The Online Library of Liberty

A project of Liberty Fund, Inc.

• Collector’s Acknowledgments
• Collector’s Foreword
• Introduction the Reputation of James Wilson
• The Text
• Part I: Political Papers, Speeches, and Judicial Opinions of James Wilson
• Considerations On the Nature and Extent of the Legislative Authority of the British Parliament, 1774.
• Speech Delivered In the Convention For the Province of Pennsylvania, Held At Philadelphia, In January, 1775.
• An Address to the Inhabitants of the Colonies (1776). *
• An Address to the Inhabitants of the Colonies Submitted to the Continental Congress.
• Considerations On the Bank of North America 1785. A
• Remarks of James Wilson In the Federal Convention, 1787.
• James Wilson’s State House Yard Speech October 6, 1787. *
• Remarks of James Wilson In the Pennsylvania Convention to Ratify the Constitution of the United States, 1787.
• Oration Delivered On the Fourth of July 1788, At the Procession Formed At Philadelphia to Celebrate the Adoption of the Constitution of the United States.
• Speech On Choosing the Members of the Senate By Electors; Delivered, On the 31st December, 1789, In the Convention of Pennsylvania, Assembled For the Purpose of Reviewing, Altering, and Amending the Constitution of the State. a
• Speech Delivered, On 19th January, 1790, In the Convention of Pennsylvania, Assembled For the Purpose of Reviewing, Altering, and Amending the Constitution of the State.
• A Charge Delivered to the Grand Jury In the Circuit Court of the United States, For the District of Virginia, In May, 1791.
• Hayburn’s Case, 2 U.s. 409 (1792), 411–414.
• James Wilson’s Opinion In Chisholm V. State of Ga., 2 U.s. 419 (1793), 453–466.
• Henfield’s Case Case No. 6,360 Circuit Court, D. Pennsylvania 11 F. Cas. 1099 (1793).
• James Wilson’s Opinion In Ware V. Hylton, 3 U.s. 199 (1796), 281
• “on the Improvement and Settlement of Lands In the United States,” Mid-1790s.
• On the History of Property.
• Part 2: Lectures On Law
• Bibliographical Essay History of James Wilson’s Law Lectures
• District of Pennsylvania:—to Wit.
• Preface
• Lectures On Law,: Part I
• Chapter I.: Introductory Lecture. of the Study of the Law In the United States.
• Chapter II.: Of the General Principles of Law and Obligation.
• Chapter III.: Of the Law of Nature.
• Chapter IV.: Of the Law of Nations.
• Chapter V.: Of Municipal Law.
• Chapter VI.: Of Man, As an Individual.
• Chapter VII.: Of Man, As a Member of Society.
• Chapter VIII.: Of Man, As a Member of a Confederation.
• Chapter IX.: Of Man, As a Member of the Great Commonwealth of Nations.
• Chapter X.: Of Government.
• Chapter XI.: Comparison of the Constitution of the United States, With That of Great Britain.

CHAPTER VII.

Of Man, as a Member of Society.

“It is not fit that man should be alone,” said the all-wise and all-gracious Author of our frame, who knew it, because he made it; and who looked with compassion on the first solitary state of the work of his hands. Society is the powerful magnet, which, by its unceasing though silent operation, attracts and influences our dispositions, our desires, our passions, and our enjoyments. That we should be anxious to share, and, by sharing, to divide our afflictions, may, to some, appear by no means strange, because a certain turn of thinking will lead them to ascribe this propensity to the selfish rather than to the social part of our nature. But will this interested solution account for another propensity, equally uniform and equally strong? We are no less impatient to communicate our pleasures than our woes. Does self-interest predominate here? No. Our social affection acts here unmixed and uncontrolled.

• There’s not a blessing individuals find,
• But some way leans and hearkens to the kind.
• No bandit fierce, no tyrant mad with pride,
• No caverned hermit rests self-satisfied.
• Who most to shun or hate mankind pretend,
• Seek an admirer, or would fix a friend.
• Abstract what others feel, what others think,
• All pleasures sicken, and all glories sink.a

In all our pictures of happiness, which, at certain gay and disengaged moments, appear, in soft and alluring colours, to our fancy, does not a partner of our bliss always occupy a conspicuous place? When, on the other hand, phantoms of misery haunt our disturbed imaginations, do not solitary wanderings frequently form a principal part of the gloomy scenes? It is not an uncommon opinion, and, in this instance, our opinions must be vouched by our feelings, that the most exquisite punishment, which human nature could suffer, would be, in total solitude, to languish out a lengthened life.

“These deep solitudes” is the circumstance that first bursts from the labouring bosom of the cloistered Eloisa, when she describes the “awful cells,” where “ever musing melancholy reigns.”

How various and how unwearied are the workings of the social aim! Deprived of one support, it lays hold on another: deprived of that other, it lays hold on another still. While an intelligent, or even an animate being can be found, it will find an object for its unremitted pursuit and attachment.

We may extract sweet lessons of liberty and sociability from the prison of barbarous and despotick power. A French nobleman was long immured in a dreary and solitary apartment. When he had uttered many an unavailing sigh after society, he, at last, was fortunate enough to discover a spider, who had taken up his abode in the same room. Delighted with the acquisition, he immediately formed a social intercourse with the joint inhabitant of his sequestered mansion. He enjoyed, without molestation, this society for a considerable time. But the correspondence was, at last, discovered by his keeper, long tutored and accustomed to all the ingenious inventions and refinements of barbarity. By an effort, which evinced him a consummate master of his art, he killed the spider, and reduced his prisoner again to absolute solitude. The nobleman, after his release, used frequently to declare, that he had seldom experienced more poignant distress, than what he had suffered from the loss of his companion in confinement.

