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Remarks on This Chapter - Johann Gottlieb Heineccius, A Methodical System of Universal Law: Or, the Laws of Nature and Nations 
A Methodical System of Universal Law: Or, the Laws of Nature and Nations, with Supplements and a Discourse by George Turnbull. Translated from the Latin by George Turnbull, edited with an Introduction by Thomas Albert and Peter Schröder (Indianapolis: Liberty Fund, 2008).
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Remarks on This Chapter
It will be easy to determine what the law of nature prescribes in other cases, if we can determine what it prescribes with respect to the exercise of the absolute empire, which is the effect of, and rooted by an over-balance in property. We have already taken notice of the natural causes of Empire, to which, if moral writers had attended, they would not have debated so much about the origine of civil government or Empire. If one man, it hath been said, be sole land-lord, or over-balance the many in property to a certain proportion, he will be sole monarch. But now, how ought such a land-lord, and absolute master, to exercise his dominion or empire? What rules does the law of nature prescribe to him? Doth it not prescribe to him these very immutable, universal laws of justice and benevolence, which have been already explained? In general, therefore, may we not answer, that such a master is under perfect obligation to exercise justice towards his subjects or servants, let them be called which you will, and under imperfect obligation to exercise beneficence towards them? But not to rest in so general an answer, the following propositions may be laid down with re-gard to such empire, in consequence of what hath been said by our Author, and in the preceding remarks subjoined to him, to his two last chapters in particular. 1. It is lawful to acquire and to possess dominion; for if it be lawful to acquire property, it must be lawful to acquire all that is necessarily attendant upon property, i.e. the dominion which an over-balance in property will necessarily produce. 2. As an attempt to change government, without changing the over-balance of property, or to fix government without a fixation of the balance of property, is an attempt contrary to nature; so to endeavour to violate property in order to change government, is unjust force. All violation of property is unjust. 3. But he or they who hold the over-balance of property, and consequently the reins of government, are certainly obliged by the law of nature to make their dependents as happy as they can, as much men as they can. This must be true, or the law of love is a mere empty sound. And therefore, 4. Tho’ it cannot be pronounced unlawful for one or many, who have the over-balance in property, to hold it, no more than it is for one or many, to make use of the authority their superiority in wisdom may give them; yet it is certainly unlawful to exercise power in consequence of property in an injurious, oppressive manner over dependents, as if they were not men; as it is unlawful to make use of superior prudence, or rather cunning, in order to deceive and mislead those who pay submission and reverence to it, to their ruin or hurt. 5. It is certainly the natural right, nay, the natural duty of a people, when providence puts it in their power, by any revolution bringing property to such a balance, that an equal happy government can be constituted, to constitute such a government, and to fix and secure its duration by the only natural way of fixing and securing it. This must be their duty, if it be a people’s duty to consult their best interest, or to provide for their own greatest good, and the secure continuance of happiness to their posterity. And then does providence give this opportunity, and consequently call to this duty, when by the course of things, without forcible removal, or violation of property, the people come to have the balance. And, 6. Whoever hold the over-balance of property, and by consequence the reins of empire, one or the few, he or they are under the same obligation, to constitute such orders of government as may best promote and secure the general happiness of the dependent people, that they are under to benevolence, because this is what benevolence manifestly requires at their hands. I have said the same obligation that they ly under to benevolence, because of the distinction already explained, which is admitted by all moral writers between perfect and imperfect obligation. And that it is a glorious and noble part to act, who can doubt, who hath a just idea of true glory, I had almost said, any feeling of humanity? Let it not be said that this cannot be expected of mankind. This is an unjust reproach. Our Author has, in the scholium to §144. named some instances of generous princes, who made no other use of the rights, even of just conquest, but to make the conquered happy and free. And let me add some other examples from ancient history yet more heroic, as they are narrated, by an author often referred to and quoted in our remarks, with great satisfaction, with all the joy every beneficent mind must needs be touched with, by such god-like instances of generosity and public spirit. “In those ancient and heroic times (when men thought that to be necessary which was virtuous) the nobility of Athens having the people so much engaged in their debt, that there remained no other question among these, than which of those should be King, no sooner heard Solon speak, than they quitted their debts, and restored the commonwealth, which ever after held a solemn and annual feast, called the Sisacthia or Recision, in memory of that action. Nor is this example the Phoenix; for at the institution by Lycurgus, the nobility having estates (as ours here) in the lands of Laconia, upon no other consideration than the commonwealth proposed by him, threw them up to be parcelled by his Agrarian.
The Macedonians were thrice conquered by the Romans, first under the conduct of Titus Quintus Flaminius, secondly, under that of Lucius Aemilius Paulus, and thirdly, under that of Quintus Caecilius Metellus, thence called Macedonicus. For the first time Philip of Macedon, who (possest of Acrocorinthus) boasted no less than was true, that he had Greece in fetters, being overcome by Flaminius, had his kingdom restored to him, upon condition that he should immediately set all the cities which he held in Greece and in Asia at liberty; and that he should not make war out of Macedon but by leave of the senate of Rome, which Philip (having no other way to save any thing) agreed should be done accordingly. The Grecians being at this time assembled at the Isthmian games, where the concourse was mighty great, a crier, appointed to the office by Flaminius, was heard among them proclaiming all Greece to be free; to which the people, being amazed at so hopeless a thing, gave little credit, till they received such testimony of the truth as put it past all doubts; whereupon they immediately fell on running to the proconsul with flowers and garlands, and such violent expressions of their admiration and joy, as, if Flaminius, a young man about thirty three, had not also been very strong, he must have died of no other death than their kindness, while every one striving to touch his hand, they bore him up and down the field with an unruly throng, full of such ejaculations as these: How! is there a people in the world, that at their own charge, at their own peril, will fight for the liberty of another? Did they live at the next door to this fire? Or what kind of men are these, whose business it is to pass the seas, that the world may be governed with righteousness? The cities of Greece and Asia shake off their Iron-fetters at the voice of a crier! Was it madness to imagine such a thing, and is it done? O virtue! O felicity! O fame!
In this example we have a donation of liberty to a people, by restitution to what they had formerly enjoyed, and some particular men, families or cities, according to their merit of the Romans, if not upon this, yet upon the like occasions, were gratified with Latinity: But Philip’s share by this means did not please him; wherefore the league was broken by his son Perseus; and the Macedonians thereupon, for the second time, conquered by Aemilius Paulus, their King taken, and they some time after the victory summoned to the tribunal of the General, where remembering how little hope they ought to have of pardon, they expected some dreadful sentence: When Aemilius in the first place declared the Macedonians to be free, in the full possession of their lands, goods and laws, with right to elect annual magistrates, yielding and paying to the people of Rome one half of the tribute which they were accustomed to pay to their own Kings. This done he went on, making so skilful a division of the country, in order to the methodizing of the people, and casting them into the form of popular government, that the Macedonians, being first surprized with the virtue of the Romans, began now to alter the scene of their admiration, that a stranger should do such things for them in their own country, and with such facility, as they had never so much as once imagined to be possible. Nor was this all; for Aemilius, as if not dictating to conquered enemies, but to some well-deserving friends, gave them, in the last place, laws so suitable, and contrived with such care and prudence, that long use and experience (the only correctress of works of this nature) could never find fault in them.3
In this example, we have a donation of liberty to a people, that had not tasted of it before, but were now taught to use it.
But the Macedonians rebelling, at the name of a false Philip, the third time against the Romans, were by them judged incapable of Liberty, and reduced by Metellus to a province.”
Now, with respect to incapacity of liberty, I beg leave to add a remark from the same author. “A man may as well say, that it is unlawful for him, who has made a fair and honest purchase, to have tenants, as for a government, that has made a just progress, and enlargement of itself, to have provinces. But how a province may be justly acquired appertains to another place.4 (Our author treats of just war afterwards; and this Author treats of propagation and holding at great length)—The course Rome took is best; wherefore, if you have subdued a nation that is capable of liberty, you shall make them a present of it, as did Flaminius to Greece, and Aemilius to Macedon, reserving to yourselves some part of that revenue which was legally paid to the former government, together with the right of being head of the league, which includes such levies of men and money as shall be necessary for the carrying on of the public work. For if a people have, by your means, attained to freedom, they owe both to the cause and you such aid as may propagate the like fruit to the rest of the world. But whereas every nation is not capable of her liberty to this degree, lest you be put to doing and undoing of things, as the Romans were in Macedon, you shall diligently observe what nation is fit for her liberty to this degree, and what not; which is to be done by two marks: the first, if she loves the liberty of mankind; for if she has no care of the liberty of mankind, she deserves not her own. But, because in this you may be deceived by pretences, which continuing for a while specious, may afterwards vanish; the other is more certain, and that is, if she be capable of an equal Agrarian; which, that it was not observed by excellent Aemilius in his donation of liberty, and introduction of a popular state among the Macedonians, I am more than moved to believe for two reasons. The first, Because at the same time the Agrarian was odious to the Roman patricians. The second, That the Pseudo-Philip could afterwards so easily recover Macedon, which could not have happened but by the nobility, and their impatience, having great estates, to be equalled with the people: For that the people should otherwise have thrown away their liberty, is incredible.”5
But because it will be very easy to draw a solution from the principles which have been laid down to all the questions about government; and because the enquiry, what constitution of government is best, belongs not to the present subject, we shall take leave of our author here, and add no more to what he says; but in the first place, That no maxim is more false than that whatever government is best administred is best.6 That only is good, which is, by its frame, well secured against bad men, and bad administration. 2. Nor is another maxim in politics less dangerous, which asserts that good men make good laws. It is the maxim of Demagogues. The truth is, that good laws or orders make good men. And a government ought to trust to its constitution and orders, and not to men. 3. The chief matter, the whole mystery of government is revealed to us every day (to use the words of an excellent author) by the mouths of babes, as often as they have a cake to divide; for this is their natural language, “I will divide, and you shall choose.”7 To which we may apply what Horace says of other natural instincts or directions. Unde nisi intus monstratum?8 The whole secret of a well poised equal government, lies in dividing and choosing, as the same author we have so often quoted hath shewn at great length. Dividing and choosing, in the language of a commonwealth, is debating and resolving. And in order to a right division and choice, as the council dividing, should consist of the wisdom of the commonwealth, so the assembly or council choosing, should consist of the interest of the commonwealth. The wisdom of the few may be the light of mankind, but the interest of the few is not the profit of mankind, nor of a commonwealth. Therefore, as the wisdom of the commonwealth is in the aristocracy, so the interest of the commonwealth is in the whole body of the people. And whereas this, in case the commonwealth consist of a whole nation, is too unwieldy a body to be assembled, this council is to consist of such a representative as may be equal, and so constituted as can never contract any other interest than that of the whole people. Whence it follows, 4. That government, de facto, may be an art, whereby some men, or some few men subject a city or nation, and rule it according to his or their private interest: which, because the laws, in such cases, are made according to the interest of a man, or of some few families, may be said to be the empire of men, and not of laws. Yet government, de jure, is an art, whereby a civil society of men is instituted and preserved upon the foundation of common right or interest, which is properly called by Aristotle, an empire of laws, and not of men.9 The necessary definition of a government, any thing well ordered, is, that it is a government, consisting of the senate proposing, the people resolving, and the magistracy exercising. Our excellent constitution hath been judged by the most renowned politicians the very best. See our author, §116 in the scholium. But the discussion of this equally curious and important subject, belongs not to the present question.
Concerning the immanent rights of majesty, and the just exercise of them.
The internal security of a civil state consists in external justice.The immanent or internal rights of majesty, are rights so inseparably connected with it, that the security of the subjects cannot be attained without them (§134). Since therefore this security consists in this, that no subject may be injured by any other, and every one may have his own, or whatever he has a perfect right to demand; the consequence is, that it lies chiefly in external justice, by which we understand conformity of external actions to law; and therefore they are not in the wrong who contend, “That civil states were constituted for the sake of justice; or that (Velleius Pater. hist. 2. 80),1 by giving force to laws,* and authority to courts of justice, industry and religion might be encouraged, and property might be sure, and every one might enjoy with security his own lawful acquisitions”: And therefore they justly assert that a civil state cannot subsist, unless that justice prevail in it, by which subjects are kept to their duty, Aristot. polit. 1. 2.
To sovereignty therefore belongs a legislative power.Because external justice, necessary to the security of a civil state, consists in the conformity of external actions to law (§148), the consequence is, that it is the office of the supreme powers to arm a state with laws; and therefore they must have the right and power of law-making, and of executing the laws, and consequently of adjusting the laws to the end, form, and interest of the republic.* They have therefore power and right to add to them, take from them, abrogate or change them, as the good of the state may require; which power is expressed by the Roman lawyers in a stile accommodated to the nature of the Roman government, by rogare, obrogare, derogare, abrogare, surrogare, Ulpian fragm. 1. 3.2
What civil law is, and what is its object?Since there ought to be one understanding and one will in a state (§114), which thus happens, when all the members have the same end in view, and choosing the same means, regulate all their actions by the same rule; an agreement that cannot be expected, considering the diversity of human dispositions, otherwise than by the submission of all the members of a state to the will of its rulers (§114); hence it follows, that the supreme power ought to make the rule known to which he would have them to conform their external actions, which are in themselves indifferent. Now, this can only be done by prescribing laws to them; and therefore civil laws are commands of the supreme power in a state concerning the regulation of external, indifferent actions for the good and honour of the state; whence it is evident, that this legislative power cannot extend to the subversion of divine laws (l. 1. §17).
What power or authority the supreme magistracy hath with regard to divine laws.We say, that civil laws consist in the adjustment of the external indifferent actions of subjects to the honour and interest of the state (§150). For tho’ it be often necessary that magistrates repeat some divine positive as well as natural laws, and extend and interpret them;* give actions and civil remedies against transgressors of them; and threaten punishments to those who shall dare to violate laws established by God himself; yet it is plain, from the nature of the thing, that then these laws do not owe their original obligation to the will of the civil magistrate, but that he then only exerts himself, as guardian of the divine laws, to make their authority sacred in the state.
The constituent parts of a law.Because civil laws are commands of the chief magistrate concerning the regulation of external indifferent actions for the good and honour of the state (§150); but such is the nature of mankind, that internal obligation alone is not sufficient to influence them (l. 1. §8); nay, civil laws cannot produce internal obligation (l. 1. §7); the consequence is, that all civil laws must be enforced by some penal sanction; and therefore a perfect law consists of two parts, the preceptive part, and the penal sanction: But rewards are not due by a republic to those who obey its laws; unless something be not promiscuously enjoined to all the subjects, but it be proper that some should be excited by a particular condition to do something extraordinary for the public good.*
Penal sanction is either definite or indefinite.Seeing by punishment is understood an evil effect of the transgression of a law (l. 1. §99), which evil effect may consist not only in a certain evil of suffering, but likewise in the nullity of the act done in disobedience to a law; yea, in both: For this reason, a law which both pronounces an act contrary to it null, and renders a transgressor liable to some evil of suffering, is called by the Civilians a perfect law; and other laws are called imperfect, or less than perfect, Ulpianus fragment. 1. 1.3 Moreover, because an illicite action may be either determinate or indeterminate, and may be varied by a great diversity of circumstances (l. 1. §100), the consequence is, that punishment may be definite or indefinite and arbitrary.
Judiciary power likewise belongs to the supreme magistrate.Because laws would be ineffectual, were they not applied to facts; i.e. unless enquiry were made into the agreement or disagreement of actions with laws (l. 1. §95); it follows, that there must be some person, in a civil state, who hath the power of judging of the imputation of actions; which power, is nothing else but a power of judging of the actions of others (l. 1. §97); whence it is plain, that judiciary power is necessary in a republic. Now, because between equals neither magistracy nor punishment can take place (§6), this judiciary power in a republic must belong to the superior; i.e. to the supreme power in it;* and therefore it is one of the internal rights of majesty (§134).
What it is, and how it ought to be exerced.But it being the office of a judge to apply laws to facts or actions, and actions contrary to law being either detrimental to the republic itself, or to private persons; it follows from hence, that all judgments are either private or civil, public or criminal; the former of which consist in determining suits or controversies; the latter in punishing bad actions, Cic. pro Caecin. c. 2. And tho’ a prince cannot be blamed, if he delegates the judiciary power to prudent and good men, skilled in the laws (l. 1. §101), and so constitute magistrates and judges every where; yet there ought always to be access to the supreme power for those who think themselves oppressed by an unjust decree of the judges; and therefore, the ultimate determination of doubtful causes belongs to the Sovereign of a state.*
As also the power of punishing.Because it belongs to a judge to apply laws to facts, and to determine whether an action be imputable to a person or not (l. 1. §95); but to impute an action, is to declare whether the effect assigned by a law to a certain action takes place or not (l. 1. §99); hence it follows, that the Sovereign, who has the supreme judiciary power, has also the power of inflicting punishments. And be-cause it cannot be denied, that he who hath the power of making laws, must also have the power not only of taking away a part of a law, or of making some exception to it, but even of abrogating a law (§149); much less can it be refused, that he hath the power of exeeming a delinquent for just reasons from a law, so as to give him a remission from the punishment due by it.*
Whether this power can take place among equals?Hence again we conclude, that there is no right of punishing among equals,† and that neither one’s integrity of life, nor another’s confirmed inveterate habit of sinning, gives an equal any right of punishing; and therefore, that the nature of punishment is not fully pointed out by Grotius’s definition of it, who says, “It is an evil of suffering inflicted for an evil of doing.” Nor by Becmann’s, “who defines it to be pain inflicted for a crime.” The evil of suffering inflicted by the sufferer, is not punishment, but revenge; and if it be inflicted by a third person, who is not a superior, it is injury. But that neither of these ought to be permitted in a civil state, is plain from hence, that the judiciary power in it belongs only to the supreme magistrate, and those to whom he hath delegated and intrusted it (§154, 155).
