nay ’tis doing them rather a good office, to restrain them thus from further crimes.1

II. By damage is understood not only “the depriving men of their goods, and spoiling or detaining them injuriously; but any intercepting or preventing their natural or artificial profits; with all those inconveniencies which ensue upon the first wrongs; all gain prevented, as well as losses occasioned.”2

Whoever by himself or by others, whether by acting or omitting contrary to his duty [what he was obliged to by a perfect right], has occasioned any damage, which otherways would not have happened, may be deemed an author of the injury. Such as only rejoice in the injuries done and praise them, <and encourage them> may indeed shew {such} perverseness of temper {as deserves punishment}; but as it cannot be discerned whether the same injuries might not have deen done without such congratulations or applauses, men are not made liable to compensation on these accounts alone.3 Where an injury has been done by many in concert, they are bound to compensation jointly and severally.4 But if one has compensated the whole, the sufferer can demand nothing further on this account from the rest; but he who repaired the whole damage may oblige his partners to bear their shares with him. The case of punishments is quite different; for punishment may be justly inflicted on all for the common safety.

5 Among the authors of damage, he is deemed the principal, who having authority over others, commanded them to do it. He therefor is first to be called to account, if it can be done; if not, we may demand reparation from the rest; since he could not by any orders of his give them any immunity from this obligation. And tho’ the executors may be free from any guilt, having had the plea of necessity, in avoiding the far greater evils threatened them {if they had not obeyed orders} <by occasioning only lighter damage to others>; yet they are notwithstanding bound to make compensation: since their innocent neighbours must not suffer, to free them from the evils they were threatened with.

III. If one without any fault, by mere accident does damage to another; he is not strictly bound to repair it.6 Nay if one engaged in any important services to the community, in any dangerous emergence, where ’tis scarce to be expected that men can use the greatest caution, happens by some negligence to do damage to his neighbour, it should be rather repaired by the community.7

Damage done by hired servants without their master’s orders, should be repaired by themselves. What is done by a slave binds the master to divide the price of the slave in the same manner as the effects of a bankrupt are divided among the creditors; computing on one hand the value of the slave, which is the claim of the master, and on the other that of the damage done, which is the claim of the sufferer; and in proportion to these two the price of the slave is to be divided.8 In the same manner the owner is bound to compensate damage done by his cattle, without any fault or negligence of his. If civil laws* have been more rigid upon the owners, it has been with this view, that the owners may be made more careful in guarding well their slaves and cattle{, which are kept for their own behoof}.

If one without any malitious design has done damage, he ought to shew himself ready at first to do or perform whatever any wise arbiter shall judge reasonable, and to declare the innocence of his designs. If one has had an evil intention, and truly repents afterwards of it; he ought also to offer compensation, to beg pardon, and give whatever security against future injuries a prudent arbiter shall think sufficient. No man truly repents of any injury he has done, nay he persists in it, while he declines to do these things, and detains the gain of his injustice. But when the injurious offer all these things voluntarily, we are bound to be reconciled and to pardon them: which all of us should do the more readily and heartily, that each one so often needs to be pardoned, if not by his fellow-creatures, yet by our merciful creator.9

IV. When one obstinately persists in his injuries and won’t desist from his designs upon admonition, nor repair damages done; or refuses to perform what we have a perfect right to demand; not only our private interests, but the common interests, and safety of all requires, that the injuries intended should be repelled by violence, and reparation of damage and whatever else is due to us by a perfect claim should be obtained; and even some further evil inflicted on him, by the terror of which both he and others be restrained from the like practices.

This violent defence or prosecution of our rights is war. <War is “the state of those who are in violent conflict in order to defend a right.”> But as one grand view of constituting civil power was this, as ’tis known to all, that the controversies of citizens should be decided by impartial judges, and thus the mischiefs prevented which might arise from mens redressing themselves under fresh impressions of injuries; very different rules of violent defence or prosecution must obtain according as men are either in natural liberty or under civil government.10

Wars are divided into publick and private. The former are such as are undertaken by a state, or in the name of a body of people: private wars are those among private persons. The publick wars are divided into the solemn, <called also justa by the Romans, whatever was the occasion, even an obviously wicked action> or these authorized on both sides by the supreme powers of states, upon some specious shews of right; and <less solemn, or> those so authorized only on one side: such as the wars made upon bands of pyrates or robbers, or citizens making insurrections; or what are called civil wars, between different parties in the same state contending about some rights of the people, or of the government.

We first treat of the private wars of men in natural liberty. And the same reasonings hold in publickwars; since sovereign states and princes are with respect to each other in the same condition of natural liberty.

V. We have already shewn that wars both publick and private are sometimes lawful, nay necessary for the common safety. Nor do the scriptures prohibit them in all cases: as they plainly authorize civil power, give to magistrates the*power of the sword, and praise some eminent heroes in war.

In both kinds of war three points are to be settled: the just causes, the term of commencing, and the term of ending them, or the sum of our demands in war <which are called terminus a quo and terminus ad quem>. When we speak of these three in the wars of particular persons, they are to be differently determined according as the parties live in natural liberty or under civil government.

But we must always remember, that tho’ we have received the very greatest injuries from any person, yet we ought to maintain good will toward him, and even desire his happiness, as far as it is consistent with that of better men and of the community. All clemency consistent with these ends, toward even the most injurious, is what every man’s heart must approve. When therefor any injury is designed or done to us, we should try first all gentler methods, either to prevent it, or obtain reparation of damage and security for the future. Nor should we judge that an unjust enemy has forfeited all his rights, or that every outrage against him is justifiable. That violence alone is just which is necessary, or naturally conducive, to repell the injury, repair the damage, or obtain security for the future. Any cruelty not requisite for these ends is plainly criminal and detestable; as it occasions grievous sufferings to some of our fellows, without any necessity for the interests of others; and is a precedent to like cruelties on other occasions{, even toward those who have a just cause in war}.

VI. The just causes of beginning war in natural liberty are any violation of a perfect right. There could be no security in life, none of our rights could be safe, were we prohibited all violent efforts against the injurious, and they allowed to pass with impunity. By a frequent repetition of even smaller injuries the greatest wealth must soon be exhausted: and life must become intolerable to innocent men if they are thus exposed to the perpetual insults of their petulant or insolent neighbours. Humanity may often persuade a good man to overlook lighter injuries, which can easily be repaired; if especially, they proceeded from some sudden gust of passion in men who in the main parts of their character are good, and will soon repent of it. Yet no man can justly claim such patience toward himself from others. There are some more rare cases in which perhaps it may be just to make war before any injury is done or attempted: but of these hereafter.*

When therefor any of our perfect rights are violated, either by destroying or damaging our goods, or refusing what we have a perfect right to claim; or when a like injury is done to any innocent neighbour; ’tis lawful, nay often honourable by force to compell those who oppose us or our neighbour in obtaining our rights, to desist from these injuries, and to perform whatever is due to us <and to our neighbour>. We may seize the particular goods we have a claim upon; or if we cannot find them, seize any goods of the enemy sufficient to compensate all that’s due to us. And in computing this, we should include all our labours, and losses or expences occasioned by the injury. Nay we may proceed further <in seizing the goods of the enemy> by way of punishment, or obtaining security for the future, as far as a wise arbiter will judge necessary: [but of this presently].11

In civil society indeed, these injuries alone justify the violence of private persons against any fellow subject who is amenable to laws, which may occasion an irreparable damage. The warding off, or the repairing of others should be obtained in a more prudent way by the aid of the magistrate. But such as can neither be prevented nor remedied this way, we justly may repell with <any necessary or suitable> violence. But if any one, who is as to right a citizen or subject, renounces this bond; or makes his attempts so secretly that there’s small hope of bringing him to justice; we have the same rights against him as if we were in natural liberty.* Such are all robbers and thieves in the night. Against other citizens our remedy must be obtained from judges or magistrates.