Some philosophers, however, have alleged, that society is not natural, but is only adventitious to us; that it is the mere consequence of direful necessity; that, by nature, men are wolves to men; not wolves to wolves; for between them union and society have a place; but as wolves to sheep, destroyers and devourers. Men, say they, are made for rapine; they are destined to prey upon one another: each is to fight for victory, and to subdue and enslave as many of his fellow creatures, as he possibly can, by treachery or by force. According to these philosophers, the only natural principles of man are selfishness, and an insatiable desire of tyranny and dominion. Their conclusion is, that a state of nature, instead of being a state of kindness, society, and peace, is a state of selfishness, discord, and war. By a strange perversion of things, they would so explain all the social passions and natural affections, as to denominate them of the selfish species. Humanity and hospitality towards strangers or those in distress are represented as selfishness, only of a more deliberate kind. An honest heart is only a cunning one; and good nature is a well regulated self-love. The love of posterity, of kindred, of country, and of mankind—all these are only so many different modifications of this universal self-love.

But if we attend to our nature and our state; if we listen to the operations of our own minds, to our dispositions, our sensations, and our propensities; we shall be fully and agreeably convinced, that the narrow and hideous representation of these philosophers is not founded on the truth of things; but, on the contrary, is totally repugnant to all human sentiment, and all human experience. Indeed, an appeal to themselves will evince, that their philosophy is not consistent even with the instinctive principles of their own hearts—principles, of which the native lustre will, at some times, beam forth, notwithstanding all the care employed to cover or extinguish it. The celebrated Sage of Malmesbury,1 savage and unsociable as he would make himself and all mankind appear, took the utmost pains that, during his life, and even after his death, others might be kindly rescued from the unhappy delusions, by which they were prevented from discovering the truth.b He told us “that both in religion and in morals, we were imposed on by our governours; that there is nothing, which, by nature, inclines us either way; and that nothing naturally draws us to the love of what is without or beyond ourselves.” And yet he was the most laborious of all men in composing and publishing systems of this kind—for our use.

To such philosophers, animated with this preposterous zeal, this answer, in the spirit of their own doctrines, is plain and easy. If there is nothing to carry you without yourselves; what are we to you? From what motives do you give yourselves all this concern about us? What can induce you to trim your midnight lamp, and waste your spirits in laborious vigils, for our instruction? You disclaim all social connexion with your species; what, then, we say again, are we to you?

But a subject, in itself so material to the sciences of philosophy and of law, merits a serious, a full, and a patient discussion. For it is of high practical importance, that the principles of society should be properly explained and well understood. It has been one of the happy characteristicks of the present age, both on this and on the other side of the Atlantick, that the spirit of philosophy has been wisely directed to the just investigation of those principles; and that the spirit of patriotism has been vigorously exerted in their support.

In a very early part of these lectures,c it was observed, concerning definitions and divisions, that by them we are in danger of circumscribing nature within the limits of our own notions, formed frequently on partial and defective views. A very remarkable instance of this occurs in the subject, on the examination of which we now enter.

The intellectual powers of the mind have been commonly divided into simple apprehension, judgment, and reasoning. This division has received the sanction of high antiquity, and of a very extensive adoption; yet it is far from being complete. From it many of the operations of the understanding are excluded, such as consciousness, moral perception, taste, memory, and our perception of objects by means of our external senses. But, besides all these, there is a whole class, and a very important one too, of our intellectual operations, which, because they were not fortunate enough to be included within the foregoing division, have been overlooked by philosophers, and have not even yet been distinguished by a name. Some operations of the mind may take place in a solitary state: others, from their very nature, are social; and necessarily suppose a communication with some other intelligent being. In a state of absolute solitude, one may apprehend, and judge, and reason. But when he bears or hears testimony; when he gives or receives a command; when he enters into an engagement by a promise or a contract; these acts imply necessarily something more than apprehension, judgment, and reasoning; they imply necessarily a society with other beings, social as well as intelligent.

Simple apprehension is unaccompanied with any judgment or belief, concerning the object apprehended. Judgment is formed, as these philosophers say, by comparing ideas, and by perceiving their agreements and disagreements. Reasoning is an operation, by which, from two or more judgments, we deduce a conclusion. Now, from this account of these three operations of the mind, it appears unquestionably, that testimony is neither apprehension, nor judgment, nor reasoning. The same observation will apply, with the same propriety, to a promise, to an agreement, to a contract. Testimony, agreements, contracts, promises form very distinguished titles in that law, which it is the object of these lectures to delineate: perhaps it has already been evinced to your satisfaction, that some of them form its very basis.

That system of human nature must, indeed, appear extremely inadequate and defective, by which articles of such vast importance, both in theory and in the business of life, are left without a place, and without a name.

The attempts of some philosophers to reduce the social operations under the common philosophical divisions, resemble very much the attempts of others, to reduce all our social affections to certain modifications of self love. The Author of our existence intended us to be social beings; and has, for that end, given us social intellectual powers. They are original parts of our constitution; and their exertions are no less natural than the exertions of those powers, which are solitary and selfish.

Our social intellectual operations appear early in life, and before we are capable of reasoning; yet they suppose a conviction of the existence of other intelligent and social beings. A child asks a question of his nurse, and waits for her answer: this implies a conviction that she is intelligent and social; that she can receive and return a communication of thoughts and sentiments.

All languages are fitted to express the social as well as the solitary operations of the mind. To express the former is indeed the primary and the direct intention of language. A man, who had no interchange of sentiments with other social and intelligent beings, would be as mute as the irrational animals that surround him. By language, we communicate to others that, which we know: by language, we learn from others that, of which we are ignorant: by language, we advise, persuade, console, encourage, sooth, restrain: in consequence of language, we are united by political societies, government, and laws: by means of language, we are raised from a situation, in which we should be as rude and as savage as the beasts of the woods.