What are the ends of punishments.Nor will it be difficult to determine what is the end of punishment from the very reason which makes it requisite. For since punishment, properly so called, took its rise upon the introduction of civil government (§6), and the right of inflicting it, is one of the immanent rights of civil majesty (§134); the end of which is nothing else but the security of subjects; the consequence is, that the same must be the end of punishments. But because subjects are rendered secure, by reducing them in such manner, that they shall no more be disposed to transgress, or that they shall no longer have it in their power; i.e. either by amending them, or by taking the power from them of offending for the future; hence it is evident, that the former is the end of punishments, which are inflicted without taking away the criminal’s life; and that the latter is the end of capital punishment, “punishment joined with the loss of life,” as Justinian speaks, §2. Instit. de pub. jud.* And because sufficient provision would not be made for the security of the state, if those only who had offended should cease to transgress, and the like transgressions may still be apprehended from others; it is obvious, that by the same punishments, as by examples, others ought to be admonished of the danger of transgressing; and therefore the guilty ought to be punished publickly, unless some weightier reason forbid it.
Whether a delinquent be obliged to suffer punishment?These principles being fixed, it is very perspicuous, whether there be any obligation upon a delinquent to suffer punishment. For since he who lives in a civil state, is obliged to all, without which its end, i.e. the public security, cannot be obtained or expected (§106), undoubtedly a delinquent is obliged to suffer the punishment defined by the law, tho’ not to punish himself, and therefore not voluntarily to offer himself to cruel sufferings:† no injury is done to one who suffers condign punishment, being convicted of a crime; nor is it lawful to any one to resist the supreme power, when it inflicts the punishment appointed by law.
If all crimes ought to be punished, and what crimes ought to be punished.Now, from the end of punishments (§158), we infer, that they ought to be adjusted to the end of the republic, and therefore to be of such a nature as is most proper for its internal security. Whence it follows, that the supreme power is obliged to punish such crimes as disturb the security of the state, or hinder the subjects from living conveniently and tranquilly. But it is not necessary to punish vitious acts which rest in the mind, nor yet such minute faults as every man is liable to; nor the omission of the offices of humanity, unless these crimes become, by their prevalence, dangerous, or disgraceful to the state, and therefore necessity oblige to restrain even them.*
Who are to be punished.It is abundantly plain, from the very definition of punishments (l. 1. §99), that they only ought to be punished who have committed any evil action; not their heirs or their families,† or sureties, who bound themselves to punishment for others, contrary to right and justice (l. 1. §146). But since whole societies constitute one moral person (§19), and therefore are bound by the same laws prescribed to the rest (§23), it is obvious, that communities and societies may be punished, tho’ humanity itself pleads for the mitigation of the punishment, that the innocent may not suffer equally with the guilty; and that those who transgressed by mistake, or thro’ weakness of judgment, may not feel the same severity with those who were the stirrers up and ringleaders in such tumults. And in punishing large bodies, corporations or communities, that the remedy may not be worse than the disease, care ought to be taken that fear may affect all, and punishment may reach but to few.
The principles upon which the quantity of punishment is determined.What kind of, and how great punishments ought to be inflicted, is plain from the nature and end of punishment. For since the end of punishment consists in the security of the subjects (§158), the consequence is, that punishment ought to be sufficient to impress fear, and to restrain and coerce evil dispositions. But such being the nature of mankind, that any evil concupiscence, which hath once got possession of the heart, cannot be restrained, but by setting before men a greater evil or good, (l. 1. §52); hence we have reason to conclude, that a penal sanction will not impress sufficient fear, unless men judge it a greater evil to undergo the threatened punishment, than to omit the crime forbidden under that penalty, and be deprived of the pleasure or profit they expect from it.*
Conclusions from hence.From these principles we further conclude, that the security of the civil state does not admit of the punishment of retaliation, or like for like.* Nor is the rule about proportion between the crime and the punishment a just one, unless it be understood, not so much of the actions themselves, as of the disposition to perpetrate them. Besides, since some crimes are more noxious to the public than others, and some tend more than others to its dishonour, it is easy to find a reason why an action, which is more hurtful to the public security, is fenced against by more severe and awful punishment, and punishment is augmented when crimes become more frequent.
In appointing punishments regard ought to be had to all circumstances.But, as in the imputation of other human actions, so likewise in the imputation of crimes, all circumstances ought to be attended to; for one circumstance often changes the whole affair (l. 1. §100). And therefore it may happen, that one ought to be more severely punished than another for the same crime; and in defining punishments, regard ought to be had not only to the person of the delinquent, but likewise to the person injured, and also to the object, the effect, the place, the time, and like circumstances.*
Punishments inflicted to amend persons, ought not to be ignominious.Nor ought it to be forgot, that since all punishments are not intended to cut off the flagitious delinquent; but they are often only intended to reform him, and make him more regular and circumspect for the future (§158); care ought therefore to be taken, that all who suffer for their faults be not marked with ignominy; because they would thus be no longer useful members in the republic, and could scarcely gain their living by any honest art or employment.
A Sovereign hath the power of laying on taxes and imposts, and hath a certain eminent dominion.To the internal rights of majesty belongs the power of exacting tributes and taxes from subjects, and of applying their goods to public uses when necessity so requires; which last is called eminent dominion.* For all being in the power of a Sovereign, without which the end of a republic, viz. internal and external security, cannot be obtained (§133); which cannot be obtained without contributions from the subjects for bearing the necessary charges of the republic, and unless the Sovereign may sometimes apply the goods of subjects for public uses; the consequence of this is, that Sovereigns must have a right to exact contributions from subjects, and likewise a right of exercing an eminent dominion.
What this right is in the ordinary state of a republic.Now, since a Sovereign hath this right (§166), it is obvious, that to him belongs the protection and guardianship of private properties;* that when the exigencies of the state require it, they may be ready, and in a condition to answer the necessities of the republic; and therefore he has a right of making laws concerning the right use of property, and concerning alienations and conveyances (l. 1. §317); as likewise of settling commerce by treaties, and of restricting it according as the interest of the republic may require; of regulating import and export, promoting manufactures and arts, making sumptuary laws; and, in one word, of doing every thing to make the state thriving and opulent, and sufficient to defend and maintain itself in a flourishing condition.
And what in an extraordinary state.Such is the right of sovereignty in the ordinary state of a republic. But because it is in an extraordinary state of the republic that eminent dominion takes place (§166), the consequence is, that a Sovereign has the right, in time of war, to make en-campments upon the fields of private persons, and to make necessary fortifications and public works upon them, l. 9. C. de oper. public. to bring in corn and other necessaries by foraging; to make new highways through the lands of subjects when the old ones fail, l. 14. §1. D. quemadm. serv. amitt. throw down houses in the suburbs when Hannibal is at the gates, and such other like things.
When this eminent dominion justly takes place.But since this right only takes place in urgent necessity (§166), and since that is necessary, without which the public good, the supreme law in every state (§24), or liberty, property and security, cannot be maintained and preserved; hence we may justly infer, that this right may not only take place when the extreme necessity of a republic requires it, but even as often as it is truly requisite to the public utility; especially since utility often becomes necessity (V. A. Corn. van Bynkersh. ibid. p. 292).4 But this right scarcely takes place, when it is merely the private interest of the Sovereign that demands it, if any one’s just right is taken from him by it; much less, when it is not his real utility but pleasure that is the motive. And, in fine, of such a nature is this eminent dominion, that a good prince will easily submit to fixing bounds to it, and will use it very modestly (Bynkersh. ibid.).*
How they ought to exerce it.Since equity teaches us that the common burdens of the republic ought to be supported at the common charge (§166), the consequence of this is, that one subject ought not to be loaded more than another; and therefore, that compensation ought to be made to him who must part with any thing for the public utility out of the treasury or the public coffer.* And if that cannot be done immediately, they who are thus deprived of any part of their property have a right to exact it, unless they build contrary to law, and such an edifice, or whatever kind of work it is, be destroyed, the public utility so requiring. For, in this case, so far are they from having a right to demand refunding the value, that they are liable to the penalty appointed by the laws. V. A. Corn. van Bynkersh. ibid. p. 297.
Whether it can be extended to the goods of foreigners not enemies.Besides, from the same definition it is plain that this right can only be exercised upon the goods of subjects, and not upon the goods of foreigners who are not enemies. Wherefore those princes are hardly excusable, who lay their hands upon the goods and merchandize of nations in friendship with them, force them to lend them money, or seize their ships to transport troops or provisions. But such pressing, as it is called, is frequent, and defended under this colour, that foreign ships, found in the harbours of a prince, are subject to him;* and it is practised by a received custom among nations and empires.
What is the exchequer and treasury.So much for the eminent dominion or transcendental propriety. As to taxes and imposts, it is the interest of a republic to be strong in money on a dou-ble account. First, in order to support its Sovereign suitably to his dignity. And secondly, that money, the nerves of all business, may not be wanting either in time of war or peace; and therefore in republics there are usually two public coffers, one of which is intended for the suitable maintenance and support of the Sovereign, and is called the exchequer; the other for the public use, which is called the treasury.† That both of these should be well filled, is greatly the interest of every civil state.
What hath been contrived for enriching the treasury.Since the money destined for the support of a Sovereign is brought into the (fiscus) or exchequer, (§172), some nations have thought fit not only to assign to their Sovereigns certain lands and territories, out of the revenues of which their dignity is to be supported, which are now called demesnes of the crown, or crown-lands; but likewise certain customs, duties, tollages, or taxes; and all things within the territory of the republic not under dominion (l. I. §243 & seq.); which latter way of enriching the king’s treasury hath been the more readily agreed upon in all nations,* that it is done with the least cost to particulars.
His rights over his demenial goods.Since therefore the demains of a Sovereign are intended for the maintenance of his dignity (§173), it is plain that they cannot be alienated, and therefore may be reclaimed by a successor singular or universal, if they are alienated; nor does it make any difference whether they are alienated in part or in whole, since of what is not ours we cannot alienate the smallest part, as Grotius justly observes (of the rights of war and peace, 2. 6. 11.) where he remarks, that such alienations made with the consent of the people are valid,* and the fruits of this demain or patrimony of the crown are to be distinguished from the patrimony itself.
The right of a Sovereign over things which have no master.Moreover, because things having no master have been assigned to Sovereigns (§173), it is not difficult to find a reason why the crown every where pretends to a right to all those things which are by the Roman law pronounced either common or public, as the seas which wash their territory, rivers, large forests, and therefore the rights of fishing and hunting; as also the right of digging for minerals and metals, and of taking possession of vacated goods, and of gems or precious stones cast out by the sea, alluvions, new islands, deserted channels, and, in some places, trove-treasure, and vagabonds and bastards; tho’ all these things differ according to the different usages of nations, as Huber has justly observed, de jur. civ. 2. 4. 4. 48. p. 468.*
Other laws of the Exchequer.Since it is the interest of the republic that the exchequer should be as rich as possible (§172), it is not strange that other advantages and means of gain are given to it; especially the right of coining money, mulcts, and contreband goods, and the right of seizing all unlawful acquisitions, and other such, which are commonly, tho’ not so justly, called the regalia minora (§133). But here the customs of nations are different, according as kingdoms allow more or less to Sovereigns, or they have arrogated more or less to themselves by long use.
The treasury is enriched by taxes and duties.As for the public treasury, it is chiefly filled by taxes and duties, unless there be so much public land that the republic can be preserved by its revenues. For since (§172) republics can do nothing without money, either in war or peace (Tacit. hist. 4. 74), and, there not being a sufficient quantity of public land, that can be no otherwise got than from the subjects; the consequence is, that the chief magistrate can impose tributes and taxes upon the subjects, either with or without the consent of the different orders of people in the state, according to the different forms of government; and that they may lay them upon persons, lands, merchandize imported and exported, consumable commodities, manufactures and commerce, as is most convenient, provided regard be had to the condition of the people and the quality of things,* and subjects be not so oppressed, that they, like slaves, do not acquire to themselves, but to their Sovereign.
What is just with regard to it.But if in levying taxes, regard ought to be had to every one’s faculties, and the subjects ought not to be oppressed with burdens (§177), it is manifest that what is above the power of the subjects, ought not to be exacted from them; nor ought they in times of peace to be so spunged, that they can be able to contribute nothing in case of danger: Besides, this contributed money ought not to be collected with too much rigidity, and it ought to be honestly and faithfully managed, and employed for the purposes to which it is destinated, or which the very end of the contribution requires. This is evident from the nature of the thing.
The right of the Sovereign to constitute magistrates and ministers.Moreover, another of the internal rights of majesty, is to constitute ministers and magistrates (§134). By ministers we understand those who govern a part of the republic entrusted to them in the name of the Sovereign: By magistrates, who manage a part committed to them in their own name, but dependently on the Sovereign. Since therefore ministers act in the name of the Sovereign, and magistrates dependently on him, the consequence is, that the Sovereign has the sole right of nominating them, unless he hath granted to others the right of choosing and presenting, or to a community the right of election: that they are under particular obligation to him, and are bound to render account to him, and may be justly degraded from their dignity by him, if they do not acquit themselves well in their charge; nay, may be punished, if they be guilty of knavery, or any gross misdemeanor, as the demerit of their crime requires.*
The duties of Sovereigns and their ministry, and of magistrates.As a part of the public concerns is entrusted to ministers as well as magistrates (§179), it therefore is the duty of a prince to know his men well, and to take care to choose none but such as are proper for the trust; and it is the duty of subjects, on the other hand, not to ambition trusts to which they are not equal; and much more is it so, not to brigue for them, or to use bribery, largesses, and other vile arts to procure them, or to buy them, unless it appear to the Sovereign to be for the interest of the republic that such offices should be matter of commerce. Moreover, it is self-evident that every minister and magistrate is obliged to all diligence and fidelity, and to regard the happiness of the state as his chief, his supreme law; and much more is this obligation incumbent upon a first and chief minister, upon whose shoulders the Sovereign hath laid the chief burden of the government.*
The right in sacred things belonging to Sovereigns.One of the chief immanent rights of Sovereigns is the right relative to religion, sacred things, or the church, by which we understand a society formed on account of religion. Now, since (§23) all communities and societies of the simpler kind ought to be so subordinated, that they may do nothing contrary to the interest of the larger society; the consequence is, that a church ought to be subordinate to the republic; and therefore, that the chief magistrate has the right of directing its affairs and concerns.* This may be proved from this consideration, that a republic ought to have one will (§114), which could not be the case, if the church in a state were not subject to the chief magistrate, but constituted by itself a free and independent community, not subject to the chief magistrate. Besides, that since all the rights belong to majesty, without which the security of the subjects cannot be obtained (§133); and experience has abundantly shewn us how much the internal and external security of subjects hath been disturbed under the pretext of religion; who then can deny that a Sovereign has the right of so directing religious affairs that the republic may suffer no detriment?
Whether it extends to articles of faith?Religion, on the account of which men coalesce into the particular society called a church (§181), consists chiefly of two things. The first is a just idea of God (l. 1. §127). The last is perfect love to God (ibid. §130). Now, from hence it is evident, that with regard to the former a Sovereign can have no power, since the understanding cannot be forced (l. 1. §129);* and therefore his right ought not to be stretched to a right of imposing new articles of faith upon his subjects, and proscribing former ones; (i.e. of imposing a yoke upon their consciences); tho’ it be incumbent upon him to take care, that his subjects be instructed in the doctrines he judges to be agreeable to reason and revelation; and that these doctrines be rendered subservient to promote piety and virtue, instead of feuds and divisions, to the equal detriment of the church and state.
What with regard to the internal worship of God?As for divine worship, we said before it is either internal or external. Now, the internal is of such a nature, that the obligation to it is obviously deducible from principles of right reason (l. 1. §130); and therefore, no mortal hath power to change it, (l. 1. §17); and consequently, a Sovereign can neither abrogate nor alter it; tho’ all men being obliged to promote the glory of God to the utmost of their power (l. 1. §128); a prince must be obliged, and have the right to take care that his subjects be duly instructed in the internal worship of God; to use proper methods to reform the impious, and bring them to a just sense of the reverence they owe to the Supreme Being; i.e. by reasoning and argumentation; and to guard his state against the spreading either of atheism or superstition, by such fences as the nature of religion and persuasion admits.
What with regard to external worship?External worship consists partly in external actions flowing from love, fear, and trust in God (l. 1. §135), partly in arbitrary indifferent actions (ibid. §138). With regard to the former, the same rule takes place as with respect to internal worship; and therefore, with regard to it, a good prince will arrogate no power to himself, besides that of endeavouring to the utmost to promote it by due methods.* The latter are neither prescribed nor dis-approved by reason (l. 1. §138); and therefore they are subject to the direction of a Sovereign; and he hath all the right and power with regard to them, which is neither repugnant to reason nor revelation.
The chief articles of the power of a Sovereign about sacred things?Since all direction with regard to the arbitrary acts of external worship, which is neither repugnant to reason nor revelation, belongs to sovereignty, (§184); the consequence is, that the chief magistrate hath the right of reforming and of abolishing abuses truly such, so far as the public laws or pacts permit; the right of making and amending ecclesiastical laws; the care of ecclesiastical goods or possessions, and of applying them to their proper uses; the right of jurisdiction over all persons, causes, and things ecclesiastical; and of conveening and directing synods and councils;* and finally, the right of permitting meetings of dissenters; or of not tolerating them, but obliging them to leave the kingdom, when important reasons require such severity.
