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 III

The Principles of Oeconomicks and Politicks.

CHAPTER I

Concerning Marriage.

I. We have in the former book treated of the rights and obligations of that state of liberty constituted by nature. We proceed to the adventitious states, founded upon some human deed or institution.

These states are either domestick, regarding the utility of a few, so many only as can subsist in one family; or publick, respecting the utility of a whole nation or state, or even of many states.

Oeconomicks treat of the rights and obligations in a family; the chief points of which are delivered in these first three chapters. There are many other adventitious states of persons united in some narrower communities or corporations included within some political body, and subject to it; of which there are innumerable multitudes, which are not under the cognisance of philosophy.

II. All kinds of terrestrial animals must have subsisted only for one age, if nature had not consulted their preservation by a difference of sex, a <strong> desire of offspring, and a tender care of it till it can subsist by itself. In the brute [speechless] animals nature has done little more; as their young can be sufficiently preserved and reared by the care of their dams, since they need scarce any instruction for their simple ways of life. Nature finds all the clothing and armour they need; and the earth of itself sends up their food in abundance. But for the improvement and even preservation of human life a multitude of arts and inventions are necessary; as their bodies are more delicate, needing nicer food, and clothing, and other care; and their minds capable of many delightful arts. Their offspring therefor, by the wise order of nature, continues far longer tender and infirm, needing the constant <and attentive> care of the adult; that thus they may be more easily governed and instructed in the various arts <and disciplines fit for the conveniences> of life, before they acquire untractable strength.

Now as the mothers are quite insufficient alone for this necessary and laborious task, which nature also has plainly enjoined on both the parents by implanting in both that strong parental affection; both parents are bound to concur in it, with joint labour, and united cares for a great share of their lives: and this can never be tolerable to them unless they are previously united in love and stable friendship: as new children also must be coming into life, prolonging this joint charge.1 To engage mankind more chearfully in this laborious service nature has implanted vehement affections between the sexes; excited not so much by views of brutal pleasure [by that blind lust of corporal union that they have on common with speechless animals], as by some appearances of virtues, displayed in their behaviour, and even by their very form and countenances.2 These strong impulses plainly shew it to be the intention of nature that human offspring should be propagated only by parents first united in stable friendship, and in a firm covenant about perpetual cohabitation and joint care of their common children. For all true friendship aims at perpetuity: there’s no friendship in a bond only for a fixed term of years, or in one depending upon certain events which the utmost fidelity of the parties cannot ensure.3

III. This natural love of the sexes, and equally natural love of offspring, shew that Plato and some other excellent writers are justly censurable, for departing too audaciously from nature, in appointing their states to be supplied in new subjects by children unknown to both the parents; and this in order to prevent some evils{* which may be prevented in a much more easy and gentle manner. For never could any laws or institutions have such influence, that persons quite uncertain about their offspring, and hence not influenced by the natural affection, would take a proper care of the young. Or if they were compelled effectually, the labour <for preserving and educating a doubtful progeny> would be most disagreeable to them, which to parents assured of their own offspring is light and delightful. And further while their offspring is unknown, men want one of the strongest incitements to all diligence and industry. Nay further Plato’s scheme, without any sufficient reason or criterion that one can understand, is only calculated for the happiness of the few finer spirits; while the plurality are <neglected and> subjected to a miserable slavery.

Nay further; these inconveniences he dreads so much from each one’s knowing his own children, might be prevented another way, by proper laws {and publick institutions} about <a more careful> education, testaments, and successions. Nor can we ascribe the factions <and seditions> which often tear states to pieces to our knowing the tyes of blood; as one may easily see in all nations. He should also have prevented all particular friendships; or shewn that men have much superior sagacity in the choice of friends or of state-parties, than he allows them about the education of children, or the love of kinsmen, or in making their testaments.

As to the apprehension of danger from this, that many very weak men by means of the tender parental affections come into great wealth, ’tis without ground. The offspring of the weak is frequently very vigorous; and that of the vigorous weak, both in mind and body. Nor is it necessary for any state that all its members should be either robust or ingenious. And sometimes the finest genius <and virtue> is lodged in an infirm body.

IV. We must not therefor through fear of a few inconveniences counteract what nature has so strongly recommended: but rather look upon all such <precepts and> deductions of <right> reason, as shew how a faithful friendship may be maintained in wedlock, for the proper education of offspring, as so many sacred laws of nature. Men ought to restrain not only all monstrous lusts, as outrages against God and nature, <destructive of mankind,> but also all dissolute procreation without any proper covenant about a friendly society for life.4 } For if such indulgence were allowed to all, it must destroy both the bodies and minds of the youth, produce a race destitute of all paternal assistance, and expose the incautious mothers to infamy, poverty and a perpetual course of debauchery, without any hopes of ever attaining any reputable state in life. It were to be wished that an equal infamy attended the other sex, the common authors of or solicitors to such vices.

Such adult persons as have a sufficient stock both of wealth to support a family in their condition of life, and of prudence to govern it <and to educate the offspring>, seem obliged to marry, unless they are hindered by some important offices <and ones more useful to mankind> {inconsistent with the cares of a family}.5 It would be dishonourable for one without a weighty cause to decline his share of the cares and services requisite for the preservation of the human race.

V. The chief articles in this covenant are these. 1. “That the woman be faithful to the man in cohabiting with no other”; as it must be the greatest injury to impose upon him an adulterous offspring, for heirs to his fortune, and objects of that <tender> affection which is naturally due only to his own.6

2. The second is, “that the husband should be equally faithful to the wife.” For it is a natural iniquity that the wife’s conjugal affection, and all her cares and fortune, should be devoted to one man and his offspring; while the affections of the husband <due to his first wife and children> are allowed to be intercepted by, or dispersed among several women [by a new wife or mistress] and their children, and along with it his fortune.

Simultaneous polygamy is not to be allowed to men, not only on account of the inequality or iniquity now mentioned, but because it also destroys all friendship in marriage; must be the cause of perpetual contentions; must tempt women so injuriously treated into adulteries; must corrupt the minds of men with wandring lust, destroying their natural affection to their children; and must occasion to some an offspring too numerous, which therefor will be neglected, and be void of all sense of duty to such dissolute parents. And further since providence preserves the numbers of males at least equal to that of females, if ’tis allowed to men to have more wives at once, many must be excluded altogether from marriage or having offspring; and thus be free from these tender bonds which chiefly civilize and unite men in society: nor does polygamy contribute to make nations more populous{, but has rather the contrary effect}.7

3. The third article is that persons married should by a perpetual union of interests and pursuits, consult the prosperity of their family, and chiefly the right education of their common children, and the improving their condition as they have opportunity.

That we may be the better fitted for observing these articles, from our infancy we should be enured to modesty and chastity; an high sense of which is deeply fixed by nature in the finest spirits. All obscenity and lasciviousness in discourse or behaviour is detestable; as it <abates modesty and> relaxes these bonds of modesty by which the young, and women especially, are restrained from exposing themselves to all infamy and misery.

4. The fourth article is, “that the bond be perpetual, to end only by death.” This is necessary to make marriage a state of friendship; as also generally for the right [long lasting] education of children, who are successively born to us for a considerable part of life;8 and this lasting duty or charge is imposed by nature equally on both parents. It would also be most inhuman to divorce or separate from a faithful and affectionate consort for any causes which include no moral turpitude; such as barrenness, or infirmity of body; or any mournful accident which no mortal could prevent, and which must be equally afflicting to the person abandoned, the death of all the common children.

As to any proper power, or right of commanding, vested in either of the parties, it seems opposite to that tender affection the spring of marriage; which rather points out an equal friendly society. Nor seems there any other reason for giving any superiority to the husbands, except this, that men are generally more fit for managing the more important business of the family, to which the less important <carried out by wifes> within doors should give place.9

The four articles [laws] above mentioned seem so necessary, that no covenants of the parties in opposition to them can be valid.* Marriage therefor may be defined “a covenant between a man and woman about perpetual faithful cohabitation and joint care <and education> of their common offspring.”

VI. The impediments of marriage are either such as are deemed to make the contract from the first void; or, afterwards make void a valid contract. Of the former class some are natural and some moral.

Among the natural impediments, beside a manifest bodily weakness rendering one unfit for marriage, may be reckoned also some grievous disorders and miserable incurable diseases, inconsistent with a friendly society, or excluding all hopes of offspring that can live. Such as idiotism, and perpetual madness, leprosy, and some other diseases. Very advanced years of either side<, especially of the women,> may justly be deemed to make void a marriage with one in the bloom of life. But if a couple both well advanced in years, covenant about a constant cohabitation, there’s nothing blameable in it. A third impediment is, when either party is so young that they cannot have attained that use of reason which is necessary to their binding themselves by any contract. For it would be most absurd that persons who because of their immature years are deemed incapable of binding themselves in any other matter, yet should be deemed capable of it in this, which is far more important than any other{, and requires greater judgment}. <All these impediments are to be enacted by civil laws.>

The moral impediments which make void the contract from the first are prior contracts with others, and too near consanguinity or affinity.

As to the former: if two persons both <dishonestly> apprized of the prior contract with another join in marriage, the marriage should be deemed entirely void; and both parties should be severely punished. Where one of the parties was not apprized of the contract; the case of this person is so favourable [this person should be so favoured], that the marriage confirmed by cohabitation should not be made void <by the secret promise or covenant>, unless at the desire of this person: even as in other contracts, subsequent real rights take place against prior personal ones: but the guilty party deserves severe punishment. And that there may be no room for such frauds even after complete marriages, every state should take care that all marriages intended should be previously advertised and such as are celebrated also be divulged in the most publick manner.

As to consanguinity invalidating marriages, there are higher debates. Among parents and children in the <so called> direct line, <between ascendants and descendants, without end,> the law of nature seems to prohibit all marriages; not only on account of a considerable difference of years, but because the conjugal affection and intimacy seems quite inconsistent with that reverence implanted by nature toward parents and confirmed by education. As to the inter-marriages of kindred in the transverse line, or collaterals, the {natural} reasons offered by ingenious men don’t seem conclusive {to prove such marriages pernicious or impious}.10 But as we find that many nations who derived nothing from the* Jewish laws, held the same marriages of collaterals incestuous and impure; ’tis not improbable that they have been prohibited by some positive divine law in the earlier ages of the world; and that some vestiges of this law was preserved in many nations. The intention of this law has probably been to diffuse further among many families that good-will and endearment which frequently arises from consanguinity and affinity. The Deity may also have had in view some other advantages to human offspring to arise from such intermixtures of different families.

By the Roman law, and the customs of all Christians, marriage is prohibited to all within the fourth degree. And the degrees are thus computed. Persons a-kin have had some common parent: and as many generations as have interveened on both sides from this stock, so many are the degrees. In like manner a man is prohibited to marry any such kinswoman of his former wife, as of his own; to wit, within the fourth degree. The canon law retaining the same words, has yet extended the prohibitions much further; as it computes the degrees according to the generations in one of the lines only; and by the longer of the two, if they are unequal: and thus prohibits all marriages within the seventh degree of the civil law.11

VII. The causes which break off a valid marriage are, any violation of the essential articles: such as adultery, obstinate desertion, capital enmity or hatred, and such gross outrages as take away all hopes of any friendly society for the future <or a safe and agreeable life together>. When a marriage is dissolved for such causes, the guilty party and the associate in the crime deserve the highest punishments; as these injuries in marriage do greater mischief, and cause deeper distress than stealing or robbery, for which capital punishments are inflicted. The innocent party should be allowed to marry again: for it would be strangely inhuman because one has suffered injury, that the law should inflict another hardship, by depriving them of a new marriage and offspring. Nay if the guilty parties are allowed to live, they should not be hindered from marrying, except it be with the partners of their guilt. They should rather be obliged to marry persons equally infamous with themselves.

The prohibitions in the gospel of all divorces except in the case of adultery* seem elliptical, as those which prohibit all use of oaths.12 They only condemn all the causes assigned by the Jewish doctors, except that one. The apostle Paul† expresly allows another, and that for manifest reason, to wit, obstinate desertion.13

The duties of persons married consist chiefly in a faithful and constant affection, sweetness of manners, and prudent care of their families; and to this purpose ’tis necessary they improve their minds in all virtue; especially in meekness and calmness of temper; that they may restrain such passions as their family-affairs will be apt to excite. Without these virtues a continual society and community of all things can never be tolerable. As to the ways of improving their fortunes, this they must learn from other <profitable> arts, and not from philosophy.

CHAPTER II

The Duties of Parents and Children.

I. As human offspring remains for a long time infirm, incapable of preserving itself, needing the constant care of others, both for preservation and instruction in these arts and manners which are necessary for life; <God and> nature has plainly imposed this charge upon the parents by that singular affection implanted in them. Nature therefor must have designed that parents should assume all the power which is requisite for the discharge of this trust, and subjected children to it; while at the same time by this tender <care and> affection sufficient precaution is taken for the childrens obtaining their liberty as soon as they can safely enjoy it; since without it they cannot be happy, which is the point that parents are most solicitous about.1

The want of judgment in our immature years, and the tender <and disinterested> parental affection, the two only foundations of parental power, shew that it cannot be perpetual or during life; but must expire as soon as children grow up to mature strength of body and mind. And yet the parental affection will always remain, exciting parents to all kind offices, when their children need their assistance or counsel.

The same considerations shew that this power cannot be extended to any of the more grievous punishments, such as cannot be requisite for education in such tender years: much less can it extend to life or liberty. A parent has no right to sell his child to perpetual slavery, or to lay any burden upon it beyond the value of the necessary and prudent expences of its education.

II. This parental power belongs alike to both parents, only that in domestick affairs the power of the father is a little superior. But if he is dead or absent, it is wholly <rightly> vested in the mother.

’Tis trifling to found this power merely in generation,* or to follow <ridiculously> some law-maxims [the maxims of civilians] about <a quite different matter, as> the goods formed by our labour out of our own materials, or other accessions of things animate or inanimate, [or the young of cattle] which have no use of reason or no capacity of holding any rights.2 Both the bodies and souls of children are formed by the divine power, that they may, as they grow up, arrive at the same condition of life, and an equality of right with ourselves, tho’ for some time they must be governed by the wisdom of others. For children may have property, and other rights, quite independent of their parents; who seem to have no other power over any goods conveyed to their children by others than that of tutors or curators. Whatever parents abandon this guardianship of their children committed to them by nature, either by exposing or intirely neglecting them, forfeit also the parental power connected with it: and any one acquires the whole parental power who takes care of such children.

Parents are most sacredly obliged to provide for their children all the necessaries of life, and even to improve their condition as much as they can; and above all to form their manners to all virtue by instruction and example: for without this their lives must be miserable and infamous, tho’ in the greatest affluence.

What parents expend on children who have no stock of their own, is justly presumed to be donation: and it would be inhuman in parents, who are not in great distress, to charge food, clothing, {and necessary education}, as a debt upon their own children. But if the parents are in great distress, or if any one of their children have a stock derived from some other friend, parents may justly state such an account with their children, and exact payment from them {of all the prudent expences made upon their education}; and children in this case are bound to make such payment either by their labours or otherways.3 Altho’ therefor from the common affections of parents we justly conclude, that their private fortunes are acquired for their children as well as themselves; whence appears the right of children to succeed to the inheritances of their parents; yet children are not to look upon themselves as less bound to gratitude on this account: nay they are rather the more bound. For the more firm and disinterested any affection [friendship and benevolence] is, and the more deeply it is rooted in the person’s nature, the more it is to be valued, and the stronger is our obligation to gratitude.

III. Parents may acquire by civil law a further power over their children, as the law commits power to any magistrates. For civil power having different foundations and greater ends, extends beyond the parental. And children, as they have from their birth enjoyed protection and the other advantages of a civilized life in a society constituted for the good of all, are plainly bound to perform to the community on their part* all that’s due from good citizens; and particularly to preserve that constitution, and transmit the same to future ages.4 Minors therefor may justly be delivered as hostages <to foreigners>, or be obliged to {military} services of the greatest danger in great exigences.

IV. Children even when adult owe all reverence and gratitude to their parents, not only in return for benefits received, which scarce any duty of theirs can sufficiently compensate; but also out of regard to God <and nature>, by whose providence it was ordered, that we descended from such parents, united with them in tyes of blood and natural affection, and an habitual reverence from our cradles. They ought therefor to bear with patience any weaknesses or froward humours of aged parents, as the parents long bore their childish follies. Particularly ’tis the duty of children to consult the satisfaction of their parents in entring into marriage; since the parent is also deeply concerned in this important step; by which their children enter into a strict society for life with others, from whence must proceed grandchildren to their parents, to succeed sometimes to their names and fortunes, and always to their tenderest affections.

After the proper parental power expires, there often succeeds that of the head of a family; which is of such extent as the domesticks make it by their own consent express or tacit, by voluntarily continuing in, or entering into, a family, where they knew such a degree of power was assumed.