In the more imperfect societies of mankind, such as those composed of colonies scarcely settled in their new seats, it might pass for sufficient good fortune, if the people proved only so far masters of language, as to be able to understand one another, to confer about their wants, and to provide for their common necessities. Their exposed and indigent state would not afford them either that leisure or that easy disposition, which is requisite for the cultivation of the fine arts. They, who were neither safe from violence, nor secure from want, would not be likely to engage in unnecessary pursuits. It could not be expected that they would turn their attention towards the numbers of their language, or to its best and most perfect application and arrangement. But when, in process of time, the affairs of the society were settled on an easy and secure foundation; when debates and discourses, on the subjects of common interest and of publick good, were become familiar; when the speeches of distinguished characters were considered and compared; then there would be observed, between one speaker and another, a difference, not only with regard to a more agreeable measure of sound, but to a happier and more easy arrangement of sentiment.

The attention paid to language is one distinguishing mark of the progress of society towards its most refined period: as society improves, influence is acquired by the means of reasoning and discourse: in proportion as that influence is felt to increase, in proportion will be the care bestowed upon the methods of expressing conceptions with propriety and elegance. In every polished community, this study has been considered as highly important, and has possessed a place in every plan of liberal education.

In all languages, a question, a promise, a contract, which are social acts, can be expressed as easily and as properly, as a judgment, which is a solitary act. The expression of a judgment has been dignified with a particular appellation; it has been denominated a proposition. It has been analyzed, with great logical parade, into its several parts: its elements of subject, predicate, and copula have been exhibited in ostentatious arrangement: their various modifications have been traced and examined in laborious and voluminous tracts. The expression of a question, of a covenant, or of a promise is as susceptible of analysis as the expression of a judgment: but this has not been attempted; these operations of the mind have not been honoured even with a distinct and appropriate name. Why has so much pains been taken, why has so much labour been bestowed in analyzing, and assigning appropriate names to the solitary operations, and the expression of the solitary operations of the understanding; while so little attention has been allotted to such of its operations as are social? Perhaps it will be difficult to assign any other reason than this: in the divisions, which have been made of the operations of the mind, the social ones have been omitted; and, consequently, have not been introduced to notice or regard.

Our moral perceptions, as well as the other powers of our understanding, indicate, in the strongest manner, our designation for society. Veracity, and its corresponding quality, confidence, show this, in a very striking point of view. If we were intended for solitude, those qualities could have neither operation nor use. On the other hand, without those qualities, society could not be supported. Without the latter, the former would be useless: without the former, the latter would be dangerous. Without confidence in promises, for instance, we must, in the greatest part of our conduct, proceed entirely upon the calculations of chance: but there could be no confidence in promises, if there was no principle, from which their performance might be reasonably expected.

Some may imagine, that though this principle did not exist, yet human affairs might, perhaps, be carried on as well; for that general caution and mutual distrust would be the necessary result; and where no confidence would be reposed, no breach of it could happen. But, not to mention the uneasiness and anxiety which would unavoidably attend such a situation, it is not considered how much, in every hour of our lives, we trust to others; and how difficult, if not entirely impracticable, it would be to perform the most common as well as the most important business of human life, without such trust. The conclusion is, that the performance of promises is essential to society.

Deeply laid in human nature, we now behold the basis of one of the principal pillars of private municipal law; that, which enforces the obligation of promises, agreements, and covenants.

Again; the moral sense restrains us from harming the innocent: it teaches us, that the innocent have a right to be secure from harm. These are two great principles, which prepare us for society; and, with regard to them, the moral sense discovers peculiar inflexibility: it dictates, that we should submit to any distress or danger, rather than procure our safety and relief by violence upon an innocent person.

Similar to the restraint, respecting personal safety and security, is the restraint, which the moral sense imposes on us, with regard to property. Robbery and theft are indulged by no society: from a society even of robbers, they are strictly excluded.

The necessity of the social law, with regard to personal security, is so evident, as to require no explanation. Its necessity, with regard to property, will be explained and made evident by the following remarks.

Man has a natural propensity to store up the means of his subsistence: this propensity is essential, in order to incite us to provide comfortably for ourselves, and for those who depend on us. But this propensity would be rendered ineffectual, if we were not secured in the possession of those stores which we collect; for no one would toil to accumulate what he could not possess in security. This security is afforded by the moral sense, which dictates to all men, that goods collected by the labour and industry of individuals are their property; and that property ought to be inviolable.

We beheld, a little while ago, one of the principal pillars of civil law founded deeply in our nature: we now perceive the great principles of criminal law laid equally deep in the human frame. Violations of property and of personal security are, as we shall afterwards show particularly, the objects of that law. To punish, and, by punishing, to prevent them, is or ought to be the great end of that law, as shall also be particularly shown.

That we are fitted and intended for society, and that society is fitted and intended for us, will become evident by considering our passions and affections, as well as by considering our moral perceptions, and the other operations of our understandings. We have all the emotions, which are necessary in order that society may be formed and maintained: we have tenderness for the fair sex: we have affection for our children, for our parents, and for our other relations: we have attachment to our friends: we have a regard for reputation and esteem: we possess gratitude and compassion: we enjoy pleasure in the happiness of others, especially when we have been instrumental in procuring it: we entertain for our country an animated and vigorous zeal: we feel delight in the agreeable conception of the improvement and happiness of mankind.