The right or power of the chief magistrate about schools or academies.Schools and academies are seminaries to the church and to the state; nurseries for ministers, magistrates and good citizens, as well as for divines, their end being to instruct the youth in all useful arts and sciences necessary to qualify them for the various offices of life, and the several different stations in which they may be placed, or professions they may choose, as well as to form their manners to virtue and probity, and decency of conduct. For which reason, it is the duty of the supreme power in a state to establish such schools, and to adorn them with good laws and constitutions, and with learned and well qualified professors or masters; to take care that no hurtful doctrines be taught in them, that discipline be kept upon a good footing; and, above all, that turbulent genius’s do not sow divisions and contentions in them;* so as to render them like the school of Megara in ancient times, οὐ σχολήν, ἂλλα χολήν; “Not a school, but a seat of choler and scufling,” Diogenes Laert. 6. 24.
The right of the chief magistrate with respect to commerce.The other right of magistracy which remains to be considered, is what regards commerce (§134). For since mankind, far less a republic, cannot subsist without commerce (l. 1. §325), the governors of a civil state ought to take care to promote and maintain it, and to direct it into a right and proper channel. And therefore they have all the rights relative to it, without which these ends cannot be obtained (§133); the consequence of which is, that they can make laws concerning traffic, manufactures, export and import, payment of bills and debts, and about money or coin; give privileges to traders, stipulate security to foreign commerce by treaties, and defend it by arms; grant immunities and rights to larger societies of merchants; and, in general, do every thing necessary to support and promote trade, consistent with pacts and treaties made with other princes or states.*
Concerning the transeunt rights of Sovereignty.
It is lawful to make war.Because all empire is supreme and absolute, (§127), it follows, that different empires or civil states are independent, and subject to no common authority on earth (§ eodem). But such states are in a state of nature, and therefore in a state of natural equality and liberty (§5 & seq). And because in such a state the injured have no defence or protection but in themselves, and therefore in it every one has a right to repel violence and injury, and to extort by force what is due to him by perfect right (§9), it is abundantly evident, that every civil state or republic has the right of making war.*
What is war.By war we understand a state in which free and independent men or nations, living in a state of nature, contend in prosecution of their rights by force or stratagem, while they retain that intention.* From which definition, it is plain that war does not consist in the act itself of contending, but in a hostile state, and in the fixed purpose of contending; and therefore truce does not belong to a state of peace, but to a state of war; and, on the other hand, the quarrels and tumults, the private or public violences of men who are not their own masters, but subjected to civil government, do not come under the definition of war.
To whom the right of war belongs, and in what it consists.Since war is made by free nations, and men who live in a state of nature (§189), the consequence is, that in the latter case the right of war belongs to all promiscuously, as being all equal (§5 & 9); but in the former to the supreme power only (§135); and therefore it is the right of the Sovereign to levy or hire troops,* to build fortresses and fortify towns; to raise money for the maintenance of an army, to make provision of arms, warlike stores, ammunition, and other necessaries for war; to build, man, and store ships, to declare war, wage war against an enemy, and thus expose soldiers to the greatest danger, and make laws relative to military discipline and exercise, and such like things. For the end of this right being the external security of the state (§135): because the chief magistrate of a state must have all the rights, without which that end cannot be obtained (§133); every one may easily see that the right of war must make one of them.
Whether an inferior magistrate may make war?From the same definition of war, it is evident that an inferior magistrate, or the governor of a certain province or fortress, cannot make war; tho’ that such may defend the towns or provinces under their command and government against any aggressor whatsoever, on a sudden attack, even without a special order, none can doubt; nay, because a province may be so remote, that its governor cannot inform the Sovereign of its imminent danger speedily enough to receive proper instructions, in this case certainly, if the right of making war be given to the governor by a general mandate, there can be no doubt of his right to make war without particular order from his superiors.*
Whether private persons have the right of war?Moreover, from this definition we learn that single combats are unlawful, unless undertaken by the command of the supreme powers;† and therefore Grotius’s distinction between private and public war hath no foundation, nor does it quadrate with the definition of war. Much less can that be called war which is carried on by citizens against one another, and is commonly called a civil war. Again, the state of violence and enmity, which pirates and robbers are in with all mankind, as it were, is not a state of war, but of robbery and plunder; and therefore such persons have not the rights of war, but ought to be punished as disturbers of the public security.
The justifying causes of war.Since war is carried on by free nations (§189) in prosecution of their rights, the consequence is, that there are only two just causes of war: One is, when a foreign people injures another people, or attempts to rob them of their liberty, wealth, or life: the other is, when one people denies another their perfect right.* The first is a just cause of defensive war, the last of offensive; and therefore the third, first mentioned by Grotius (of the rights of war and peace, 2. 1. 2. 1.) viz. the punishment of crimes, is not to be admitted as a just cause of war; the rather, that it is certain an equal cannot be punished by an equal; and therefore one nation cannot be punished by another (§157).
Whether war be just on the account of refusing to render imperfect right?As the denial of perfect right only is a just cause of war (§193), hence it follows, that it is not allowable to have recourse to arms for the refusal of an imperfect right (§9); and therefore these are not just causes of war; as, for instance, if one refuses passage to an army, or denies access to a people in quest of a new habitation, will not grant the liberty of commerce to a people at their desire, or furnish money, provision or shelter, to those who are carrying on war, unless these things be due by an antecedent treaty, or be demanded in extreme necessity, or be of such a kind, that they may be granted without any detriment* (§9 & seq.). For then a refusal of such things becomes an injury, and is therefore a most just cause of defensive war (§193).
If war may be waged for others?But it being sometimes the same whether we ourselves are immediately injured, or we are so thro’ the side of another; and, in like manner the same, whether perfect right be denied to us or to others, whom we are obliged, either by treaties, or on our own account, to assist; hence we may justly conclude, that war may be engaged in for allies and confederates; yea, and for neigh-bours, if it be very certain that we must suffer by their ruin. For who will blame one for hastening to extinguish fire near to his own house? Who does not consent to the truth of the antient saying, “Your interest is at stake, if your neighbour’s house be on fire”? However, since we cannot make war even for ourselves without a just cause (§193), much less will a war be just and vindicable, if we engage in the behalf of others for injustifiable reasons.
Mere colours do not justify war.But tho’ these just causes be easily distinguishable from the mere pretexts often used by those who make war most unjustly; yet men, who regard nothing but their own interest, often lay more stress on the latter than the former. However, it is plain, that if these causes we have mentioned be the only justifiable causes of war (§193), war must be very unjust, if made merely because opportunity, and the weak, defenceless state of another nation invites to it, or purely to gain some great advantage, and to extend one’s empire, for the glory of martial achievements, or from religious enmity, without any other just cause.*
The distinction between solemn and less solemn war is of little use.Many nations have thought that war, so soon as resolved upon, ought to be solemnly declared; and hence the known distinction between solemn or just, less solemn, or unjust war. The former, in the opinion of most writers, is that which is undertaken by one who hath the right to make war with a previous solemn denunciation. The latter, that which is undertaken by one who hath not the right of war, and is not previously declared. But tho’ we grant that this is become almost an universally received rule, and victory is generally thought more glorious, when it is obtained by a war that was previously declared by a manifesto, or by heralds, or with other solemn rites; yet, because rites and solemnities are arbitrary, and such customs do not constitute a part of the law of nations (l. 1. §22);* we think there is no difference as to legal effect between war declared and not declared; and therefore, that this division is of very little moment.
The causes of war ought to be manifest.But right reason clearly teaches us, that recourse ought not to be had immediately to arms; but then only, when a people hath shewn a hostile disposition against us (l. 1. §183). But seeing he shews a hostile disposition against us, who obstinately rejects all equal terms and conditions of peace (§ eodem); hence we justly infer, that before we take violent methods, what is due, or we think is due to us, ought to be demanded, and the dispute ought to be clearly stated with the arguments on both sides, and all means ought to be tried to prevent war;* which being done, he certainly takes up arms justly, who, having proposed good and adequate reasons, cannot obtain from his enemy any reasonable satisfaction.
What is lawful against an enemy.Seeing princes and free nations make war in order to vindicate their rights (§193), the consequence is, that every thing is lawful against an enemy, without which these rights cannot be obtained. But they cannot be obtained but by reducing the enemy to such a state, as that he either cannot, or will not any longer shew a hostile disposition: and therefore every one has a right to use force or stratagem against an enemy, and to employ all means against his person or effects, by which he can be weakened, without regard even to the offices of humanity, which then cease (l. 1. §208); nay, we cannot call it absolutely unjust to make use of poison or assassines, tho’ such practices are with reason said to be repugnant to the manners of more civilized nations, and to what is called (ratio belli) the humanity of war.*
Whether it be lawful to deceive an enemy by pacts and treaties?But since it is against an enemy only that it is lawful to use force or stratagem (§199), the consequence is, that it is not lawful to use either against those with whom we are in treaty; because then we pledge our faith to them not as an enemy, but as a people treating with us.* Whence it is evi-dent, that they are guilty of abominable perfidiousness, who break a short or long truce before it is expired; tho’ it be very true that both parties may exert defensive acts during that time, Pufendorff of the law of nature and nations, 8. 7. 10. Nor is their treachery less abominable, who basely violate the articles of surrendery, pacts concerning the conveyance of provisions, or the redemption of prisoners, foolishly pretending to justify themselves by this pretext, that all is lawful against an enemy.
What is lawful against others not enemies.From the same principle we conclude, that none may use the rights of war against such as are in peace and friendship with them, under the pretext that an enemy may seize their castles and fortresses, or harbours, and make advantage of them against us; nor is it lawful to seize or hurt enemies or their ships in the territory, or within the ports of a people in peace with us, unless that people designedly gives reception to our enemy, because such violence is injurious to the people with whom we are in peace, whose territory or ports are entred by force. See V. A. Corn. van Bynkershoek. quest. jur. publ. 1. 8. On the other hand, there is no reason why we may not hinder such a people from conveying arms, men, provisions, or any such things to our enemy, and hold such things for contreband;* (Bynkers. ibidem, cap. 9. & seq.) tho’ equity requires that we should not promiscuously condemn the goods belonging to our friends with those belonging to our enemies. (Bynkers. 1. 12. & seq.). See likewise our dissertation de navibus ob mercium illicitarum vecturam condemnatis.1
How acquisitions may be made by war.We have observed, that the persons and estates of enemies may be spoiled or taken (§199); whence it is plain, that it depends on the will and pleasure of an enemy to lead persons taken in war captive into servitude, or which is now the prevailing custom in European nations, to detain them till they are exchanged or ransomed. The effects of enemies, moveable or immoveable, corporeal or incorporeal, fall to the conqueror; moveable, so soon as they are brought within the conqueror’s station; immoveable, and other things, from the moment they are occupied, tho’ the possession of them be not secure, till peace being concluded, treaties about them are transacted. But that moveable things, as well as persons and territories, being retaken, or recovering their antient liberty, have the right of postliminy, none can call into doubt.†
What reprisals are.From the definition of war it is plain, that if there is no controversy between nations and states themselves, when we lay hands upon persons or effects belonging to another republic in peace with us, on the account of justice refused to any of our society, this cannot be called war, but is making reprisals.* But since this may very probably give rise to a war, it ought not to be done by any private person, but with the approbation of the Sovereign; and it ought to be carried no farther, than to make satisfaction to our member to whom justice was refused.
How empire is acquired over the conquered.But since in a state of nature the right of defence lasts while an enemy shews a hostile disposition (l. 1. §183), which he cannot be said to have laid aside, who is not willing to return into friendship, but repels all reasonable conditions of peace, (ibidem) no injustice certainly is done to the conquered, if we prosecute our right till they are fully subdued, and we have obtained compleat empire over them; and we may constitute this empire as we judge proper, and exercise it, till peace being concluded, some articles are agreed upon with relation to it; or the nation not being totally overthrown, and no treaty being yet made, recovers its antient liberty, or is bravely rescued by their former Sovereign.*
What a treaty is, equal or unequal.Another right of majesty, which may be reckoned among the external or transeunt ones, is that of making treaties among free nations about things belonging to the utility of both, or any of them. From which definition it is plain, that some of them are equal, in which the condition of both parties are equal; others are unequal, in which both parties have not the same rights granted to them, but one has better, and the other worse conditions; which, as examples shew us, may be either with regard to the conditions to be fulfilled, or to the manner of performing them.†
Treaties are either matters of simple general friendship, or which oblige to something in particular.Because free nations can contract about things relating either to the utility of either or of both, (§205), it follows, that those good offices which are owing by natural obligation, may be stipulated to themselves by free nations or states; and these are called leagues of friendship.* And other things may be stipulated, to which there was no prior obligation; which treaties we call treaties of particular obligation. The first are not unnecessary, because there is no other way of securing another’s performance to us of the duties of humanity, but by pacts (l. 1. §386). And it often happens, that war puts an end to all the duties of humanity (§199), and therefore it is absolutely necessary that friendship should be renewed by pacts and covenants.
Some treaties are made in time of peace.A thing may be useful to a state either in peace or war, and therefore some treaties relate to peace, and others to war; but it being the interest of a state, that peace be rendered as durable and stable as possible, and as profitable to its subjects as may be, we may refer to the first end, treaties by which certain guarantees engage their faith, that the ar-ticles of peace shall be faithfully observed, and promise assistance to the injured party;* as likewise treaties about building new fortifications, or for admitting and keeping garisons in certain fortified places, for defending frontiers, commonly called barrier-treaties; for not sheltering fugitive soldiers or subjects; or not giving reception to enemies, &c. to the latter of the above mentioned ends we may refer treaties of commerce.
Some treaties are made in times of war.But in time of war various treaties are made by free nations with friends and enemies. With the former, treaties are made sometimes about joining their forces against a common enemy, which are called offensive and defensive treaties; sometimes about free passage through a territory, and furnishing provisions; and sometimes about not interposing in the war, which last are called treaties of neutrality. With the latter, treaties are made, sometimes about paying tributes, sometimes about giving up certain towns, sometimes about the redemption or exchange of prisoners, which are called Cartels. (Of these Hertius has expresly handled in his diss. de lytro) and sometimes about a truce of hours, days, or months,* and other like matters.
Some are personal, and others are real.Besides, that interest, for which treaties are made, either respects the person of the Sovereign only, or the state itself. For which reason, some treaties are personal, and others real; and the former expire with the persons; the latter continue after both the contracting Sovereigns are extinct. Now, from these definitions it is plain, that all treaties for the conservation of a prince or his family are personal, and those relating to the utility of a state itself are real.† And to this division may all those of Pufendorff (of the law of nature and nations, 8. 9. 6.) be most conveniently referred.
Whether treaties may include, or be beneficial to allies?What is advantageous to a state is likewise advantageous to its allies and confederates; and therefore we may consult not only our own interest, but that of our allies likewise, in treaties; and that either by mentioning them in general, or specially and particularly. And here it is plain from the nature of the thing, that in the last case, the treaty cannot be extended to any others but those mentioned in the articles. But in the first case, it extends to all our allies at the time the treaty was made; but not to such allies as joined themselves to us afterwards;* because pacts cannot be extended to comprehend things not thought of when they were entered into (lib. 1. §393).
What may be done by sponsion?Moreover, because a league is a convention between free nations or states, it is plain (§205), that none can make leagues but those who have a commission to do it, either expresly, tacitely or presumptively. And therefore, what ministers of a Sovereign have promised without a commission from him, if it be not afterwards ratified, comes under the denomination of sponsion, and not of league. Now, hence it is evident that a republic is not bound to ratify a pact made without their order; but it is certain, on the other hand, that a minister who contracts with a state is obliged to make satisfaction to that state, which by the fecial law of the Romans, consisted in giving him up naked with his hands tied behind his back.* And it is no less certain, that the exception against a treaty for want of a commission to the minister, is for the most part a cavil, seeing a republic who gives the command of an army or province to a minister with full powers, is justly deemed to have given him all the power, without which an army or province, nay, the republic itself, cannot be secure.
If it be lawful to make treaties with infidels.Because treaties are made by free nations (§205), it is plain that it makes no difference, whether a people profess the same religion we do, or one which we look upon as impious and abominable: for as a private person may lawfully contract or bargain with one of a different religion; so neither a republic nor its rulers ought to be blamed if they make useful treaties for their people with infidels; and that revelation hath made no alteration with respect to this natural truth, Grotius has fully demonstrated (of the rights of war and peace, 2. 15. 9. & seq.).†
Duties with respect to treaties.Moreover, since treaties are conventions (§205); the consequence is, that all we have said above of pacts, takes place likewise in treaties. So that nothing ought to be held more sacred than treaties, nor nothing more detestable than the perfidiousness of treaty-breakers. Yet because no society is obliged to prefer another’s interest to its own (§22), a republic cannot be obliged by an alliance or treaty to assist another, if its own condition doth not permit; as, e.g. if it be overwhelmed in war, or be in any imminent danger;* nor is a republic ever obliged to engage in an unjust war for its allies.
The right of Sovereigns with regard to peace.So far have we treated of leagues in general, the noblest of which undoubtedly is that pact by which an end is put to war among free nations, commonly called a treaty of peace. But peace being the ordinary state of a republic, and, as it were, its natural state; and war being its extraordinary and preternatural state, it is evident, that Sovereigns are obliged to maintain peace, and to restore it, if it be interrupted; and consequently that these are savage wars, which are carried on, not with a view to peace, which is better than a thousand million of triumphs.