CHAPTER III

The Rights of Masters and Servants.

I. When mankind were considerably multiplied, there would be many who had no other fund of support than their labours; and others of greater opulence, who for their ease would need much of the labours and services of others. And hence the relation of master and servant would arise, founded on some contract.1 Nor is it of consequence whether such contracts at first were for life, or only for a certain term: since excepting the point of duration, the rights and obligations were the very same.2 The points following are of more consequence.

1. The labours <and services> of any person sound in body and mind, are of much more value than the bare simple food and clothing of a servant; as we plainly see that such can purchase all this by their labours, and something further for the support of a family, and even for some pleasure and ornament. If any one therefor has incautiously insisted for no more in his contract; yet as the contract is plainly onerous, he has a right to have this inequality redressed.*

2. Where the labours were not specified, the servant is deemed to have engaged only for such as men of humanity in such stations commonly exact from their servants; and to have submitted only to such coercion of his master as is necessary for the good order of a family, if he should neglect his work or misbehave. But he retains all other natural or acquired rights.

3. If indeed the custom is known to have obtained, that <separate> heads of families assume a sort of civil power over their domesticks; the servant is justly deemed to have consented to this also, as far as it is managed consistently with humanity. The servant is <justly> bound to perform his work; but retains all the rights of subjects under civil government; particularly all such as are naturally unalienable: and may justly defend them, even by violence, against any invasions of them by his master.

4. Where the services have been specified in the contract, the servant is bound to no other. Nay tho’ they were not, and the contract was perpetual or for life, yet the master cannot transfer him to another without his own consent; since ’tis of high importance to the servant what master he is subjected to, and in what family.3 And for the children of such servants they are all born free.4

II. Hitherto we have treated of service founded on contract. But there is a far worse kind, to wit, of those who for some great damage done, which they can no other way repair; or on account of some great crime, are adjudged by way of punishment unto perpetual labours to others.

And yet even in these cases, they don’t lose all the rights of mankind, but only such as are naturally fit to compensate the damage, or are necessary to give security to the publick against like injuries for the future. If the lives even of the worst criminals are spared; after they have endured all such publick punishments as the safety of society may require, ’tis unjust to treat them with any further cruelty; provided they are willing to perform the labours they are condemned to. And they have a right to defend themselves even by violence, against {new injuries, or} violations of any rights still remaining to them.5 But as slavery of this kind is constituted solely for the behoof of others; the master may transfer to another such a slave without his own consent. But no cause whatsoever can degrade a rational creature from the class of men into that of brutes or inanimate things, so as to become {wholly the property of another,} without any rights of his own.

<In times past> Nations in other respects not barbarous, condemned all captives in war into this most miserable condition; establishing an inhuman law even against themselves, and strangely conspiring to subject themselves and their posterity, upon many very possible contingencies, to the most miserable and ignominious treatment. Upon which subject the following maxims seem just.

1. Whoever makes war without a just cause acquired no right by such violence, over either persons or goods taken, which he can use with a good conscience, tho’ he may detain them with external impunity, <granted by some external right> as we shall shew hereafter.*

2. One who has a just cause, yet should set just bounds to his demands: nor can he demand any thing from the conquered except either under the name of punishment, reparation of damage done, or precaution against future injuries.†

3. None are punishable but such as either by some action or omission, contrary to their duty, have occasioned and contributed toward {these injuries done to us by} the war. {And ’tis plain,} this is seldom ever the case of the far greater part of the adult subjects of any state{, who are capable of a share in publick affairs}; not to speak of women and children, who make <two or> three fourths of every people, and ought to be deemed joint proprietors with the heads of families in their private properties. And tho’ all heads of families payed tributes toward maintaining the war: this can’t be deemed a crime in them, as they were under the immediate distress of their governors, who would otherways have levied these taxes by force{, and punished the refractory}. Grant they had consented to the war, following some specious reasons published by their governors; their ignorance generally was invincible: nor was their consent of such importance as to cause the war, nor would their dissent have prevented it. Nor can we ever suppose that any political union <is so close that it> can transfer the guilt of one person upon another who did not concur with him.6

4. Nay the very soldiers, all such at least as had no share of or influence in the publick councils, as they enlisted upon presumption of being employed only in just causes{, or persuaded by such reasons as their governors publish}; they are excusable entirely, both on account of ignorance and necessity. To men once enlisted ’tis a capital crime to disobey orders.7 It must therefor be exceedingly inhuman to inflict any thing severe upon them by way of punishment, provided we can be secured against further dangers from them: and this we always may be from captives, by keeping them in our own country, and mixing them with our citizens or our colonies, without depriving them any way of their liberty. All this not only humanity will recommend, but a consideration of the uncertain accidents of war, and the <greatest> inconstancy of fortune <in war>.

5. Under pretence of repairing damages, the conqueror can demand nothing from the innocent citizens, except upon the same grounds that one demands it for damage done by another’s slaves or cattle, to wit this, “that, whoever contrives or procures any thing for his own utility, by which others without their fault receive hurt, is bound either to repair the damage, or deliver up the goods, or contrivance whatever it was, to the person injured.” The conqueror may therefor justly demand from the conquered citizens, that they abandon their unjust governors the causes of the war; or that they oblige these governors to repair the damages; or that they repair them themselves: and these three should be left to their choice. This holds most evidently as to these first citizens who at first constituted the government; or those who have great power in the state, by whose council the war was <wrongly> undertaken; or who have it in their power to restrain their princes in their unjust designs. As to others who are of no weight in publick affairs, their plea against even compensating of damages is more favourable.

6. But as soon as the defeated have repaired all damages, or the conqueror has obtained reparation to himself by force and military execution; and has also obtained security against future injuries, such as a wise arbiter judges sufficient, he has no further demand upon the innocent citizens. Now he may obtain all this in a {much easier, and} more merciful way, without depriving the innocent citizens of their liberty. The governors are in the first place bound to repair all damages, and the citizens only in the second place when their governors cannot do it, or decline it.

7. The children of slaves of any sort are all born free,* as we shewed above.

8. Whoever purchases a person for a slave, or detains him as such, is always bound to shew that this person was deprived of his liberty upon some just ground. The original proprietor of the matter in question is always at hand: since nature made every man master of himself, or of his own liberty. ’Tis plainly therefor incumbent upon the violent possessor to prove his title; and not upon the person {deforced, and} claiming his liberty, to prove {a negative8 }, that he did not lose, or forfeit his liberty. {[Without a previous inquiry of this kind no man can in this case be a fair purchaser.]}9

9. Nor is it justly pleaded here, that captives would be put to death if they could not be made slaves and sold as such: and that therefor they owe their lives and all to the purchasers. But sure no higher sort of title arises to the purchasers in this case, than to such as have done any other useful service of equal importance; such as, rescuing a fellow-citizen from robbers or murderers, ransoming them from pyrates, curing diseases or wounds which without the aid of art would have been deadly.10 All such persons should have all expences refunded to them, and a generous compensation for their labours and art. But who ever alleged that they could claim the persons they thus served as their slaves?

III. As it is the duty of servants who are justly subjected to others, to perform their work with diligence and fidelity <to heir lord or rather master>; regarding God the common master of all, who is ever present with us: so ’tis the duty of masters to exact no more from servants than what they have a right to, and to abstain from all cruelty and insolence; as it becomes those who remember that all are of one blood, and naturally allied to each other, and that fortune is inconstant, that the souls and bodies of servants are of the same stuff with our own, and of a like constitution; and that all of us must give an account of our conduct to God the common Parent and Lord of all.

CHAPTER IV

The Original of Civil Government.

I. Having finished the account of domestick society, we proceed to shew the origin and rights of civil society [states], {[in which ’tis universally understood, there is included a right vested in some person or council to decide all controversies arising amongst large numerous bodies, to direct the actions of all for the common interest, and to compell all by force to obey their orders.]}1 By the associations <and conjunctions> already explained, if all men were faithful in discharging their duties, human life must have sufficient affluence and pleasure. It must therefore have been some fear of mischiefs to arise either from the weakness or vices of men, which has moved them to subject themselves to civil power [to constitute states and civil power]. But we must not therefor, call civil society unnatural or contrary to nature. For whatever that reason, nature has endued us with, shews to be necessary or very conducive to obtain those advantages we naturally desire, or avert the contrary evils, must plainly be deemed natural to a creature endued naturally with reason and forethought. Men therefor are justly called “creatures [animals] fitted by nature for civil polity.”2

Let us suppose all men so just that none would do to others any thing he judged injurious, but that they are pretty liable to mistakes about their own and others rights, through their strong selfish desires, and the byass of impetuous passions: this would frequently occasion controversies among them. Let us further suppose that many honest men are yet too suspicious, so that they won’t submit their disputes to the arbitration of others, each fearing perhaps the interest of his adversary with the arbiters, or his art in seducing them:3 if there be added to this, too much confidence on both sides in their own force, and obstinacy in opinion; their controversies in natural liberty can be decided no other way than by {violence and} all the mischiefs of war.

But there’s something in our nature which more immediately recommends civil power to us. Some of our species are manifestly superior in wisdom to the vulgar, as the vulgar are often sensible. These of superior <skills and> sagacity, {as all must own,} are capable of contriving and inventing many things of consequence to the common utility {of multitudes}, and of pointing out more effectual methods for each one to promote his own interest, if their directions are complied with. If to these abilities be added also eminent moral virtues, goodness, justice, fortitude; the appearance of such excellencies obtains the trust and confidence of all, and kindles their zeal to promote such persons to honour and power; as they conclude that under their direction all may obtain every sort of prosperity.4 ’Tis highly probable therefor that not only the dread of injuries, but eminent virtues, and our natural high approbation of them have engaged men at first to form civil societies.

II. But if we consider how much injustice, depravation of manners, avarice, ambition, and luxury prevail among men: it will be manifest, that without civil power, men cannot be preserved in safety, not to speak of any high advantages or pleasures to be enjoyed in society: and that it is by civil power alone an effectual remedy, and such a one as must strike the senses of the most inconsiderate, can be found for the evils to be dreaded from these vices of men. For tho’ all the members of a large assembly were so unjust, that upon a fit opportunity each one for his own interest would do injuries to others; yet each one would abhor like injustice done by his fellow, when he had no share in the gain of it. An assembly therefor of such men, of whom each condemned that injustice in his neighbour which he would indulge in himself, will never make unjust decrees for their whole body.5 Each one will be ashamed to own his dishonesty, and will live in dread of receiving injuries from others, unless they are all restrained by equal laws enforced by proper punishments.

Nor is there any other way of preserving society in safety. For altho’ men were not generally so depraved, and that even humanity and conscience [the sense of what is right and honourable] {restrained the generality from injuries, and} inclined them to give aid to any who happened to be wronged: yet multitudes would omit this duty through fear and cowardice, if it exposed themselves to danger. Nay further; a sufficient number of honest brave men, if they were not directed by some head, and that united in their efforts, would run into the most different measures, according to their different sentiments (and obstinacy); and when thus disjoined would become a prey <and laughing-stock> even to a smaller number of less bravery, who were united in their counsels.

’Tis therefor very probable that some of the wiser and more sagacious, observing these inconveniences of a state of anarchy, fell upon this as the only remedy, that a large number of men should covenant with each other about entering into a firm society, to be regulated by the counsel of the wiser few, in all matters relating to the safety and advantage either of individuals or the whole body. And discerning the many conveniencies to ensue upon such a project, have explained it to others, and persuaded them to put it in execution.6

III. They who ascribe the first origin of all civil power [states] to the violence of ambitious men, plainly presuppose that already existing, whose original they are searching for [before the force that are claiming to be its cause]: as no one man could have force enough, without a large number of others already subjected {to his direction and government,} to compell a multitude sufficient to form a state, to submit themselves to his power. A civil power therefor was constituted previously to that conquest they suppose to have produced the first civil power.7

Should one allege that a potent head of a family, with his numerous domesticks, might have {conquered and thus} compelled his neighbours around to submit to him {as their prince}. This may have happened no doubt. But we are not to regard names, but things themselves. Heads of families no doubt sometimes had a proper regal power over their domesticks. And further, we are not inquiring into the possible injurious methods of usurpation, but into the probable just causes of just power.8

IV. That it must conduce much to the interest of a multitude to be governed by a council of the wise, no man can deny. And altho’ under some foolish plans of government, power [too much authority] may often be intrusted to bad hands, and thence great mischiefs arise, as the corruptions of the best things may be most pernicious; yet this is no dishonour to civil government, as if it were in general of little use or pernicious. For God has given men sufficient powers of reason to choose some of the more prudent convenient forms out of the innumerable multitudes conceivable.

A state or civil society is, “a society of free men united under one government for their common interest.” That the common interest of the whole body is the end of all civil polity, is owned by all. This all subjects insist upon; and all governors [kings] glory in it as their dignity; except some vain monsters, who forgetting their mortal state, arrogate to themselves the rights of almighty God, or even powers more extensive. The very notion of civil life, or polity, is opposite to despotism{, or the power of masters over slaves}.9 That civil power therefor alone is just which is naturally adapted to this end: other power tho’ granted by the rash deed of an ignorant people, has no foundation of right. There was an essential defect in the deed granting it, as it was founded in an error about what is owned by all to be most essential in such contracts.

One can scarce avoid wondering how some* ingenious authors seem to pique themselves upon aggravating and exaggerating all the burdens of civil subjection, as if they designed to deter men from entering into it; but then least they should do so, they paint a state of liberty {and anarchy} as the most frightful monster of all. Whereas ’tis plain both states have both their advantages and disadvantages. There are no doubt many dangers [not light evils to be repeatedly feared] in a state of liberty, but these not continual: generally they are <equal and even> greater and more frequent than in civil life; unless a people have been exceedingly incautious in the plan of power they constituted: as in civil life we have a much surer prospect of protection from injuries by the united force of all. {Nor are there any evils peculiar to a civil life under regular government; the like or worse, men were also† exposed to in liberty: [as it will appear by considering the several parts of civil power in the following chapter.]}

CHAPTER V

The Internal Structure of States: and the Several Parts of Supreme Power.

I. As no governors are the natural parents or progenitors of their people, nor if they were, could they transmit to any one heir the parental power over his adult brethren: as this power is founded solely upon the parental affection, and the weakness of immature years: the parental power can never be the foundation of the civil, tho’ it be a natural sketch or emblem of it. Nor can any person have such power over a whole people as masters have over slaves; as appears from what was already said.1 Nor has God by any revelation nominated magistrates, shewed the nature or extent of their powers, or given a plan of civil polity for mankind. Nor lastly can mere force without some foundation of right constitute any just power. It must therefor remain that some deed or contract of a people must be the sole natural origin of all just power.2

In some extraordinary circumstances the case may be otherways. For since the good [safety and happiness] of the whole body, {as all allow,} is the sole end of all civil power; if any person of eminent wisdom and great power consults this end sufficiently, in prescribing a legal plan <for the common good>, which all upon trial shall soon heartily embrace, he may perhaps without any iniquity impose this plan upon a rude and unexperienced people, which upon experience they shall soon approve, tho’ he could not obtain their previous consent to it. But as no people can be happy while they live in perpetual doubts and fears, as to the security of their highest interests [rights] from the invasions of men in power; we may pronounce in general that there can be no right to power except what is either founded upon, or speedily obtains, the hearty consent of the body of the people.

II. To constitute a state or civil polity {in a regular manner} these three deeds are necessary; first a contract of each one with all, that they shall unite into one society to be governed by one counsel. And next a decree or ordinance of the people, concerning the plan of government, and the nomination of the governors; and lastly another covenant or contract between these governors and the people, binding the rulers to a faithful administration of their trust [of the granted power for the common good], and the people to obedience. ’Tis true that in the first constitutions of power [of states], ’tis scarce credible that a rude and incautious multitude, full of admiration of the shining virtues of some more eminent characters, took these three formal steps. But then in every just constitution of <civil> power,* something was originally done which plainly included the whole force of these three transactions; since the end known and professed by all sides in this constitution of power was the common good of the whole body [since is well known to all the only end of bestowing and receiving authority].3

As to the transmitting of these civil obligations to posterity, the following observations will explain it.

1. Each citizen in subjecting himself to civil power stipulated protection from the whole body, with all the other advantages of a civilized life, not only for himself but for his posterity: and in this{, tho’ uncommissioned,} did them a most important service.4 They are bound therefor,{† } whether they consent or not, to perform to the body of the state, as far as their power goes, all that which could reasonably be demanded from persons adult for such important benefits received. Now ’tis highly reasonable that all such should on their parts contribute to the defence and support of that state, by which they have been so long protected <and profited> in a civilized life, and not desert it unseasonably; but transmit that association {with its beneficent influence} <received from the ancestors> to posterity.