• The centre mov’d, a circle straight succeeds,
• Another still, and still another spreads.
• Friend, parent, neighbour first it will embrace,
• His country next, and next all human race;
• Wide and more wide, th’ o’erflowings of the mind
• Take ev’ry creature in, of ev’ry kind;
• Earth smiles around, with boundless bounty blest,
• And heav’n beholds its image in his breast.d

How naturally, and sometimes how strongly, are our passions communicated from one to another, without even the least knowledge of the cause, by which they were originally produced! They are conveyed by aspect: the very countenance is infectious: the emotion flies from face to face: it is no sooner seen than experienced: like the electrick shock, it is felt instantaneously by a whole multitude; though, perhaps, only one of them knows from whence it proceeds. Such is the force of society in the passions.

This sympathy is an important quality of many of our passions: in particular, it invites and produces a communication of joys and sorrows, hopes and fears. Spirits, the most generous and the most susceptible of strong impressions, are the most social and combining. They delight most to move in concert; and feel, in the strongest manner, the force of the confederating charm.

The social powers and dispositions of our minds discover themselves in the earliest periods of life. So soon as a child can speak, he can ask, and he can answer a question: before he can speak, he shows signs of love, of resentment, and of other affections necessarily pointed to society. He is capable of social intercourse long before he is capable of reasoning. We behold this charming intercourse between his mother and him, before he is a year old. He can, by signs, ask and refuse, threaten and supplicate. In danger, he clings to his mother—for I will not, on this occasion, distinguish between the mother and the nurse—he enters into her joy and grief, is happy in her caresses, and is unhappy in her displeasure.

As sociability attends us in our infancy; she continues to be our companion through all the variegated scenes of our riper years. By an irresistible charm, she insinuates herself into the hearts of every rank and class of men, and mixes in all the various modes and arrangements of human life. Let us suppose a man of so morose and acrimonious a disposition, as to shun, like Timon of Athens,2 all communication with his species; even such a misanthropist would wish for at least one associate, into whose bosom he might discharge the rancour and virulence of his own heart.

Society is necessary as well as natural to us. To support life, to satisfy our natural appetites, to obtain those agreeable enjoyments of which our nature is susceptible, many external things are indispensable. In order to live with any degree of comfort, we must have food, clothing, habitations, furniture, and utensils of some sort. These cannot be procured without much art and labour; nor without the friendly assistance of our fellows in society.

Let us suppose a man of full strength, and well instructed in all our arts of life, to be reduced suddenly to solitude, even in one of the best of soils and climates: could he procure the grateful conveniences of life? It will not be pretended. Could he procure even its simple necessaries? In an ingenious and excellent romance, we are told this has been done. But it will be remembered, that the foundation of Robinson Crusoe’s future subsistence, and of all the comforts which he afterwards provided and collected, was laid in the useful instruments and machines, which he saved from his shipwreck. These were the productions of society.

Could one, uninstructed in our arts of life, and unfurnished with the productions of society, subsist in solitude, though he were of full age, and possessed of health and strength? the probabilities would run strong against him.

Could one subsist in solitude during the weak, uninformed, and inexperienced period of his infancy? This he could not do, unless, like another Romulus and Remus, he owed his subsistence to the social aid of the wolves.

But let us, for a moment, suppose, that food, raiment, and shelter were supplied even by a miracle; a solitary life must be continually harassed by dangers and fears. Suppose those dangers and fears to be removed; could he find employment for the most excellent powers and instincts of his mind? Could he indulge affection or social joy? could he communicate, or could he receive social pleasure or social regard? Dispositions very different indeed—sour discontentment, sullen melancholy, listless languor—must prey upon his soul.

The reciprocal assistance of those, who compose a single family, may procure many of the necessaries of life; and may diminish its dangers. In this state some room will be afforded for social enjoyments, and for the finer operations of the mind. Still greater pleasures and advantages would be obtained by the union of a few families in the same neighbourhood. They would undertake and execute laborious works for the common good of all; and social emotions would operate in a less contracted circuit. Associations, still larger, will enlarge the sphere of pleasure and enjoyment; and will furnish more diversified and delightful exercise to our powers of every kind. Knowledge is increased: inventions are discovered: experience improves them: and the inventions, with their improvements, are spread over the whole community. Designs of durable and extensive advantage are boldly formed, and vigorously carried into effect. The social and benevolent affections range in an ample sphere; and attain an eminent degree of strength and refinement.

On what does our security—on what do our enjoyments depend? On our mutual services and sympathetick pleasures. Other animals have strength or speed sufficient for their preservation and defence. Man is, in all states, encompassed with weakness and dangers: but the strength and safety, which he wants by himself, he finds, when he is united with his equals. Nature has endowed him with a principle, which gives him force and superiority, where otherwise he would be helpless and inferiour. By sociability, they, who separately could make no effectual resistance, conquer and tame the various kinds of the brute creation. Society is the cause, that, not satisfied with the element on which he was born, man extends his dominion over the sea. Society supplies him with remedies in his diseases, with comfort in his afflictions, and with assistance in his old age. Take away society, and you destroy the basis, on which the preservation and happiness of human life are laid.

“There is nothing more certain,” says Cicero,e “than the excellent maxim of Plato—that we are not intended solely for ourselves; but that our friends and our country claim a portion of our birth. Since, according to the doctrine of the stoicks, the productions of the earth are designed for men, and men are designed for the mutual aid of one another; we should certainly pursue the design of Nature, and promote her benign intention, by contributing our proportion to the general interest, by mutually performing and receiving good offices, and by employing our care, our industry, and even our fortune, in order to strengthen the love and friendship, which should always predominate in human society.”

In point of dignity, the social operations and emotions of the mind rise to a most respectable height. The excellency of man is chiefly discerned in the great improvements, of which he is susceptible in society: these, by perseverance and vigour, may be carried on progressively to degrees higher and higher, above any limits which we can now assign.