What a treaty of peace is.By a treaty of peace we understand a convention between free nations involved in war, by which their quarrels are accommodated by way of transaction. From which definition it is plain, that peace, in its own nature, ought to be perpetual; and therefore, if it be made for a certain time only, however long, it is not properly peace, but a truce;* because the quarrel which engaged the nations in war is thus not ended, but the design of disputing it by arms still subsists; which state, as we observed, is a state of war, and not of peace, (§189).
If the exception of inequality be valid.Peace being made by way of transaction (§215), the consequence is, that it may be made giving, retaining, or promising something; and therefore, that equality in its articles is not requisite; nor can either of the parties justly complain of being wronged, however enormous the wrong may be; since the conqueror may impose any terms, and the conquered may prefer any terms never so hard to perishing.†
Nor the exception of force or fear.Much less can an exception of fear or force be opposed to a treaty of peace; for this exception never takes place when one has a right to force another (l. 1. §108). But war is as just a way of forcing among independent free nations, as the authority of a judge in a civil state (§9); nor is it to any purpose to say that the war was unjust, and therefore that the victor used unjust violence in extorting hard conditions from the conquered. For besides, that neither of the parties engaged in war hath a right to make himself judge in his own cause, and determine concerning the justice of the war, the conquered, by transacting with the conqueror, remits that injury, and consents to the amnesty included in all such treaties.*
If peace ought to be kept with rebellious subjects?Grotius 3. 19. 6. and Pufendorff of the law of nature and nations, 8. 8. 2. ask whether a commonwealth or government is obliged to observe a treaty of peace made with rebellious subjects? And they justly affirm it ought, against Boxhornius, instit. polit. 1. 14. 19.2 and Lipsius. For peace is made by way of transaction (§215); but he who transacts with one who had injured him, is deemed to have remitted the injury done to him. And therefore Sovereigns, by making a treaty of peace with rebellious subjects, give an indemnity to them for their rebellion; and thus this peace cannot be broken without injustice, unless for a new cause; except it was not valid from the beginning, either on account of some fraud on the part of the rebels, or of the state of the prince who made the treaty.*
The obligations of the contractors, mediators, and sponsors.Besides, as other treaties, so those of peace ought to be (§213) most religiously observed; and therefore the time within which articles ought to be fulfilled, must be strictly observed, and delays cannot be easily excused. See Grotius 3. 20. 25. It is likewise evident to every one, that mediators, who undertake the office of making peace, and guarantees, who answer, as it were, for the contractors, are obliged, by pact, to the contracting parties;* because, having undertaken the business, they oblige themselves to whatever it requires. Whence we conclude, that it is the duty of mediators not to favour one party more than another, but to judge impartially of the cause on both sides, and to persuade each to what is most equal and advantageous; and the duty of guarantees to use their utmost endeavours that the articles of the treaty be fulfilled on both sides, and to assist the injured party by their advice and aids, and with forces, if promised.
The right of sending ambassadors, and their sacredness.Sovereigns having the right of making leagues and peace with enemies (§135), which cannot be done without employing agents or messengers; the consequence is, that they are allowed to have the right of sending ambassadors. Now, since he who receives another’s ambassadors, by that very deed is deemed to promise them a safe admission and exit (l. 1. §391); the consequence is, that ambassadors ought to be held sacred amongst enemies, and not only as exeemed from the jurisdiction of him to whom they are sent (of which V. A. Corn. van Bynkersh. hath admirably discoursed in his treatise de foro legatorum);3 but as having the right of saying, writing, and acting whatever they are ordered by their constituent republics or Sovereigns, to speak, write, or do, provided they shew no hostile disposition against the state to which they are sent.*
Different customs of nations with regard to ambassadors.Other matters relating to ambassadors, which are treated of at great length by Marselarius, Wicquefort,4 and others, may either be easily deduced from the preceding principles, or belong to the customs of nations, and not to the laws of nature and nations; such as the jurisdiction of an ambassador over his own family, his rights with regard to the exercise of his religion in his family, his immunities, his right of giving protection, and the solemnities of his reception, entry, and taking leave; his titles and honours, and the forms of audience; and the different orders and degrees of ambassadors, their titles of honour, precedency, and many other such like questions; as likewise concerning what is become now universal usage, the inviolability of trumpeters, drummers, and heralds (as among the Greeks of old) of whom Homer often makes mention (Odyss. 10. v. 59. & 102. & 19. v. 294. and Iliad 10. v. 14. & 178). But upon these matters it does not concern us to dwell.
Of the duties of subjects.
The duties of subjects special and general.Hitherto we have treated of the rights of the supreme magistrate both within and without his dominions. Let us now enquire into the duties of subjects; but all of them may be so easily deduced from the rights of Sovereigns as correlates to them, (l. 1. §7), that we shall quickly dispatch them. For as subjects may be considered either as members or parts of the state entrusted to them, or as their subjects, their duties are either general or special; the former of which arise from the common obligation they lie under to the sovereign power; the latter, from their particular stations in the state.
The general duties towards the state.Their general duties are either owing to the state itself, or to the supreme power in it, or to their fellow subjects and citizens. But since the whole state is one society, and every member of a society is bound to adjust his actions to the common end of the society (§21); it follows, that nothing ought to be dearer or more sacred to a subject than the security and public welfare of his state; that he ought to prefer its good to his life and all the advantages of life,* and to promote it by every just and honest method.
Towards the supreme power.Again, because the life of a republic consists, as it were, in this, that all the subjects submit their wills to the will of the supreme power (§114); the consequence is, that subjects are obliged to pay to the supreme magistrate, as to their superior, a love of veneration and obedience* (l. 1. §86). And since they are likewise bound by pact, it is evident that they are bound to fidelity, and that it is incumbent upon them not to be factious, and thus disturb the state by their feuds and animosities, but to pay allegiance to their rulers, and not to hurt them by word or deed, but to hold them sacred, and to render dutiful obedience to all their laws and orders.
Towards fellow subjects.Besides, it being the duty of fellow subjects to live together, as the common end of their society requires; they are certainly obliged to love one another, to live peaceably together, and not only to render justice one to another, but likewise to be more humane towards one another than to strangers. In fine, not to be invidious, or calumniators; not to envy those whom either birth, the benevolence of the prince, or merit has raised to greater dignities;* those who excel in any virtue, or those to whom providence hath been more favourable with respect to their outward circumstances or fortunes.
The foundation of the special duties of subjects.All the special duties of subjects flow from the ends of the particular station of each in the republic; and therefore they are all obliged to do, every one, what the end of his station requires; and not to do any thing that is repugnant to its end; and moreover, not to desire any offices for which they are not equal. From which few rules, one may easily perceive what must be the duties of generals, counsellors, ambassadors, treasurers, magistrates, judges, ministers of the church, professors and doctors in universities, soldiers, &c.*
One ceases to be a subject, the republic being destroyed.Moreover, the general duties of subjects oblige as long as they continue subjects; the special, only so long as they continue in the stations to which their respective duties belong. But one ceases to be a subject several ways. For a republic consists of a number of men (§107), whom we call a people; whence it follows, that the people being extinct or dispersed (which may happen by an earthquake, war, inundations, and other public calamities) a few surviving persons cease to be subjects, unless they maintain their state till they grow again to a sufficient number of people.† But one does not cease to be a subject, if a people, being conquered in war, accedes as a province to another state, because he then becomes the subject of another state; nor if the form of the republic be changed, because a people does not then cease to be the same.
Not when the form of government is altered.But because the people remains the same, tho’ the form of their government be changed (§227); the consequence is, that the real treaties made by a people with other states (§209), and the public pacts made with private persons, while the former government remained unaltered, still subsist; and therefore the obligations of the people still are valid, tho’ their form of government be changed. But that subjects are not bound by the deeds of those who unjustly usurped the government, or did any thing contrary to their fundamental laws,* is certain, for this reason, that they never consented to their power or empire.
What if the empire be divided, and a colony sent.Moreover, from the same principle (§226), we conclude, that one does not cease to be a citizen or subject, if one state is divided into many, or many coalesce into one system; tho’ it may happen, in the former case, that one is no more a subject of the same, but of another state. If a republic or state resolve to send a colony, it is of great moment of what kind that colony is. For some may go out of a larger country to constitute a republic that shall not be obliged to any thing with regard to its metropolis, but homage; and others, so as still to remain a part of their mother-country.* Now, it is plain, that the former case is the same as when an empire is divided; and in the latter there is no alteration with respect to the first obligation of the subjects who make the colony.
If by changing habitation.Again, since one is a subject, in regard that he constitutes with others one republic, or with regard to a republic into which he willingly enters (§108); it follows from thence, that one ceases to be a citizen, so soon as he willingly removes with that design from his native country, and joins himself to another state, settling there his fortune and family, unless the public laws forbid subjects to remove, as among the citizens of Argos, of whom Ovid says, Metam. l. 15. v. 28.
or that liberty be indulged only with regard to a part of one’s effects, which is the custom in several European nations. That they change their seat, but not their obligation to their country, who desert to an enemy, is manifest; and therefore, when they can be brought back, they are justly punished.
If by banishment.In fine, because those who are members of any society, and do not conform to its laws, may be severed from the society by the other members (§21); the same right certainly belongs to members of a civil state; and therefore, bad subjects may very justly be exiled; and this being done, they certainly cease to be subjects. But this is not the case with respect to those who, tho’ sent out of a country, still possess estates in it, or to those who are transported to a certain place subject to the country, there to lead a disagreeable life, or perform some task by way of punishment. In general, I should think, that those who are deprived, for any crime, of the right of citizenship, are deprived of the privileges of subjects, but are not thereby freed from their obligation to their country, so far at least, as that they may molest it, or, imitating Coriolanus, take up arms against their countrymen, Liv. 2. 35.
A SUPPLEMENT Concerning the Duties of SubjectsandMagistrates.
We have had little occasion to differ, very considerably at least, from our Author, except in one important question, about the measures of submission to the supreme power; and as little occasion to add to him, except with relation to the natural causes of government, and their necessary operations and effects; a consideration of great moment in moral and political philosophy, which hath however been overlooked, not by our Author only, but by Grotius and Pufendorff, and all the moral-system writers I have seen.
These few things excepted, which we have endeavoured to supply in our remarks, our Author will be found, having had the advantage of coming after several excellent writers, to have given a very full compend of the laws of nature and nations, in which, they are deduced by a most methodical chain of reasoning, from a few simple and plain principles, and they are applied to as many proper cases as is requisite to initiate any attentive intelligent reader into this science, and enable him to decide, by his own judgment, any questions that may occur in life concerning justice and equity, between subject and subject, in whatever relations, natural or adventitious, as parent, husband, master, &c. between subject and magistrate; or finally, between separate and independent states. Now, upon a review of what our Author hath done, every one, I think, must perceive that the science of morals may be divided into two parts. The first of which is more general, and very easy and plain, consisting of a few axioms, and certain obvious conclusions from them, with relation to the general conduct of our life and actions. The second consists in finding out from these more general rules, what equity requires in various more complicated cases. And here, as in all other sciences, for the same reason, the deduction must be longer or shorter, according as the conclusions lie nearer to, or more remote from the first fundamental truths in the science. There is no science in which the first axioms or principles are more evident than that of morality. Thus, for example, the only principle our Author, or any other moral writer requires, or has occasion for, in order to demonstrate all the social duties of mankind, is, “That it is just to hurt or injure no person, and to render to every one his own, or his due; or in other words, That it is just and equal to do to others, as we would have them to do to us.” The reasonableness of this principle is self-evident; and there is no case, however complex, relating to social conduct, wherein the reasonable part one ought to act may not be inferred from this principle. Certain general rules of conduct obviously arise from this principle. And the resolution of particular cases consisting of many circumstances by it, only appears difficult till one hath been a little practised in attending to circumstances, and separating, weighing, and balancing them. Here indeed study is requisite, as in other sciences, where the first principles are likewise very simple; and many truths are easily deducible from them, but others lie more remote, and require a longer train of argumentation: But yet it may be averred, that the remotest truths, and the most complex cases in morals, are not so difficult to be resolved, or do not lie so distant from their first principles, as the higher truths in most other sciences. And therefore, it is justly said by moralists, that the science of morality is more level to every capacity than any other science; tho’ certainly a thorough acquaintance with it requires a good deal of close thought and attention, and considerable practice in the examination of examples or cases. This, I think, every one, who hath read our author with any degree of attention, will readily acknowledge, whatever he may have thought, while he viewed this science at a greater distance. But, in order to give a short view of the extent of this science, and distinguish what is more easy and obvious in it from what is more complex and difficult, let us first consider an excellent summary given us by Cicero of the general laws or obligations of nature; and then let us cast our eye on what he says upon the design of civil law, which is to settle the rules of equity in more complex or compounded cases. We find him discoursing thus of the general laws of nature. “The law of nature,” says he, “does not consist in opinion merely, neither is the sense of its obligation wholly formed by education and art; but it is from nature: we are led, directed, and impelled to fulfil its obvious dictates by certain dispositions cogenial with us: we feel its force, so soon as objects proper to excite and stir certain affections deeply inlaid into the frame of our minds, are presented to us. Nature thus leads us to religion, to piety, to gratitude, to resentment of injustice, to esteem and veneration, to veracity and candour. Religion consists in reverence toward some superior divine nature, and concern to approve ourselves to that Being, by whom we and all things subsist. Piety directs us to the love of our country, our parents, and of all who are endeared to us by natural ties of blood. Gratitude teaches us to main-tain a kindly resentment of good offices, and to love, honour, and reward our benefactors. Resentment of injustice impels us to ward against and punish all injuries to ourselves, or to others who ought to be dear to us; and in general, to repel all iniquity and violence. Reverence is naturally excited in us by grave and wise old age, by eminence in virtue, or worth and dignity. Veracity consists in fulfilling our engagements, and acting consistently with what we promise, profess or undertake.” Cicero de inventione rhetorica, l. 2. n. 22. & n. 54.1 where he adds excellent definitions of prudence, justice, magnanimity, patience, temperance, modesty, perseverance, and all the virtues which make men good and great.
This is Cicero’s succinct abridgment of the more general laws of nature: And he calls them laws of nature, because the obligation to them is founded in human nature; the happiness of mankind consists in the observance of them; and mankind are pointed and prompted to fulfil them by natural dispositions or principles in their minds. Insomuch that the idea of a supreme Governor of the universe cannot be presented to our minds, without exciting religious veneration and love in them; nor can the idea of our parents, our relatives by blood, or of our country, be set before us, and we not feel certain kindly affections stir within our breasts, which are very properly called, in a peculiar sense, natural affections; nor the idea of a generous benefactor, and our hearts not burn with gratitude towards him; nor the idea of injustice to ourselves, or even to others, and we not be filled with indignation and resentment; nor the idea of great wisdom, virtue and integrity, and we not be affected with esteem and reverence towards such characters; nor finally, the idea of consistency, faithfulness and candour, and we not admire and approve the beautiful image; and own such conduct to be truly laudable and becoming. We are naturally affected by the several objects that have been mentioned in the manner described: And it is easy to perceive, that the private happiness of every individual, and the common happiness of our kind, which we cannot reflect upon without feeling a very high satisfaction in it, and a very strong tendency to promote it, are inseparably connected with the practice of those virtues. They are therefore, in every sense, of natural obligation. This, I take to be a just paraphrase upon what Cicero says in the passages above referred to, and to be sufficient to shew the strength and evidence of the more general rules of morality.