2. As it must be extremely dangerous to any political body settled in any district, that any lands within the same should remain exempt from the civil power of the united body, to be a receptacle to fugitives or foreign enemies; ’tis justly presumed that {when any body of men possessing such a district of land constitute a civil power}, each one thus subjects his lands to it, that no person can hold the same without also subjecting himself to it, and uniting with the body politick [that its property or use can not be transferred to anybody that is not subjected to the state].5

3. And yet, in times of ease and peace, it would seem unjust and dishonourable to any state to hinder its citizens from selling their lands, removing to any other state they please, and freeing themselves from their former political relation. For the several subjects by the taxes or tributes they pay annually, compensate all the ordinary advantages they receive from the community: and it would be unjust to hinder them to consult better their own interest if they can elsewhere.6 Nor is there danger that any state will be deserted by many of its subjects, unless it be either miserably constituted or administered; and in such cases the citizens have a better right to quit it, and cannot be compelled to remain its subjects.

III. A state constituted in this manner becomes as one person in law,7 holding rights different from those of the several members; and under obligations, which bind no individual; and committing to certain persons or councils the management of its common interests. Among several states thus constituted, as they are all with respect to each other in natural liberty {and independence}, the like rights and laws obtain as among individuals in liberty. States have their [the same or very similar] perfect rights, and obligations to each other, and are bound to offices of humanity, in a like manner as individuals in natural liberty: and have like rights of self-defence <by violence>. This is the case of all states which are independent, whether greater or smaller, whatever names and titles they bear, more humble or more ostentatious. By an easy substitution therefor of states for individuals, the natural law with respect to individuals in liberty, makes all that publick law of states with respect to each other, which is of necessary obligation. As to voluntary or positive publick law, we shall touch at it hereafter.{* }

IV. The several powers requisite for governing a people <or rights of sovereign power> are divided into the greater and lesser. Of these greater powers some are executed within the bounds of the state <and called internal>, and others respecting other states are to be exerted abroad <and called external>. Of the former class, is that of making laws to regulate the behaviour of the subjects [citizens], and maintain their rights, still regarding the law of nature.8

2. Another is, that of exacting all such tributes or <public> revenues as the <wise> administration of the state requires: this some make a branch of the former. Revenues are sometimes raised from subjects [citizens] <and called tributa by the Romans>, sometimes from conquered provinces <and called vectigalia>; some destined for support of the families of the supreme governors, and some for the publick uses of the state. As to the former, elective princes are deemed only as life-renters, and hereditary princes have a right like that in fiefs, to be transmitted unburdened to their heirs. As to the other branch, princes can only be deemed administrators or trustees for the whole state.

3. A third branch of power is the executive, containing all jurisdiction civil and criminal; and the right of constituting magistrates, and judges to take care of all publick affairs, and decide controversies, as also officers to collect the tributes.

The powers to be exerted abroad are first those of war, in enlisting soldiers, and appointing officers, and directing all military operations.

2. The power of making treaties, either for settling peace, or maintaining commerce, and of constituting ambassadors for this purpose.

There’s beside all these a certain extraordinary right in the supreme governors of any people, in great exigencies, to incroach upon those rights of the subjects which for ordinary are to be religiously maintained to them: as when it happens to be absolutely necessary, in some perilous emergencies, either to compell them to some extraordinary dangerous services, or to contributions of their goods beyond the ordinary proportions. This right in civil life answers to these extraordinary rights of necessity, we formerly{* } mentioned in natural liberty.

The smaller rights commonly vested in the supreme governor, are those of conferring civil honours, coining of money, granting to hold fairs or markets, legitimating of children, erecting corporations, admitting minors as if they were of due age, pardoning criminals, giving protections to debtors, and such like; which we briefly pass over as of less importance, and not always necessary in every state.9

V. Those persons or councils have the supreme power, who are intrusted with the greater branches of power above mentioned, or the greater part of them, so that they can exert them according to their own judgment, and no other person or council can rescind their deeds. Many have supreme power who don’t hold it unlimited, nor even for life: such too as cannot alter the order of succession, or abolish any of the fundamental laws of the state. He is supreme to whom the chief parts of civil power are committed, tho’ within certain limits, to be executed by his own order for the good of the body, so that he does not act by new commands, or commissions from any other; and whose deeds<, within the allowed limits of power,> derive not their force from the consent of any superior.

In every state the same quantity of power is deemed to be lodged some where or other; either with a monarch, a senate, or popular assembly{, or at least with the whole body of the people}. Nor is it any diminution of the supremacy or independence of a state that it is bound by its treaties with others, even tho’ they be very inconvenient ones; provided the state can still exercise all the greater parts of civil power, and can govern itself independently of others.

If a number of states enter into such a strict alliance <for whatever cause>, as to constitute some one person or permanent common council for them all, and commit to this person or council some parts of the supreme power, to be executed for them all; they are called a system of states, or Achaian states, from a famous instance of that kind. But independent states then incorporate entirely into one, when the very same persons or councils have committed to them all the parts of the supreme power to be executed for them all.10

CHAPTER VI

Of the Various Plans of Government.

I. The simple forms of government are divided into three classes, according as the power is committed to one person or to one council. When it is committed to one person, it is called monarchy <and has different names>; when to a council of some few eminent citizens, it is an aristocracy; and when it is committed to a popular assembly either of all the free citizens, or of some more reputable persons deputed by them, ’tis democracy.

When power is committed to a council, that is deemed the will of the council which is determined by the major part; unless by some fundamental law, a certain number of members is made necessary for determining any matters of publick administration, as a quorum{; and what proportion of this number, can make any alterations}. Precaution should also be taken against an inconvenience which may always happen when a question of three or more parts is put to a vote, that that part to which a great majority may be most averse, may yet have more votes than any one of the other parts{, and thus be enacted}. This may always be prevented by reducing a complex question into two {or more simple ones}, of two parts each; or by excluding by previous votes one or two of the parts of the complex question{, so as only two parts shall remain for the last decisive vote}. A like method may be taken where many candidates set up for the same office.1

II. Of each of these simple kinds there are many species. Monarchy is either absolute, <and unlimited,> where the whole administration is committed to the prudence of the monarch, without any other limits than those which are always understood from the general <nature and> end of all civil government; <when the power is bound by the fundamental laws of the state> or it is limited in the original conveyance of the power; and certain rights reserved to the people and exempted from it. And then each of these kinds are subdivided into hereditary and elective: the elective princes again may either be chosen for life, or for a certain term.

There are likeways several kinds of aristocracys, absolute, <or unlimited,> or limited <and circumscribed by law>: hereditary or elective; perpetual or temporary.{* } In this last sort the senators hold their seats for a certain term; upon the expiration of which, others are substituted in their places. If such new senators are elected by the people, and any free citizen may stand candidate, the council is rather democratical: but if the places are filled by the votes of the remaining members of the council; or only some eminent families can be candidates, it is aristocratical. When the seat in the senate depends upon a certain quantity of wealth; or is held in virtue of certain lands justly possessed; ’tis called properly oligarchical. When these alone can be elected who have discharged certain great offices with approbation, this is deemed aristocracy in the properest sense, <or politia> {and the plan of it most commended by some great authors of antiquity}.

There are also different kinds of democracies{, as the popular assembly is differently constituted}. We have examples of two ways in the comitia curiata, and centuriata of the Romans. In the former all citizens voted equally: In the later according to their fortunes <and for that reason called timocratic>. In some states the lot determined the members of the assembly: in others the people being divided into a number of tribes, counties, or districts, and these again subdivided; each division sends so many delegates or deputies, chosen by themselves, to be members of the popular assembly.

The complex forms are innumerable, according as any of the different sorts of senates jointly share the supreme power, with any of the sorts of monarchy; and again as any of those complex kinds are again conjoined with one or other of the popular assemblies: and then as such or such parts of the supreme power are vested in one or other of these councils, or in the monarch; or in all three jointly.2

III. That we may discern which of these forms is preferable, the following <few> observations seem proper.

1. In constituting of a state these four points are to be aimed at; that first, there be sufficient wisdom in the government to see what is best for the state; and then fidelity to choose what is best; and next that concord be maintained; and lastly a secret and speedy execution. If in any plan sufficient precaution is taken for all these, a people cannot desire more from its civil polity.

2. Where the parts of the supreme power are placed in different subjects or bodies; there must be some such political bonds between them, as shall prevent their acting in opposition to each other; that the prince, for instance, may do nothing of high importance without consent of the senate or popular assembly; nor these bodies do any thing without consent of the prince; nor one of these bodies without the concurrence of the other. If any sufficient precautions of this kind be taken, the civil power is better lodged by parts in different bodies, than all committed to either a monarch, or to any one council.

3. The power wheresoever lodged will never remain stable unless it has large property for its foundation; without this it must be fluctuating, and exposed to frequent seditions. Wealth carries force along with it, which will overturn rights not supported by wealth; or be wrested from the owners by the civil power [or the power of the state will collapse with fluctuating wealth]. An hereditary monarchy needs for its stability large crownlands, or hereditary provinces{, belonging to the monarch’s family}. A senate will not remain stable unless a large share of the lands are the property of the senators: and lands must be dispersed among great multitudes, and preserved thus dispersed by agrarian laws, to make a stable democracy; or some other causes must keep property much diffused. And altho’ the diligent and active should not, without weighty causes, be any way restrained in their just acquisitions: (and indeed the best sorts of democracy may allow them to acquire as much as can be requisite for any elegance or pleasure of life that a wise man could desire) yet we are never to put in the ballance with the liberty or safety of a people, the gratifying the vain ambition, luxury, or avarice of a few. It may therefor often be just to prevent by agrarian laws such vast wealth coming into a few hands, that {a cabal of them} might endanger the state.3

4. No such insolent or oppressive privileges should be granted to any one order in the state, as would exclude all others from publick offices of dignity or profit. For they will become occasions of perpetual seditions.{* }

5. As it would be of little consequence what were the form of polity, were it provided that none but good and wise men got into power; (which perhaps no precaution can ensure) the main drift of good policy is, to provide that even tho’ bad men come into power, they shall either have small temptations to abuse it, or at least no hopes of gain and impunity in doing so.4

6. As to the fittest number for making an happy state, nothing can be precisely determined. If the number is small, there won’t be strength enough against bands of the avowedly unjust{, who may attack it by surprize}; nor will there be sufficient wealth to execute any wise designs for the improvement of life. On the other hand when the numbers and the extent of a country is very large, no governors can take sufficient care of all their interests, and prevent frauds, extortions and oppressions{, even by the avarice of the deputy-magistrates, as access to complain must be more difficult}. And besides, far fewer men can be employed in the greater and more important state-affairs, and thus improve in that most important part of wisdom [and thus learn to cultivate more extensive virtues], than if out of the same numbers and the same tract of ground, several distinct independent societies had been framed. Indeed this is seldom matter of choice, what numbers should unite. For if once vast empires are formed, it becomes necessary to any little states around them to incorporate together, as many of them as may be, for their defence against a potent neighbour.5 But as agrarian laws are often justifiable in a state, to prevent the immoderate increase of wealth in the hands of a few <and to prevent the fear of their power>; ’tis equally just, for the same reasons, that smaller neighbouring states should take timely precautions, and that by violence too, if gentler methods are not like to succeed, that no neighbour-state should acquire such force as may enslave all around; especially if they see a prevalent disposition in all {the institutions and} manners of any neighbour-state toward {military affairs and} conquest.6

IV. <Simple> Monarchy has these peculiar advantages, that it is adapted to preserve concord, and make a secret and speedy execution of any design. But then in hereditary monarchies there’s small security for either the wisdom or fidelity of the monarch. In elective monarchies there’s greater probability for wisdom; but rather less for fidelity: and upon the death of each monarch there’s an open gate to civil wars. Under an absolute hereditary monarchy nothing is secure. Under the limited hereditary, no better precaution is taken for wisdom, but there is better precaution as to a faithful administration: since if the monarch violates the fundamental laws, or breaks over the bounds set by them to his power, he plainly declares himself a tyrant{, and forfeits his right}; which all the subjects must plainly see: and hence will more readily agree in dethroning him to set up another, or to constitute some better plan. But then in the limited monarchies there generally prevail factions, which sometimes [repeatedly] turn into civil wars.7

In the simpler hereditary aristocracies scarce sufficient precaution is taken for wisdom, and scarce any for fidelity, concord, or secret and speedy execution. In the elective are better precautions for wisdom and fidelity, but no better for concord or execution.

In democracies we are always secured as to fidelity; and may have a tolerable prospect as to wisdom too, when mens votes are according to their fortunes; or when the assembly is made up of deputies elected by the people: but there’s no security of concord, or of speedy and secret execution {in any pure democracy}.8

The most convenient way of voting in all large councils or assemblies is by the ballot: as by this means, men need not dread the resentments of men in power; and ’tis less easy to use any indirect influence [to corrupt the ballot by bribery]. And altho’ in the ballot there’s no restraint of shame, but a door opened for private favour, hatred, and envy; yet it seldom happens that these passions work in the majority of a people without some just or probable cause. But if something of the lot be also intermixed,* it may often quite defeat great cabals, and their arts of corruption, and stop the power of malice and envy. But the lot alone must be quite unfit to determine any point of consequence, or to advance any persons to offices; for tho’ no man is affronted by a disappointment this way, nor is there any room for partial favour; yet it is plainly void of all prudence or wisdom.

V. We have said enough to shew that none of the simple forms of government are well adapted to preserve any state happy. Nor is it of any avail to plead antiquity here. If all the most antient ways were best, we should return to caves and beast-skins for our shelter and dress. What flatterers of princes often tell us, that monarchy was the earliest form, is rather dishonourable to it; importing indeed that it at first pleased a rude and unexperienced populace, but could not continue to please upon experience and the increase of wisdom. And indeed in nothing could one less expect that the first essays would be perfect, than in the constitution of civil polity; a work requiring the greatest knowledge and prudence, to be acquired only by much thought and experience of human life. The several great inconveniences attending each of the simple forms shew the necessity of having recourse to the mixt and complex; and the several great advantages peculiar to each of the simple, shew that those mixed forms are best where all the three kinds are artfully compounded: and this was the opinion of the wisest men of antiquity.{* }

As a council of delegates or deputies duly elected by a general popular interest can never want fidelity or good intention, and seldom can be deficient in wisdom, it may seem advisable that a large share of the civil power should be lodged in such a body; such as that of enacting laws and even determining definitively the most weighty affairs in deliberation. And this part of a constitution should be secured by agrarian laws: not so strait however as to discourage industry, or exclude any innocent elegance or ornament of life.

If there be also a senate of a few <elected by the people> who have approved their abilities and fidelity in discharging the great offices of the common-wealth; it may safely be intrusted with the sole right of deliberating, debating, and proposing business to the popular assembly <so that no weighty affair is decided without the authority of the senate>. In both councils it may be proper to contrive <by annual laws> a rotation, by new members gradually succeeding to the old, so that neither council may have above one third of [may be formed by all]9 unexperienced new men, nor yet any one man continue a member perpetually [has a perpetual right of voting or authority]. Laws limiting the times that any {general, minister of state, or} magistrate can continue in office have also great advantages, to prevent any person’s so rooting himself in power or popularity, as to be dangerous to the constitution; and to train up greater numbers in political wisdom, by experience in all the important offices; so that the state may never be obliged to have all its hopes depending upon one mortal life. Where such laws are sacredly established, the state will never want the benefit of the wisdom or experience of such as have served out their legal time. For it will be no matter of offence that at the expiration of it they must lay down their offices according to law.

And lastly, for sudden unexpected exigences or dangers, and for the secret and speedy execution of what the publick interest may require, some sort of regal or dictatorial power is requisite; but such an one as has no other foundation of its force but the laws themselves. And to this power may be committed the command in war, and the execution of the laws. This third branch may be as an arbitrator, {holding the ballance between the two other parts of the constitution,} if there should arise any high contention between the senatorial order and the plebeian.10

The power of promoting to all sorts of offices may be some way vested in these three jointly, or divided among them; so that offices requiring great abilities and wisdom should be filled by the nomination of the senate; such officers as are to be employed in speedy execution, to be nominated by the prince: and such as are to protect the rights of the people, and administer justice among them, to be elected by the people.

A censorial power too would be of the highest use, to reform, or prevent the corruption of manners; by degrading persons of any dignity whatsoever, as soon as they run into a dissolute course of debauchery.11

CHAPTER VII

The Rights of the Supreme Power: and the Methods of Acquiring it.

I. The persons vested with the supreme power, have it <and the consequent rights> with that extent which the constitution or fundamental laws <of the people> have given them.1 The sum of civil power in all states is the same; the same quantity of it in every state resides some-where or other, at least with the body of the people. But the powers vested in the king, or in any councils, in one state, may be very different from what is vested in like persons or councils in others. For in some, certain rights of the people are expresly exempted from the power of any prince or political council; but in others, there’s no such exemptions [all the rights of the people are trust to their wisdom and fidelity]. But as the end of all civil power is acknowledged by all to be the safety and happiness of the whole body; any power not naturally conducive to this end is unjust; which the people, who rashly granted it under an error, may justly abolish again, when they find it necessary to their safety to do so.2 Nor can any thing be conceived more insolent or perfidious, than that persons intrusted with power solely for the good of a people, should strive to retain it by force, for their own grandeur, when it is found destructive to the people.

