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

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.”

[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.