Now Cicero, agreeably to this account of human nature, and of the primary laws and obligations arising from it, thus defines the end of civil society (to which nature likewise strongly excites and impels us) and of its laws. (Topic ad Tribatium, n. 2.) “The end of civil society, and civil laws, (says he) is security of property, and equal treatment to the members of the same state, in consequence of just constitutions, formed and guarded by mutual consent.”2 And how elegantly doth he elsewhere enlarge upon the advantages of good civil laws, which secure the members of a state against all violence and injustice, and all feuds, animosities and quarrels, in the peaceable unmolested possession and use, each of his own honest acquisitions, (Orat. pro Caecinna, n. 26). “—A remarkable thing indeed, and worthy of your attention and remembrance, ye protectors of civil rights, on this very account. For what is the end of civil law? Is it not a security for our properties and rights, which cannot be biassed by affection, bended by force, nor corrupted by money; and which, tho’ not totally violated, yet if but deserted in the smallest degree, or if negligently observed, we are neither sure of inheriting what our fathers may leave to us, nor of making our children our heirs? For what signifies it, to have houses or lands left us by a father, if our possession be precarious and uncertain? Let an estate be yours by the fullest right, yet how can you be sure of keeping it, if this right be not sufficiently fortified, if it be not protected by civil and public law against the covetousness of the more powerful? What avails it, I say, to have an estate, if the laws relating to confines, marches, possession, use, the rights of water, passage, &c. may be changed or disturbed on any account? Believe me, many greater advantages redound to us from good laws, and the conservation of justice, than from those who leave us an inheritance. A piece of land may be left me by any one, but my secure possession and use of it depend upon the inviolability of the civil laws. My patrimony is left me by my father, but the usucapion of this estate, which puts an end to all sollicitude, and secures against all vexatious suits, is not left me by my father, but by the laws. My estate, with the rights of water, air, passage, light, &c. is left me by my father, but my security for the undisturbed possession of these rights, is an inheritance I owe to the laws. Wherefore, we ought to be no less concerned about this public patrimony, the good laws and constitutions handed down to us from our ancestors, than about our private estates; not only because these are secured to us by the laws, but because tho’ one may lose his estate without hurt to any other person but himself, yet right cannot be violated without the greatest detriment and injury to the whole state, &c.”3
Here Cicero briefly runs through some of the principal points which ought to be settled by civil laws, agreeably to natural equity, for the encouragement of honest virtuous industry, and in order to exclude all injustice, violence and molestation; such as, succession by testament, and to intestates, possession, use, usufruct, perfect or im-perfect dominion, services, contracts, &c. And it is the rules of equity with regard to these and such like matters, which it is the business of the moral science to deduce from certain and evident principles, for the direction of society in fixing and determining its laws. And therefore, to be a master of the moral science, it is not enough to know the first axioms of it, and its more general and obvious rules; but one must be capable of following them thro’ all their remotest consequences, in these and other such complicated cases, so as to be able to judge of civil laws by them. And surely, however close attention and long reasoning this more difficult part of morality may require, it does not require long reasoning to prove, that this is the most proper study of those whose birth and fortunes furnish them with time and means for improving themselves to serve their country in the highest stations of life. Who doth not at first sight perceive that this is the character every man of birth ought to aim at, and that his education ought to be adapted to qualify him for attaining to, even that glorious one which Cicero (ibidem) gives of C. Aquilius? “Wherefore, let me aver it, that the authority of the person I have just mentioned, can never weigh too much with you. Aquilius, whose singular prudence the people of Rome hath so often proved, not in deceiving, but in rightly advising them, and who never severed equity from civil law. Aquilius, whose extraordinary judgment, application and fidelity, have been so long devoted to the service of the public, and have been on many occasions so ready and powerful a stay to it. One so just and good, that he seems to have been formed for giving counsel and administring justice, rather by nature than by discipline: One so wise and knowing, that he seems by his study of the laws to have acquired not merely knowledge, but likewise virtue and probity: One, in fine, whose understanding is so clear and accurate, and his integrity so habitual and impervertible, that whatever ye draw from this fountain, ye perceive, ye feel to be pure and unadulterated.”4 For such excellent qualities shall the memory of a Talbot be ever dear and precious: And hence the manifold advantages we daily receive under the upright and prudent guardianship of a York.5 And all our youth, who have the noble ambition to be equally useful, and equally loved and honoured, must pursue their paths, and add to the same incorruptible integrity, the same thorough knowledge of natural equity, and of our excellent constitution and laws.* It is in order to contribute my mite to as-sist them in this glorious pursuit, that I have given them this admirable abridgement of the laws of nature and nations in English, with some necessary supplements. For every science hath its elements, which, if they be well understood and carefully laid up, not in the memory but in the judgment, the science itself may be said to be mastered, it being then very easy to make progress in it. Let me only suggest here, that it will still be necessary, after having well digested this small system, to read Grotius, and together with him his best commentator Pufendorff,* and several other authors, the treatises of Bynkershoek so often commended by our Author in particular; and after having read these excellent writers, it will not be improper often to return to our Author, and review him as a good compend of them all. And to add no more on the utility of this study, as without some acquaintance with the principles of moral philosophy, it is impossible to reap more than mere amusement by reading history; so when one hath once taken in a clear view of the more important truths in morality and politics, it will be equally easy, pleasant and advantageous for him to apply these truths, as a measure or standard, to the facts or cases he meets with in history, to private or public actions, and their springs or motives, and to the laws, constitutions and policies of different states: And it would not certainly be an improper way of studying our laws, first to get well acquainted with the laws of nature (large commentaries upon which are generally at the same time commentaries upon the Roman laws, the examples being commonly taken from thence), and then to go over the same laws of nature again in order, and to enquire into our laws under each head, and try them by the laws of nature, as the Roman laws are commonly canvassed by the maxims of natural equity, in treatises upon universal law.
But tho’ I could not take my leave of our author without saying these few things about the nature and use of the science to which his treatise is so good an introduction; yet the design of this supplement is chiefly to treat a little more fully than he hath done of the duties of subjects and magistrates; and here I shall only cut off some things, and add a few others to what is to be found in the learned Barbeyrac’s notes upon the tenth and following sections in the eighth chapter of the seventh book of Pufendorff of the law of nature and nations.
The duties of subjects are either general or particular. The first arise from the common obligation they are under, as submitting to the same government. The others result from the different employments and particular offices with which each subject is honoured or entrusted. 1. The general duties of subjects respect their behaviour either towards the governors of state, the whole body of the people, or their fellow subjects. 1. As to the governors, every one ought to shew them the respect, fidelity and obedience which their character demands. So that subjects ought not to be factious or seditious, but to be attached to the interest of their prince, and to respect and honour him. This is certainly just. But then, in order to this, a prince must deserve love and honour. For tho’ power may force submission, ’tis merit only that can create respect, give authority, or beget love. The command to honour a king must be understood as the command to honour any other person must be understood; not as a command to honour him whether he deserves it or not; for that would be an absurd command; a command to prostitute honour and respect. ’Tis good princes alone that can be honoured, because they alone deserve it, or have the great and amiable qualities that can excite esteem. We ought even to have a veneration for the memory of good princes; but for those who have not been such, behold the judicious reflections of Montagne.
“Among those laws,” says he, “which relate to the dead, I take that to be the best, by which the actions of princes are to be examined and searched into after their decease. What justice could not inflict upon their persons while they were alive, and equal to, if not above the laws, is but reasonable should be executed upon their reputation when they are dead, for the benefit of their successors. This is a custom of singular advantage to those nations where it is observed, and by all good princes as much to be desired, who have reason to complain that the memories of the tyrannical and wicked should be treated with the same honours and respects as theirs. We owe indeed subjection and obedience to all our kings alike, for that respects their office; but as to esteem as well as affection, those are only owing to their virtue. Should it therefore be granted, that we are to be very patient under unworthy princes while they hold the rod over us? Yet, the relation between prince and subject being once ended, there is no reason why we should deny to our own liberty, and common justice, the publishing of our wrongs.—Livy, with abundance of truth, says, that the language of men educated in a court was always full of vanity and ostentation, and that the characters they give of their princes are seldom true. And tho’ perhaps some may condemn the boldness of those two soldiers, one of whom being asked by Nero, why he did not love him? answered him plainly to his face, I loved thee whilst thou wast worthy of it; but since thou art become a parricide, an incendiary, a waterman, a player, and a coachman, I hate thee as thou dost deserve: And the other being asked, why he should attempt to kill him? as warmly replied, Because I could think of no other remedy against thy perpetual mischiefs. Yet who, in his right senses, will blame the public and universal testimonies that were given of him after his death, and will be to all posterity, both of him, and of all other wicked princes like him in his tyrannies and wicked deportment? I am scandalized, I own, that in so sacred a government as that of the Lacedemonians, there should be mixed so hypocritical a ceremony at the interment of their kings, where all the confederates and neighbours, all sorts of degrees of men and women, as well as their slaves, cut and slashed their foreheads in token of sorrow, and repeated in their cries and lamentations, that that king (let him be as wicked as the devil) was the best that ever they had; by this means prostituting to his quality, the praises which only belong to merit, and that which is properly due to supreme merit, tho’ lodged in the lowest and most inferior subjects, Essay, l. 1. cap. 3.6
2. With respect to the whole body of the people, it is the duty of every good subject to prefer the good of the public to every other motive or advantage whatsoever, chearfully to sacrifice his fortune and life, and all that he values in the world, for the preservation and happiness of the state. Union is generally recommended to subjects as their duty. It is said, that union will make a people flourish, and dissention will ruin any people. But there must be care taken to have a just notion of the meaning of those words. An union serviceable to a state, is what designs the universal good of those who live in it. For if, e.g. in a monarchical state, where the power of the Sovereign is limited by the laws, the principal subjects of the state should willingly, or by force, consent to submit all the laws to the prince’s pleasure, such an union would not be advantageous to it in any respect. It would change a society of free people into a company of miserable slaves. The ready compliance of the Chinese to obey their king blindly, does but strengthen his tyranny, and add to their misery. But it is asserted, that the general obedience of the Chinese is of service to preserve the peace of their country, and that they enjoy by it all the advantages which the strictest union can procure. They must mean all the advantages that can be possessed in slavery. But sure there is not a free-man but had rather see the most frequent commotions than suffer an eternal slavery. Moreover, it is false to affirm that there are no intestine wars under such a form of government. The most enslaved people will, in time, grow weary of an exorbitant tyranny, and upon the first opportunity shew that the desire of liberty cannot be quite stifled in the souls of men born to freedom. This happens among the Chinese and Turks. The union of those who govern an aristocratical state would be useless, if it did not preserve the observation of the laws, and the universal good of the commonwealth. This we may understand from the history of the thirty tyrants of Athens and the Decemviri of Rome. The union of those men served only to crush the people, and make them miserable; because their principal design was to gratify their passions, without having the least respect to the public good. Union may be also considered with regard to the people, who, when the state is happy, and well administred, ought to esteem themselves happy, and to obey chearfully. Now, to keep the people in so firm an union, it is requisite that not only they may be the better for it, but also that they should be sensible of their own happiness. In general, the agreement and union both of governors and people, ought to tend to the public good: from whence it follows, that whatsoever has not such a design is injurious, and ought rather to be termed a conspiracy than an union; since the name of a virtue cannot with reason be attributed to a thing which injures and ruins a society. Public spirit is the motive that ought to lead and govern subjects. And then is one truly public-spirited, when nothing is dearer to him than the liberty and happiness of his country. Yet we must here observe, that the engagement of every particular person does in some measure depend upon the performing of what the rest are obliged to do, as well as himself, for the public good. For indeed the public good is only the consequence of the united forces and services of many conducing to the same end. If then in a state it is become customary for the generality openly to prefer their own private interest to that of the public, a good subject will not, in that case, be to blame in the least, in not caring to expose his person or his fortune by a zeal impotent and useless to his country.
Lastly, the duty of a subject towards his fellow subjects, is to live with them in a peaceable and friendly manner; to be good humoured and complaisant to them in the affairs of human life, and to give mankind no uneasiness by peevish, morose, and obstinate temper; and, in short, not to envy or oppose the happiness or advantages of any one.
2. The particular duties of subjects are annexed to certain employments, the discharge of which influences, in some measure, either the whole government, or only one part of it. Now, there is one general maxim with regard to them all, and that is, that no one aspire to any public employment, or even presume to accept of it, when he knows himself not duly qualified for it. What consciences must those men have, who not only accept of, but brigue for places they are absolutely unqualified for; as for example, a seat in the supreme judicatures of a nation! A trust which requires, besides great virtue, great knowledge and wisdom; a thorough acquaintance with the constitution and laws of a state, and the interests of the people. And yet (as Socrates observed very truly) the manner of the world is quite otherwise. For tho’ no body undertakes to exercise a trade, to which he has not been educated, and served a long apprentiship; and how mean and mechanical soever the calling be, several years are bestowed upon the learning of it; yet, in the case of public administrations, which is, of all other professions, the most intricate and difficult (so absurd, so wretchedly careless are we) that every body is admitted, every body thinks himself abundantly qualified to undertake them. Those commissions are made compliments and things of course, without any consideration of mens abilities, or regarding at all whether they know any thing of the matter; as if a man’s quality, or the having an estate in the country, could inform his understanding, or secure his integrity, or render him capable of discerning between right and wrong, and a competent judge of his poorer (but perhaps much honester and wiser) neighbours. See Charron sur la sagesse.7 To buy public offices, or procure them by bribery, or to give it a softer name, largesses, is still more infamous and abominable, the most sordid, and the most villainous way of trading in the world. For it is plain, he that buys in the piece, must make himself wholeagain by selling out in parcels. Besides, this way of procuring public trusts corrupts a people, and renders them mercenary and venal, and fit to be sold. And a dishonest, corrupt people, neither deserves to be free, nor can they long preserve themselves from being bound with the fetters, their vile prostitution of honour and conscience to sordid gain demerits. Let me only add upon this head, that to a free people, who have the right of making their laws, and laying on their own taxes by their representatives, it may be justly said, as it was to the people of Israel of old, That their evil is of themselves; whatever they suffer, they have themselves to blame for it; and consequently, the guilt of it lies upon themselves. A horrid, inexpiable guilt, of which the greatest misery that a nation can fall into, is but the just punishment, for which no commiseration is due to them who brought it upon themselves; but to their unhappy posterity, who must curse them, if they are not quite insensible of the value of the liberty and happiness their ancestors basely gave up, and the deplorable condition they are depressed into by the corruption and venality of those who gave them birth, i.e. till slavery, as long continued slavery never fails to do, detrudes them into a state not far removed above that of the brutes. But we must be a little more particular with regard to the duties belonging to employments.
1. Ministers of state, or privy counsellors, ought, with the greatest application, to study, and perfectly to know the affairs and interests of the state in all the parts of government, and to propose faithfully, and in the most proper manner, whatever appears to them to be advantageous to the public, without being influenced by either affection, passion, or any sinister views. The public good ought to be the only design of all their advice and endeavours, and not the advancement of their own private fortunes, and the promoting their own power and greatness. Nor must they ever, by vile and nauseous flattery, countenance or encourage the criminal inclinations of the prince. 1. They ought, first of all, to be men of virtue and good principles. 2. Persons of great abilities, well acquainted with politics, and particularly well versed in the constitution, laws and interests of the nation. 3. Persons tried before, who have come off with honour and success in other trusts; men practised in business, and accustomed to difficulties. For hardships and adversities are the most improving lessons. “Fortune,” says Mithridates in Salust, “in the room of many advantages she has torn from me, has given me the faculty of advice and persuasion.”8 Men, at least of ripe years, to give them steadiness, experience, and consideration; for it is one of the many unhappinesses attending youth, that persons then are easily imposed upon. 4. And finally, they ought to be men of openness, freedom and courage in all their behaviour when they are consulted with; who will use their utmost care that all their proposals be for the honour and advantage of their prince and their country; and when once they have secured this point, that the advice is good, will lay aside all flattery and disguise; detest and despise all equivocations and reservations, and craftiness of expression, by which they may seem to aim at ingratiating themselves, or to contrive that what they say may be acceptable to their master: The very reverse of those men whom Tacitus describes, “Who accommodate their language as they see occasion, and do not so properly discourse with the prince, as with his present inclinations and circumstances.”9
2. The clergy, as being the public ministers of religion, ought to discharge their duty and function with the utmost gravity and application; should teach no doctrine, nor advance any opinion in religion, which does not appear to them to be sincerely true; and should be themselves a shining example by their own conduct of those instructions which they deliver to the people. “Never did a covetous preacher make his hearers liberal. Never did a voluptuous clergyman persuade any one to abstain from pleasures, or to use them with0 moderation; at least, when those persons were discovered to be what they really are.”10 Their bad example will do abundantly more mischief than their best sermons can do good; for example is more powerful than precept.
3. Magistrates, and all other officers of justice ought to be of easy access to every body; protect the common people against the oppressions of the more powerful; be as forward in doing justice, and that with the same impartiality to the mean and poor as to the great and rich; not spin out a cause to an unnecessary length; never suffer themselves to be corrupted by bribes and sollicitations; examine thoroughly into the matter before them; and then determine it without passion or prejudice; regardless of every thing while they are doing their duty. Tho’ it be an excellent qualification in a magistrate, to temper justice with prudence, and severity with gentleness and forbearance; yet it must be confessed to be much more for the common advantage, to have such magistrates as incline to the excess of rigour, than those who are disposed to mildness and easiness and compassion. For even God himself, who highly recommends, and so strictly enjoins all those humane and tender dispositions on other occasions, yet positively forbids a judge to be moved with pity. The strict and harsh magistrate is the better restraint, the stronger curb.