It were to be wished that in these cases, such powers should be abolished in a peaceable manner, by mutual consent, rather than by force. Nor is it justifiable in a people to have recourse for any lighter causes to violence and civil wars against their rulers, while the publick interests are tolerably secured and consulted. But when it is evident, that the publick liberty and safety is not tolerably secured, and that more mischiefs, and these of a more lasting kind, are like to arise from the continuance of any plan of civil power than are to be feared from the violent efforts for an alteration of it, then it becomes lawful, nay honourable, to make such efforts, and change the plan of government.

What is alleged about some peculiarly divine right, and inviolable sanctity of governors, especially monarchs, is a mere dream of court-flatterers. In one sense every right is divine which is constituted by the law of God and nature. The rights of the people are thus divine, as well as those of princes: nay since the later were constituted for the defence and protection of the former; the former should be deemed the more divine and sacred. The rights of the governor, as they are more important than those of any one private man, may be deemed more sacred than his private rights; but can never be deemed more sacred than the rights of the whole body. A good subject [citizen] ought to bear patiently many injuries done only to himself, rather than take arms against a prince in the main good and useful to the state; provided the danger only extends to himself. But when the common rights of the community are trampled upon; and what at first is attempted against one, is to be made a precedent against all the rest, then as the governor is plainly perfidious to his trust, he has forfeited all the power committed to him.3

II. In every sort of government the people has this right of defending themselves <by violence> against the abuse of power. If the prince’s power be limited, and yet he breaks over its bounds, invading such rights as the people had reserved in the very constitution of the power; the people’s right of resistance is unquestionable. But even in absolute governments they have the same right; if their governor, ceasing to use his power {as if he owned it destined} for the good of the body, should govern the whole state as his own property; and neglecting the common safety of all, turn every thing to the gratification of his own lust or avarice; or if he plainly declares a hatred of his people; or conducts all affairs in such a wretched manner, that not even the most sacred rights of the people, such as are necessary to any tolerable life, remain secure to them.4 Nor does this doctrine of resistance give to the people a civil superiority over their governors: for even slaves adjudged to the most miserable subjection {for their crimes}, may have a right to defend themselves <by violence> against certain [the fiercest] injuries their masters may attempt against them.

As to that question, who shall be judge in this disputed point, whether the governors by their perfidy and mal-administration have forfeited their right? If ’tis alleged, the people cannot judge as they are parties: for the same reason the governors cannot judge. The only recourse then should be to impartial arbiters, either within the state, or in some other nation, if this could be safe: but if not; surely the people have a better claim to judge in this point; since they at first entrusted their governors with such powers, and the powers were designed for the management of the people’s interests, and were constituted for their behoof. ’Tis true there are great dangers of mistakes on this head: but the governors are not exempted from errors more than the people. Men have often erred both about publick rights, and the private ones too of self-defence: but we must not for that reason deny that they have such rights.5

In this most important matter, no doubt, persons concerned are bound to use the utmost caution, and weigh all things on both sides. Nor ought we to involve our fellow-citizens in civil-wars, the most miserable [savage] of all wars, for any such lighter injuries, or wrong conduct of our governors, as may be incident sometimes to persons in the main good and of upright intentions. But when there’s no other way of preserving a people; and when their governors by their perfidious frauds have plainly forfeited their right; they may justly be divested of their power <by violence>, and others put into their places, or a new plan of power established.

Nor does this doctrine of the right of resistance in defence of the rights of a people, naturally tend to excite seditions and civil wars. Nay they have been more frequently occasioned by the contrary tenets.6 In all ages there has been too much patience in the body of the people, and too stupid a veneration for their princes or rulers; which {for each one free kingdom or state} <in the whole world> has produced many monstrous <states or rather> herds of miserable abject slaves or beasts of burden, {rather than civil polities of rational creatures}, under the most inhuman and worthless masters, trampling upon all things human and divine with the utmost effrontery.

III. Upon dethroning a tyrant, or upon the natural extinction of a royal family, or the death of an elective prince<, where there is no rule of succession>, there arises an interregnum. In which case, even altho’ there be nothing expresly provided in the constitution, yet the political union of the people is not quite dissolved. They all continue bound by that first covenant we mentioned, to consult their common interest by joint counsels.7 They seem to be in a sort of {simple} democracy for some time; in which it should be determined by plurality of votes of the whole, or of those at least who used to be concerned in the publick affairs, what shall be their future form of polity and who are to be promoted to the government.8 Nor is it just that any smaller part, without consent of the rest, should break off from the political union; unless the majority are setting up some unjust or destructive plan of polity.

IV. To princes, or rulers of any kind, who have evidenced integrity and fidelity in their trust, the highest deference and honour is due {from their subjects}; they should be supported and defended with the lives and fortunes of all, whether against rebels or foreign enemies. Nor are subjects [citizen] freed from this obligation, by any such lighter faults or mistakes of their governors, as may be incident to men in the main upright {and faithful to their trust}. But if {after all the efforts of their subjects,} such princes are conquered and dethroned, either by some competitor or some foreign power, so that there remain no probable hopes of their recovering their just rights; ’tis their duty in such cases to quit their claim: nay ’tis justly deemed extinct: since all obligations between governors and subjects are mutual, depending upon mutual offices. And when it becomes impossible for one side to perform his part, the other is freed from his obligation. The people therefor, after their utmost efforts for their old rulers have proved unsuccessful, may justly submit to the conqueror, when they cannot otherways consult their own safety. It would indeed be strange arrogance in any prince to expect that a whole people should be bound, by a vain zeal for his dignity and interest, to expose themselves to all the rage and fury of a conqueror{, to no valuable purpose}.9

V. As natural liberty is “the right of acting as one inclines within the bounds of the law of nature”; (nor could we hold any such liberty were there no laws to defend it from the force of the stronger:) so we say a people enjoys liberty when “each one is allowed to act as he inclines, within the bounds of civil law, and not subjected to the caprice of any other.” We should never look upon laws as eversive of liberty; but that ’tis sole enemy is the capricious humourous will or command of men in power. The Romans indeed in speaking of a free people, generally meant a democratical state; where men had their turns of commanding, as well as of obeying.10

VI. It was already shewn that civil power can scarce be constituted justly any other way than by the consent of the people; and that rulers have no other sacred rights or majesty, than what may arise from this: that of a large multitude of men, each one for himself subjected part of his rights to the administration of a certain person or council. And thus from a part of our natural liberty transferred to the ruler, and our property in a certain degree subjected to his disposal, arises the legislative power. In natural liberty also each one had a right to expose his life to the greatest dangers, in any honourable services in defence of his family or his neighbours, and when the common interest required it he could commit himself to the direction of others in such services; and hence the right of military command. <In natural liberty> Men had also this right of repelling injuries, and punishing by violence any one who attempted or executed any injury, and even of putting him to death if this was necessary for the common safety: and hence arises all criminal jurisdiction, even to the inflicting of capital punishments [or the right of imposing just punishments on crimes]. Nor need we have recourse to any extraordinary grants or commissions from God to explain any of these rights of civil sovereigns.

VII. Nor can any one form of government be esteemed more divine than others, on any other account than that it is better adapted to promote the prosperity of the community; which can least of all be alleged of absolute hereditary monarchies. Need we suggest here that no divine law natural or positive determines the order of succession to monarchies, whether the general hereditary, and that either by males only, or also by females; or the lineal hereditary.11 In the succession to private fortunes, tho’ this be manifest in general, that the goods plainly acquired for the behoof of a man’s family and kinsmen, should descend to his family or kinsmen upon his decease; yet there are not a few difficulties in determining the proportions. But as to civil governments, which, ’tis obvious, were never constituted for the behoof of a family, but for the interest of a whole nation; there seems no natural reasons that the succession to them should depend upon the proximity of blood to the former possessor; and much less that the lineal succession should be regarded.* All such right of succession must arise from human laws, or decrees of a people, and these sometimes very incautious and imprudent.

VIII. As to that much celebrated right of conquest, by which the conqueror claims the civil power to himself {and his heirs} over the conquered people; it has little better foundation generally than the claim of robbers and pirates {upon persons and their goods which have fallen into their hands}.{* } For first, unless the conqueror had a just cause, he acquires <and detains> no right. And then tho’ his cause was just [suppose his cause the most just], yet, as we said above,‡ his claim has certain bounds; nor has he a right to exact more from the vanquished than what is requisite <or useful> to repell the injury attempted, to repair all damages done, or to obtain sufficient security against injuries for the future. If he insists on more, he has no justice on his side in such demands. Now it is never necessary <or advantageous>, either for averting of injuries, or repairing of damages, that the conquered should be deprived of their liberty, or independency, and be reduced into the form of a province to the conqueror. Nay ’tis generally very pernicious to the common interests of mankind, that states should thus enlarge their power, and make it formidable to all around them. All present danger to the victorious is averted, and full reparation of damages generally obtained, long before their enemies are entirely subdued {and over-run by their arms}. The conquerors generally soon take to themselves abundant compensation out of the moveable goods of the conquered: and every state when thoroughly defeated, would always consent to make compensation this way, nay would pay an annual contribution for a certain term, to make up what was awanting; rather than lose their liberty and sovereignty, and be subjected to foreigners. And surely by these ways all damages could be abundantly repaired.{‡ }

As to securities against future injuries: surely such securities as are universally allowed to be sufficient against a state yet retaining much of its strength, shall be more than sufficient against one wholly exhausted and almost ruined by war: now {in all treaties,} these are deemed sufficient securities against states yet retaining much of their force, if they deliver hostages, give up their fleets, {or a great part of them,} surrender frontier towns with their fortifications, or receive garrisons of their neighbours into them [into their walled cities], or even if they dismantle them{, or demolish all the fortifications}. Nor is there any state that would not rather consent to all these, rather than become a province subjected to another [to a neigbour-state].

IX. If it be alleged that punishments should also be inflicted as a further security by deterring others: yet surely none should be punished but the guilty. Now the far greater part of any conquered people were involved in no guilt by their governors having entered into even the most unjust wars.{* } The conqueror therefor can demand no more of the body of a people than that they either give up their injurious governors, or desist to defend them any further, that the victor may punish them as they deserve. But as to any thing done unjustly or inhumanly in publick wars, the common interest of mankind would dissuade from making it matter of proper punishment. Within the bounds of any regular polity, ’tis generally highly probable or certain that the power of the laws and magistrates will be superiour to that of any criminal citizens; and that therefor they may be brought to justice. But in publick wars, the forces of the parties by their confederates and allies are so generally brought to a parity, that the event is very uncertain: and the just cause is often unsuccessful. This should restrain conquerors even in the justest causes from any severities{, under the notion of punishment}; as they will become precedents to others in very bad causes, which yet they may judge to be just. The victorious therefor should beware of establishing a precedent, which may be followed thereafter against themselves or their friends.

’Tis vain to allege any tacit convention between the parties in war, that that side shall have the civil power over both which happens to be victorious. Taking arms is rather an open declaration of the contrary, that neither side intends to submit its rights of any sort to the other; unless in those cases where there has been such covenants expresly made; nor was it ever, in any other case, deemed perfidious, that the party defeated rallys its forces, {makes new levies,} or gets new allies to continue the war. Can any one pretend, that that side which has a just cause [which judges his cause to be just], {defending or prosecuting its own rights,} makes any such convention? and if one side is known not to do it, we can never presume it on the other side <however it judges its own cause>. The patrons of this right of conquest too, can allege only that the supreme governors consented, and not the body of the people: but with what shadow of right can any governors, whose power was granted to them only in trust for protection of the people, pretend to alienate or transfer the whole people with all their rights to another, either absolutely or upon any contingency? suppose the governors made such an express convention: by this audacious perfidy they plainly forfeit their power; nor is the state bound by such a deed.

X. Since therefor all the authors who plead that certain civil sovereignties are patrimonial, so that they may be sold, divided{, or any way transferred}at the pleasure of the sovereign, suppose also that they are generally founded in conquest; what is said above shews that such power has no just foundation.12 Nay if it should happen that a state in the greatest consternation, upon an invasion from barbarians [enemies], should by their own deed submit themselves and all their rights to some potent neighbour, demanding nothing from them but protection; yet even such a deed cannot constitute a patrimonial power.* For not to mention the exception of unjust force and terror; or that this covenant being plainly of the onerous kind, yet does not maintain the essential equality: the very nature of the covenant, and the matter of it, shews that no patrimonial power could be intended in it. A state by submitting itself to a humane, civilized neighbour which exercised a gentle rule over its subjects, cannot be deemed to have consented also to any manner of oppression or vexations that thereafter this neighbour may inflict on them; nor that they should be made over to any barbarous prince or people at the pleasure of those entrusted themselves to. Nay if this superior state should attempt any thing very oppressive of this nature, the subject-people may justly shake off the yoke: since it was plainly upon other terms that they subjected themselves. They have a right to demand arbitration, as to the equity of any thing imposed beyond what should be deemed a just compensation for the protection received.

Nor can any right of sovereignty arise from any seeming consent of the conquered, which was only extorted by present force. For we shewed* above that such force is plainly unjust. But if the victor establishes among the vanquished such an equitable plan of civil power, as sufficiently consults their future safety and prosperity, so that upon experience of it they are truly satisfied to submit to it; this subsequent consent becomes a just foundation of his power, and is a sort of civil expiation of the injury done in the conquest.

XI. But further, as the right of any person of the royal-blood to succeed upon the demise of his predecessor, is not founded on any natural causes, but solely upon some {old law or} decree of the state [people]: the words of such laws or deeds are to be understood in the same way as like words about other matters deemed hereditary; and thus we are to collect from them what was the intention of the people in such deeds. When therefor this universally obtained in any country, that when the present possessor of any thing hereditary forfeits it, he forfeits not only for himself but all his kindred; we justly conclude that the peoples intention was that the forfeitures of the hereditary sovereignty should be in the same manner. The plea against extending forfeitures to the whole kindred of the person forfeiting, is very strong and plausible as to private fortunes, which all know were acquired chiefly for the behoof of the proprietor and his family; and this according to a natural obligation: so that children and kinsmen too have a natural claim to be supported and have their condition advanced out of such fortunes: and ’tis unjust that the fault of one of the joint proprietors should prejudice the rest, and prevent their obtaining what they are naturally entitled to. But as to hereditary sovereignties the case is quite different. They were not constituted for the behoof of the royal family, nor founded in consequence of any just claim they had for their own behoof; but for the interest of the whole nation, and chiefly to prevent the mischiefs to be apprehended in new elections of sovereigns: and therefore they are much more justly made liable to entire forfeitures from the whole family, than any private fortunes.

As therefor a people may justly dethrone a perfidious prince; they have a better right to exclude from the succession any one who shews himself plainly unfit for the trust: and such are those who hold tenets {about divine rights} which must excite them to trample upon the most sacred rights of the people, as soon as they get into power; or those who possessed with some furious superstition will subject their crown, or alienate no small parts of the supreme power, to some foreign prince, under the shew of a religious character [under the false name of pontifex];13 and at the same time think themselves commissioned by God to break through in the most audacious manner the fundamental laws or constitution, and all limits set by it to their power; and to force the subjects by the severest tortures either to believe, or falsely profess to believe, the most monstrous absurdities in religion, and to worship God in a way they judge impious. Any heir apparent who professes such tenets, or refuses upon a just demand to renounce and abjure them in the most solemn manner, may be excluded from succession with much better ground than if he were an ideot or a madman; as the holding of such tenets must make him more dangerous to a free people than any folly or madness.

: What we have said relates not only to monarchs but all sorts of governours, and to the power of a state itself over its colonies, or provinces. If any citizens, with permission of the <people or> government, leave their country, and at their own expence find new habitations; they may justly constitute themselves into an independent state{, in amity with their mother-country}. If any are sent off at the publick charge as a colony, to make settlements subject to the state, for augmenting its commerce and power; such persons should hold all the rights of the other subjects, and whatever grants are made to them are to be faithfully observed. If the mother-country attempts any thing oppressive toward a colony, and the colony be able to subsist as a sovereign state by itself; or if the mother-country lose its liberty, or have its plan of polity miserably changed to the worse: the colony is not bound to remain subject any longer: ’tis enough that it remain a friendly state. Nor are we to imagine that any early covenants founded upon errors about the most essential points in view, can still bind large societies of men fit to subsist as happy independent states, to continue in a submission eversive of all prosperity and safety. Nor has any thing occasioned more misery in human life than a vain and insolent ambition, both in princes and popular states of extending their empires, and bringing every neighbouring state under subjection to them; without consulting the real felicity either of their own people or of their new acquisitions. And hence have arose these vast unwieldy empires; the plagues of all around them; which after some time are ruined by their own bulk, with vast destruction of mankind.14

CHAPTER VIII

Of Civil Laws and their Execution.