Our social affections and operations acquire still greater importance, in another point of view: they promote and are necessary to our happiness. “If we could suppose ourselves,” says Cicero,f who knew so well how to illustrate law by philosophy—“if we could suppose ourselves transported by some divinity into a solitude, replete with all the delicacies which the heart of man could desire, but excluded, at the same time, from every possible intercourse with our kind, there is not a person in the world of so unsocial and savage a temper, as to be capable, in these forlorn circumstances, of relishing any enjoyment.” “Nothing,” continues he, “is more true, than what the philosopher Archytas3 is reported to have said: If a man were to be carried up into heaven, and see the beauties of universal nature displayed before him, he would receive but little pleasure from the wonderful scenes, unless there was some person, to whom he could relate the glories, which he had viewed. Human nature is so constituted, as to be incapable of solitary satisfactions. Man, like those plants which are formed to embrace others, is led, by an instinctive impulse, to recline on those of his own kind.”

• Man, like the gen’rous vine, supported lives;
• The strength he gains is from th’ embrace he gives.g

The observations, which we make in common life, vouch the justness of these sentiments. We see those persons possess the greatest share of happiness, who have about them many objects of love and endearment. To the want of these objects, may be ascribed the moroseness of monks, and of those who, without entering into any religious order, lead the lives of monks.

Of the same nature with the indulgence of domestick affections, and equally refreshing to the spirit, is the pleasure, which flows from acts of beneficence, either in bestowing pecuniary favours, or in imparting, to those who want it, the benefit of our advice, or the assistance of our professional skill. The last consideration is urged, with peculiar propriety, by the professor of law. Innumerable instances occur, in which gentlemen of the bar, who possess abilities and character, can bestow what may be called favours, even on those, who are both able and willing to pay well for their services. When a client has an important business depending, entire confidence in the integrity and talents of his counsel diffuses over his mind a degree of composure and serenity, against which a fee, weighed in the balance, would be found wanting. This is particularly the case, when the life or the reputation of the client is at stake.

The foregoing observations may also be applied to publick services done for the state, by assisting her in her councils, or by defending or prosecuting her interests. Even if no suitable return, as it sometimes happens, should be received from the state for such services; yet a mind, nurtured to the refined and enlarged exercise of the social passion, will find no trivial pleasure in the reflection that it has performed them, and that those, for whom they were performed, enjoy the advantages resulting from them. Virtue, in such an instance, will prove herself her own reward. A man, whose soul vibrates in unison with the benevolent affections, will always find within him an encouragement, and a compensation too, for discharging his duty—an encouragement and a compensation, of which ingratitude itself cannot deprive him.

I will not appeal to vanity, and ask, if any thing can be more flattering, than to obtain the praises and acclamations of others. But I will appeal to conscious rectitude, and ask, whether any thing can be more satisfactory, than to deserve their regard and esteem.

The possession of science is always attended with pleasure: but science, believe me, acquires an increased relish, when we have an opportunity of pouring it into the bosoms of others. We receive a redoubled satisfaction from the agreeable, though, perhaps, the flattering opinion, that we communicate entertainment and instruction; and from the opinion, better founded, that even weak attempts to communicate entertainment and instruction are received with reflected social emotions.

What can be more productive of happiness than even those wants, which are the foundations of so many blessings—love and friendship, generosity and reliance, kindness and gratitude? The gratifications even of sense lose their relish, if not heightened by the “spes mutui credula animi”4 —corresponding social emotions.

Our esteem of others, too, arising from the approbation of their conduct, is a most pleasing affection. The contemplation of a great and good character warms the heart, and invigorates the whole frame.

The wisest and most benign constitution of a rational and moral system is that, in which the degree of private affection, most useful to the individual, is, at the same time, consistent with the greatest interest of the system; and in which the degree of social affection, most useful to the system, is, at the same time, productive of the greatest happiness to the individual. Thus it is in the system of society. In that system, he who acts on such principles, and is governed by such affections, as sever him from the common good and publick interest, works, in reality, towards his own misery: while he, on the other hand, who operates for the good of the whole, as is by nature and by nature’s God appointed him, pursues, in truth, and at the same time, his own felicity.

Regulated by this standard, extensive, unerring, and sublime, self-love and social are the same.

To a state of society, then, we are invited from every quarter. It is natural; it is necessary; it is pleasing; it is profitable to us. The result of all is, that for a state of society we are designated by Him, who is all-wise and all-good.

Society may be distinguished into two kinds, natural and civil. This distinction has not been marked with the accuracy, which it well merits. Indeed some writers have given little or no attention to the latter kind; others have expressly denied it, and said, that there can be no civil society without civil government. But this is certainly not the case. A state of civil society must have existed, and such a state, in all our reasonings on this subject, must be supposed, before civil government could be regularly formed and established. Nay, ’tis for the security and improvement of such a state, that the adventitious one of civil government has been instituted. To civil society, indeed, without including in its description the idea of civil government, the name of state may be assigned, by way of excellence. It is in this sense that Cicero seems to use it, in the following beautiful passage. “Nothing, which is exhibited on our globe, is more acceptable to that divinity, which governs the whole universe, than those communities and assemblages of men, which, lawfully associated,—jure sociati—are denominated states.”h

How often has the end been sacrificed to the means! Government was instituted for the happiness of society: how often has the happiness of society been offered as a victim to the idol of government! But this is not agreeable to the true order of things: it is not consistent with the orthodox political creed. Let government—let even the constitution be, as they ought to be, the handmaids; let them not be, for they ought not to be, the mistresses of the state.