From the duties of inferior magistrates, let us pass to those of the supreme magistrate. And how happy is that post which every minute furnishes opportunities of doing good to thousands! But, on the other hand, how dangerous is that station which every moment exposes to the injuring of millions! The good which princes do, reaches even to the most distant ages; as the evils that they occasion are multiplied from generation to generation to the latest posterity. If the care of a single family be so burdensom, if a man has enough to do to answer for himself, what a weight, what a load is the charge of a whole Kingdom. Isocrates calls a Kingdom the greatest of human affairs, and such as requires more than ordinary degrees of prudence and foresight.11 And Cyrus well observes, that he who is above all the rest in honour and authority, should be so in goodness too.12
A prince and his court, as experience teaches us, is the standard of manners as well as of fashions. For nothing is truer than what Pliny says (Paneg. C. 45. n. 6.) “Nec tam imperio nobis opus, quam exemplo, & mitius jubetur exemplo.” “We do not want precepts so much as patterns, and example is the softest and least invidious way of commanding.”13 The virtues requisite to a prince, and of which he ought to be the best pattern, are, 1. Piety, which is the foundation of all virtues: a solid and reasonable piety, free from hypocrisy, superstition and bigotry. 2. The love of justice and equity. For the chief design a prince was made for, is to take care that every man has his right. And this obliges him to study not only that part of human learning, which qualifies those famous civilians, that are fit to be legislators themselves, who go up to that justice which at first regulated human society, who exactly knew what liberty nature has left us in civil government, and what freedom the necessity of states takes from private people, for the good of the public: But that part of the law too, which respects the rights, and descends to the affairs of particular persons. 3. A prince must above all things accustom himself to moderate his desires. The philosopher Arrian, de exped. Alex. says, “That it is easy to see from the example of Alexander, that whatever fine actions a man performs to out-ward appearance, it signifies nothing to true happiness, if one does not at the same time know how to rule and moderate himself.”14 4. Valour is requisite to a prince, but then it must be managed with prudence. 5. And above all, a prince ought to shine in goodness and clemency. ’Tis by no other means, but by the sole good-will of the people that he can do his business; and no other qualities but humanity, truth and fidelity, can attract their goodwill. Nihil est tam populare quam bonitas, says Cicero; nothing is so popular as goodness, Orat. pro Ligar. cap. 12.15 A prince who does not reign in the hearts of his people, does not reign over the better part of his subjects. Their minds are not obedient or submitted to him. ’Tis love only that can produce cordial obedience. Cicero gives us this enumeration of the virtues of a prince, Orat. pro rege Deiotar. cap. 9. “Fortem esse, justum, severum, gravem, magnanimum, largum, beneficum, liberalem; hae sunt regiae laudes.”16 And to fortitude, justice, gravity, temperance, magnanimity, liberality, beneficence, which are allowed to be virtues necessary to make a prince great and glorious, he adds another, which he says is generally thought to be a private virtue only, viz. frugality. “Sed praecipue singularis & admiranda. frugalitas, etsi hoc verbo, scio, reges non laudari solere. Ut volet, quisquam accipiat: ego tamen frugalitatem, id est, modestiam & temperantiam, virtutem maximam esse judico.”17 Cicero tells us, de legibus, l. 3. c. 3. “That the good of the public ought to be the sole rule and motive of a prince’s conduct, salus populi suprema lex esto.”18 And an excellent author said (Marcus Antonin. l. 4. c. 42.)19 “A prince ought always to have these two maxims in view; To do for the good of mankind all that the condition of a legislator and a king requires of him. And the other, To change his resolution, whenever men skilled in such matters give him better advice. But still the change must be made from the motives of justice, and the public interest, and never for his own pleasure, his own advantage, or his own particular glory.”
The truth of it is, that the very interest of the Sovereign requires that he should direct all his actions to the public good.
The following quotation from Mr. de Cambrai21 will serve to explain and illustrate this sentence. “Where the sovereign command is most absolute, these princes are least powerful. They take and ruin every thing, and are the sole possessors of the whole state; but there the state languishes, the country is uncultivated, and almost desert, the towns every day decay and grow thin, and trade is quite lost. The king, who can never be such by himself, but must be such with regard to his people, undoes himself by degrees, by insensibly undoing his subjects, to whom he owes both his riches and his power; his kingdom is drained of money and men, and the loss of the latter is the greatest, and the most irreparable of losses. His arbitrary power makes as many slaves as he has subjects; they all seem to adore him; and all tremble at the least motion of his eye. But see what will be the consequences upon the least revolution; this monstrous power, raised to too excessive an height, cannot long endure; it wants supplies from the hearts of the people; it has wearied out, and exasperated the several ranks of men in the state, and forces all the members of that body to sigh with equal ardour for a change: and at the first blow, the idol is pulled down, and trampled under foot. Contempt, hatred, fear, resentment, jealousy; in a word, all the passions combine together against so injurious and detestable a power. The king, who in the days of his vain prosperity, could not find one person that durst tell him the truth, shall not find one in his adversity that will vouchsafe to excuse or defend him.”22 All writers on this subject take notice of the danger of flattery to which kings, and sons of kings, are so much exposed. And on this occasion a famous saying of Carneades is commonly quoted, “That sons of princes, and other great and wealthy men, learn no art but that of horsemanship well, because their horses cannot flatter them.”23 But there is an excellent book upon the education of a prince, lately translated into our language from the French, in which all the qualities, virtues and duties of a prince are admirably described.24 And therefore, I shall add no more upon this subject, but the short account Cicero gives us of Plato’s doctrine concerning the business and duty of supreme magistrates, and one most beautiful passage from Cicero himself concerning empire, founded not in love, but fear. The first is in his first book of offices, chapter 25. “Rulers, or those who design to be partakers in the government, should be sure to remember those two precepts of Plato. First, To make the safety and interest of their citizens the great aim and design of all their thoughts and endeavours, without ever considering their own personal advantage. And secondly, so to take care of the republic, as not to serve the interest of any one party, to the prejudice or neglecting of all the rest. For the government of a state is much like the office of a guardian or trustee, which should always be managed for the good of the public, and not of the persons to whom it is entrusted; and those men, who, whilst they take care of one, neglect or disregard another part of the citizens, do but occasion sedition and discord, the most destructive things in the world to a state. From this root have sprung many grievous dissentions among the Athenians, and not only tumults, but even deadly civil wars in our own republic. Things, which one who deserves to hold the reins of the government, will detest; and will give himself so to the service of the public, as to aim at no riches or power for himself; and will so take care of the whole commonwealth, as not to pass over any part of it.”25 The other is in the second book, chapter 7. “It is well observed by Ennius, Whom men fear, they hate; and whom they hate, they wish out of the world. But that no force of power or greatness whatever can bear up long against the stream of public hate, if it were not sufficiently known before, was of late made appear by an instance of our own. And not the violent death of that tyrant only, who by force of arms oppressed the city (which now most obeys him, when taken out of the world) but the like untimely ends of most other tyrants, who have generally been attended with the same ill fate, are a manifest token that the hatred of the people is able to ruin the most absolute power. For obedience, proceeding from fear, cannot possibly be lasting; whereas that which is the effect of love, will be faithful for ever.”26
By GEORGE TURNBULL, L. L. D.
Printed in the Year MDCCXL.
A DISCOURSE Upon the Nature and Origine of MoralandCivil Laws,&c.
It will be acknowledged that subjects of importance deserve to be set in various lights. Let us therefore endeavour to set the first principles of the science of laws in a light, which, if not altogether new, yet may perhaps prove more satisfactory to several understandings, than that in which they are more commonly represented. One great thing to be avoided in the first steps of a science, is dispute about words. And we think that it will contribute not a little to this good effect in the science we now propose to explain the first foundations of in the clearest manner we can, if, for some time, we only make use of terms well known to those who are in the least acquainted with natural philosophy, in the very sense they are used in that science.
What is called a law of nature by natural philosophers.Natural Philosophy is defined to be the science of the laws, according to which nature operates in producing its effects, and to which human art must conform in order to produce certain effects. And the settled methods, according to which nature works, and human arts must work, in order to produce certain effects, are called laws of nature. An example or two will shew the truth and justness of these definitions. That part of natural philosophy, which is properly called mechanics, consists in shewing the laws of motion, and what it is in particular that constitutes the quantity of motion in a body, and in deducing from thence certain rules to be observed by human art in the contrivance of machines, in order to give them a certain useful force. And this connexion in nature is found to be the principle of mechanics, or the rule according to which machines for raising weights, or overcoming obstacles, must be constructed, viz. That the moment of a body being its quantity of matter inducted into its velocity, any other body, however short of another in quantity of matter, will be rendered equal to it in moment, by adding to the less heavy body, just as much more in velocity as it wants of the heavier in quantity of matter. For this plain reason, that because if a body have a quantity of matter, as four, and a velocity as two, its force of motion or moment will be four multiplied by two; i.e. eight; and if another body have a quantity of matter, as two, and a velocity, as four, its force or moment will likewise be as two multiplied by four; that is, as eight; i.e. the two will be equal in moment. This principle is therefore called the law of mechanic powers, or the law of nature, with respect to quantity of motion. And upon this principle are balances, levers, cranes, pullies, wedges, screws, and inclined planes constructed. And he who attempts to assist mankind in raising weights, or overcoming obstacles, upon any other principle besides this, attempts to make new laws in nature, and his aim will prove absurd and lost labour. In the same manner, optics is a science which shews the laws observed by nature in the reflexion and refraxion of light, and points out the way of assisting vision, and attaining to certain other optical ends, as magnifying, diminishing, or multiplying objects, &c. And the laws observed by nature in reflecting and refracting light, are the laws of this human art; the laws according to which it must work to answer these purposes.
What is called a law in moral philosophy.Now, in the same sense, that in these, and other parts of natural philosophy, certain settled methods, according to which nature operates, are laws to human arts; in the same sense must any other connexions in nature be laws to other human arts, or laws to other human actions, if they are the established means or orders, according to which certain other ends can only be attained by us. If therefore there are any other ends distinct from those called natural ends, or the ends of mechanical arts; which, to distinguish them from the latter, may properly be called moral ends; the established connexions in nature with regard to the attainment of these latter ends, will be, properly speaking, the connexions which constitute means to moral ends; and the science of these means and ends will be properly called moral philosophy. And this philosophy will naturally divide itself into the same parts as natural philosophy does; i.e. into the part which investigates the connexions or laws of nature, and reduces effects into them; and the part which shews how certain ends may be attained by human art or action, in consequence of the settled laws of nature; the first of which is justly denominated a theoretical, and the other a practical science. So that as there are two parts in natural philosophy, one of which rests in the explication of phaenomena, by reducing them into laws of nature already found out by induction from experiments; and the other of which directs human labour in pursuing ends for the conveniency or ornament of life; in like manner, there are two parts of moral philosophy, one of which is employed in investigating by experiments the laws according to which phaenomena of the moral kind are produced, and in reducing other phaenomena into these laws so ascertained; and the other consists in deducing rules for human conduct in the pursuit of certain moral ends from the established connexions and laws of nature relative to them.
What is meant by moral ends and means.It cannot be said, that we here take it for granted, without any proof, that there are moral ends and means; for in the sense we have hitherto used moral, we have taken nothing for granted, but that there are certain phaenomena or certain ends and means, which are distinct from those commonly called natural, physical, or mechanical. And hardly will it be called into question, that there are phaenomena, and means and ends, which do not fall within the definition of those which are the object of natural philosophy. Who will deny that there are phaenomena, means and ends relative to our understanding and temper; relative to progress in knowledge, to the acquisition of habits, to constitution of civil society, and many other such like effects, which do not all belong to what is properly called natural philosophy? In short, none will say that the regulation of our affections and actions, in order to promote our own happiness, or the common happiness of mankind, is not an end quite distinct from that proposed in physics. And this being granted, we have gained all we plead for at present, which is, that if there be other ends, for attaining to which there are established means by nature, besides those considered in natural philosophy, such as the regulation of our inward affections, &c; these may be called moral ends, to distinguish them from the objects of natural philosophy. And by whatever name they are called, they are a very proper subject of enquiry for man. For it must be granted in general, to be a very proper sub-ject of human study, to enquire into all the good ends within human power, and into the established means, in order to the attainment of them. And all such establishments or connexions in nature, are, with regard to men, principles or laws, according to which they must act, if they would attain to certain ends; no end, of whatever kind, being otherwise attainable by us, than as it is the effect of certain means, or as there are certain laws constituting a certain order of operation, according to which it may be attained. All such connexions are therefore in the same sense laws of nature; and do no otherwise differ from one another, but as their respective distinct ends, physical and moral, differ. Let not, however, what hath been said be understood as if the laws of nature, with regard to the attainments of moral ends, had not a title to be called moral laws in another peculiar sense, which cannot belong to any other laws of nature. For we shall by and by see that they have. But if what hath been said be true, whatever other titles the laws of nature relative to moral ends, may, or may not deserve, it is certain that these laws highly merit our attention. And the following general conclusion, with regard to us, must, in consequence of what hath been premised, be incontrovertible.
The frame and constitution of man is a natural law to him.That the frame and constitution of man, and the connexions of things relative to him and his actions; i.e. in one word, the natural consequences of human affections and actions within and without man, are a natural law to man. They limit, fix or settle the effects of his behaviour and conduct; they shew what are the different results of different manners of acting; and so determine what must be done to get certain goods, and what must be done, or not done, to avoid certain evils. And man can no more alter these connexions of things, than he can alter the connexions upon which mechanical arts depend.
Now hence it follows, 1. That it is necessary for man to enquire into these connexions of things upon which his good or evil, his enjoyment or suffering, his happiness or misery depend, in order to attain to any goods. And, 2. That it is necessary for him to regulate his actions according to these connexions, in order to attain to any goods. And therefore these two may be called the primary laws of our nature: viz. the necessity we are in of knowing the connexions relative to our happiness and misery, and the necessity we are in of acting conformably to these connexions, in order to have pleasure and avoid pain. We may, if we will, call the necessary determination of every being capable of distinguishing pain from pleasure to pursue the one and avoid the other, the first law of nature. But it is more properly a determination essential to and inseparable from every reflecting being, and that which constitutes the necessity of its attending to the connexions of things relative to its happiness and misery, than a law or rule relative to the means of its happiness. The two first things therefore that offer themselves to our consideration with regard to beings capable of attaining to any goods, or of bringing any evils on themselves by their actions, are the necessity of understanding the connexions established by nature with regard to the effects or consequences of their actions, and the necessity of regulating their actions according to these fixed connexions.
Whence this law is learned, and whence it comes.Now that all connexions of nature, of whatever kind, whether those respecting matter and motion, and mechanical powers and arts, or those respecting the consequences of our affections and actions, can only be learned from experience, by attention to the effects of different methods of operation, is too evident to be insisted upon. And therefore we shall only add upon this head, that as when speaking of the laws of nature, which are the object of natural philosophy, tho’ they are shortly called laws of matter and motion; yet by them is really meant constitutions and connexions established and taking place in consequence of the will of the Author of nature: so the moment we have found out any connexions relative to happiness or misery with regard to human affections and actions, we have found certain constitutions or connexions relative to them, established and taking place by virtue of the will and appointment of the Author of nature; so that tho’, speaking shortly, we call them natural laws, or moral laws of nature, yet in reality by them must be meant rules, laws or connexions of the Author of nature. For this must be true in general, that certain setled and fixed orders and connexions of things can only take place by virtue of the will of some mind sufficient to give them subsistence and efficiency. Laws, whether in physics or in morals, can only mean certain appointments by the will of the mind who gave being to the world, and by whom it subsists. If by laws the appointments of some supreme Being be not meant, they are words without any meaning. So that we may henceforth indifferently say, either the connexions of things relative to man, the laws of nature relative to moral ends attainable by man, or the law and will of the Author of nature with regard to the consequences and effects of human conduct. This we may certainly do without begging any thing in morality which we have not proved, since natural philosophers use or may use these phrases promiscuously; and we as yet only desire to be allowed to use those phrases in the same sense they are used by natural philosophers, when they speak of means and ends, or connexions in nature, according to which effects are produced, and human arts must operate in order to be successful.
May we not now therefore go on to enquire, if we can find out any of the more important connexions in nature relative to our good or happiness, which are the laws of our nature, or the laws of the Author of nature with regard to our conduct, that may be called moral laws, or laws relative to moral ends.
Every being is constituted capable of a particular happiness, by the particular affections belonging to its nature.In order to this, it is plain we must enquire what affections belong to our nature. For nothing can be more evident, than that without particular affections no object could give us more pleasure than another, or to speak more properly, nothing could give us pleasure or pain: And the happiness of any one particular nature can only be the happiness or good of that particular nature. The happiness of an insect, for example, can only make an insect happy: Another nature, that is, a nature consisting of other affections, will require other objects to make it happy; that is, objects adjusted to the gratification of its particular affections. These things are very evident: For tho’ after having experienced several particular pains and pleasures, we can form to ourselves a general idea of happiness, and a general idea of misery, which ideas will excite a general desire of happiness, yet there is no such thing in nature as general gratification to general desire of happiness. Every pleasure is a particular pleasure; a particular gratification to some particular affection. We may be properly said to desire happiness in general; but every gratification we meet with, is a gratification to some one particular appetite or affection in our nature. As our eyes are said to be so formed as to receive pleasure from colours; but yet it is always some particular colour or mixture of colours that gives us that pleasure we call pleasure arising from colours; so it is with regard to all other pleasures. We may class pleasures under different general names, and say very intelligibly, we would have pleasure of such a sort; but in order to have our longing satisfied, some particular object must be applied to satisfy it: Or we may say more generally, we would have pleasure without fixing so much as upon a general class of pleasures, as pleasures of sight, of hearing, of smell, &c. But still it must be some particular object, suited to some particular affection, or particular sense of pleasure in our nature, that satisfies us in this undetermined longing or restlessness of the mind. In fine, however much philosophers talk of a general desire of happiness, and of our being actuated by this desire, which is properly called self-love, in all our pursuits; yet it is particular objects, adjusted to certain particular affections in our nature, that constitute our happiness. And it is only by gratifying some one of these particular affections that we can have pleasure. Nor is it less evident that all our particular affections rest each in its object. “The very nature of affection (says an excellent writer)1 consists in tending towards, and resting on its objects as an end. We do indeed often in common language say, that things are loved, desired, esteemed, not for themselves, but for somewhat further, somewhat out of and beyond them; yet in these cases, whoever will attend, will see that these things are not in reality the objects of the affections, i.e. are not loved, desired, esteemed, but the somewhat further out of and beyond them. If we have no affections which rest in what are called their objects, then what is called affection, love, desire, hope, in human nature, is only an uneasiness in being at rest, an unquiet disposition to action, progress and pursuit, without end or meaning. But if there be any such thing as delight in the company of one person rather than of another, whether in the way of friendship, or mirth and entertainment, it is all one, if it be without respect to fortune, honour, or increasing our stores of knowledge, or any thing beyond the present time; here is an instance, of an affection absolutely resting in its object as its end, and being gratified in the same way as the appetite of hunger is satisfied with food. Yet nothing is more common than to hear it asked, what advantage a man hath in such a course, suppose of study, particular friendships, or in any other; nothing, I say is more common, than to hear such a question put, in a way which supposes no gain, advantage, or interest, but as a means to somewhat further: And if so, then there is no such thing at all as a real interest, gain or advantage. This is the same absurdity with respect to life, as an infinite series of effects without a cause is in speculation. The gain, advantage or interest consists in the delight itself arising from such a faculty’s having its object: Neither is there any such thing as happiness or enjoyment but what arises from hence. The pleasures of hope and of reflexion are not exceptions. The former being only this happiness anticipated, the latter the same happiness enjoyed over again after its time. Self-love, or a general desire of happiness, is inseparable from all sensible creatures, who can reflect upon themselves, and their own interest or happiness, so as to make that interest an object to their minds. But self-love does not constitute this or that to be our interest or good; but our interest or good being constituted by nature, and supposed, self-love only puts upon gaining, or making use of those objects which are by nature adapted to afford us satisfaction. Happiness or satisfaction consists only in the enjoyment of those objects, which are by nature suited to our several particular appetites, passions and affections. And there is therefore a distinction between the cool principle of self-love, or general desire of our own happiness, as one part of our nature, and one principle of action, and the particular affections towards particular objects as another part of our nature, and another principle of action, without which there could be absolutely no such thing at all as happiness or enjoyment of any kind whatsoever.” From all which it follows, 1. That it is absurd to speak of self-love as engrossing the whole of our nature, and making the sole principle of action. And, 2. That in order to know what we ought to pursue, or what happiness we are capable of, it is absolutely necessary to know our particular affections which constitute our capacities of enjoyment or happiness, and the objects adapted by nature to them.