I. The power of making and executing laws is the most important internal power. Every law should be intended for some real utility to the state; and as far as human power can go, laws should enjoin whatever is of consequence to the general prosperity. But if in the very constitution of the civil polity, the sovereign or chief magistrate is only entrusted with such power as is requisite for the preservation of the secular rights [external goods] of men; then they cannot exert any sort of coercive power about the means of forming mens minds to religion or inward virtue. But when they are entrusted with certain revenues, to be employed for the publick utility at their discretion; and where they are not expresly restricted to the care of the secular rights of men; since human happiness chiefly depends upon virtue, the civil governors must think it belonging to their office, to instill into the minds of their subjects the true sentiments of religion and virtue, {and to influence their hearts to relish them,} by the best instruction and discipline from their infancy, that they may be furnished for all the honourable [virtuous] offices of life.1

But at the same time they must maintain to all, their sacred right of judging for themselves; which would be plainly encroached upon by any penal laws about such opinions, whether secret or divulged, which don’t lead to any practices destructive to society.2 Nay tho’ such <religious> tenets should be divulged by men who imagine themselves bound in conscience to divulge them; it would generally be more advisable only to insist that such persons give proper security that they will give no disturbance to the state, and bear their share in all services required of them for the publick; and to punish rigorously only the injuries done in consequence of such dangerous opinions; rather than to inflict any penalties on men for these opinions themselves. ’Tis often better to leave such tenets to be exploded by the juster reasonings of wise men{, than to proceed to any severities on account of the tenets themselves}.

But as the far greater part of every people will not use this right; but induced by specious appearances of sanctity, and ostentation of superior wisdom in some designing men, will incautiously give up themselves to be led by them; it must plainly be the business of the magistrate {to get this leading into his own hands}; by appointing [to appoint] men of character and learning to teach the people the just sentiments of religion and virtue [and civil offices], and to confirm them by the most effectual reasonings <and arguments>; that they may not be perverted by the wicked arts of others.3 And if men in power have any tolerable wisdom, and hold any tolerable scheme of religion, they will always find the far greater part of the people very tractable to follow as they lead them, so that little need be apprehended from a few who may dissent from the publick schemes.

The exacting by law, under any penalties, that people should conform in opinion and practice to any tenets or rites of worship, that are either false and absurd, or tho’ true yet of little consequence, generally occasions great mischief to any state; since according to the different genius’s and tempers of men, they have and always will run into different opinions and practices in matters of religion: and thence some of the most useful hands will desert the country when they are harrassed about such matters: the state will be plagued with sedition and discord: and the activity of men turned off from the services and occupations which are most useful to the community, and occupied upon trifles. No good subject should meet with any vexation, or be excluded from any civil right, on account of any opinions<, however false,> or modes of worship which don’t hurt any of their neighbours.4

II. The example of those in supreme power will have the highest influence in promoting the virtue of the people: {especially} if they advance to honours only such as are of approved integrity and purity of manners<, the zeal for all that is virtuous will be much stronger>. The populace in their elections, if they are truly free, always follow some appearance of virtue; and will seldom promote any but such as are of distinguished integrity. Nor will honour or power alter the tempers of the persons advanced, if there are proper terms fixed by law for the holding of offices{; so that upon expiration of the term, they must return into the common condition of the people}. Where the power of promoting to offices is in the monarch, the men promoted will probably resemble their political creator.5

Next to piety toward God, the great source of happiness, and the strongest incentive to all other virtues, the virtues to be most cultivated in a state are, temperance, justice, fortitude, and industry.6

7 Such temperance as restrains not only excessive impulses toward <sensual> pleasure, but all luxury and immoderate expences on the shew and grandeur of life, must be allowed, by all who consider it, to be necessary to {the prosperity of} any state. There is a certain measure of sensual pleasures and elegance both grateful and innocent; to provide us to this degree God and nature have produced many fruits and other materials with exquisite art. Nor is there any moral turpitude in the enjoyment of any pleasure, if it be inconsistent with no duty of life, nor tends so to soften or weaken the mind that it shall be distressed in the want of it, or be apt to neglect and counteract its duty to obtain it. Luxury therefor should be defined, “such an excessive desire or use of the lower pleasures, as is inconsistent with discharging the offices of life.” Nor is it possible precisely to fix general measures of lawful enjoyment for all; they must be various as their fortunes, attachments, dependent friends, and even bodily constitutions are various. Now luxury, in this notion of it, as it lavishes out mens fortunes, and yet increases their keen desires, making them needy, and craving; it must occasion the strongest temptations to desert their duty to their country <and friends>, whenever it is inconsistent with pleasure: it must lead the citizens to betray their country, either to a tyrant at home, or a foreign enemy, when they cannot otherways get funds for their luxury. With the luxurious generally every thing is venal.

Nor is it justly alleged, that luxury is necessary or useful to encourage arts and manufactures. For arts and industry may be encouraged to the highest without any luxury, at least all innocent, necessary, or elegant arts. Men of higher fortunes may without any luxury purchase the most ingenious and nice manufactures, as far as their several obligations in life allow it. And if any such deny themselves such expences, from views of a finer liberality, in raising the condition of indigent friends; they along with their families, kinsmen, and friends thus supported, may make a much greater consumption of the very same products and manufactures, or of others equally deserving encouragement in the state; and thus they with their dependents are more beneficial to artificers.8

Need we mention too, that a sober, frugal oeconomist [provident man], in a long and healthy copious life, generally makes greater consumption than a prodigal of equal fortune; who is often punished with a long tract of diseases and penury, for the extravagance of a few years. And then, as lower orders are always imitating the manners of their superiors; the plague of luxury will soon infect the very lowest, and even the mechanicks. Then they cannot subsist without higher prices for their labours; the manufactures must consequently rise in their prices, and cannot be vended abroad, if any more industrious and sober country can afford the like in foreign markets at lower prices.

III. ’Tis scarce necessary to shew the necessity of diligence and industry, since the wealth and power of a nation depends almost wholly upon them. Agriculture is necessary, to prevent a constant drain for the food of our people, to obtain grain for exportation, and furnish the very materials for many of our artizans, which otherways we must buy abroad. And in like manner all mechanick arts, either simpler, or more elegant, should be encouraged, lest our wealth be drained by our buying foreign manufactures. Merchandize and fishery<, where abundant> are of great consequence: nay the very building of ships too, that we may not lose the profit of the carriage either of our own or foreign goods, and with this, the training of sailors; which contributes both to the increase of wealth and to the defence of the state in war. The mechanick trades should be held in reputation, so that people of better fortunes and families may not deem it below them to be concerned in them.9

IV. That justice is necessary cannot be a question. For if laws and justice don’t prevail{, as without them no right natural or acquired can be safe, all industry must languish}. Nay as merchants must augment their prices in proportion to all their casual losses: where there’s much injustice, the merchants must charge in the price of their goods the losses they sustain by the frauds of the unjust; and thus the best citizens must be loaded with this burden: nay further, any neighbouring state where justice more prevails, if other circumstances be equal, can undersell us, on this account. Where therefor justice is not maintained, the commerce <and manufacture> of a nation must sink, with all its attendant profits.

To examine into the best methods of administring justice, would require long dissertations. We only briefly suggest, that a small number of simple easy laws might sufficiently protect and regulate the citizens, if there were such a contrivance for the courts of judicature, as would entrust the decision of suits to men of great goodness and equity and approved integrity. <Also>, severe restraints upon vexatious or oppressive suits would be of the highest advantage. The earlier laws {and constitutions} of the Romans about these matters are <examples> worthy of imitation.*

V. Military arts and virtues are accomplishments highly becoming all the more honourable citizens. Warfare therefor should be no man’s perpetual profession; but all ought to take their turns in such services. And however it may be observed, that, when according to modern custom, armies are made up of the very dregs of a people, fellows too dissolute and worthless for any other occupation, whosoever takes to this way of life for a few years is made unfit for any other [peaceful] occupation for the future; yet the case would be quite otherways if all the best citizens served in our armies by turns. This method too would bring along with it these grand advantages: all the people would be trained and skilled in military service. Should one of our armies be entirely cut off, we could have another {of veterans} immediately: were the chief officers cut off; we would have others of equal experience in readiness to take the command: and it would be no easy matter for either any ambitious citizen at home, or any foreign invader, to trample upon the rights of an armed people well trained in military service.10

VI. The laws and whole constitution of the state should be such as may prevent any smaller bodys of citizens to be more strongly attached to each other, or to any foreign interest, whether of prince or bishop, than they are to their own country, or have greater dependance and expectations of promotion by them. And the citizens should be taught that no antient engagements, obtained from their ancestors by the most impious frauds, can be of any validity against the prosperity of their country. For it cannot be of use to <true> religion that ecclesiasticks should have {great} secular power of any kind; and much less that all ecclesiasticks through the world should be deemed as a great corporation to be governed by a common prince or council; who too should have power to promote, in many nations, what favourites they pleased, to high dignities and <almost> princely revenues; and to whom there should lye appeals from the highest courts of the several nations, in matters upon which wealth and power depend.

VII. It is one great design of civil laws to strengthen by political sanctions the several laws of nature; and to appoint such forms of business, and of process in courts, as may prevent frauds {and promote justice}. The populace [People] often needs also to be taught, and engaged by laws, into the best methods of managing their own affairs, and exercising their mechanick arts: and in general, civil laws should more precisely determine many points in which the law of nature leaves much latitude.

From the very best body of civil laws certain external rights must arise, which tho’ no man can insist upon with a good conscience, yet if the persons to whom they are granted claim them, they must hold them with impunity: nor can any one rightly have recourse to violence against such rights, or obtain redress at law. Many also of the most sacred duties {can be no matters of compulsion, but} must be left to {the honour and} conscience of those concerned. There are certain benefits granted by law, which no good man would claim, but when claimed they cannot be refused.* Any such covenants or testaments too as for want of the legal formalities are not confirmed by human laws, a good man would often think himself bound to hold as valid, if there’s nothing appointed in them beyond the moral power of the parties or testator, nor contrary to equity <or humanity>. But if they are wrong in either of these respects, a {good} man may take the benefit of the law.

VIII. The sanctions of laws are rewards and punishments. There’s this common reward annexed to obedience to civil laws, that these who obey them continue to enjoy all the <rights and> advantages of civil life. Some few civil laws have peculiar rewards, such as honours, <dignities,> and premiums in money. The natural honour is “the good opinion others entertain of our moral excellencies.” Civil honours are “these external indications of deference which are appointed by law.”

The simple estimation, or character of common honesty, is so much every man’s right, that no governors can deprive one of it at pleasure, without a cause determined in judgment. The higher estimation, or intensive, as some call it, is not a matter of perfect right; as no man can at the command of others form high opinions of any person, without he is persuaded of his merit. But as to external marks of deference, and precedencys, the civil powers have a right to determine about them, as they do about other civil rights. If these are conferred only upon real merit, they will be of high account with wise men. But if they are often conferred injudiciously, they will grow mean and despicable to wise men, and matter of scorn and jest: as they are often seen where they are hereditary, and there’s no censorial power to degrade the unworthy.11

IX. The true end of all punishment is this, that all bad men by the terror of them may be restrained from doing any thing injurious, and thus the community be preserved in safety. Chastisement {as distinguished from punishment,} has in view only the reformation of the sufferer [the person who confesses his crime]: and reparation of damage, aims at the utility of the one who sustained the loss: to this men are often bound even without any preceeding crime or fault.12

Neither anger, nor hatred of the criminal, nor even that honest indignation at moral evil, which is natural to every good man, should be the sole [chief] springs of punishing: but rather a {calm} regard to the common interest, and the safety of the innocent. The true measure of punishment is not to be taken from the degrees of moral turpitude, but the exigence of society. A great deal of high moral turpitude must pass unpunished: and yet on the other hand if the safety of the community require it, some actions which shew smaller depravity of temper, must be punished severely. Thus no penalties are inflicted on ingratitude, and want of humanity; while any insurrection against the supreme power, tho’ upon plausible pretences of the right of some competitor, must be punished severely. But the crimes which deserve the highest punishments on both accounts, are the publick ones of men in power, perverting what was intrusted to them for the safety of others, to the oppression <and spoliation> of the citizens.13

Though it may not be necessary to punish the first motions or hasty intentions of wickedness, nor is it often practicable; as such rash motions may upon sudden provocation arise in the breasts of good men, who will soon restrain them of themselves: yet such as have proceeded to any external actions which might have effectually accomplished the evil, but were prevented by accident, or force, or the timely aid of others, and which shew furious malice and obstinate purposes of injury, these deserve as high punishments as if they had obtained their effect. Sometimes indeed the publick interest may require the granting even rewards to some bad actions, and pardoning the greatest criminals.

The respect of persons which is highly culpable in judgment, is when any regard is had to such qualities of actions or circumstances of the guilty as neither affect the turpitude of the crime, nor the sense of the punishment, nor the common interest of society. But circumstances which affect any of these three must always be regarded. And therefor when other circumstances are equal, pecuniary fines are to be enlarged for equal crimes according to the fortunes of the criminals, and corporal punishments according to their strength of body; and ignominious ones are to be abated according to the dignity of the persons.14

But we must not go on in increasing without bounds the severities of punishment upon the higher crimes. For frequent spectacles of tortures have a tendency to diminish our natural compassion and tenderness of heart, and to make the tempers of men more savage and cruel.

X. ’Tis unjust to punish any man for the crimes of others; nor is it equitable to confiscate the whole fortune of a family for any crime of the head of it. All the natural claims of the wife and children to a support out of it, as well as debts due to any innocent persons, should first be discharged.15 Nor is it naturally just to punish any bodies-corporate for any crimes; the guilty only in such cases should be punished, whether private persons or magistrates of the corporation.16 It may sometimes be just to take from the corporation either these privileges, or fortifications, or arms, by which the criminal members of it were encouraged or enabled to do injuries to their neighbours, if security against like injuries can be obtained no other way. The corporation may sometimes be bound to compensate damages out of its publick stock, or <when they are wanting> even the private fortunes of its members{, when the criminals can’t be found, or cannot repair the damage}; if it has been occasioned or encouraged by any of these advantages, privileges or fortifications, which the body had obtained for their own behoof [if the defences received for their own utility, come out detrimental to others].

XI. Every government has the justest right to exact tributes from the subjects by law, provided they are no more than what are requisite for the prudent administration of publick affairs; as this publick expence is made for the behoof of all. The violating such laws by any subject [citizen] is equally criminal with theft. Nor is the injury so properly done to the governors, as to our fellow-subjects; who must be obliged to make up deficiencies occasioned by these frauds, some other way, and must be subjected to other burdens on this account; beside many other inconveniences. There is no other possible method, of making men contribute in just proportions to the publick charge, than by instituting a census, or valuation of all their fortunes.17

XII. These are the obligations of subjects toward their governors: first, they are sacredly bound to obey all their just laws and commands: and secondly, if the thing commanded be a matter committed to the power of the governor; ’tis generally the duty of subjects [citizen] to obey, even when they judge that the orders are <not quite honourable and> imprudent. This holds most obviously in military operations. For to allow the inferior to judge of his orders, and only to obey when he thinks them prudent for the good of the state, would destroy all military discipline, and reduce an army into a tumultuous mob.

3. Hence it follows that in matters committed to the wisdom of governors, the subjects [citizens] may act a just nay an honourable part in obeying such orders as were very criminal to their governor: the subject by obeying is preventing the greatest mischief; since from the relaxing of all order and government, far greater evils must generally ensue, than from the execution of very imprudent orders.

4. But if the thing commanded seems to the subject [citizen] so entirely pernicious and ruining to the state, that it were better to break through and destroy the authority of such commanders, than to execute such destructive orders: the subject [citizen] may refuse obedience. But in such matters they should use the utmost caution that they don’t judge amiss.

5. Where we are commanded to do any act directly irreverent and impious toward God, or contrary to the perfect rights of others; or where the matter commanded was not committed to the power of the commander; we are under no obligation to obedience. Nay ’tis often highly honourable to endure rather any punishment, than submit to a precedent that may be ruinous to our country. We shewed above* in what cases it is lawful for subjects [citizens] to resist their governors.18

The common duties of all subjects [citizens] must easily appear from the nature and origin of civil power and the political union. Their peculiar duties arise from their several stations, relations, and offices in the state.

CHAPTER IX

The Laws of War.

I. The rights of war and treaties <called external> are of that class which respect foreigners. The principal matters of right in war, as to their causes and bounds, were explained in the former book,{* } when treating of war among persons in natural liberty. The same maxims hold in the publick wars of states, which with respect to each other are in the same state of natural liberty.