A state may be described—a complete body of free persons, united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. It is an artificial person: it has an understanding and a will peculiar to itself: it has its affairs and its interests: it deliberates and resolves: it has its rules; it has its obligations; and it has its rights. It may acquire property, distinct from that of its members: it may incur debts, to be discharged out of the publick stock, not out of the private fortunes of individuals: it may be bound by contracts, and for damages arising quasi ex contractu.5

In order to constitute a state, it is indispensably necessary, that the wills and the power of all the members be united in such a manner, that they shall never act nor desire but one and the same thing, in whatever relates to the end, for which the society is established. It is from this union of wills and of strength, that the state or body politick results. The only rational and natural method, therefore, of constituting a civil society, is by the convention or consent of the members, who compose it. For by a civil society we properly understand, the voluntary union of persons in the same end, and in the same means requisite to obtain that end. This union is a benefit, not a sacrifice: civil is an addition to natural order.

This union may rationally be supposed to be formed in the following manner: if a number of people, who had hitherto lived independent of each other, wished to form a civil society, it would be necessary to enter into an engagement to associate together in one body, and to regulate, with one common consent, whatever regards their preservation, their security, their improvement, their happiness.

In the social compact, each individual engages with the whole collectively, and the whole collectively engage with each individual. These engagements are obligatory, because they are mutual. The individuals who are not parties to them, are not members of the society.

Smaller societies may be formed within a state by a part of its members. These societies also are deemed to be moral persons; but not in a state of natural liberty: their actions are cognizable by the superiour power of the state, and are regulated by its laws. To these societies the name of corporations is generally appropriated, though somewhat improperly; for the term is strictly applicable to supreme as well as to inferiour bodies politick.

The foregoing account of the formation of civil society, which refers it to original engagements; and consequently resolves the duty of submission to the laws of the society, into the universal obligation of fidelity in the performance of promises, is warmly attacked by a sensible and ingenious writer.i He represents it, as founded on a supposition, false in fact; as insufficient, if it was true, for the purposes, for which it is produced; and as leading to dangerous consequences. He acknowledges, however, that, in the United States, transactions have happened, which bear the nearest resemblance to this political idea, of any, of which history has preserved the account or the memory. This subject has already received some; it will afterwards receive more attention and examination. At present, it is sufficient, and it is proper, to intimate to you the point of discussion; for it is a very important one in the science of government.

In civil society, previously to the institution of civil government, all men are equal. Of one blood all nations are made; from one source the whole human race has sprung.

When we say, that all men are equal; we mean not to apply this equality to their virtues, their talents, their dispositions, or their acquirements. In all these respects, there is, and it is fit for the great purposes of society that there should be, great inequality among men. In the moral and political as well as in the natural world, diversity forms an important part of beauty; and as of beauty, so of utility likewise. That social happiness, which arises from the friendly intercourse of good offices, could not be enjoyed, unless men were so framed and so disposed, as mutually to afford and to stand in need of service and assistance. Hence the necessity not only of great variety, but even of great inequality in the talents of men, bodily as well as mental. Society supposes mutual dependence: mutual dependence supposes mutual wants: all the social exercises and enjoyments may be reduced to two heads—that of giving, and that of receiving: but these imply different aptitudes to give and to receive.

Many are the degrees, many are the varieties of human genius, human dispositions, and human characters. One man has a turn for mechanicks; another, for architecture; one paints; a second makes poems: this excels in the arts of a military; the other, in those of civil life. To account for these varieties of taste and character, is not easy; is, perhaps, impossible. But though their efficient cause it may be difficult to explain; their final cause, that is, the intention of Providence in appointing them, we can see and admire. These varieties of taste and character induce different persons to choose different professions and employments in life: these varieties render mankind mutually beneficial to each other, and prevent too violent oppositions of interest in the same pursuit. Hence we enjoy a variety of conveniences; hence the numerous arts and sciences have been invented and improved; hence the sources of commerce and friendly intercourse between different nations have been opened; hence the circulation of truth has been quickened and promoted; hence the operations of social virtue have been multiplied and enlarged.

• Heaven, forming each on other to depend,
• Bids each on other for assistance call,
• ’Till one man’s weakness grows the strength of all.
• Wants, frailties, passions closer still ally
• The common interest, or endear the tie:
• To these we owe true friendship, love sincere,
• Each home-felt joy, that life inherits here.j

How insipidly uniform would human life and manners be, without the beautiful variety of colours, reflected upon them by different tastes, different tempers, and different characters!

But however great the variety and inequality of men may be with regard to virtue, talents, taste, and acquirements; there is still one aspect, in which all men in society, previous to civil government, are equal. With regard to all, there is an equality in rights and in obligations; there is that “jus aequum,” that equal law, in which the Romans placed true freedom. The natural rights and duties of man belong equally to all. Each forms a part of that great system, whose greatest interest and happiness are intended by all the laws of God and nature. These laws prohibit the wisest and the most powerful from inflicting misery on the meanest and most ignorant; and from depriving them of their rights or just acquisitions. By these laws, rights, natural or acquired, are confirmed, in the same manner, to all; to the weak and artless, their small acquisitions, as well as to the strong and artful, their large ones. If much labour employed entitles the active to great possessions, the indolent have a right, equally sacred, to the little possessions, which they occupy and improve.

As in civil society, previous to civil government, all men are equal; so, in the same state, all men are free. In such a state, no one can claim, in preference to another, superiour right: in the same state, no one can claim over another superiour authority.

Nature has implanted in man the desire of his own happiness; she has inspired him with many tender affections towards others, especially in the near relations of life; she has endowed him with intellectual and with active powers; she has furnished him with a natural impulse to exercise his powers for his own happiness, and the happiness of those, for whom he entertains such tender affections. If all this be true, the undeniable consequence is, that he has a right to exert those powers for the accomplishment of those purposes, in such a manner, and upon such objects, as his inclination and judgment shall direct; provided he does no injury to others; and provided some publick interests do not demand his labours. This right is natural liberty. Every man has a sense of this right. Every man has a sense of the impropriety of restraining or interrupting it. Those who judge wisely, will use this liberty virtuously and honourably: those, who are less wise, will employ it in meaner pursuits: others, again, may, perhaps, indulge it in what may be justly censured as vicious and dishonourable. Yet, with regard even to these last, while they are not injurious to others; and while no human institution has placed them under the control of magistrates or laws, the sense of liberty is so strong, and its loss is so deeply resented, that, upon the whole, more unhappiness would result from depriving them of their liberty on account of their imprudence, than could be reasonably apprehended from the imprudent use of their liberty.