But why we have insisted so long on this observation, will appear when we come to mention several of our particular affections and their objects.
The particular affections belonging to human nature.Now, if we attend to ourselves, we shall find that we have affections of various kinds. 1. Affections to several sensible objects, adapted by nature to give us pleasure, which may be called sensitive appetites, some of which are absolutely necessary to put us upon pursuits requisite to our sustenance, or the support and preservation of our bodily frame, such as hunger and thirst, &c: and others which are not so necessary to that end, but are given us to be capacities of enjoyment, such as the pleasures we receive from light and colours by the eyes, and from sounds by the ear, &c. About these affections there is no dispute. 2. But these are not the only affections belonging to our nature. We have other affections which are called intellectual: such as, a capacity of receiving pleasure by the discernment of the relations of ideas or things by our understanding or reason, properly called the perception of truth, or knowledge; a taste or sense of beauty, which may be defined to be that agreeable percep-tion which objects that have uniformity amidst variety or regularity and unity of design, are adapted to afford us, &c. And, 3. Besides these there is yet another class of affections, which may be justly called social. Inclination to union and society, delight in the happiness of others, compassion toward the distressed or suffering, resentment against injustice or wrong, love of esteem or good reputation, desire of power to help and assist others, gratitude to benefactors, desire of friendship, and several other such like, which have some things in our fellow creatures for their objects. I do not pretend that this is a full enumeration of all the particular affections belonging to human nature. Some others shall be mentioned afterwards. But I am apt to think the principal affections constituting our nature, or our capacities of gratification and enjoyment, will be found to be reducible into one of these three classes. And let me observe with regard to them, before we go further, 1. That the greater part of these affections rest in some external object, and may therefore properly be said to have something without ourselves for their object, towards which they tend. As hunger hath food for its object, so hath the love of arts, arts for its object, and the love of reputation, reputation for its object; and as none of these objects is more or less external than another, and none of these affections is more or less distinct from self-love, or the general desire of happiness, than another; so benevolence, or delight in the good of another, hath an object which is neither more nor less external than the objects of those other above-named affections; and is an affection which is neither more nor less distinct from self-love than these other affections. And therefore all the grave perplexity with which moral writings have been tortured with respect to the interestedness and disinterestedness of certain affections, might as well have been objected against any other affections as against those, the reality of which it hath been thought sufficient to explode, to say, that if they are allowed to take place in our frame, then would there be a disinterested principle of action in the nature of a being, which like every sensible being, can only be moved by self-love, or regard to itself, which is absurd. It is sufficient to evince the impertinence and absurdity of this jangling, to shew that by the same argument it may be proved, that we have no affections which tend towards and rest in external objects. And yet it is certain, that had we not particular affections towards external objects, there could absolutely be no such thing as happiness at all, or enjoyment of any kind. If by saying that all our affections must be interested, and that none of them can be disinterested, be meant that they are our own affections, and that the gratifications they afford us are gratifications to ourselves, our own pleasures, or our own perceptions, then are all our affections in that sense equally interested; they are all equally our own, for they are all equally felt by ourselves. But if by saying none of our affections are or can be disinterested, be meant, that none of our affections can tend towards, or rest in an external object: This is to say, not merely that the good of others cannot be the object of any affection in our nature; but to say that nothing without us can be the object of our desire, whether animate or inanimate, which none will assert. This I mention, because all the arguments brought by certain philosophers against a principle of benevolence in our nature, turn upon an imagined contrariety between such a principle and self-love, as a principle of action. But, 2. It is in the gratifications of these particular affections in our nature, that the greater part of the enjoyments of which we are made capable by nature consists. And therefore, if we would know the laws or connexions of nature with regard to our happiness, we must know the establish-ed laws or connexions of nature with regard to these affections, and the objects adapted to them. That is, we must know in what manner and to what degree they give pleasure to us; what are the consequences of indulging any one of them too little or too much; the several tones and proportions nature hath prescribed to them, by fixing the boundaries of pain and pleasure; their relations one to another; their agreements or disagreements; their jarrings and interferings, or coalitions and mixtures; and, in one word, as many of their effects and consequences in different circumstances of action, as we can observe, in order to know how to regulate them, so as to have the greatest pleasure and the least pain we can. The rules of our conduct, in order to have happiness, can only be deduced from the laws or rules, according to which, in consequence of the frame and constitution of our minds, and the relations we stand in to external objects, our particular affections operate, or are operated upon by objects, or by one another.
It is the business of reason to know the nature of our affections, their objects, and the manner and consequences of their various operations.Now, it is the business of our reason to find out these rules or laws of nature, and the rules of conduct which they indicate or point out to us. Reason is as plainly given us for this purpose, as our eyes are given us for seeing. It is the eye of the mind which is to look out for us in order to direct our paths, i.e. to discover what we ought to pursue, and what we ought to avoid. It must be given us for this purpose. And if we do not exercise it to this purpose, it is of no use to us. It cannot be owned to be implanted in us, without owning that it is the intention of nature that it should be exercised by us as our guide and director. Nor is there indeed any other way by which beings can be guided, who have reason to discover how they ought to regulate their affections and actions, that is, how their happiness requires that they should regulate them, besides their reason. Their nature admits of no other guidance. For in this does the difference consist between them and other beings, which have no reflecting or guiding principle, but are led by mere impulse toward an end, without foresight, intention or choice, that they have the direction of themselves; and being endued with a principle of observation and reflexion, are left to its guidance. Beings without reason are directed, or rather driven by particular affections excited in their minds to pursuits, which can in no sense be called their pursuits, but are properly the pursuits of the principle by which their affections are excited in them. But beings who have a reflecting and guiding principle in them, are so constituted that they may and must guide themselves; and therefore their particular affections must necessarily be considered as subjected by their frame to their guiding principle as such. Their directing principle must be considered as the superior and chief principle in them, and that to which the direction, the rule, command or guidance of all their particular affections, is committed by nature. And indeed, if we attend to our own minds, we shall find, 1. That our reason claims a superiority to itself, and talks to us (if I may so speak) with the authority of a law-giver or ruler. It often, whether we will or will not, takes to itself the power and authority of a judge, a censor, and pronounces sentence upon our conduct. And, 2. We are so framed that our greatest inward satisfaction depends upon the approbation of our reason, or our consciousness of our acting by its direction, and in conformity to its rules. Nothing gives us so much torment as the consciousness of despised and contradicted reason: and no pleasure is equal to that the mind feels when reason approves its conduct. The approbation with which a mind, conscious of its habitually giving the autho-rity due to its guiding principle in the government of its affections and actions, applauds itself, is sincere and abiding satisfaction. So are we made: And therefore,
The first law of nature with regard to our conduct, is to maintain reason in our mind as our guiding principle.The first law of nature with regard to our conduct, is to maintain reason in our mind as our governing principle over all our affections and pursuits. It was said before (§3), that we are under a necessity of knowing the connexions relative to our happiness, in order to conform our conduct to them, and under a necessity of conforming our conduct to them in order to be happy. And we have just now seen what that principle is which is given us by nature, both to discover the connexions relative to our happiness, and to conform our conduct to them. Whence it follows, that according to our frame, we can neither be sure of avoiding evil, nor attaining to good, unless reason be our steady ruler; which implies two things. 1. That we be at due pains to know the connexions relative to our happiness, and to lay up this knowledge in our minds, in order to have counsel at hand upon every emergency: in order not to be surprized, and to have our directory to seek, when occasion calls upon us immediately to determine and act. And, 2. To accustom our particular affections to submit to, and receive their commands from our reason; not to sally forth at random upon every invitation offered to them by objects, but to await the decision of our reason, and to obey it. The first is the hability or sufficiency of reason to direct. The other is its actual command. And that reason may be very well informed, and consequently very well qualified to direct us, and yet not be actually our ruler and commander, but a slave to our headstrong passions, is too evident to experience to be denied. Nor is any one who hath ever given any attention to his own mind, a stranger to the only way in which rea-son can become our habitual ruler and guide, and our affections become habitually subject to its government, which is the habitual accustomance or inurance of our appetites, affections and passions, to receive their orders from our reason, or the habitual upholding of our reason in the exercise of directing all our pursuits. And indeed to what purpose can the knowledge qualifying reason to direct our affections serve, but to upbraid us, if reason be not actually our habitual director; if our passions are quite tumultuous and undisciplined, and reason hath no power over them, to restrain, direct, or govern them? This therefore is the first law of nature pointed out by our constitution, and the necessity of nature, even to set up and maintain our reason as our governing or directing principle. Till this be done we are not masters of ourselves; and however well any one’s affections may happen to operate, in consequence of a particular happiness of constitution, or in consequence of his necessary submission to others upon whom he depends, none can have a title to the character of rational, but in proportion as his own reason is his director and ruler; in proportion as his passions are submitted to reason, and he acts in obedience to its authority. But this rational temper may be called by different names, as it is considered in different views. It is prudence, as it discerns the connexions relative to our happiness, and the rules of our conduct resulting from thence. It is virtue or strength of mind, as it enables one to hold his passions in due discipline and subjection, and to act as prudence directs. It is self-love, as it is firm and steady adherence to the rules of happiness. It is self-command, as it is empire over ourselves, dominion over our affections and actions, all our choices and pursuits. And it is health or soundness of mind, as thus all our affections and appetites are in their regular, na-tural and proper order, i.e. duly submitted to the principle to which the authority of guiding them is due. It is indeed the whole of virtue, human excellence or duty, as this empire being once obtained, all must go right; every affection will be duly obedient to the principle that ought to govern; and thus the mind will be conscious to itself of inward order and harmony, and of being in the state it ought to be in: for no other general definition of human excellence or duty can be given, but acting conformably to reason. But still it remains to be enquired what general rules for our conduct reason discovers to us.
It ought to be the end of education to produce the patience of thinking, or the government of reason.We may however observe, before we go farther, 1. That unless the mind be early rendered of a temper for thinking and enquiring about the proper rules of conduct, it will not set itself to find them out, but will give up the reins to its affections, and be tossed to and fro by them in a most desultory irregular manner; and the longer this unthinking way of living takes place, the more difficult will it be to recover the mind from the tyranny of its passions, and to establish reason into its due authority and command over them. And therefore the great end of education ought to be to produce the love and patience of thinking; to establish the deliberative disposition and temper, or the habit of consulting reason, and weighing things maturely before one chooses and determines. This is the chief end of education. And if one be not obliged to wise education for this happy temper of mind, it seldom happens that one ever attains to it, till he is awakened and roused to think, by some great suffering brought upon himself, by his not having exercised his reason, but suffered his passions and appetites to drive him whithersoever they listed. The reason is, that by repeated acts, habits are formed, which it is exceeding difficult to undo, and which cannot be undone but by the strong opposition of reason. And therefore, if the habit of ruling ourselves by reason, be not early formed in us by right education, the habit of indulging every passion and appetite that assails us, and of living without exercising our reason, must soon become too fixed, settled and inveterate to be easily conquered. It is fit, highly fit, nay absolutely necessary for us, that the law of habits should take place in our constitution. Yet this must be the effect of it, that unless great care be taken, by proper education and discipline, early to form the reflecting and considering habit, in young minds, which is to establish the government of reason in them, it must be extremely difficult for us ever to become reasonable creatures, or to attain to self-command, and to establish our reason as our ruler and guide, in the room of appetite, humour and passion. Mr. Locke hath made admirable observations on this subject, in his excellent treatise of education.2
When this temper is formed, happiness and duty are easily discovered.But, 2. When the love and patience of thinking are once attained, and the sedate, deliberative temper is fairly established, it is then very easy to find out the proper rules of action, or what is the most eligible course of life and behaviour, and how the affections ought to be governed. The affections then range themselves, as it were, spontaneously into good order. The understanding is then clear and undisturbed, and duty is easily discerned. Whatever difficulty reason may find in establishing its authority, it is no sooner fixed and settled in the mind, as the ruling and commanding principle, than the rules which ought to be observed in conduct are immediately discovered. True happiness is then immediately felt to consist chiefly in the very consciousness of this temper, in the consciousness of reason’s having this sway within us. And when this is looked upon to be the chief part of happiness, the chief part of our happiness is then something dependent upon ourselves, which nothing can deprive us of, while reason presides and rules in our breast. A source of inward consolation, far superior to all other enjoyments, and which is as steady as all other things are uncertain, is thus discovered. And the mind, which hath once fixed upon this as its main good, will be proof against all the most specious appearances of pleasures, till their pretentions have been examined, and their consistency with this chief principle of happiness hath been duly considered; and will therefore be a calm and impartial judge of what pleasures it may allow itself, and of what it ought not to give indulgence to. But if the mind be calm and unbiassed, and resolved to act the part that shall appear wisest and best upon due attention to the laws of nature fixing the connexions relative to our happiness, the whole difficulty is over. Till then it is not capable of judging; but when that point is gained, it is very easy to judge right. In every case, not to judge, but to be fit to judge, is the difficult part. The first thing therefore that our frame and constitution points out to us as the law of our conduct, is to take care to establish reason in our mind, as the ruler, without consulting which we will not allow our passions to indulge themselves, and the dictates of which we are resolved steadily to obey, that we may always enjoy that delightful consciousness of having been guided by our reason, which is by our make the greatest of all enjoyments. But to this education ought, and must contribute; otherwise the establishment of this excellent temper, in proportion to the prevalence of which one is more or less a reasonable being, must be a very difficult, a very hard task; and to assist in conquering the contrary habit, distress and suffering will be necessary. And why should we not look upon the evils that are brought upon ourselves by thoughtlessness, folly, or, in one word, by not governing ourselves by reason, to be intended chiefly for this very end; even to awaken, rouze, and excite us to think, by making us feel the necessity of exercising our reason, and obeying it, instead of indulging every appetite that assails us, without considering the consequences of living in such an irrational manner! For this is self-evident, that were not agents placed in a state where certain manners of acting produce good, and others evil, there would in such a state be no place for choice and agency; for prudence and imprudence; nor consequently, for reason and self-approbation. And therefore to the existence of the highest rank of created beings, it is necessary that certain methods of acting be attended with evil consequences. For tho’ we may, by adding more and more to our own active powers, conceive various species of created agents above us, till we rise in our contemplation to the Supreme Being, in whom all perfections meet, and are united in their highest degree; yet we can conceive no order of beings above mere passive ones, without conceiving them to be disposers of their own actions by their reason, understanding and choice: And as for more or less, i.e. a larger or lesser sphere of activity, here the known rule takes place, That more and less do not alter the species. If any one should ask what the proper method of education is in order to produce the reasonable thinking temper? it is sufficient to answer here, that the chief business is to accustom youth early to examine the associations of ideas in their minds, and to consider whether these associations be founded in, and agreeable to nature, or not; which ought to be the unintermitted exercise during life of every one who would maintain the empire of his reason. But because this would lead me into a digression, or rather into a subject, for which we have not yet sufficiently prepared the way, we shall only refer those who ask this question to the above mentioned treatise of Mr. Locke, and go on to take notice of some particular laws of our conduct, pointed out to us by the make of the human mind, and the circumstances in which we are placed by the Author of nature.