VII. The term of commencing violence [the violent defence or prosecution of rights] in liberty, is when one either by express declaration or any hostile action <or other certain evidence> has discovered a fixed purpose of hurting us or any innocent neighbour; and won’t desist upon admonition. We are not obliged to receive the first assault; as it may perhaps prove fatal to us: nor need we wait till the injury is executed; which may perhaps prove irreparable: and ’tis generally easier to prevent than to remedy. We may therefor justly prevent and surprize such as have formed and declared sufficiently their injurious designs of hostility.

The proper term of commencing in civil life any violence that may be dangerous to others, is when the aggressor has brought us into such straits that we can neither retire without danger, nor obtain any aids from magistrates or our fellow-citizens.

VIII. The term or bounds beyond which we ought not to continue violence in natural liberty, are when the aggressor or the author of the injury either voluntarily repenting, or compelled by force, desists from injuring, and offers compensation of all damages done, and such security for the future as any prudent arbiter shall judge necessary. If he obstinately refuses these things we may justly obtain them by force. Nay the common interest of mankind requires that such as without any plausible shew of right, have done gross injuries, and given such dangerous example to others, should be punished in such a severe manner as may probably deter not only themselves, but all others from like crimes.

The same reasons which justify the inflicting of punishments in civil life, justify it also in natural liberty; tho’ in this state we cannot expect that punishments shall be so effectually executed, or so prudently regulated. Neither the grounds of punishments, nor the reasons of inflicting them, presuppose civil power in the inflicter, nor civil subjection in the sufferer.

Under civil government subjects ought not to continue violence after they are secured from present danger. The reparation of injuries and precautions for the future are to be obtained by the sentence of a judge, and not by the violence of the enraged parties. All just violence should be with a view either to the defence of our rights, or to some publick advantage. What has not such intention; and is accompanied with hatred of the person, and joy in his misery, is that criminal revenge, which is condemned both by the natural and christian laws.

And further as rights respect not only our holding or possessing, but also our obtaining sometimes from others some goods or services: in natural liberty we may use violence in pursuit of what is due to us from others, when they refuse to perform voluntarily what we justly demand. But in civil life all such prosecution of our rights should be made by actions in law, either for debts, reparation of damages, or precautions against damages apprehended; and these matters decided by the wisdom of magistrates and judges:12 as must appear from what was said about the causes of war in natural liberty, and the ends of civil government.

IX. From these principles it must follow that such duels as are often practised among us, where the challenger and the person challenged meet in a place appointed, intending the death of each other, or what may occasion death, cannot be justified <by any form of reasonable right> either in natural liberty or civil society. <Right> Reason would always teach a far better method of defending and prosecuting our rights; first, by committing any disputed point to arbiters in natural liberty; and if either side declined to submit to them, the other should obtain the assistance of such neighbours as the equity of his cause or regard to the common safety can engage to his side, and make open war in prosecution of his right. As to any reproaches or contumelies <or false reports>; the duel is often a foolish, and often too cruel a method of refuting them. The fortune of the combat is often as blind and capricious as any: and death is too grievous a punishment for opprobrious words. If one has hurt the character of others, either by false reports, or even by divulging inhumanly, without any necessity, their secret vices; in natural liberty we may justly, with the assistance of friendly neighbours, inflict such publick punishment as any wise arbitrators shall deem proper for the crime. And if in this state any one, <unprovoked,> has given full evidence of an hostile intention to destroy us; we should rather take the safest way to prevent by surprize, or to restrain him, in such manner as our own and the common safety requires. Nay under civil government, we are not bound to avoid publick places, or neglect any business which requires our appearing abroad, because we know that one designs to assault us; unless either humanity or a regard to our safety move us to it. And if we are unjustly attacked while we are employed in our own lawful business, we may justly defend ourselves even by killing the aggressor: and doing so [and killing in this way petulant and insolent men] is often a very useful service to mankind. All this may be done without any concerted duels.

But if the legislator has been so negligent of a most important matter, as to appoint no suitable <laws, nor> legal redress for the citizens when injured in their characters by calumnies or reproaches; and if that custom prevails, which took its rise in the most barbarous and superstitious ages, that a man is deemed infamous, and always exposed to new insults, and these generally approved too, if upon certain reproaches or contumelies uttered against him, he does not challenge the author of them; which will be the case too with one who declines to accept a challenge from any who imagine they are injured by him.13 The larger share of this guilt is chargeable on the civil governors themselves; tho’ the parties are not excusable, especially the challenger. For a good man may generally find a better way of vindicating his character, and even of shewing his fortitude, if either there arise any publick wars, or if he is first attacked by violence.

There is indeed one case in which concerted duels may be lawful on one side:* if a publick enemy of our country, of superior power, trusting to the valour of some champion on his side, offers to grant us reasonable terms of peace only upon the event of this champion’s being defeated by one of our side; or will have the controversy decided according to the fate of such a combat. ’Tis no doubt foolish and inhuman to decide controversies <at least the serious ones that only are cause for a just war> this way, when it might be done by arbitration. But if a more potent enemy will not consent to any other way [will cast the controversy in the result of such a combat and will not decide it in a milder way]; ’tis a glorious action on our side, if one to prevent much blood-shed exposes himself for his country to this hazard, in which his country has better hopes of success than any other way.

CHAPTER XVI

Extraordinary Rights in Cases of Necessity, and the Common Rights of Mankind.

I. It has been already frequently shewn that an immediate sense generally points out and recommends our several duties; and that there are different degrees of them, in a certain subordination, some more, some less honourable; that the later should give place to the former, when they are inconsistent [some, though amiable for themselves, should give place to such as are more amiable and conducive to a greater amount of publick good]; and that the supreme beauty appeared in these affections of soul which are most extensive{, which should therefor controul the narrower}: and that in consequence of this, all the rights of individuals, and all the special rules of life [laws] should be postponed to the universal interest of all.1 Altho’ therefor these practical conclusions <of right reason> called the special laws of nature, which we are sacredly bound in all ordinary cases to observe, point out what is almost continually the virtuous part; yet by an extraordinary change of circumstances, it may become our duty to act in a different manner; and such singular cases are to be deemed excepted in these special laws.2 We never should speak thus, that in cases of singular necessity, we may justly violate the law of nature, or act unjustly or vitiously{: such expressions are contradictions}. But it is truly obeying the law to take the benefit of any exceptions appointed in it; or to follow the more sacred law when it derogates any thing from one of less importance. Now of all the social laws that is the most sacred, which prefers the general interest and safety to that of individuals or small parties.

II. But as the sense of every good man must shew it to be of high importance to preserve the authority of all the special laws {and that they should be religiously regarded}; we cannot be justified in departing from their appointment upon any light causes: the necessity must be great and manifest which will justify it. We must <therefore> not only consider cautiously what present advantages may ensue in this case from such a singular step; or what present inconveniences from following the ordinary law; but much more what greater and heavier {and more general} evils may follow from such a liberty allowed to all. Let us take an example or two, which may illustrate other cases. As the maintaining of veracity and faith in our conversation and dealings is of the highest importance to society; as is also the maintaining the rights of property, and leaving to each one the free administration of his own, for the mutual confidence and security of men in society: the causes must be of the highest nature, some terrible evils to be avoided or exceeding great advantages to be obtained which can be allowed to make exceptions from these important rules. Nor ought this plea of necessity to be extended to lighter matters: for we should consider all the <far heavier evil> consequences, even of a remoter kind which must ensue upon diminishing the deep reverence men should have for these laws. No cases therefor but those of the highest nature are to be deemed excepted; when evils superior to all these evil consequences are to be averted: and none will reckon among these, any ordinary ones of a lighter nature, unless he is plainly wicked and impious{, void of any conscience of duty}.