As to publick wars of a less solemn kind, {without the order of sovereign states on both sides;} they may be sufficiently understood from what was already said about the right of governors to repress tumults and insurrections, and from the right of resistance that subjects may have in defence of themselves against {perfidious} governors.† “A war undertaken by order of independent states on both sides” is called a solemn <or just> war. Nor need we add to the definition [Nor it is always necessary], that it be previously proclaimed; tho’ it be highly becoming every civilized nation, {when they have recourse to force, to let all around know the grounds of it,} as soon as they can conveniently [when more weighty reasons are not opposing to it]. But ’tis plainly not incumbent on the nation invaded by another, to make a previous declaration before it defends itself. Nor is it always necessary that the aggressor should make such previous declaration; as perhaps his surest method of obtaining his right may be by surprizing the enemy; and a previous declaration might prevent his best opportunity of success.1 What has led ingenious and learned men to make a previous proclamation necessary, was too great a deference to the foecial laws among the Romans.2 But as contending by violence is not agreeable to {the rational and social} nature, ’tis unworthy of a good man, when he is forced to betake himself to it, not to declare openly, as soon as he can with safety, his motives and intentions, that all may see that he could not otherways obtain his right.3

As in civil wars there are often specious reasons on both sides; all neighbouring states should shew the same favour to both the contending parties as to these engaged in solemn wars. Nay in civil wars there are as frequently as in the solemn, just causes on one side, and specious ones on the other. Nor is either of the parties engaged in them to be deemed {like robbers or pirates,} abdicating or forfeiting all the rights of mankind.

II. The laws of war either respect the contending parties or neutral states. “What right reason shews necessary to be observed in war for the general interest of mankind” may be called the law of nations of necessary obligation. But “what a long tract of time has made customary, with a tacit approbation or consent of nations”; which however might be altered by contrary custom, or taken away at once by a timeous premonition of all concerned, we may call the voluntary law of nations.4

The just causes of war were explained in the former book.* But with respect to neighbouring states we may suggest, that as among citizens there are allowed actions at law for prevention of damages not yet done, and agrarian laws restrain such excessive acquisitions of wealth as may prove dangerous to the society, tho’ the acquisitions are not to be made by injurious means; so sometimes among neighbouring states, a dangerous increase of power in any one of them may give a just cause of war, if no gentler securities can be obtained: especially when the people of that state shew a general ambition of military glory and conquest, and quit all peaceful arts: so that their neighbours must be in perpetual dangers, unless they also quit the innocent arts of peace, and are always a training to war. But this is an instance of these extraordinary rights which seldom occur.

In publick wars the term of commencement, and the term of ending, <that is termini a quo, and ad quem> {or the bounds of our demands}, may be fixed the same way as those of private persons in natural liberty{; of which formerly}5 .

The just methods of carrying on war are open violence, or such arts of deceiving as carry along with them no profession or tacit engagement [agreement] of communicating our sentiments to the enemy.* Violence is justifiable only against men in battle, or such as violently obstruct our obtaining our rights; altho’ by the inhuman customs which have prevailed, men may exercise with impunity any sort of cruelties toward their enemies <as an external right>. ’Tis also very ordinary to deceive enemies by any false narrations, or any sort of discourse, except such as imports making some covenant or treaty with them. But as it is by treaties alone that either peace can be restored, or more humane methods of war maintained, and horrid mutual cruelties prevented; it never was, nor ought it to be allowed to deceive enemies by any form of treaties.6

III. There are many other obligations introduced by long custom importing tacit covenants; which however could be taken away by a timeous premonition of all concerned. Such as, that none should use poisons in war, or employ any of the enemies subjects or soldiers to assassinate their prince or their generals.7 That all messengers or envoys, or ambassadors sent on either side should have protection to their persons, is indeed matter of <natural and> necessary obligation; since it is by their means alone that peace can be obtained, without the entire destruction of one side, or any humane methods of war preserved. But ’tis matter only of voluntary right that passports should be mutually allowed, to any subjects of the hostile nation who come unarmed, to travel through their countries, or to reside in their cities.8

IV. Upon what grounds of justice the goods of the subjects of hostile states are seized mutually, comes next to be explained.

1. All states in amity are bound to restrain their subjects from depredations, or any way injuring the subjects of states around them: and when such injuries are done, they are obliged to compel the authors of them to make reparation. We speak now of subjects who are amenable by law, and not of pirates or robbers.

2. When such reparation is demanded and refused, the injured state may justly have recourse to force, seizing the <public or private> goods wrongfully taken, or if they can’t find them, taking to their value from the authors of the injury, or from the state, which by defending the depredators <and offering refuge to them> bring the guilt upon themselves. And this right is still more obvious if the injuries have been done by publick order.

3. If there’s no opportunity of seizing the publick goods of the injurious state, the injured may seize the private goods of any citizens of that state <to compensate the damage that has arisen from the injury>. For as the political constitution and the civil power was erected for the behoof of all the subjects [citizens], they are bound to repair any damages arising from this contrivance which they fell upon for their own utility.{* } And the civil powers by giving their protection, have plainly supported and excited their subjects to such injuries.

4. But then these innocent subjects who suffer thus by these reprisals, on account of their community, may justly claim from their community to have their losses repaired, out of the common stock, or out of the goods of the depredators. It certainly would be the more equitable and clear way, that goods thus seized as reprisals from the innocent subjects were only detained as pledges, till the injured state received reparation another way, and then were restored to the owners. But a contrary custom has prevailed;{† } and the old property is on all sides deemed to be extinguished, as soon as such <moveable> goods taken are brought into any fortresses of the captors, and adjudged, either to them or their community: so that should they even be retaken afterwards, the old proprietors cannot claim them <by right of postliminium.>9 Nor can {they be taken by violence, or} any claim be made upon them by the old proprietors, after they are any way legally acquired by any subjects of a neutral state, and brought within their territories.

V. The principal laws with respect to neutral states are briefly these. 1. A neighbour-state under no engagement to send auxiliaries to either side, ought neither to be involved in the war, nor sustain any damage by it.10

2. If the neutral state by some former treaties be obliged to send auxiliaries to both upon the event of wars; when its two confederates are at war with each other, it ought to send aids to neither; or if it is inclined to engage in war, it should send aids to that state whose cause it judges to be just. For all such offensive and defensive alliances bind only upon supposal that the cause be just: nor can they bind the neutral state to make war upon such as are allied to them by solemn treaties.

3. A neutral state may justly purchase, or take by any other title, any moveable spoils taken on either side after they are adjudged as lawful prize: nor can the former proprietors have any further claim upon them. The neutral states or their citizens are no competent judges of the justice of the war and the captures; and they may frequently be ignorant whether the goods they purchase are prizes taken in war or not.

4. But as to lands, forts, or cities [as to immoveable things] the case is different. The neutral state must know by what title they are held, and that they were taken from a state in amity with them: and by purchasing them they must preclude that state from retaking them again. What annual rents or services may be due {by any district or smaller town}, to any {great} city or fort <or land> {lately taken by the enemy}, may justly be paid by such as are neutral, to the present possessor; and the refusal of such payment might be deemed a declaration against the justice of the capture. If such great cities or forts [things] be again recovered by the old governors, the payments made to the enemy during his possession must be sustained as good; nor can the repayment of the same sums or services be demanded. But if the violent possessor <before the end of war> pretends to sell or alienate or relinquish for ever any such rents or services due by a neutral territory, or to exact payments of old debts, or to abolish them, the deed will not be valid against the old proprietor when he recovers his old possessions again.11

5. Whatever new favour is granted, by a neutral state to one of the parties in war, it must grant the like to the other{, if it would preserve neutrality}; such as the allowing any of its subjects to enlist, or hiring out its troops, or supplying with military stores. Indeed the sending arms or military stores, by way of merchandize, to either of the states in war, is deemed commonly by the other a breach of the neutrality; and they are accordingly seizable: and so are even common provisions into any place besieged.12

6. Neutral states must not be hindered in their commerce with either of the parties, except in arms or military stores{; the nature of which too ’tis not easy to define}. A neutral state may set to freight its merchant-ships to either side for trade. If they are taken, the enemy’s cargo is justly seizable, but not the ship. Neutral states may freight the ships of either side; and if they are taken, the cargo cannot be made a prize, but the ship may. Nor should any neutral state lose any right of pledge or mortgage formerly constituted, in any goods {moveable or immoveable} which happen to be taken in war.

7. Neither of the parties at war ought to use any violence against each other within the territories of a neutral state, by taking men, ships, or other goods of their enemies, {found in neutral ports}. And the territory of each includes not only their harbours, but any narrow bays running far into the land, the shoars, and such contiguous parts of the sea as are within reach of any military engines. For if such violence were allowed, a neutral state might suffer greatly by being made a seat of war; and their commerce with both sides must be entirely obstructed.

8. As to deserters and fugitives; neither of the contending parties can exercise any jurisdiction conjoined with force, over their own citizens within the bounds of a neutral state, except by commission first obtained from the civil powers of the neutral state. No state indeed should protect such as have been guilty of the more atrocious, detestable crimes; such criminals should be seized and delivered up to justice. But as to deserters in war from either side, or persons who have fled on account of religion, or any state-crimes they committed, in conjunction with any state-faction, upon some plausible shews of right; a humane custom has obtained that they should find protection in all other states, while they don’t make any new attempts against the civil powers of their country.

CHAPTER X

Of Treaties and Ambassadors, and the Entire Dissolution of States.

I. <Wars in general are setled by treaties>. The chief laws of nature about treaties were explained in the doctrine of contracts in natural liberty.{* } But we must remember that the exception of unjust force and fear cannot be admitted against the obligation of any treaties of peace; otherwise the old controversies <that occasioned the war> might always be kept a-foot. And yet such exceptions may justly take place when the war is manifestly and avowedly unjust on one side; or if the terms imposed {by the more potent side} are manifestly injurious and contrary to all humanity. In these cases the party injured may insist upon an arbitration; and if the other side refuse to submit to it, each side must by force consult its own safety and the maintenance of its rights{, by what aids it can find}.1

Treaties are divided into real, and personal: the personal, which are less in use, are entered into in favour of the prince’s person, and cease to bind upon his demise. The real, respect the body of the people, or the nation, which is deemed immortal.2 Treaties are also divided into the equal, {such as bring equal or proportionable burdens on each side,} and unequal {which bring unequal burdens}.3 But ’tis not every unequal treaty that any way impairs or diminishes the† majesty and independency of the side submitting to the greater burden.

Hostages in former ages were securities commonly given for performance of treaties, but they are now gone into disuse; because it would be exceedingly <barbarous and> inhumane to treat the innocent hostages any way harshly because of the perfidy of their country.

II. In making treaties ambassadors <or intermediaries> are employed. Their rights are all the same, whatever names are given them, if they are entrusted to transact the affairs of a sovereign state. Their persons should be sacred and inviolable, as we said above. They have a just natural right to demand that their proposals should be delivered. But as to an allowance to reside any time in the state to which they are sent, they may claim it as due out of humanity, but cannot insist on it as a perfect right. Since the business of the more active ambassadors is much the same with that of spies upon the nations where they reside. If they are allowed to reside; the law of nature would give them no higher rights or immunities, than any other foreigner might claim without any publick character.4

But by the voluntary laws of nations, they have many singular privileges and immunities, both for themselves and all their necessary retinue: all which however any state might without any iniquity refuse to grant them, if they give timeous intimation of their design to do so to all concerned.

1. This is customary in the first place, that no action can be brought against an ambassador or his necessary retinue{, such as his secretaries, or domesticks,} in any courts to which he was not subject previously to his taking this character. What has been in view in this custom, was this; that an ambassador, the more vigilant he is in his office, will be generally so much the more disliked and hated in the state where he resides: and therefor were he subject to its courts, he would not have a fair hazard for justice in a nation prejudiced against him. The subjects of the state where he resides may easily abstain from any contracts with him in which they may be wronged, since they can have no action against him. Should an ambassador {or his retinue} commit any outragious crimes; he may be sent home, and justice demanded of his constituents; the refusal of which may be a just cause of war. If any ambassador intermeddles in trade, his merchant-goods, except such as are necessary for his support in his embassy, are liable to attachments or arrests for the debts he contracts in trade [are subject to the state where he resides].

2. An ambassador’s house is deemed a sanctuary to himself and all his retinue and attendants: of which however a list may justly be demanded upon his admission; and the state where he is to reside have a right to fix what retinue of his they will receive {or grant immunities to}. But an ambassador by this privilege must not impair the jurisdiction of the state where he resides over its own subjects, by making his house a sanctuary for any criminals among them.

3. An ambassador has the ordinary power of the head of a family over his own domesticks; or such jurisdiction in their civil actions as his constituents have granted him. But neither an ambassador, nor even a prince residing in a foreign state, has a criminal jurisdiction or power of inflicting capital punishments upon his own subjects, except by permission of the state where he resides.

4. Inhibitions may justly be used against an ambassador, to restrain him from any outrages against our subjects: and they themselves have the natural right of repelling force by force.

5. No state is bound to admit any exiled criminal or fugitive subject of theirs, as an ambassador from any neighbouring state. But if such a one is sent with such commission, he cannot justly be seized or punished{, but he may be immediately ordered to quit our country}.

6. The honours and precedencies of ambassadors must be determined by express conventions or the tacit ones of long custom. The sole natural causes of precedency would be the superior excellency of the constitution of the state he represents; or his own superior personal worth <or virtue>. The absolute or hereditary power of his constituent is the worst reason of all; if we regard true merit, and not customs introduced by barbarians.

III. As to the dissolution of our political relations, we may <briefly> observe: that by perpetual banishment, one ceases to be a subject any further. But it is not so in temporary banishments; much less [nor] in perpetual confinements {to any remote parts of the state}.5

2. No man can claim it as his perfect right to quit his country without the permission of the civil powers or the laws, while it remains unaltered.

3. Where the old constitution is much altered, either by foreign force or any potent faction; subjects who dissent from these changes have a right to consult their own safety elsewhere. And provinces may resume their independency if they can: as they were subjected, as we said above,* only by their own consent, and that to a state constituted in a very different manner.

4. But upon any improvements made in a constitution, subjects [citizens] can have no just right to desert it.

5. Whatever changes be made by the citizens themselves in their own constitution, their treaties with foreigners still remain obligatory on both sides.

IV. We may from what was said above† see, what right any state can have to give up any part of its district, or any province with the people dwelling in it, to an enemy, or any foreign potentate. For first, as the several parts of any community, and even provinces, submitted themselves to the whole body for the common utility of the whole, in which each one was to share; the community has no right to give up or alienate any parts or any provinces without their own consent; or to oblige them to be subject to any other power, when they think they can otherways better consult their own interest. But on the other hand, as there can be no obligation to impossibilities; if a state cannot defend its more exposed parts, or its provinces; it must leave them unprotected: nay, if the safety of the whole cannot otherways be maintained, it may bind itself by a treaty to give no further defence to these parts or provinces. But such a treaty imposes no obligation upon the part or province so deserted, to submit to this new claimant. It may justly consult its own interest any other way; either by obtaining new confederates, or giving itself up to some other state upon as good terms as it can; that it may be protected against the present invader. For that covenant about the common defence of all, by which the several parts were united into one state, is now come into the case of contracts{* } about what proves impossible to be performed.

What is said about any part of a people or a province, holds also as to any brave citizen, whom an enraged enemy demands to be given up to him. Such a brave man in cases of the utmost extremity may be as it were abandoned; or no further protected. But his country has not a right to seize and deliver him to the enemy, or to hinder him to consult his safety elsewhere.

V. As to the entire dissolution of states; these maxims hold: when a state is entirely conquered, the several subjects of it, and the provinces too, have a right to secure themselves as well as they can; whether by adjoining themselves to any other state, or by attempting to set up a new sovereign state to themselves in the province. Citizens no doubt are bound to hazard all for their country, and not to despair too hastily about its safety. But if they have made all possible efforts for their country, and yet all in vain, they may justly consult their own safety as they can.

2. If by any unexpected accidents, a state which seemed extinct and conquered for some considerable time, finds opportunity of setting up again independently, its former subjects and provinces seem bound to reunite themselves to it; provided that during the conquest they came under no new and just engagements {inconsistent with this re-union}. For such engagements as the citizens or provinces of the ruined state have entered into with foreigners, without any fraud, while their former country seemed destroyed, must be as obligatory as any.

3. A state which has long continued conquered, and was made a province to the conqueror, has lost all its rights over any of its former citizens who have fled to other countries, and over its former provinces. And tho’ after a course of ages a new state should be formed in the same tracts of land formerly occupied by the old state; this new state can claim none of the peculiar rights of the old one. The states occupying the same lands in different ages may be quite different political bodies: and the political body may remain the same when they change entirely their lands, nay while they have none at all in possession.