The right of natural liberty is suggested to us not only by the selfish parts of our constitution, but by our generous affections; and especially by our moral sense, which intimates to us, that in our voluntary actions consist our dignity and perfection.

The laws of nature are the measure and the rule; they ascertain the limits and the extent of natural liberty.

In society, when the sentiments of the members are not unanimous, the voice of the majority must be deemed the will of the whole. That the majority, by any vote, should bind not only themselves, but those also who dissent from that vote, seems, at first, to be inconsistent with the well known rules—that all men are naturally equal; and that all men are naturally free. From these rules, it may be alleged, that no one can be bound by the act of another, without his own consent. But it is to be remembered, that society is constituted for a certain purpose; and that each member of it consents that this purpose shall be carried on; and, consequently, that every thing necessary for carrying it on shall be done. Now a number of persons can jointly do business only in three ways—by the decision of the whole, by the decision of the majority, or by the decision of the minority. The first case is not here supposed, nor is there occasion to make a question concerning it. The only remaining question, then, which can be proposed, is, which is most reasonable and equitable—that the minority should bind the majority—or that the majority should bind the minority? The latter, certainly. It is most reasonable; because it is not so probable, that a greater number, as that a smaller number, concurring in judgment, should be mistaken. It is most equitable; because the greater number are presumed to have an interest in the society proportioned to that number. Besides; though, in the case supposed, the minority are bound without their immediate consent; they are bound by their consent originally given to the establishment of the society, for the purposes which it was intended to accomplish. For it has been already observed, that those, who enter not into the original engagement forming the society, are not to be considered as members: all the members, therefore, must have originally given their consent.

The rule, which we have mentioned, may be altered and modified by positive institution. In some cases, the consent of a number larger than a mere majority: in others, even unanimity may be required.

This is the proper place for considering a question of very considerable importance in civil society, and concerning which there has been much diversity in the sentiments of writers, and in the laws and practice of states: has a state a right to prohibit the emigration of its members? may a citizen dissolve the connexion between him and his country?

On the principles of the compact of association, which I have already stated, there seems to be but little doubt that one article of it may be, that each individual binds himself indissolubly to the society, while the society performs, on its part, the stipulated conditions. This engagement each individual may make for himself:k but can he make it for his children and his posterity? must they be and continue bound by the act of their father and ancestor?

The notion of natural, perpetual, and unalienable allegiance from the citizen to the society, or to the head of the society, of which he was born a member, has, by some writers and in some countries, been carried very far indeed: and their practice has been equally rigorous with their principles. The well known maxim, which the writers upon the law of England have adopted and applied to this case is,l “Nemo potest exuere patriam.”6 It is not, therefore, as is holden by that law, in the power of any private subject to shake off his allegiance, and to transfer it to a foreign prince. Nor is it in the power of any foreign prince, by naturalizing or employing a subject of Great Britain, to dissolve the bond of allegiance between that subject and the crown. Hence it has been adjudged, that a cartel for the exchange or ransom of prisoners of war cannot extend to the case of a subject born, though clothed with a commission from the party to the cartel. The reason assigned is, that by the laws of all nations, subjects taken in arms against their lawful prince are not considered as prisoners of war, but as rebels; and are liable to the punishments ordinarily inflicted on rebels.m This doctrine was, so late as the year one thousand seven hundred and forty seven, applied to the case of a native of Great Britain, who had received his education in France from his early infancy; and who had spent his riper years in a profitable employment in that kingdom, where all his hopes were centred.n

The reasons in favour of the position, that a citizen cannot dissolve the political connexion between him and his country, may be stated in the following manner. Every citizen, as soon as he is born, is under the protection of the state, and is entitled to all the advantages arising from that protection: he, therefore, owes obedience to that power, from which the protection, which he enjoys, is derived. But while he continues in infancy and nonage, he cannot perform the duties of obedience. The performance of them must be respited, till he arrive at the years of discretion and maturity. When he arrives at those years, he owes obedience, not only for the protection, which he then enjoys, but also for that, which, from his birth, he has enjoyed. Obedience now becomes a duty founded upon principles of gratitude, as well as upon principles of interest: it becomes a debt, which nothing but the performance of the duties of citizenship, during a whole life, will discharge.o

But, notwithstanding this train of thought and reasoning, there are certainly cases, in which a citizen has an unquestionable right to renounce his country, and go in quest of a settlement in some other part of the world. One of these cases is, when, in his own country, he cannot procure a subsistence. Another is, when the society neglects to fulfil its obligations to the citizen. A third is, when the society would establish laws, on things, to which the original social compact cannot oblige the citizen to submit.p

In answer to the inferences drawn from principles of gratitude, it may be observed, that every man being born free, a native citizen, when he arrives at the age of discretion, may examine whether it be convenient for him to join in the society, for which he was destined by his birth. If, on examination, he finds, that it will be more advantageous to him to remove into another country, he has a right to go, making to that which he leaves a proper return for what it has done in his favour, and preserving for it, as far as it shall be consistent with the engagements, which his new situation and connexions may require, the sentiments of respect and attachment.