’Tis to no purpose to argue here, that we are to do nothing vitious <and dishonourable> for any prospects of advantage. In this all agree. But the question is, whether such extraordinary conduct be vitious in these circumstances, or not? It should not be matter of hesitation, whether we may abandon the conscientious part for the advantageous: but whether some great utility to ensue don’t make some extraordinary steps lawful or honourable? Nor is it more to the purpose to allege, that we should always adhere to the divine laws, and that we are no judges of future events, but should commit them to providence. Such things are pleaded by some very good men [some philosophers], tho’ not very acutely in this point. For the very question is, are not these cases to be deemed exceptions in the divine laws? and made known to us by the same use of reason by which the law itself is made known? If we are no competent judges of future tendencies, we are no judges about the ordinary natural laws; which are no otherways discovered than by our reasoning upon the tendencies of certain methods of action, as they appear conducive to the publick interest or detrimental: for no man can allege that our sole rule of life are the impulses of each particular passion {which we may generally approve in ordinary cases}.3

No doubt wicked selfish men devoted wholly to their own interests or pleasures will abuse this plea; but not without such impiety and unfairness of mind as would break through any bonds of laws. The passionate and revengeful often abuse the doctrine of self-defence{, and that about prosecuting the injurious}: but we don’t therefore {quit this doctrine, and} prohibit [condemn] all violence in defence or prosecution of our rights. Nor should we any more condemn all departure in singular cases from what the special laws of nature require in ordinary ones. Men seem agreed that the common rules of property yield to some singular exigences. One may use or destroy the goods of another without his consent, when ’tis necessary for the preservation of multitudes, as in the lightening of ships in a storm, or blowing up of a house to stop a raging fire. Nay some higher laws give way to singular necessities. The bravest and best citizens are exposed [are rightly ordered to expose] to certain death for their country{, in services where there can be no hopes of their escaping}. By drawing a bridge or shutting the gates, by which all the citizens have a right to be protected, the bravest men are sometimes [the bravest Romans were] exposed to the most cruel enemies. Tullus Hostilius is renowned to all ages for presence of mind in delivering a false account, by which the Roman people were preserved.4 But this doctrine so liable to misapplication needs always the following cautions.

III. First of all: the two general laws about loving God and {our neighbour, or} of promoting the general good of all, admit of no exceptions: nay in this later are founded all the exceptions which lye against any of the more special laws. But the external acts of worship are not necessarily annexed to any one time{, and therefor yield to urgent exigencies}.5

2. The more honourable any person’s temper is, the less apt will he be to allow to himself exceptions for any smaller interest of his own, or to claim any privileges of necessity.6

3. We must bring into account all the effects probably to ensue from any extraordinary steps, whether by natural consequence, or from the unfairness or rashness of others. Not that men are to be excluded from every right which unjust persons may make a pretence of in improper cases: but even these bad consequences are to come into the general account, to prevent our allowing exceptions in any but the most weighty cases. So that no man can plead exceptions in lighter ones, without that depravity of mind which would break any acknowleged law{, without any such pretence}.

4. The more sacred and important any law is, the greater must the causes be which can found any exception.

5. Causes of a publick nature [seeking the interest of others or of all] are far more honourable than those of a man’s own <and of his friends’> advantage. A good man often may quit part of his own <and his friends’> right; and ’tis often honourable not to take the advantages he might. But he is not thus master of the publick interests, and must act according to what the exigence of the times require.

6. No plea of necessity will justify a man in freeing himself from any threatening evil, by casting the like or greater upon any innocent person. This is plainly not subservient to any publick utility.

7. Whatever smaller damages we cast on others who do not consent to suffer them gratuitously, in order to free ourselves from any great danger, we are sacredly bound to repair. To this right in natural liberty, of warding off some great danger by actions detrimental to others, there corresponds in civil society an eminent right in the supreme powers, of which hereafter.{* }

IV. From the common bond of all with all, by which all mankind are constituted by nature one great society, {with some common laws binding them,} there arise certain common rights, not specially regarding the utility of any one, or a few, but that of all in general; which therefor every one as he has opportunity should maintain and prosecute. These rights as they obtain also in natural liberty, should be considered previously to those of civil societies. We shall give a few instances, which will also lead us to others.7

1. Mankind as a body, and each one as he has occasion, have a right to hinder any one to quit life without a just cause, or thus desert the duties incumbent on him. Suicide should therefor be prevented, or such self-maiming as may make one unfit for the duties of life.

2. There’s also a common right of all, to prevent certain vitious practices of most pernicious example, which yet cannot be said to injure any one person more than another: such as monstrous lusts, procuring abortion, or any other practices which are hurtful to mankind in general.

3. We are likewise to hinder any man to destroy such goods of his own as may be very useful in life, out of any caprice or ill-nature: nay they should not be allowed to perish of themselves without being used.

4. There’s also a like common right of one and all, to prevent injuries, and to punish such as are done; so [and to inflict such evils to the offender] that by the terror of the punishment, others also may be restrained from like attempts.

5. Mankind have a right also to compell any person, who has discovered any secret of great use in life, to divulge it upon reasonable compensations, and not suffer it to perish with himself; that such as need it may also enjoy the benefit.

6. Mankind in general, and every society, may justly require it of all such as enjoy ordinary health and strength, unless they otherways have a fund for their support, that they should maintain themselves by their own labour, and not intercept the liberality or charity of good men; which is due only to the weak who cannot support themselves. Such slothful wretches are to be compelled to labour <or to any lawful art for supporting themselves>.

The instances we have given are rights of the perfect kind belonging to mankind as a body. Imperfect rights of this class answer to the general duties of humanity and beneficence (above explained in treating of the nature of virtue) which must be left free to the honour and conscience of men.<* >

CHAPTER XVII

How Rights and Obligations Cease: How Controversies are to be Decided in Natural Liberty: and the Rules of Interpretation.

I. Obligations cease by three several ways: by the paying or performing what was due; by remission in favour of the debtor <whether gratuitous or for onerous cause>; and by the failing of the condition.1

Payment may be made either by the debtor himself, or any commissioned by him, or acting in his name and for his behoof; but it must be at the time and place agreed on. Where payment is offered not by appointment of the debtor, nor for his behoof; the creditor is not bound to transfer his right against the debtor to the person thus offering payment, who may have some malitious intention against the debtor. What is here said relates only to the delivery of common goods or money, or performing common labours or services, in which ’tis no matter to the creditor who pays him. The case is otherways in homages of honour, or such labours as are valued on account of singular ingenuity.2 {In these no substitution can be made without the consent of the person to whom they are due.}

In money, or goods only regarded by weights, measures, or quantities [In res fungibiles, or in goods the values of which are reduced to a certain measure]; if two persons be mutually indebted to each other in equal sums, and the days of payment on both sides come, the debts mutually destroy each other: and this is peculiarly called compensation. Nay tho’ the sums are not equal, yet the debts should be deemed abolished as far as the sums concur, and the surplus only to remain due.

To the second way, to wit, of some remission; are reducible all these transactions {or bargains} agreed to for extinguishing disputed claims: as also delegations; by which the debtor with consent of the creditor transfers to him <or to anyone appointed by him> an equivalent debt due to himself: as also <condonationes or releases, explicit or tacit>, the forgiving of debts and accepting any thing in lieu of them; <likewise acceptilations>3 and lastly mutual dissent of the parties; by which the mutual obligations of a bargain are taken away.

3. Under the head of the failure of the condition, is included the perfidy of one party in a bargain; which sets the other free, if he chooses it, rather than to compell the perfidious to performance: as also a change of state; by which all obligations are made void which were plainly founded upon it: as also the expiration of the time; which takes away obligations which were to endure no longer: and lastly death takes away such as only respected the persons, and were not designed to subsist to the heirs of the creditor, or affect the heirs of the debtor: and these points are generally known from the nature of the business, or the terms of the contract.