While our country remains, all good men should be united in this purpose, to deem nothing too hard to be endured or done for its interest; provided it be consistent with the laws of that more antient and sacred association of all mankind, of which God is the parent and governor. “Our children are dear to us, our wives are dear, so are our parents, our kinsmen, our friends and acquaintance. But our country contains within it all these objects of endearment, and preserves them to us: and therefor every good man should be ready to lay down his life for it, if he can thus do it service.”6

finis

BIBLIOGRAPHY OF ANCIENT LITERATURE REFERRED TO BY HUTCHESON

• Andronicus. De passionibus
• Aristotle. Ethica Nicomachea
• ———. Politica
• Cicero. De finibus bonorum et malorum
• ———. De officiis
• ———. Tusculanae disputationes
• ———. De natura deorum
• ———. De inventione
• ———. Lelius de amicitia
• ———. Cato maior de senectute
• ———. Pro Milone
• Epictetus. Enchiridion
• ———. Dissertationes ab Arriano digestae
• Livius. Ab urbe condita libri
• Horace. Carmina
• ———. Epistulae
• Justinian. Corpus iuris civilis
• Nemesius. De natura hominis
• Ovid. Metamorphoses
• Persius. Saturae
• Plato. Phaedrus
• ———. Respublica
• ———. Timaeus
• Tacitus. Annales
• Xenophon. Memorabilia

BIBLIOGRAPHY OF MODERN LITERATURE

The list comprises works referred to by Hutcheson and by the Editor in the notes and Introduction.

• Barbeyrac, Jean. Discours sur le benéfice des loix, où l’on fait voir, qu’un honnête homme ne peut pas toujours se prévaloir des droits et des privilèges que le loix donnent. Amsterdam, 2d ed. 1717. (See below, Pufendorf.)
• ———. Discours sur la permission des loix, où l’on fait voir, que ce qui est permis par le loix, n’est pas toujours juste et honnête, Amsterdam, 1716. (See below, Pufendorf.)
• Bynkershoek, Cornelis van. De dominio maris dissertatio. 1702. A photographic reproduction of the second edition, in Opera minora, 1744, pp. 352–424. New York: Oxford University Press, 1923.
• ———. De foro legatorum liber singularis. A monograph on the jurisdiction over ambassadors in both civil and criminal cases. A photographic reproduction of the text of 1744 with an English translation by Gordon J. Laing and an introduction by the late Jan de Louter. Oxford: Clarendon Press, 1946.
• ———. Quaestionum juris privati libri quatuor. Leiden, 1744.
• ———. Traité du juge competent des ambassadeurs: Tant pour le civil, que pour le criminel. Traduit du Latin de Mr. de Bynkerhoek par Jean Barbeyrac. The Hague, 1723.
• Campbell, Archibald. An Enquiry into the Original of Moral Virtue. Edinburgh, 1733.
• Carmichael, Gershom. Natural Rights on the Threshold of the Scottish Enlightenment:The Writings of Gershom Carmichael, ed. J. Moore and M. Silverthorne. Indianapolis: Liberty Fund, 2002.
• Cumberland, Richard. De legibus naturae, 1672. Translated by John Maxwell, London, 1727.
• Filmer, Robert. Patriarcha, or the Natural Power of Kings. London, 1680.
• Greig, J. Y. T. The letters of David Hume. Oxford: Clarendon Press, 1932.
• Grotius, Hugo. De iure belli ac pacis libri tres, in quibus ius naturae et gentium, item iuris publici praecipua explicantur. Paris, 1625.
• ———. Les Droit de la guerre et de la paix. Trans. Jean Barbeyrac, 2 vols., Amsterdam, 1724.
• Haakonssen, Knud. Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge: Cambridge University Press, 1996.
• Harrington, James. The Commonwealth of Oceana. London, 1656.
• Heineccius, Johann Gottlieb. Antiquitatum Romanarum jurisprudentiam illustrantium Syntagma,secundum ordinem Institutionum Justiniani digestum, in quo multa iuris romani atque auctorum veterum loca explicantur atque illustrantur. Strassbourg, 1724.
• Hooker, Richard. Of the Laws of Ecclesiastical Polity. London, 1593.
• Hume, David. A Treatise of Human Nature. London, 1739–40.
• Hutcheson, Francis. An Essay on the Nature and Conduct of the Passions and Affections. With Illustrations on the Moral Sense. London, 1742.
• ———. An Inquiry into the Original of our Ideas of Beauty and Virtue; In Two Treatises. I. Concerning Beauty, Order, Harmony, Design. II. Concerning Moral Good and Evil. London,1738.
• ———. Synopsis metaphysicae, ontologiam & pneumatologiam complectens. Glasgow, 1744.
• ———. Philosophiae moralis institutio compendiaria, Ethices & Jurisprudentiae Naturalis elementa continens. Glasgow, 1742, 2d ed. 1745.
• ———. A Short Introduction to Moral Philosophy. Glasgow, 1747.
• ———. A System of Moral Philosophy. London, 1755.
• ———. “Observations on the Fable of the Bees,” The Dublin Weekly Journal 4, 12, and 19 February 1726. Reprinted in Collected Works, vol. VII. New York: Garland, 1971.
• ———. “Reflections upon Laughter,” The Dublin Weekly Journal, 5, 12, and 19 June 1725. Reprinted in Collected Works, vol. VII. New York: Garland, 1971.
• Iustinianus. Corpus iuris civilis.
• King, William. De Origine Mali. London, 1702.
• La Bruyère, Jean de. Les caractères de Théophraste traduit du Grec avec Les caracterères ou le moeurs de ce siècle. Bruxelles, 1688.
• Leechman,William. Preface to A system of Moral Philosophy. Glasgow, 1755.
• Leibniz, Gottfried Wilhelm von. Jugement d’un anonyme sur l’orginal de cet abrégé [De officio]: avec des réflexions du Traducteur. (Published in Pufendorf, Les Devoirs de l’homme, et du citoien. pp. 429–95; see below.)
• Locke, John. An Essay concerning Human Understanding. London, 1690.
• ———. Two Treatises of Government. London, 1690.
• Malebranche, Nicolas. De la recherche de la verité: Ou l’on traite de la nature de l’esprit de l’homme et de l’usage qu’il en doit faire pour éviterl’erreur dans les Sciences. Paris, 1674–78. (First English translation by Thomas Taylor with the title Father Malebranche’s Treatise concerning the Search after Truth. Oxford, 1694.)
• Mautner, Thomas. Francis Hutcheson: On Human nature. Cambridge: Cambridge University Press, 1993.
• Moore, James. “The Two Systems of Francis Hutcheson: On the Origins of the Scottish Enlightenment.” In Studies in the Philosophy of Scottish Enlightenment, edited by M. A. Stewart, 1990, pp. 37–59.
• More, Henry. Enchiridion Ethicum, 1679, 2d ed., in Opera Omnia, London, 1629.
• More, Thomas. The Utopia of Sir Thomas More. In Latin from the edition of March 1518, and in English from the first edition of Ralph Robynson’s translation in 1551, with additional translations, introduction and notes, by J. H. Lupton. Oxford: Clarendon Press, 1895.
• Pufendorf, Samuel von. De jure naturae et gentium libri octo. Lund, 1672.
• ———. Le droit de la nature et des gens ou systeme general des principes les plus importans de la morale, de la jurisprudence, et de la politique. Trans. Jean Barbeyrac, 2 vols., Basle, 1732.
• ———. De officio hominis et civis iuxta legem naturalem libri duo. Lund, 1673.
• ———. Les Devoirs de l’homme, et du citoien. Ed. J. Barbeyrac. Amsterdam, 1718.
• ———. The Whole Duty of Man According to the Law of Nature. Together with Two Discourses and a Commentary by Jean Barbeyrac. Edited by Ian Hunter and David Saunders. Indianapolis: Liberty Fund, 2002.
• Scott, William Robert. Francis Hutcheson: His Life, Teaching and Position in the History of Philosophy. Cambridge: Cambridge University Press, 1900.
• Shaftesbury, Anthony Ashley Cooper, Third Earl of. Characteristicks of Men, Manners, Opinions, Times. London, 1714. 2d ed. Edited by L. E. Klein, Cambridge: Cambridge University Press, 1999.
• Sidney, Algernon. Discourses Concerning Government. London, 1698.
• Titius, Gottlieb Gerhard. Observationes in Samuelis L. B. de Pufendorf De officio hominis et civis juxta legem naturalem libri duos. Leipzig, 1703.
• Vinnius, Arnoldus. In quattuor libros Institutionum imperialium Commentarius academicus et forensic. Amsterdam, 1692.
• Wicquefort, Abraham van. L’Ambassadeur et ses fonctions. La Haye, 1681.

This book is set in Adobe Garamond, a modern adaptation by Robert Slimbach of the typeface originally cut around 1540 by the French typographer and printer Claude Garamond. The Garamond face, with its small lowercase height and restrained contrast between thick and thin strokes, is a classic “old-style” face and has long been one of the most influential and widely used typefaces.

Printed on paper that is acid-free and meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials, z39.48-1992. (archival)

Book design by Louise OFarrell Gainesville, Florida

Typography by Apex Publishing, LLC Madison, Wisconsin

Printed and bound by Worzalla Publishing Company Stevens Point, Wisconsin

[1. ]The same stress on instruction of the offspring as the chief aim of marriage and on the duties of both parents is found in Carmichael (Notes on Puf., pp. 128–29).

[2. ]See Hutcheson, System 3.1.2, vol. II, pp. 151–52, and Inquiry on Virtue 6.3, pp. 251–52.

[3. ]Apart from the following section (see the following note), the chapters on marriage in the Institutio and System give the same arguments in the same order.

[* ]{See Plato’s scheme in his books de Republica. The evils avoided by his scheme, are avarice, and injustice; vast estates, and the attendant power and influence, descending to worthless heirs; the employing mens affections upon the contracted system of a family or two, which otherways might be extended to the whole state: and thence many dissentions and factions.} [In System 3.1. Plato’s plan in Book V of Republic is criticized at the end of the chapter on marriage (Section XIV, pp. 184–87), beginning with a summary of the evils Plato wanted to avoid. This is likely the reason why the translator added this note.]

[4. ]Cf. Pufendorf, De officio 2.2.2.

[5. ]Cf. Pufendorf, De officio 2.2.3.

[6. ]See Pufendorf, De officio 2.2.4, point 1; Carmichael, Notes on Puf., p. 129; Hutcheson, System 3.1.4, vol. II, pp. 156–57.

[7. ]Cf. Notes on Puf., p. 130.

[8. ]The same argument is found in J. Locke, Two Treatises 2.7.80, and G. Carmichael, Notes on Puf., p. 129.

[9. ]Locke (Two Treatises 2.7.82) and Pufendorf (De officio 2.2.4, point 3) mitigate, but still ascribe to the husband, the right of governing the family. Hutcheson reduces this power further. See System 3.1.7, pp. 163–66, where he enlarges on this subject.

[* ]If any one in this matter insists that simultaneous polygamy was allowed in some civilized nations; let him remember that so were also human sacrifices, and a certain sort of slavery manifestly iniquitous and inhuman, in far more civilized [many] nations. And tho’ a plurality of wives was allowed by the Jewish law; yet a far purer institution informs us, that it was permitted for the hardness of their hearts; or only allowed to pass with impunity, but not approved. The concubinage both in Heathen Rome and under the Christian emperors [according the Roman law] was allowed only to such as had no wives, and was a marriage naturally lawful. See Heineccius’ antiquities, in the appendix to lib. i. c. 38. and the following ones. [Johann Gottlieb Heineccius, Antiquitatum Romanarum jurisprudentiam illustrantium Syntagma, Argentorati, 1724. The reference to the Christian emperors is not in the Institutio, but in System 3.1.6, p. 162 note, a further clue that the translator had a copy of Hutcheson’s posthumous work.]

[10. ]In his letter to Hutcheson of Jan. 10th, 1743, Hume says that Hutcheson is too “much afraid to derive any thing of Virtue from Artifice or human Conventions” and neglects the “most satisfactory reason” for inspiring “an artificial Horror” toward marriage between collaterals “lest near Relations, having so many Opportunities in their Youth, might debauch each other.” In System 3.1.10, pp. 170–73, Hutcheson argues in detail against the artificial account and sticks to the hypothesis of “some early divine prohibition,” according to the talmudic tradition of the Noahide Laws.

[* ]See Levit. xviii. and Tacitus’s Annals, 12. 5. Digest. 33. t. 2. 1. 17. and last. and Lib. 39. 1. 53. and Grotius ii. 5. 12. [The reference to Justinian’s Digest is wrong. The impediments for marriage from consanguinity are treated in Lib. 23, titulus 2, “De ritu nuptiarum.”]

[11. ]In System 3.1.10, vol. II, p. 174, Hutcheson’s language is not so detached: “Among the other frauds of Popery, their canonists, to draw more money to their courts for dispensations, encreased the prohibition exceedingly.” For other strictures against the church of Rome, “the fruitful source of all corruption and superstition,” see also p. 168 and pp. 180–83.

[* ]Matth. v. 32, Luke xvi. 18.

[12. ]See above, p. 205 and note.

[† ]1. Corinth. vii. 15.

[13. ]See System 3.1.11, vol. II, pp. 176–79 and note at p. 179. Hutcheson wants to show that the Scripture allows lawful cases of divorce beyond that of adultery (“unreasonable desertion” or “implacable hatred or enmity, sufficiently declared on one side”).

[1. ]See System 3.2.[1], vol. II, pp. 188–89.

[* ]This is designed against Hobbes and Filmer.

[2. ]This passage is rather implicit. Robert Filmer, quoting Grotius (De iure belli 2.5.1), derived the absolute power of father over children from begetting them. Locke (Two Treatises 1.6, 52–54) objected ironically that children are not the workmanship or artifact of parents, but—as Hutcheson says in the next sentence—are formed by the divine power. Hobbes in De cive 9, 2–3, and Leviathan, 1651, chapt. 20, 102–3, says that in the state of nature the power over the child is in the mother “as she may either nourish, or expose it.” For Hutcheson this meant treating children as “specifications” of the father (Filmer) or accessions of the mother (Hobbes). In System 3.2.2, vol. II, pp. 190–92, Hutcheson enlarges on the subject. See also Pufendorf, De officio 2.2.4.

[3. ]See System 3.2.5, vol. II, p. 197.

[* ]See Book II. ch. xiv. 2. of obligations resembling those from contracts: and the following ch. v. 2.

[4. ]See System 3.2.5, vol. II, p. 198.

[1. ]Cf. Pufendorf, De officio 2.4.1.

[2. ]Titius, cited by Carmichael, Notes on Puf., p. 139.

[* ]Book II. xii. 4. [See Book II, chapt. ix.5 and chapt. xiii.4. The section referred to by the translator is wrong.]

[3. ]See Pufendorf, De officio 2.4.3.

[4. ]Hutcheson, with Carmichael (Notes on Puf., pp. 142–44 and note) and against Pufendorf and Barbeyrac rejects the idea of the slave as property and children born by a mother-slave as her fruit. See also System 3.3.1, vol. II, pp. 199–201.

[5. ]See System 3.3.1, vol. II, p. 201.

[* ]See the following ch. ix. 4. <and 5>.

[† ]See Book II. xv. 5, 8. On this subject of slavery many just reasonings are to be found in Mr. Locke’s 2d. book on government; and Mr. Carmichael’s notes on Puffendorf, Book II. ch. iv. [In the Latin text “On this subject . . . etc” is a distinct note placed before Hutcheson’s list. So Hutcheson acknowledges that all his “maxims” (not just the second one) are based on Locke, Two Treatises 2. 16 and Carmichael’s notes on Pufendorf. Infact from Locke, Hutcheson derives the idea that even in a just war, the conquerors have not the right to enslave a nation, but only the governors and, even in that case, they cannot deprive their females and children of their land and property. From Carmichael, who quotes Locke approvingly, stem the ideas that most of the conquered are innocent, that a slave is not to be considered a property or a merchandise, that children of slave are born free.

[6. ]See System 3.3.3, vol. II, pp. 204–5.

[7. ]See System 3.3.4, vol. II, p. 208.

[* ]Book II. xiv. 3. {See Mr. Locke on govern. Book II. as also Hooker’s. Ecles. Polity, and Sidney on Government.} [Richard Hooker, Of the Laws of Ecclesiastical Polity (London, 1593); Algernon Sidney, Discourses Concerning Government (London, 1698).]

[8. ]See Carmichael, Notes on Puf., p. 141 for the same argument. See also System 3.3.6, vol. II, pp. 210–11.

[9. ]Square parenthesis in the original text.

[10. ]See System 3.3.5, vol. II, p. 210.

[1. ]Square parenthesis in the original text. This definition is not in the Institutio.

[2. ]Aristotle, Politica, 1253a.3, 1278b.19. See System 3.4.1, vol. II, p. 212.

[3. ]Cf. System 3.4.2, vol. II, p. 214.

[4. ]See System 3.4.1, vol. II, p. 213.