The sentiments of Mr. Locke on this subject go much further. “’Tis plain,” says he,q “by the law of right reason, that a child is born a subject of no country or government. He is under his father’s tuition and authority, till he comes to the age of discretion; and then he is a freeman, at liberty what government he will put himself under; what body politick he will unite himself to.”

“O glorious regulations!” says Cicero,r “originally established for us by our ancestors of Roman name; that no one of us should be obliged to belong to more than one society, since a dissimilitude of societies must produce a proportioned variety of laws; that no one, contrary to his inclination, should be deprived of his right of citizenship; and that no one, contrary to his inclinations, should be obliged to continue in that relation. The power of retaining and of renouncing our rights of citizenship, is the most stable foundation of our liberties.”

In the digest of the Roman law,s it is laid down as a rule, that every one is at liberty to choose the state, of which he wishes to be a member.

Indeed, excepting in some very particular cases, every one ought to be at liberty to leave the state. This general liberty is not only just, but may be productive of much generous emulation among states, and of extensive advantages to their citizens. Those states, which manage their affairs best, will offer the strongest inducements to their own citizens to remain, and to others to incorporate among them. On the other hand, it is both inhuman and unjust to convert the state into a prison for its citizens, by preventing them from leaving it on a prospect of advantage to themselves. True it is, that they ought to make compensation for any advantages, which they have derived from the state at its expense: but equally true it is, that this compensation is generally made, by their having contributed annually, during their past residence, towards the publick revenue, by paying taxes on property, as all men, even minors, do; and by consuming goods, on which imposts or duties have been levied.

Emigration may arise from various causes. It may be occasioned by the population of a country. In this case, great numbers may be constantly leaving the state, and yet the state may be increasing in population. It has been suggested by some writers, that the right of exposing children has been one cause of the populousness of China. Surely the prospect that they will be comfortably provided for, if not in their own, yet in another country, must be a much more powerful, as well as more humane incentive to marriages.

Insecurity, hardships, oppression may be the causes of emigration. A nation whose inhabitants are in a predicament so disagreeable, may be in declining circumstances; but those circumstances, indicating a decline, are not the effects of emigration; they are the effects of the evils and calamities which occasion it. Two things, which are commonly considered as cause and effect, are often no more than two collateral effects of the same cause.

Independently, therefore, of the question of right, there can be but few cases, in which emigration could be prohibited on the sound principles of policy. Emigration, it is true, may be a symptom of languor and decay; but it may also be an evidence and a consequence of the overflowing vigour and prosperity of the state.

Permit me to suggest a still further reason—to me it appears a strong one—in favour of unrestrained emigration. In a free state, the consent of every citizen to its institution and government ought to be evinced either by express declarations, or by the strongest and justest presumptions. When a state is formed, the residence of a citizen is presumed a sufficient evidence of his assent and acquiescence in its institutions: to reside in any country is universally deemed a submission to its authority. But that these presumptions may be fairly drawn, we must be understood as speaking of a state, from which the citizens have liberty to depart with their effects at pleasure. Where this liberty is not enjoyed, the considerations of family, of property, and many other considerations that are without a name, may detain a man, much against his inclination, in a country, in which he finds himself trammelled. In such case, his residence is no reasonable evidence of his consent to the formation, the constitution, the government, or the laws of the state.

Upon the whole it appears, that the right of emigration is a right, advantageous to the citizen, and generally useful even to the state. It may, however, in the fundamental laws, be reduced to a certainty. The citizens of Neufchatel in Switzerland may quit the country, and carry off their effects, in whatever manner they please, without paying any duties.t By the constitution of Pennsylvania,u it is declared “that emigration from the state shall not be prohibited.”

These remarks on the rights and principles of emigration, prepare the way for remarks, more important, on the principles and rights of colonization, which will form the subject of inquiry in a future part of our lectures.

[a. ]Pope’s Ess. Man. Ep. 4. v. 39.

[1. ]William of Malmesbury (c. 1090–c. 1143) was a great English historian who lived much of his life as a monk at Malmesbury Abbey.

[b. ]1. Shaft. Char. 90.

[c. ]Ante. p. 466.

[d. ]Pope’s Ess. on Man. Ep. 4. v. 365.

[2. ]Timon of Athens lived during the Peloponnesian War and had a reputation for misanthropy.

[e. ]De off. l. 1. c. 7.

[f. ]De Amic. 23.

[3. ]Archytas (428–347 bc) was a Greek philosopher, mathematician, and statesman. He was a close friend to Plato.

[g. ]Pope’s Ess. on Man. Ep. 3. v. 311.

[4. ]Literally, “the trusting hope of mutual feeling,” but a clearer sense of the tone is “the naive hope that love will be requited.” The phrase is from Horace, Odes, 4.1.29.

[h. ]Somn. Scip. c. 3.

[5. ]As if from contract. An expression applied to obligations that are not contractual.

[i. ]2. Paley 140.

[j. ]Pope. Ess. Man. Ep. 2. v. 249.

[k. ]Connecticut was originally settled by emigrants from the neighbourhood of Boston. They applied to the general court of Massachussetts for permission to go in quest of new adventures: and could not be satisfied, until they had obtained the leave of the court. For it was the general sense, as we are assured, that the inhabitants were all mutually bound to one another by the oath of a freeman, as well as the original compact; so as not to be at liberty to separate without the consent of the whole. Chal. 286.

[l. ]Fost. 184.

[6. ]No one can cast off his country.

[m. ]Id. 60.

[n. ]Fost. 59.

[o. ]2. P. Wms. 123. 124.

[p. ]Vat. 96. b. 1. s. 223–225.

[q. ]On Civ. Gov. s. 118.

[r. ]Pro. Balb. c. 13.

[s. ]Dig. l. 49. t. 15.

[t. ]Vat. 96. b. 1. s. 225.

[u. ]Art. 9. s. 25.