II. In natural liberty controversies are best decided by friendly conferences of the parties, or the interposal of common friends; or by an absolute compromise or submission to arbiters of approved characters; and this either as to the strict point of right [as perfect right], or as to the equitable and humane part on both sides. Every good man would always choose to make submissions of this later sort{, and not insist upon the strictest point of right}.4

The proper arbiters are persons of wisdom, under no special attachment to either side, and who can gain nothing by the decision of the cause in favour of either party. Such men influenced by no interest or passion, tho’ they be neither wiser nor better men than the parties contending, yet will more easily discern what is just and equitable. The parties are bound to stand to their decision, unless they find evidence of corruption, such as some secret contract with one party; or unless there be such manifest iniquity in the decision as must plainly evidence some fraud or unfairness <as was the case of the Roman arbiters between the inhabitants of Nola and Naples5 >. But if it is only some smaller inequality or mistake in the decision, upon some shew of right, {by which one party thinks he is wronged,} he is notwithstanding bound to submit to the award.

The arbiters should proceed as judges do, to find out the truth by the acknowlegements of the parties, or by signed deeds, or other such documents: and next to cite witnesses, and interrogate them upon oath; regarding always this <rule of Cassianum“cui bono”>,6 whether the witnesses be not engaged by interest on one side; and they should demand two at least to proceed upon. For tho’ the credibility does not at all increase in proportion to the numbers of witnesses, and sometimes the testimony of one wise honest man gives full satisfaction; yet it would be dangerous to proceed upon the testimony of one: as a person of great hypocrisy and art and presence of mind may contrive such a consistent story, that no interrogatories put to him can detect the falshood of it, or make him contradict himself. But when two or more witnesses, are separately examined, without hearing each others testimonies, about all such circumstances as might have been observed by persons really present, (of which a vast multitude may occur to a sagacious judge); if they either frequently contradict each other; or both always remember the same circumstances, and both always pretend to have forgot or overlooked the same circumstances, they give plain evidence of a concerted fraud. [A compleat consistency therefor of two thus examined, gives abundant evidence.]7

III. For discovering the true intent and meaning of promises, contracts, testaments, and written laws, the proper rules of interpretation are often useful. But they belong rather to <the grammatical art, or to> the art of criticism than to morals{; as they are not peculiar to these matters}.8

1. We must still remember that such as profess to contract with others, and use such signs as commonly express contracting, are to be deemed bound, what ever way their mind was then employed: nor otherways could there be any faith in commerce.

2. The sense of common popular words is to be determined by custom, without regard to original meanings or etymologies; unless there appears evidence that they were taken in an unusual sense.

3. Terms of art are to be understood according to the definitions of the artists.

4. Where the different parts of any deed relate to the same thing; the ambiguous or obscure are to be cleared up by the more plain and distinct.

5. If words taken in their simple and unfigured sense import something contradictory and absurd, but not when interpreted as figurative; they are to be deemed figurative.

6. In deeds which convey no right in their prior parts to such as don’t also consent to the subsequent; the subsequent limit the preceeding. This holds in the different parts of testaments, and in different deeds made between the same parties.

7. There are also just conjectures of interpretation to be derived from the subject-matter, the circumstances, effects, or consequents. For that is probably the true interpretation which suits the subject-matter and circumstances, or which involves no absurd consequences.

8. Contracts are best explained from knowing the views of the parties; and laws in like manner from the reason or design of them.

9. We are also to regard whether the matter be of a desirable or favourable nature, or on the contrary undesirable or odious; for accordingly we give a larger or more confined sense to the words.

IV. But where all or any of the contending parties in natural liberty, trusting to their own strength, and each dreading the interest or art of his adversaries in influencing any arbiters they might choose, declines to compromise; there remains no other remedy than that each defender prosecute his right by violence, with what aid he can get from his neighbours: and by this means multitudes must often be involved in great inconveniences and dangers. Now ’tis probable, that in order to avoid these mischiefs, and to get large societies regulated by the authority of a few of the wiser sort, in the decision of their debates, and the exerting their united force for the common safety of all [and in order to reject more effectually the violence and the attacks of foreigners], men have had recourse to a political union and a civil power.9

[1. ]The sentence inserted in braces translates the text of the 1742 edition and is identical to System 2.1.[1], vol. I, p. 227.

[2. ]See System 2.3.1, vol. I, p. 253.

[3. ]See System 2.3.7, vol. I, p. 265.

[4. ]See System 2.3.8, vol. I, pp. 267–68.

[5. ]On this section see System 2.3.7, vol. I, pp. 265–67.

[* ]On this subject see Cumberland’s Prolegomena, or introduction, and Ch. 1. Concerning the law of nature. [See also System II.3.8, vol. I, p. 268.]

[6. ]Square brackets by the translator, to notice his own comment.

[7. ]Pufendorf, De officio 1.2.7. See System 2.3.8, vol. I, p. 268.

[8. ]Pufendorf, De officio 1.2.16.

[9. ]See System 2.3.9, vol. I, pp. 269–70.

[10. ]Here the translator cancels an unnecessary note of the Latin text.

[11. ]See System 2.3.9, vol. I, pp. 269–70, for some examples.

[12. ]See Pufendorf’s, De iure nat. 1.6.18 and De officio 1.2.16.

[13. ]See System 2.3.2, vol. I, p. 274.

[14. ]The translator draws from Pufendorf’s definition in De officio 1.2.9. Cf. System 2.3.12, vol. I, p. 275. Hutcheson enlarges on the subject in pp. 275–80.

[15. ]Here the translator cleverly follows either the first edition of the Institutio or the System (see 2.3.2, vol. I, pp. 275–76), or both.

[* ]See Vinnius’s comment on the Instit. lib. i. 2. II. The same distinction is variously explained by other authors; but scarce any of them so explain it as to make it of importance. [Here the translator, referring to Arnoldus Vinnius (In quattuor libros Institutionum imperialium Commentarius academicus et forensic, Amsterdam 1692), as well as Hutcheson, adopts Carmichael’s criticism of the distinction between primary and secondary laws. See Notes on Puf., p. 203.]

[16. ]Hutcheson, as well as Carmichael, contrasts noetic and dianoetic propositions, according the common Aristotelian and Scholastic distinction between Nous, i.e., the intellect that knows the first principles, and Dianoia, or discursive thought, i.e., the intellect that makes use of argumentation.

[1. ]Not a new paragraph in the Institutio.

[2. ]See System 2.3.1, vol. I, p. 253.

[* ]<Book I. Chap. 1.12. and previous chap., book II.> [This note is left out by the translator, perhaps with good reason: neither the previous chapter, nor Book I, chap. I, sect. xii, explains why our notions of rights arise from moral sense.]

[* ]{See Cicero’s Offices, B. ii. 3, 4, 5, &c.}

[3. ]A new paragraph in the Institutio.

[4. ]Literally: “According to another meaning, obligation has always a reference to a law and, particularly, to a divine law, denoting ‘a solemn inducement imposed upon men, for reason of its utility, to perform or to omit certain actions.’ Such inducements can be brought about especially by divine laws.” See System 2.3.6, vol. I, p. 264.

[* ]{These are the definitions of Puffendorf, and of Barbeyrac in his notes on Grotius, as also in his animadversions on a Censure upon Puffendorf, ascribed commonly to Mr. Leibnitz, published with the French Translation of the book de Officio Hominis et Civis.} [The translator rightly refers to Samuel Pufendorf, De iure nat. libri octo, Lund, 1672, I.1.21 and I.6.5, Hugo Grotius, Les Droit de la guerre et de la paix, trans. Jean Barbeyrac, 2 vols., Amsterdam, 1724, I.1.9–10 and notes by Barbeyrac, p. 47, note 5 and pp. 48–49, note 4, and Pufendorf’s Les Devoirs de l’homme, et du citoien, ed. J. Barbeyrac, Amsterdam, 1718, published with [Gottfried Wilhelm von Leibniz’s] Jugement d’un anonyme sur l’orginal de cet abrégé [De officio]: avec des réflexions du Traducteur [Barbeyrac], pp. 429–95. Hutcheson has likely in mind also Richard Cumberland, De legibus naturae disquisitio philosophica, London, 1672, V, 11, for Cumberland criticizes the metaphorical [i.e., circular] use of the word vinculum (bond) in the common definition of the obligation drawn from Justinian’s Institutes, III, XIV, quoted by Pufendorf as well as by Hutcheson here.]