[5. ]See System 3.4.2, vol. II, p. 215.

[6. ]Cf. System 3.4.2, vol. II, pp. 216–17.

[7. ]See Carmichael, Notes on Puf., pp. 146–47, for the same argument directed against Titius and Barbeyrac, who rejected Pufendorf’s idea of general agreement as the origin of civil society, and ascribed it to the violence of ambitious and cunning men (cf. Titius, Observationes, nos. 547 and 555, and Pufendorf, De iure nat. 7.1.6, Barbeyrac’s note 1).

[8. ]Cf. System 3.4.6, vol. II, pp. 224–25.

[9. ]Cf. System 3.4.4, vol. II, p. 221.

[* ]The author has here in view Hobbes; and Puffendorf, both in his greater and lesser book, who has too blindly followed Hobbes {, nay even transcribed his very words}. [The translator, as well Hutcheson, may have in mind those passages of Pufendorf, such as De iure nat. 2.2.2 or De officio 2.1.9, where Pufendorf is echoing Hobbes, De cive 1.13.]

[† ]{Thus subjects are bound to pay taxes, for the common interest, for fortifying or defending the state. But each one in liberty must on his part be at greater charges, either for his own conveniency, for fortifying his house and arming his domesticks, or for hiring assistance. Each subject may be obliged to hazard his life for the state. But so each one in anarchy may more frequently for his own defence. Subjects submit to a power of life and death over themselves in criminal jurisdictions. But so each one in anarchy is subjected to a worse power of any inraged person who alleges he is injured by him, and intituled to use force for redress. If by a power of life and death one means an arbitrary power in a governor, upon any caprice, without a crime alleged, to take mens lives away; no such power is in any wise polity; nor can any human deed constitute it.} [The translator derives the added text and this note from what Hutcheson says in System 3.4.5, vol. II, pp. 222–23.]

[1. ]Cf. Locke, Two Treatises 2.15.

[2. ]Cf. Locke, Two Treatises 2.16.175. See also System 3.5.1, vol. II, pp. 225–26.

[* ]See Mr. Carmichaell’s notes on Puffendorf, Lib. II. vi. 9. [Notes on Puf., pp. 148–49.]

[3. ]See Pufendorf, De officio 2.6.7–9, De iure nat. 7.2.6–8. Cf. also System 3.5.2, vol. II, pp. 227–28.

[4. ]Locke, on the contrary, says that no one can “by any Compact whatsoever, bind his Children or Posterity” (Two Treatises 2.8.116). The difference from Locke is slightly more explicit in the corresponding paragraph of System 3.5.3, vol. II, pp. 228–31. In his letter to Hutcheson of Jan. 10th, 1743, p. 48, Hume writes: “You imply a Condemnation of Locke’s Opinion, which being the receiv’d one, I cou’d wisht the Condemnation had been more express.”

[† ]{This is an obligation quasi ex contractu. See Book II. xiv. 2.} This added note is suggested by System 3.5.3, point 2, vol. II, pp. 229.

[5. ]Cf. Locke, Two Treatises 2.8.117 and 120.

[6. ]Cf. Locke, Two Treatises 2.8.121.

[7. ]See Pufendorf, De officio 2.6.10, De iure nat. 7.2.13.

[* ]{Ch. ix. and x. of this book.}

[8. ]Hutcheson’s list of powers is in part different from Pufendorf’s list (De officio 2.15 or De iure nat. 7.4.1–8) and Locke’s (Two Treatises 2.12). See also System 3.5.5–7, vol. II, pp. 234–38.

[* ]{Book II. ch. 16. art. 3. near the end.}

[9. ]See Carmichael, Notes on Puf., p. 158.

[10. ]See System 3.5.8, vol. II, pp. 239–40.

[1. ]See System 3.6.1, vol. II, pp. 240–41.

[* ]{The characters of aristocracy, are cooptation by the senate, to a perpetual seat, and a limitation to certain eminent families, distinguished by fortune, or bearing great offices. The characters of democracy are popular elections, temporary seats, and access to all citizens to stand candidates. There’s in many constitutions a mixture of these different characters.} [This note added by the translator is not suggested by Hutcheson’s System.]

[2. ]See System 3.6.2, vol. II, pp. 241–43.

[3. ]System 3.6.3, vol. II, pp. 243–47, contains the same three points. Hutcheson emphasizes the relevance of large landed property for the stability of the civil power in whatever form of government. James Harrington in his Oceana (1656) considers the agrarian law limiting and evenly distributing land to the people fundamental law to a long lasting commonwealth. For his defence of the agrarian laws against detractors, see Oceana, part 3.1.]

[* ]{Of this we have a clear instance in the Roman state, till the plebeians got access even to the consulate.} [Also this footnote is a free addition by the translator.]

[4. ]See System 3.6.3, vol. II, p. 252.

[5. ]See System 3.6.3, vol. II, pp. 249–51.

[6. ]More literally: “’tis equally right that smaller neighbouring states, when justly suspicious of the wealth of anyone of the others, especially if the latter is excited by an ambition of conquest, put limits to its increase of wealth, even by violence if it is not possible otherwise, before it turns out to be so great that their safety and liberty is no more secured.”

[7. ]See System 3.6.4, vol. II, pp. 252–54.

[8. ]The observations on aristocracies and democracies in System 3.6.5–6, vol. II, pp. 254–58, are much more detailed than in the Institutio.

[* ]All these points are fully explained by Harrington. [Cf. System 3.6.6 and 7, point 8, vol. II, pp. 257 and 264. James Harrington, in his Oceana, part 3 (1656), plans a complex system of secret ballots, drawing representatives by lot and rotation of magistrates in order to avoid corruption and sedition.]

[* ]{Plato, Aristotle, Zeno, Cicero.} [See System 3.6.7, vol. II, pp. 258–59. Here Hutcheson refers to Aristotle, Politica, books IV–VI, and to Harrington.]

[9. ]Hutcheson mentions the Harringtonian rotation of one third of the representatives only in System 3.6.8, vol. II, p. 261.

[10. ]See System 3.6.5–8. point 7, vol. II, p. 263.

[11. ]Ibidem, point 10, p. 265.

[1. ]See System 3.7.1, vol. II, p. 266. These opening paragraphs are to be contrasted with what Pufendorf says in De officio 2.9 on the supremacy, superiority and particular sanctity of the sovereign authority. See also Carmichael, Notes on Puf., pp. 162–65.

[2. ]See System 3.7.3, vol. II, p. 271, and vol. 4, p. 276.

[3. ]See System 3.7.2, vol. II, p. 268–70.

[4. ]Hutcheson, as well as Carmichael (Notes on Puf., pp. 169–71), plays down the differences between absolute and limited governments made by Pufendorf in relation to the people’s right of resistance.

[5. ]See System 3.7.4, vol. II, p. 273–74.

[6. ]Cf. System 3.7.6, vol. II, pp. 279–80, and Locke, Two Treatises 2.18, sections 207–8, and 2.19, sections 223–26.

[7. ]See Pufendorf, De officio 2.10.4 and De Iure nat. 7.7.7–10.

[8. ]That “interregna have the character of a temporary democracy” is what Pufendorf says in De interregnis (Dissertationes academicae selectae, Upsaliae 1677, pp. 261–301), and Carmichael quotes approvingly (Notes on Puf., p. 184).

[9. ]See System 3.7.5, vol. II, pp. 278–79.

[10. ]See System 3.7.7, vol. II, p. 281–82.

[11. ]See System 3.8.3, vol. II, pp. 286–89, where Hutcheson refers to Locke, Two Treatises 1.11. Hutcheson, following Locke’s arguments against Robert Filmer, sees a contradiction between the pretended divine institution of hereditary government and the positive character of the laws of succession.

[* ]See Book II. Ch. 8. 4. {The decisions of some questions about the succession in hereditary lineal kingdoms, turn upon very fantastick reasons. Some allege proximity as a natural reason; and yet an elder cousin-germain’s grandchild, shall often be preferred to a younger cousin-germain. They say too that seniority is a natural reason of preference; and yet the infant-grandchild of a deceased elder-brother takes before a second-brother of mature years. The preeminence of sex too is made a great matter; and yet the infant-grand-daughter by an elder-uncle deceased, shall take before a younger-uncle. In general, these potent causes of preference, proximity, seniority, and the sex, are not regarded as they are found in the competitors themselves; but as they were perhaps in their great-grandfathers or great-grandmothers, deceased an age or two before.} [This added footnote derives from what Hutcheson says in System 3.8.3, vol. II, p. 287–88.]

[* ]{Upon this subject see Locke on Government; whose reasonings are well abridged in Mr. Carmichaell’s notes on Puffendorf’s smaller book. Book II. ch. x.} [See Locke, Two Treatises 2. 16 and Carmichael, Notes on Puf., pp. 175–80.]

[‡ ]Book II. ch. xv. 5. 8. and Book III. ch. iii. 2.

[‡ ]{The reasonings in this and the following articles are designed against the pleas of Grotius and Puffendorf for the rights of conquest, and patrimonial kingdoms, or principalities, founded on it.}

[* ]{See Book III. ch. iii. 2.}

[12. ]For the patrimonial kingdoms, see Pufendorf, De officio 2.9.7 and De iure nat. 7.6.16; Carmichael says that “patrimonial kingdoms scarcely ever have a just beginning,” that they “are imperfect states,” that their ownership “does not include civil government over the people” (Notes on Puf., pp. 180–82).

[* ]The reasons here confuted are found in Grotius, L. I. iv. [The corresponding footnote of the Institutio refers to De jure belli 1.3.12. See also System 3.8.7, vol. II, pp. 297–99.]

[* ]§ 8th of this chap. [The Institutio rightly refers to 2.15.5 and 8 and 3.3.2.]

[13. ]The reference to King James II is as explicit here as in System 3.8.11, vol. II, p. 305–6. A more serene condemnation of the king is in Carmichael, Notes on Puf., pp. 185–87.

[14. ]For the same defense of the rights of the American colonies see System 3.8.12, vol. II, pp. 306–9.

[1. ]See System 3.9.1, vol. II, pp. 310–11.

[2. ]See System 3.9.1, vol. II, pp. 312–13.

[3. ]Cf. Pufendorf, De officio 2.11.4.

[4. ]See System 3.9.2, vol. II, pp. 313–14.

[5. ]See System 3.9.3, vol. II, p. 317.

[6. ]Whereas Pufendorf explains the duties of sovereigns (De officio 2.11, De iure nat. 7.9) and Barbeyrac, in his long note 8 to De iure nat. 7.9.2, lists the virtues requisite to the sovereign, Hutcheson turns to the virtues to be encouraged among citizens and is back to the four cardinal virtues, with industry instead of wisdom.

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

[8. ]Cf. System 3.9.4, vol. II, pp. 320–21. Hutcheson clearly reacts to Mandeville’s thesis and uses some of the arguments put forward in his “Observations on the Fable of the Bees,” The Dublin Weekly Journal, Nos. 45–47, 1726.

[9. ]See System 3.9.4, vol. II, pp. 318–20.

[* ]<Inst. Lib. IV. tit. 16. cum Comment. Vinnii.> [Arnoldus Vinnius, In quattuor libros Institutionum imperialium commentarius academicus & forensis, Amstelodami, 1692. The title 16 of the fourth book of Justinian’s Intitutions prescribes fines and penalties for litigious goers to law. Hutcheson enlarges on this subject in System 3.9.5, pp. 322–23.

[10. ]A more detailed support for a popular militia is in System 3.9.6, pp. 323–25.

[* ]On these two heads there are two good orations of Barbeyraque, annexed to his translation of the smaller book of Puffendorf, De legum permissione et beneficiis. [Jean Barbeyrac, Discours sur la permission des loix, où l’on fait voir, que ce qui est permis par le loix, n’est pas toujours juste et honnête, (Amsterdam, 1716) and Discours sur le benéfice des loix, où l’on fait voir, qu’un honnête homme ne peut pas toujours se prévaloir des droits et des privilèges que le loix donnent. Amsterdam, 1717. Both orations are translated in Pufendorf, The Whole Duty of Man According to the Law of Nature. Together with Two Discourses and a Commentary by Jean Barbeyrac, ed. Ian Hunter and David Saunders (Indianapolis: Liberty Fund, 2002). See System 3.9.9, vol. II, pp. 328–29. This footnote in the Institutio is placed after the next sentence.]

[11. ]See Pufendorf, De officio 2.14 and System 3.9.10, pp. 329–31.

[12. ]For these and the following sentence, see Pufendorf, De officio 2.13.6–8.

[13. ]See System 3.9.10, vol. II, pp. 333–35.

[14. ]Cf. Pufendorf, De officio 2.13.18. See also System 3.9.13, vol. II, pp. 336–38.

[15. ]Compare Pufendorf, De officio 2.13.20.

[16. ]Compare Pufendorf, De officio 2.13.19. See also System 3.9.15, vol. II, pp. 339–40.

[17. ]Cf. Pufendorf, De officio 2.11.10 and System 3.9.16, vol. II, pp. 340–42.

[* ]Book III. vii. 2.

[18. ]Compare Pufendorf, De officio 2.12.8–9. See also System 3.9.17, vol. II, pp. 342–43. In the following section of System, 343–47, the citizen’s obligations to obedience are discussed in relation to the right of resistance.

[* ]{Ch. xv.} [2.15.6–8.]

[† ]Book III, vii.2.

[1. ]A new paragraph in the Institutio.

[2. ]The great deference was rather to the authority of Cicero, often quoted by all the natural law jurists. In De officiis, 1.36 Cicero refers to the Roman “ius fetialis” and states that no war can be just unless there is a previous claim for damage and formal declaration, which was made by an appointed college of priests, the fetiales.

[3. ]In System 3.10.1, vol. II, p. 348, Hutcheson refers to the work of the Dutch jurist Cornelius van Bynkershoek (1673–1743), Quaestionum juris privati libri quatuor (Lug-duni Batavorum, 1744), book 1, chapt. 2, where it is argued against Grotius that wars may be lawful without a formal declaration. The whole first book of Bynkershoek’s work considers the matter treated by Hutcheson in this chapter.

[4. ]This distinction between natural and customary or voluntary law of nations is discussed by Carmichael, Notes on Puf., pp. 202–3.

[* ]Ch. xv. [2.15.6.]

[5. ]See Book II. xv. 7–8.

[* ]Book II. x. 2 and 3.

[6. ]Cf. Pufendorf, De officio 2.16.5.

[7. ]See ibidem, 2.16.12.

[8. ]See System 3.10.5, vol. II, pp. 352–56.

[* ]{Book II. xiv. [xv] 2. and Book III. iii. 2, art. 5.}

[† ]{Probably with a view to make the soldiers more active in distressing the enemy: as large shares of the goods taken are usually given to the captors.} [This added footnote is not derived from the parallel section of System 3.10.7, vol. II, pp. 355–56.]

[9. ]See Grotius, De jure belli 3.9.14–15. Postliminium is originally the recovery of rights by a returning Roman citizen who had been a prisoner of war.

[10. ]This section is parallel to System 3.10.8, vol. II, pp. 356–62, but perhaps more orderly. Grotius, devoted only a brief chapter to neutral states (De jure belli 3, 17). The first book of Bynkershoek’s Quaestionum juris privati libri quatuor has many chapters devoted to the matter (1.9–16 and 22).

[11. ]More literally: “But the new possessor (unless the war is ended) has no right to abolish for ever these services or the payments of debts, so that the old proprietor, when he recovers his possession, can not claim what is due to him [by the neutral state].”

[12. ]More literally: “Indeed neutral states can not sell arms or carry provisions into a city or a place besieged, if they do not want to mix in the war.”

[* ]{Book II. ix.}

[1. ]Cf. System 3.10.10, vol. II, pp. 363–65; Pufendorf, De iure nat. 8.8.1; Grotius, De jure belli 2.17.19 and 3.19.11.

[2. ]Cf. Pufendorf, De officio 2.17.7.

[3. ]Cf. ibidem 2.17.3–4.

[† ]Book III. v. 5.

[4. ]This section is parallel to System 3.10.12–14, vol. II, pp. 366–71, and perhaps a more orderly account. Grotius devoted a chapter to the right of legacies (De jure belli 2, 18). See also footnote 1 by Jean Barbeyrac to Pufendorf, De iure nat. 8.9.12. In System Hutcheson refers to Cornelius van Bynkershoek’s De Foro Legatorum Liber Singularis and to the Dutch diplomat (1606–1682) Abraham de Wicquefort’s L’Ambassadeur et ses fonctions, 1682.

[5. ]These last three sections of the Institutio are more orderly and complete than the parallel sections of System 3.11.1–3, vol. II, pp. 372–76.

[* ]Book III. vii. 8, 9, 10.

[† ]<Book III.iv and v.>

[* ]{Book III. vii. 8, 9, 10.}

[6. ]Cicero, De officiis 1.57.5.