[5. ]For a parallel but shorter, and in some details different, account of obligation, see System 2.3.6, vol. I, p. 264: referring the reader to “Leibnitz’s censure on Puffendorf and Barbeyraque’s defence of him,” Hutcheson says that “ingenious men have contradicted each other with keenness; some asserting an obligation antecedent to all view of interest, or laws; others deriving the original source of obligation from the law or will of an omnipotent Being.” See the introduction, pp. xiv–xvi.

[6. ]See System 2.3.3, vol. I, p. 257.

[7. ]See System 2.3.3, vol. I, p. 258.

[8. ]See, System 2.3.5, vol. I, p. 262.

[9. ]See, System 2.3.3, vol. I, p. 259. On rights perfect, imperfect, and external see also, Inquiry, II.7.6, pp. 278–81.

[10. ]See, System 2.3.4, vol. I, p. 261.

[1. ]See System 2.1.5, vol. I, p. 234.

[2. ]See System 2.1.1, vol. I, p. 228.

[3. ]In the first four sections of this chapter, it is clearly Hutcheson’s intention to treat such themes as imputation, voluntary and necessary actions, vincible and invincible ignorance, conscience and erroneous conscience, discussed by Pufendorf in De officio 1.1. However Hutcheson does not follow Pufendorf in his argument; nor is there great similarity between these sections and the corresponding chapter 1, book II, of System. On antecedent and subsequent conscience, see Pufendorf, De iure nat. 1.3.4.

[4. ]On the distinction between formal and material goodness, see Pufendorf, De iure nat. 1.7.4 and System 2.3.1, vol. I, pp. 252–53.

[5. ]See System 2.1.2, vol. I, p. 229.

[6. ]See System 2.1.4, vol. I, p. 233.

[7. ]See System 2.1.5, vol. I, p. 235.

[8. ]About this general premise, see Inquiry on Virtue, III, 9, and System 2.2.2, vol. I, pp. 239–40. The estimation or computation of the morality of actions is not a subject of Pufendorf’s De officio and is only slightly treated in Pufendorf’s De iure nat. 1.8. This subject is peculiar to Hutcheson and is largely treated in his Inquiry on Virtue, Section III, especially Art. 8–12, and Section VII, Art. 9, as well as in the whole chapter II of System. However, while there is substantial concord between the main rules of this evaluation, the order and the details of Hutcheson’s account are in many ways different in the three works. The Inquiry deals with the moral evaluation according to (1) the quantity of good or evil produced and (2) the kind of affections involved in Section III, and applies this evaluation to juridical matters in Section VII. The System generally follows the same order, and its Section V coincides in many points with Section VII, Art. 9, of the Inquiry, but some matters are redundant, and in Sections III and IV the tension between the excellency of calm and extended benevolence and the duty (and usual practice) of cultivating the limited affections becomes problematic. In the Institutio, the four points of Section V are pretty general, the moral evaluation is the last treated in Section VII, and Section VI shows the difference between moral and juridical evaluations of our actions rather than their agreement.

[9. ]See Inquiry on Virtue, III.14, p. 194.

[10. ]See Inquiry on Virtue, III.11, point 4, p. 189, VII.9, point 2, pp. 288–89, and System 2.1, point 2, vol. I, p. 238 and 2.3.5 point 3, p. 246.

[11. ]See Inquiry on Virtue, VII.9, point 3, pp. 289–90, and System 2.3.5, point 4, vol. I, p. 246.

[12. ]See Inquiry on Virtue, III.11, point 4, p. 189; VII.9, point 4, vol. I, p. 290; and System 2.3.3, point 4, vol. I, p. 241.

[13. ]See Inquiry on Virtue, III.11, point 2, p. 187, and System 2.3.1, point 1, vol. I, p. 238.

[14. ]See Inquiry on Virtue, III.11, point 3, pp. 187–88, and System 2.3.1, point 1, vol. I, p. 238.

[15. ]See Inquiry on Virtue, III.12, p. 191, and System 2.3.1, point 3, vol. I, pp. 238–39.

[16. ]See Inquiry on Virtue, III.8, pp. 181–82, and System 2.1.3, vol. I, pp. 230–31.

[17. ]<neither all the evils consequent to any action, though foreseen, make it evil> The translator rightly dropped this pleonastic sentence.

[18. ]See Inquiry on Virtue, III.8, p. 181, and System 2.1.3, vol. I, p. 231.

[19. ]See Inquiry on Virtue, VII.9, point 1, p. 288, and System 2.2.5, point 2, vol. I, pp. 245–46.

[20. ]On habit or consuetudo, see Pufendorf, De officio 1.1, point 13.

[21. ]See Pufendorf, De officio 1.1, point 18.

[1. ]System 2.4, vol. I, p. 280.

[2. ]See System 2.4.2, vol. I, p. 283.

[* ]{This suffices to overturn the fallacious reasonings of Hobs upon the state of nature as a state of war of all against all.} [The reference to Hobbes is more explicit in System 2.4.1, p. 282.]

[3. ]See System 2.4.5, vol. I, p. 290.

[4. ]System 2.4.5, vol. I, p. 292.

[5. ]System 2.4.3, vol. I, p. 284.

[6. ]System 2.4.4, vol. I, p. 285.

[* ]See Grotius de Jure Belli, &c. I. c. 2. 1. See also Sect. 1. of the preceding chapter. [In De iure belli, I.2.1 Grotius connects “ius naturae”with Cicero’s “prima naturae”: cf. De finibus, passim, but particularly III.21, IV.15, and IV.16].

[7. ]System 2.5.1, vol. I, p. 293.

[8. ]On the same private perfect rights see System 2.5.1, vol. I, pp. 293–99.

[9. ]Here, as in many other cases, the translator uses almost the same words used by Hutcheson in System 2.5.1, vol. I, p. 298, suggesting that he had access to a copy of Hutcheson’s posthumous work.

[10. ]See System 2.5.2, vol. I, p. 299 and ff., and cf. Pufendorf, De officio 1.7.

[11. ]See Pufendorf, De officio 1.8.4. On imperfect rights see also System 2.5.4, particularly p. 304.

[* ]{This is taken from Cicero de Officiis Lib. I. 14, 15, &c.} [See Institutio, the front page, notes 2–4. However Hutcheson has also in mind Pufendorf, De officio I.8.]

[1. ]“Curious” is not in the Institutio, but in System 2.6.2, vol. I, p. 310, inside a sentence almost identical; cf. note 9 to Chapt. IV.

[2. ]This addition by the translator is justified by what Hutcheson says in System 2.6.3, vol. I, p. 312.

[3. ]In De iure nat. 4.3.2–6 (Barbeyrac translation, vol. I, pp. 484–89), Pufendorf condemns any cruelty toward animals and does not take for granted man’s right to kill and eat animals, just as most ancient philosophers believed. The defense of this human right is based on the idea that there is not any right or obligation common to men and beasts; see also Carmichael, Notes on Puf., pp. 91–92. Hutcheson does his best to show that men and animals form a community, or “a well ordered complex system” (System 2.6.5, vol. I, p. 313)

[4. ]See System 2.6.5, vol. I, p. 320; Inquiry on Virtue 7.8, pp. 284–86.

[5. ]See System 2.6.5, vol. I, p. 321.

[6. ]See System 2.6.6, vol. I, p. 323, where Hutcheson refers to Plato’s and Thomas More’s “Schemes of community.”

[1. ]See System 2.7.1, vol. I, pp. 324.

[2. ]Literally: “Those are trifling who imagine that property ... and thence dispute ... or debate....” Pufendorf criticizes the same idea in De iure nat. 4.4.1–2. Cf. Hume, who connected the idea of property to some rules of association of ideas “fix’d by the imagination” (see the long notes to A Treatise of Human nature 3.2.3). In his letter to Hutcheson of Jan. 10th, 1743 (Letters of David Hume, pp. 47–48), Hume criticizes Hutcheson for ascribing “the Original of Property & Justice” “sometimes to private Benevolence,” and “sometimes to public Benevolence” and for “condemn[ing] Reasonings, of which I [that is Hume] imagine I see so strongly the Evidence.” Hutcheson here follows Locke and connects property right with labour, while Hume, as well as Pufendorf, though in different ways, cannot understand the origin of property without a convention (Hume, Treatise 3.2.2, p. 489 ss., and Pufendorf, De iure nat. 4.4.4)

[3. ]This paragraph is much longer than the parallel one in System 2.7.2, vol. I, p. 325–26. This is an exception and perhaps also a clue that Hutcheson did not like Hume’s long notes on the association of ideas just mentioned.

[4. ]See System 2.7.1, vol. I, pp. 324–25.

[5. ]See System 2.7.3, vol. I, pp. 326–27.

[6. ]See System 2.7.3, vol. I, p. 327.

[7. ]See System 2.7.5, vol. I, pp. 329.

[8. ]See System 2.7.5, vol. I, pp. 330–31. Also, Pufendorf emphasizes this distinction between negative and positive community, to reach the opposite conclusion, that the origin of property is by convention (De iure nat. 4.4.2 and 4)

[9. ]The fifth section in the Institutio does not begin here, with the treatment of res nullius, but afterward, with the treatment of the accessions.

[* ]{Of these there are 3 classes, sacrae, sanctae, religiosae, Of which follow three examples in order.} [The three examples picked up by the translator are drawn from System 2.7.6, vol. I, p. 331].

[10. ]The “superstitious laws” Hutcheson is referring to are clearer in System 2.7.6, pp. 332–335, where he enlarges on “some wild notion of consecration or sanctity infused into stones, timber, metals, lands” and against “the Popish religion.”

[* ]{Res publicae, or res populi.}

[† ]{Usucapio} [on Prescription see System 2.7.7, vol. I, pp. 335–36; Pufendorf, De officio I.12.15.]

[‡ ]{Fructus, incrementa, alluviones, commixtiones, confusiones, specificationes. The explication of all these may be found in any compend of civil law, or law dictionary.} [On the accessions see System 2.7.8, vol. I, pp. 337–38.]

[* ]{This pensatio damni, which is often due when there was no fraud in the case.}

[‡ ]{Pensare quod interest, which always includes the former, and often extends much further.}

[11. ]See System 2.7.9, vol. I, pp. 338–39.

[1. ]This first section has its parallel in System 2.8.1, vol. I, pp. 340–43. However in the System there is no reference to the advantages of the division of labour, nor to the scarcity of unoccupied lands and the need of the “labours of the indigent” by the proprietors.

[2. ]Scot. for “notorious.”

[* ]{Whatever may be determined by human laws or courts, there is no natural foundation in justice for preferring the pledge or mortgage as to any loans made after he knew the debts due to others, and suspected that they were in danger of losing them.} [This note added by the translator is grounded on what Hutcheson says in the parallel passage of System 2.8.1, vol. I, p. 343.]

[3. ]See System 2.8.3, vol. I, pp. 344–49, and Pufendorf, De officio 1.13, for similar lists of duties incumbent upon presumptive proprietors. In De iure nat. 4.13.7 Pufendorf says that he draws his catalogue from Grotius (De iure belli 2.10, 3–13)

[4. ]More literally: “hereditary right,” but the context makes clear that Hutcheson is referring here, as well as in System 2.8.4, vol. I, pp. 349–50, to the special institution of leaving an estate to a line of heirs in such a way that none of them can sell or mortgage it.

[* ]{This clause is called lex commissoria, or the clause of entire forfeiture.}

[† ]{Here no mention is made of the difference between the pignus, and hypotheca as in the original. Our words pledge and mortgage don’t fully express it. Pignus is like a mortgage with possession, and hypotheca, one without possession, whether of lands or moveables.}

[‡ ]{The several servitudes mentioned in the original could not have been explained to an English reader without a very tedious and useless discussion, as the Roman servitudes differed much from ours. They are found in every compend of the civil law.} [However this section is more or less parallel to Pufendorf, De officio 1.12.8.]

[5. ]The translator has described only usufructus. “Use” is “when a Man receives from a Thing belonging to another, only the daily and necessary Service, the Substance remaining as before.” “Habitatio” or Dwelling “is a Right by which a Man receives all the Advantages commonly proceeding from the letting out the Houses of others.” Pufendorf, De iure nat. 4.8.12, English translation, London 1703, pp. 359–60.

[6. ]The translator has described roughly only some of the servitudes or services. “Altius tollendi or not tollendi” is the service of raising or not raising a building higher than the nearby houses; “prospectus” is the service “by which my Neighbour is bound to let me freely look into his Estate, [... or] of not hindring Prospect; by which a man is tied up from doing any Thing in his Estate, which might interrupt a free Prospect on any side, especially towards any delightful place.” Pufendorf, De iure nat. 4.8.12, English translation, London, 1703, p. 361.

[7. ]Respectively: “Passage; the Right of a Path for Men, to walk through my Neighbour’s Ground into mine for the benefit of the latter. Carriage; the Right of driving Beasts or Wains. Road, or Way; the Right of going, walking, driving; as likewise of carrying, leading bearing and drawing any Thing which makes for the advantage of my estate.” Pufendorf, ibidem.

[1. ]On the first three paragraphs, see System 2.8.7, vol. I, p. 352.

[2. ]In the corresponding page of System (2.8.7, vol. I, p. 354), Hutcheson adds a note referring to “some improper use of metaphysicks in this subject” and to the notes on Pufendorf, De iure nat. 4.10, by Jean Barbeyrac.

[* ]{Chap. XV of this book.}

[3. ]See the corresponding section of System 2.8.8, vol. I, pp. 355–57.

[* ]{This lineal succession to private fortunes has manifestly been introduced by the Feudal laws of the Lombards.}

[4. ]Here the translator follows System (p. 357) more closely than the Latin text.

[1. ]See System 2.9.[1], vol. II, p. 1. In his definition Hutcheson seems to join Ulpian’s definition of agreement (pactum; Justinianus, Digestum II.14.1.2) and Titius’s definition in his Observationes in [...] Pufendorf [...] De officio quoted by G. Carmichael, in his Supplements and Observations upon Pufendorf’s De officio (cf. Notes on Puf., p. 80)

[* ]{The difference between contractus and pactum is found in any Civil-law-dictionary.} [According to the jurists contracts are those agreements that allow people to take legal action. In De iure nat., 5.2.2–3, Pufendorf argues against this distinction and in paragraph 4 says that contracts are agreements which “deal with things and actions of commercial significance.” Carmichael says that Pufendorf’s “distinction is not of much use itself” and Hutcheson follows him. Cf. Notes on Puf., pp. 106–8.]

[2. ]See System 2.9.2, vol. II, p. 4.

[3. ]The translator mixes up the “bare declaration of our future intentions” and the “imperfect promise.” Here Hutcheson draws this distinction from Grotius, De iure belli, 2.11.2–4, as is clear in the correspondent section of System 2.9.3, vol. II, pp. 5–6. See also Pufendorf, De officio 1.9.4–7.

[4. ]In System, Sections 6 and 5 of Chapter 9 correspond to this section. See also Pufendorf, De officio 1.9.10–11.

[5. ]Compare the first two paragraphs of Section 5 with System 2.9.9, pp. 14–15, and Pufendorf, De officio 1.9.12.

[* ]{The Civilians thus distinguish between pensare damnum, and praestare quod interest: obliging those who wrong others through negligence or inadvertence to the former only, but in case of fraud or more gross negligence obliging always to the later.} [Cf. System 2.9.12, vol. II, p. 23 and notes.]

[6. ]Cf. Pufendorf, De officio 1.9.13, points 1 and 2.

[* ]{Chap. xiv.} [The distinction between contracts, tacit conventions and obligations quasi ex contractu is better explained, with examples, in System 2.9.4, vol. II, pp. 6–8.]

[7. ]See System 2.9.8, p. 13.

[* ]{A voluntary condition is of this sort: “If I shall retire to live in the country, I agree to set my city-house at such a rent.” By this I don’t bind myself to live in the country. “I promise, if I incline to sell certain lands, that such a man shall have them at a certain price.”} [This distinction between conditions potestativae, fortuitae and mixed was in the Justinian’s code and is discussed by Pufendorf, De iure nat. 3.8.4.]

[8. ]This and the following section are very similar to Sections 10 and 11, Chapter 9, of System, pp. 16–23. See also Pufendorf, De officio 1.9.13 and 14.

[9. ]The idea that the “exception of unjust force” should not be allowed against treaties of peace is shared by Carmichael. See Notes on Puf., pp. 85–86 and note 11.

[* ]{See Book II. Ch. xv. 8. and Book III. Ch. vii. 8. 9.}

[* ]{Book II. Ch. iii. 2.}

[* ]{Praestare quod interest.}

[10. ]This is a mistake by the translator.

[11. ]This paragraph is not very clear, nor is the conclusion. A more coherent account is in System 2.9.12, vol. II, pp. 25–26.

[12. ]See above 2.7.4, p. 169.

[* ]Matth. xv. 5. Mark vii. 11. [Hutcheson refers to the two passages where Jesus blames the Pharisees for refusing to relieve their old parents by declaring sacred to God their own goods.]

[13. ]See Pufendorf, De officio 1.9.19 and 1.9.21 for the next section.

[* ]See Grotius de Jure belli, &c. L. III. 1. 8. [The reason of this reference to Grotius is not very clear. We find the same reference and a very similar paragraph in Illustrations, sect. IV, p. 264–65, where Hutcheson argues against Wollaston’s thesis that a bad action is equivalent to a lie. The distinction between the two usages of signs is more clearly expressed by Pufendorf in De iure nat. 4.1.7 and 10 and in De officio 1.10.3 and 4]

[† ]{Thus an army intending to decamp in the night, yet keep all their fires burning in the old places, to conceal their motions. A studious man to avoid interruption, keeps his doors shut, and his street-windows darkened, whence we conclude that he is abroad.} [The first example appears in Illustrations, Sect. IV, p. 264 as well as in System 2.10.3, vol. II, p. 29; the second ibidem, p. 31.]

[* ]{A cypher agreed upon, for instance.}

[† ]{Thus sending wings or spurs to a friend at court, intimates to him that we imagine he is in danger, and contains this profession.} [This example appears in Illustrations, Sect. IV, p. 265.]

[1. ]System 2.10.4, point 5, vol. II, p. 37.

[2. ]See System 2.10.3, vol. II, p. 32.

[3. ]See System 2.10.4, point 3, vol. II, pp. 33–34.

[* ]{See the preceding Chap. § 6} [2.9.6, p. 184.]

[† ]Ch. xvi. [sect. II] of this Book.

[* ]{Of this there are instances in very great characters; as also of many expressions which the speaker abundantly knew that the hearers would understand in a very false sense.}

[4. ]Here Hutcheson contradicts what Pufendorf says in De officio 1.10.9 and in De iure nat. 4.1.15, even if he agrees with Pufendorf that a kind of false-speech is allowed to physicians or commanders, but in these cases, by a preventive tacit convention (see above point 2 and System 2.10.4, point 2, vol. II, p. 33)

[5. ]See System 2.10.5, vol. II, p. 41.

[6. ]Cf. System 2.10.5, vol. II, p. 42.

[7. ]This added reference to the Cynics is drawn from System 2.10.5, point 5, vol. II, p. 42.

[8. ]Cf. System 2.10.5, vol. II, p. 43.

[1. ]See System 2.11.1, vol. II, p. 44.

[* ]{Thus engagements by oath to adhere to certain schemes of religion, which may afterwards appear false; or to a government which may appear an unjust usurpation.} [This added footnote is derived from System 2.11.[1], vol. II, pp. 45–46.]

[† ]{Thus purgatory oaths as to capital crimes, or very secret matters of scandal, or injustice, or about a man’s secret opinions, generally have no good effect.} [Cf. below, p. 207, and System 2.11.4, vol. II, p. 49.]

[‡ ]So we understand swearing by one’s head, his life, his soul, his children, his prince or patron, the earth, the light, the sun. [See System 2.11.2, vol. II, p. 46.]

[§ ]{’Tis thus men swear by their faith, viz. the object of it; or by the heavens, the temples, or altars; for the Divinity residing in them, or to whom they are dedicated.} [See Matth. 23.20–23. It is a footnote by Hutcheson in System 2.11.2, vol. II, p. 46, that suggests this footnote to the translator.]

[2. ]See Pufendorf, De officio 1.11.5.

[3. ]Cf. System 2.11.2 and 3, vol. II, pp. 47–48; Pufendorf, De officio 1.11.6 and De iure nat. 4.2.6.

[* ]{Mark vii. 11, 12, 13.} [Compare above, 2.9.11, p. 193.]

[4. ]See System 2.11.4, vol. II, pp. 48–49.

[5. ]Cf. System 2.11.5, vol. II, pp. 51–52, where these arguments against the vows in use in the Catholic Church are developed at length by Hutcheson.

[* ]{Mark vii. 11, 12.} [Compare above, 2 9.11, p. 193 and System 2.11.5, vol. II, p. 52.]

[1. ]See System 2.11.1, pp. 53–54, and Pufendorf, De officio 1.14.4.

[* ]{Examples of these sorts are the air, the light of the sun, wholesome air in certain situations, fine prospects.} [These examples are derived from Pufendorf, De officio 1.14.3.]

[2. ]See Pufendorf, De officio 1.14.8, and System 2.2.2, vol. II, p. 56.

[* ]{This appears both by history, and the Roman word impendere, expendere, &c.} [This added sentence and footnote are derived from System 2.2.2, p. 56 and note.]

[3. ]Hutcheson is much more detailed on the bad effects of any artificial change to the value of money by government in System 2.2.4 and 5, vol. II, pp. 58–62.

[* ]{There are no precise technical words in English to answer the three Latin words mandatum, commodatum and depositum. And therefor the formal definitions are omitted.}

[1. ]On the three gratuitous contracts see Pufendorf, De officio 1.15.5–7 and System 2.13.[1]–3, vol. II, pp. 64–68.

[2. ]Cf. System 2.13.2, vol. II, p. 65, footnotes.

[* ]{The Translator omits the next paragraph in the original, explaining the actiones directae et contrariae of the civilians.} [This paragraph has been translated. “Actio directa” and “actio contraria” are names still in use for actions in the civil law.]

[3. ]In System the paragraph parallel to this one is not in chapter 13, on contracts, but at the end of Chapter 12 on Value, vol. II, pp. 63–64.

[4. ]Also on the onorous contracts Hutcheson follows Pudendorf, De officio 1.15.9–15 (but omits § 12 on partnership). The same order and the same items are in System 2.13.4–10, vol. II, pp. 68–77.

[5. ]That is, the seller runs the same hazard as a keeper, as explained in paragraph iii above.

[* ]{The Translator here omits a paragraph explaining some terms of the Roman law not necessary to an English reader. Such as addictio in diem, lex commissoria, lex retractus, protimesios, &c.}

[6. ]On these additional agreements see Pufendorf, De officio 1.15.9 and Hutcheson, System 2, 13.5, vol. II, p. 70 and footnotes.

[7. ]Cf. Pufendorf, De offici, ibidem and De iure nat. 5.5.6. This is the case when fish or crops are purchased in advance. The whole section 5 runs parallel to Pufendorf, De officio 1.15.9. See also System 2.13.4, vol. II, pp. 68–70.

[* ]{A part also of the following section is omitted for the same reason, about the locatio operis and locatio operae.} [The part omitted by the translator, in angle brackets, is the case of locatio operis faciendi “when materials are given out to be manufactured or wrought by an artist at certain price” (System 2.13.5, vol. II, p. 70 and footnote), further evidence that the translator had a copy of Hutcheson’s System.]

[* ]{Mutuum.}

[8. ]Literally: Mutuum or loan for consumption is “a contract by which <res fungibilis>, a fungible thing, is given to another on the condition that at a time agreed upon equal quantities of a good of the same kind are returned” Cf. System 2.13.2, vol. II, pp. 65–66 and footnote.

[9. ]Hutcheson seems to share the opposition of Carmichael to gambling and public lotteries (Notes on Puf., p. 110, where Carmichael quotes Arnauld and Nicole in support)

[* ]<Chapter VII.4 of this book.>

[10. ]See above 2.7.4 p. 169 and footnote and Pufendorf, De officio 1.15.15.

[* ]Obligationes quasi ex contractu. [This chapter is entirely modeled on Carmichael’s Supplement IV on “quasi contracts.” See below the last note but one of this chapter.]

[1. ]See Carmichael, Notes on Puf. 11.2.2, p. 113.

[† ]Negotii utilis gestor.

[2. ]See Notes on Puf. 11.2.3–4, p. 114.

[3. ]Ibidem, 11.2.5.

[4. ]Ibidem, 11.2.6, pp. 114–15.

[5. ]Ibidem, 11.2.7, pp. 115–16.

[6. ]Ibidem, 16, p. 144. The parallel chapter in System (2.14, vol. II, pp. 77–86) is not very different from the present one. Hutcheson is only more detailed in arguments on the rights of orphans adopted and against slavery (pp. 80–85).

[* ]<See Carmichael’s Supplement IV ad Pufendorf’s De officio hominis et civis, p. 281 and his Annotations to the book II, chapter 4.> [Cf. Notes on Puf., pp. 112–17 and 138– 45 and the comments by the editors. It is rather surprising that here the Translator omits the note where Hutcheson clearly acknowledges his debt toward Carmichael, on the duties of children to their parents, of orphans to their adoptive parents, and on his polemic against slavery.]

[7. ]On these three last paragraphs see Notes on Puf., 11.2.8–10.

[1. ]Cf. Pufendorf, De officio 1.5.17.

[2. ]This section corresponds to System 2.15.1, vol. II, pp. 86–88.

[3. ]See Pufendorf, De iure nat. 3.1.4.

[4. ]On this and the following paragraph see Pufendorf, De officio 1.6.8.

[5. ]Not a new paragraph in the Latin text.

[6. ]Cf. Pufendorf, De officio 1.6.10.

[7. ]Cf. this and the following paragraph with System 2.15.1, vol. II, pp. 88–90.

[8. ]According to Pufendorf, the owner is obliged either to repair the damage or to surrender the slave (De officio 1.6.11, De iure nat. 3.1.6). Hutcheson’s solution, rather surprisingly—as is clear from the examples given in A System—makes the reparation the smaller, the bigger the damage compared with the value of the slave.

[* ]Exod. xxi. 28, 30. Institutes. iv. title 8, 9. [Exodus xxi, 28–30 prescribes stoning for the negligent owner of a goring bull that kills somebody.]

[9. ]See Pufendorf, De officio 1.5.16.

[10. ]In System, the items relating to war in Sections 4–8 are not in the chapter on injuries and damages in Book II, but treated in Chapter X of the third book, “on the laws of peace and war,” Sections i–iv, vol. ii, pp. 347–352. Here Hutcheson seems closer to Grotius than to Pufendorf.

[* ]{The jus gladii is well known to include both the power of capital punishment, and of defending a country by arms, among the Romans to whom the apostle writes, Ch. xiii. 4.} See also Hebr. xi. 32, 33, 34. 1 Pet. ii. 13, 14. [Saint Paul, as well as Saint Peter, recommends obedience to the magistrates. In Hebr. xi. 32–34, Saint Paul praises some famous heroes of the Hebrews.]

[* ]Book III. ix. 2.

[11. ]Square brackets in the original text.

[* ]Exod. xxii. 2, 3 and some fragments of the 12 tables. [Exodus, xxii, 2–3 and Digest IX. Tit. 1 declare that there is no crime in killing thieves during the night. The issue is discussed by Grotius in De iure belli 2.1.12–14.]

[12. ]Cf. Carmichael, Notes on Puf., p. 70.

[13. ]Hutcheson shares with Carmichael (Notes on Puf., pp. 68–69) a rather strict censure against the practice of dueling. On duels cf. System 2.15.6, vol. II, pp. 97–98 and 100–101.

[* ]Grotius D. Jure B. &c. iii. 20. 43. [Here Hutcheson agrees with Grotius, De iure belli, 3.20.43. 4.]

[1. ]Cf. System 2.17.1, vol. II, pp. 117–19.

[2. ]A new paragraph in the Latin text.

[3. ]See System 1.17.6, vol. II, p. 128.

[4. ]In his History of Rome (I.27) Titus Livius tells how during a battle the Roman king Tullus Hostilius makes his enemies and his own troops believe that the Albans, his treacherous allies, are not fleeing but going to attack the enemy from behind.

[5. ]Here Hutcheson repeats what was said by Carmichael at the beginning of his comment on Pufendorf’s exposition of “the case of necessity” in De officio 1.5. 18 (Notes on Puf., p. 71).

[6. ]For the same points established in this section, see System 1.17.9, vol. II, pp. 136– 40.

[* ]{Book III. Ch. v. 4.} [In the much larger chapter on “the rights of necessity” in System (2.17.5, vol. II, pp. 124–25), however, Hutcheson admonishes that “were there no justifying pleas of necessity in natural liberty, there is no accounting for this eminent right of magistrates in civil polity.”]

[7. ]The same points are treated in System (2.16.1–6, vol. II, pp. 104–10).

[* ]See book I, chapters iii and v.

[1. ]Cf. Carmichael, Notes on Puf., p. 121.

[2. ]Here and in the followings paragraphs Hutcheson touches on all the points treated by Pufendorf in De officio 1.16. Cf. also System 2.15.8, vol. II, pp. 103–5, a rare case of a shorter parallel section in the System.

[3. ]“Acceptilation” is a release from debt or obligation without payment.

[4. ]On this section see System 2.18.2, vol. II, pp. 142–45.

[5. ]Cicero, De officiis, 1.33. The Roman arbiter Quintus Fabius Labeo persuaded the opponents separately to accept narrower boundaries and gave the residue to Rome.

[6. ]Cf. Cicero, Pro Milone, 32.5, for the use of this phrase.

[7. ]Square parenthesis in the translation.

[8. ]This is the reason why a parallel section is missing in System, as explained by Hutcheson at p. 147 note. Even in the Institutio Hutcheson, while following Pufendorf’s section on ‘interpretation’ (De officio 1.17) tries to simplify Pufendorf’s rules.

[9. ]See System 2.18.4, vol. II, pp. 146–47.