The first particular law which appears to those who consider the nature and circumstances of mankind is the law of industry.The pleasures we are capable of, are gratifications to our particular affections, the principal of which have been named (§6); for hardly can any enjoyment we are susceptible of, be specified, which is not a gratification of one or other of these outward or inward faculties or senses of pleasure. Our pleasures may therefore be divided into two classes; the goods of the body, and the goods of the mind. For all our affections, all our senses of pleasure, either have some sensitive, or some intellectual and moral gratification for their objects. Gratification to our eyes, our ears, our touch, and our other organs of sense, are bodily gratifications. Gratifications to our discernment of truth, and our delight in it; to our taste of beauty and harmony and delight in it; to our public sense, or our delight in the happiness of others, &c. are gratifications to capacities, senses of pleasure, or affections, which, to distinguish them from those afforded by corporeal objects to our sensitive organs, may be called intellectual or moral, or goods of the mind. But however the goods or pleasures we are capable of be divided or classed, this is certain, with regard to them all, that they are made to be the purchase of our activity or industry to have them; they do not drop into the mouth (if we may so speak) of the sluggard; but we must exert ourselves to attain to them. As we cannot otherwise have the pleasures of sense, or the goods of the body; so no more can we, without industry and application, have the pleasures of knowledge, refined taste, benevolence, &c. And hence that antient observation concern-ing the government or frame of the world with respect to man; θεοι τἀγαθα τοὴς πονοις πολοῦνται. God or nature sells all to industry.3 This truth is so plain to daily experience, that we need not stay to prove it. But from this general law of nature arises a law to us, viz. the law of industry; or the necessity of our activity, application or industry, in order to attain to any goods. And if we will reflect a little upon our minds, we shall find, that as no goods can be attained by us, but by exerting ourselves actively to have them; so activity or exercise is necessary to our happiness in another sense, i.e. immediately, or in itself. The mind of man is made for exercise, exercise is its natural pleasure. It is of a restless temper, and must be employed. If it is not, it preys upon, and consumes itself. Nor is exercise less necessary to the health, soundness, vigour, and agreeable feeling of the body, than employment is to the strength, agility, soundness, and pleasant state of the mind. We need not insist long to prove this; for daily experience shews, that as it happens among mankind, that whilst some are by necessity confined to labour, others are provided with abundance of things by the industry and labour of others; so if, among the superior and easy sort, who are thus relieved from bodily drudgery, there be not something of fit and proper employment raised in the room of what is wanting in common labour; if, instead of an application to any sort of work, such as hath an useful end in society (as letters, sciences, arts, husbandry, public affairs, &c.) there be a thorough neglect of all study or employment, a settled idleness, supineness and inactivity; this does of necessity occasion a most uneasy, as well as disorderly state of mind; a total dissolution of its natural vigour, which ends in peevishness, discontent, and sickly nauseating at life, and all its enjoyments. So necessary is some employment to the mind, that to supply exercise to it, many strange amusements and unaccountable occupations for time, thought, and passion have been invented by those, whom fortune hath rescued from drudgery to their backs and bellies, but good education hath not directed into proper pursuits and employments, which are their only security against utter discontent with themselves, and every thing about them, amidst the greatest abundance. Such strange occupations are their sole relief. But they are such only as they are some exercise to the mind, and prevent that languishing, fretting and nauseating, which total supineness and ease produces. And how feeble a security they are against the misery, which employment more suited to a mind capable of higher pursuits would absolutely prevent, is plain from the many bitter, sickly, discontented moments the men of pleasure, as they are absurdly called, cannot, by all their amusements, escape, compared with the equable contentedness of an honest daily labourer, conscious of the usefulness of his toil; not to mention the sedate, uniform satisfaction and cheerfulness of one, who having qualified himself for it, divides (as Scipio is said to have done) his time between elegant studies and public services to his country. The mind of man must have exercise and employment. Exercise itself is agreeable, and it is absolutely necessary to relief from the greatest of uneasinesses. And no goods can be attained without application and industry. If one would preserve his health and relish for sensitive pleasures, he must exercise his body. And if he would have the pleasures of knowledge, of refined imagination and good taste, the pleasures of power and authority, or the pleasures of benevolence and doing good, he must be diligent in the culture of his moral powers, and be ever intent upon some truly useful pursuit. If these ends do not employ him, he must either find other pursuits for himself, or he will be exceedingly unhappy. But what other pursuits can one devise to himself besides those of which he can say any thing better, than that they employ his mind, and keep time from hanging upon his hands, as the phrase is, or, more properly speaking, murder it? Can he name any other besides those that bear any congruity to the more noble and distinguishing powers and affections of the human mind? or that he can depend upon for steady and uncloying satisfaction? any other that can be re-enjoyed by reflection? any other that will stand a cool and serious review and examination?
But that I may not be thought to proceed too fast in my conclusions, and to have determined concerning the comparative value of pursuits too hastily, all I desire to have concluded at present, is, that according to the constitution of the human mind, and in consequence of the natural state of things, no goods, no enjoyments can be procured by us without application and industry, and that we are made to be busied and employed for exercise, or to be engaged in some pursuit. The greatest abundance of outward things, tho’ it relieves from certain toils, to which the necessities of life subject others; yet it does not, it cannot make one happy, if, in the room of the pursuits from which it delivers him, he do not find out some other satisfactory pursuit or employment for himself. Under this necessity hath nature laid us; nay, properly speaking, this necessity constitutes our dignity above inactive, or merely passive creatures, as free agents. For it is implied in the very notion of agency. One cannot otherwise be an agent, than as he is made to procure his happiness to himself by the active application of his powers in the pursuit of goods within his reach, if laboured for according to the way nature hath fixed and chalked out for attaining to them. And as the pleasure of considering goods as one’s own acquisition, is a pleasure that a being must be so framed to have; so this is a very high satisfaction, and an excellent natural reward to industry. How insipid are the satisfactions in which this is not an ingredient, in comparison of those which one owes to his own skill, prudence and industry, and in which he therefore triumphs as his own purchase, his own conquest, the product of his own abilities and virtues! ’Tis only beings so framed as that they must work out their own happiness, who can be capable of self-approbation. And who doth not feel the difference with which one reflects on the goods which are not of his own procurance to himself, such as beauty and the advantages of birth, for instance, and those accomplishments which he can vindicate to himself as his own proper purchase? And where self-approbation can take place, there only can good desert, with regard to others, take place; or can there be any foundation for praise and esteem from others, without which, how dull and insipid would life be? This is the general voice of mankind.
Thus far then are we advanced in finding out the connexions or laws of nature with regard to our happiness. We are made to work out our own happiness by our industry; we are made for activity and exercise. But how ought our industry to be directed, in consequence of what hath been observed concerning the presidence which reason ought to have in our minds (§8)? Must not the objects of our industry be chosen by reason, and all our exercises directed by it, in order to our having the satisfaction of reflecting upon our exercise as conformable to reason; and that it may be agreeable to the connexions of nature relative to our happiness; and so prove neither vain nor hurtful but turn to good account, and not produce repentance and suf-fering for having mistaken our end, and misapplied our labour and diligence; but contentment with ourselves for having acted with prudence, by the direction of reason for an approveable end, and in the proper manner for attaining that end. This therefore is one characteristic of our proper happiness, that it consists in a course of industry to attain ends which reason approves, under the direction and guidance of reason, as to the use of means.
The second particular law that appears from the consideration of human nature, and the circumstances in which man-kind are placed, is the law of sociality.But another special characteristic of our proper pursuits, in consequence of our frame, and the connexions of nature relative to our happiness, will immediately appear, if we reflect how strictly mankind are bound together; by how many close ties and dependencies they are cemented; ties arising from mutual wants, and ties arising from certain affections common to mankind, exactly corresponding to their mutual wants. First of all, it is evident, that we can attain to no goods of whatever kind, external or internal, by our single industry, or without social assistances. Nothing can be more manifest than this. 2. Nor is it less evident, that there is no enjoyment, of which mankind are capable, which does not, as our excellent poet very happily expresses it, Some may lean and hearken to our kind.5 If we separate communication and participation from all our pleasures of whatever kind, we really abstract from them the main ingredient that gives them relish. Take all of the social kind away from sensitive gratifications, and what remains but mere allay to some raging appetite, mere relief from pain? And as for all our other pleasures, what are they but participation, or communicating and sharing with our fellow creatures? Such is the joy of relieving the distressed, or of promoting the happiness of the deserving. Such is a sense of merited esteem; such is gratitude to a benefactor; such is creating dependence upon us, &c. And as for knowledge, however pleasant it is in itself, yet is it not doubly agreeable, when considered as qualifying us to be useful, and as procuring us authority and regard? In short, the chief article in all our pleasures, in consequence of our make, consists in mutually giving and receiving; it is of a social kind. And we are formed, and placed as we are, that there might be variety of exercise to our social affections. Nature hath so framed us, that our chief happiness must be sought from communication and participation with others; and so placed us, that all such dependencies might arise as were necessary to gratify our social appetites and affections. This will more fully appear afterwards, when we come to consider some of the principal dependencies by which mankind are united and cemented together; which, tho’ they be objected against by narrow thinkers,6 will be found to be in reality so many proofs of nature’s kind care about us; or to make proper provision for the exercises, from which alone our social happiness, or gratification to our social affections can arise, since it must consist in mutual giving and receiving, which cannot take place but where there are mutual dependencies. Mean time, let it only be observed, 1. That such is the constitution of things with respect to mankind, that no man can attain to any considerable share of the goods either of the body or of the mind by his single endeavours; but he must, in order to that, engage many others to help and assist him: nay, such is the constitution of things, that no man can subsist in any convenient, not to say comfortable degree or manner, without receiving many services and good offices from others. Mankind are therefore, by the necessity of nature, obliged to seek mutual assistances from one another, to unite together, and to com-municate their industry. But, 2. Mankind are so framed, that this union and communication is in itself as agreeable as it is necessary. Our best enjoyments are acts of social communication. Assisting, relieving, herding, concerting, confederating, and such like social dealings, are all of them in themselves most pleasing and agreeable exercises. So that there is something in them that rewards them, and invites to them independently of their necessity to our having any of the conveniencies or comforts of life. Need I stay to prove this to any one who hath ever felt any of the generous emotions and workings of the soul? or to any one who can reflect upon his having at any time done a good office? For nothing is more certain, than that it is only acts of compassion, humanity, friendship, gratitude, benevolence, that afford any considerable satisfaction to the mind upon reflexion; or that it is the generous mind alone that can reiterate its actions in its reflexion, memory, or conscience, (let it be called what you will) with thorough delight; and thus feast most agreeably upon them after they are past. Indeed so social is our make, that the highest entertainment even the poetic art or ingenious fictions can give us, is by exciting generous benevolent emotions in our minds, and deeply interesting us in the affairs of others. For of the satisfaction we receive in this way, which we so readily own to be preferable to any mere sensitive enjoyment, no other account can be given but this; “Homo sum, & nihil humanum a me alienum puto.”7 Whatever concerns man, tenderly interests every man in it, in consequence of the human make. We are therefore formed by nature for social exercises; for the pursuit of public good; for offices of benevolence or charity, and for uniting together in the interchange of various acts of kindness and sociality.
And thus there appears another character of the happiness and the employment or industry we are intended for by nature: It is industry beneficial to mankind, for which we are framed and intended: Industry proper to make human life as comfortable and agreeable as it can be rendered. For this is the industry or employment, which, in consequence of our social make, gives us the greatest pleasure. And this industry alone can give a satisfying account of itself to our reason. For this also is found to be true by experience, that no sooner is the idea of industry beneficial to mankind, or of activity to relieve mankind from as many pains, and to give them as much pleasure as we can; no sooner is this idea presented to our reflexion, than our mind is necessarily determined to approve of it, and pronounce it the best part, nay the only commendable, worthy part one can act. And therefore we have now attained to a very distinguishing characteristic of the pleasures we ought to pursue, i.e. of those which are made by nature of the highest, the most uncloying, satisfactory and durable relish to us, viz. exercises of our abilities or powers, which tend to promote the public good. If it is said that there is no reasoning in all this deduction, but simply appeal to experience: let me ask how we can prove any quality, affection or power to belong to us, or any sensation to be pleasant, but from experience? What are all the conclusions of natural philosophers, but inductions from experience, the experience of our senses? And is outward experience a proper proof of matters of outward experience; and inward experience not a proper proof of matters of inward experience? If it is objected, that experience proves that some men have high pleasure in acts of cruelty and malice: to this I answer, the gradual degeneracy of the mind into savageness and malignity, can be accounted for from the laws according to which social affections, and a moral or public sense are impaired and corrupted. But that any degree of this state of mind cannot be happiness, is plain, since where there is a total apostacy, an absolute degeneracy from all candour, equity and trust, sociableness or friendship, there is none who will not acknowledge the absolute misery of such a temper of mind. For sure here, as in other distempers, the calamity must of necessity keep pace and hold proportion with the disease, the corruption. It is impossible that it can be complete misery, to be absolutely immoral and inhumane, and not be proportionable misery or ill, to be so in any however so small a degree. And indeed, tho’ there were no considerable ill in any single exercise of inhumanity and unsociality, yet it must be contrary to interest, as it necessarily tends, in consequence of the structure of our minds, that is, the dependence of our affections, and the law of habits, to bring on the habitual temper, which is so readily owned by every one to be consummate misery, and to render incapable of any enjoyment, even amidst the most luxurious circumstances of sensitive gratification. But having insisted very fully on this subject in another treatise;8 and chiefly, because it is impossible to set the sociability of our nature in a clearer and stronger light than my Lord Shaftsbury has done, in his Essay on virtue,9 I shall only add, that if it be really true (as I think he has demonstrated) that, in consequence of the constitution of the human mind, and of the connexions relative to our happiness, the affections which work towards public good do likewise work towards the greatest good of every individual, then are we by a necessity of nature under obligation to be social, humane, and well affectioned towards our kind: And consequently, sociality is a law of nature to us. For this being the case, in it hath nature, whose constitutions we cannot alter, placed our chief happiness. But this general truth will be yet more evident, when we consider the particular dependencies by which mankind are strictly linked and tied together.
The natural and necessary dependence of mankind, points out to us the order in which our social affections ought to operate.Which we now proceed to point out, that we may shew the particular order in which nature at once impels and obliges us to exercise and gratify our social affections. Nature may, as we have already seen, be very properly said to oblige, or lay us under a necessity of regulating our affections and actions in the way that the constitution of our mind, and the circumstances in which we are placed, make necessary to our happiness. And nature may be said to impel us to exert our affections in the way in which they naturally tend to work or exert themselves. And if we attend to our affections, and the order in which they naturally tend to operate or exert themselves, we will find that it is that very order which our constitution and circumstances make necessary to our well being and happiness; so exactly are our constitution and our circumstances adapted the one to the other. It is plain that social affections could not have their proper exercises, except where many mutual dependencies take place; because giving and receiving, or communication, can not take place but where there are mutual wants. Now, our mutual wants and dependencies must be wants and dependencies either with respect to the goods of the body, or the goods of the mind. For all our goods, as hath been observed (§9), are reducible into these two classes: Wherefore, mutual wants and dependencies in these respects, are necessary to the exercises of our social affections, or to our social enjoyments. Take away from mankind all the exercises of social affection, and we reduce them into a state of mere indolence and inactivity, and leave nothing in human life to employ men agreeably, or actuate them warmly or strongly: We take away all that gives the highest relish to life, all its most touching and interesting exercises and employments. But if we take away the objects of af-fections or exercises, we to all intents and purposes destroy the affections themselves; for it is to all intents and purposes the same, whether they do not take place in a constitution, or taking place, have not objects to call them forth into action and employ them. The differences therefore which obtain among mankind, in consequence of the different talents, genius’s and temperatures of mind, or of different circumstances, necessarily occasioning different operations, various degrees and turns of the same powers and affections, do indeed serve to cement and unite mankind together, and to produce a constitution of things, in which alone our social affections can have various proper exercises; a constitution of things, in which alone various social enjoyments can take place. And therefore, with regard to us,
All nature’s diff’rence keeps all nature’s peace.10
Several of these dependencies, and the affections corresponding to them explained.This will be evident, if we but consider what the affections and employments are which give us social enjoyment. For how can benevolence, love of power, compassion, charity, gratitude, or any other affection, which hath the qualities, conditions, and actions of others for their objects, take place but where wants are supplied, dependence is created, happiness is given; or where beings can mutually gratify one another in various manners, by mutually adding to one another’s happiness and enjoyment, or alleviating one another’s pains? But it will still be more evident, when we consider the dependencies which actually obtain among mankind, and the affections in human nature, corresponding to these dependencies. Now, 1. In general, to the very support of our bodies, many labours are necessary, and consequently, various communications of labour: nor are various united labours less necessary to our having the pleasures which arise from knowledge, and the improvements of the understanding and ima-gination. These two facts are too evident to stand in need of any proof. And in order to our having enjoyments of both these kinds by united labours, mankind are endued with various talents, various genius’s and turns of mind. Some are fitted for one kind of labour and employment, and some for another. Every one stands in need of many, and every one is peculiarly adapted by nature to assist the rest in some particular way. It is in order to promote a general commerce among mankind, that through the whole globe, the habitation of mankind, every climate, every country, produces something peculiar to it, which is necessary to the greater convenience, or at least to the greater comfort and ornament of the inhabitants in every other. So in every country, throughout all mankind in general, there prevails a division of talents, genius’s and abilities, which makes every one necessary in a particular way to the general good, or at least renders every one capable of contributing something towards general happiness, by the application of his talents in their proper way, or to the end for which they are peculiarly adapted. And indeed in the narrowest view we can take of human happiness, that is, even when we confine it to our bodily subsistence, to eating, drinking, protection against the injuries of weather, and such other conveniencies, which will be readily acknowledged not to be all that mankind are qualified to have and enjoy, even tho’ we should quite abstract from the higher pursuits of understanding and imagination, in the improvements of arts and sciences, from every thing that comes under the notion of ornament, elegancy or grandeur; yet even in this confined view, many labours, various industry is necessary. And consequently, men are laid by a necessity of nature under obligation mutually to engage one another, to unite their labours, and communicate their industry for one another’s subsistence. But as men would have but very little pleasure in labour, and the communications of their industry which are necessary to their subsistence, were not exercise, as hath been observed (§9), naturally agreeable to men, and were we not so constituted as to have immediate pleasure in social communication, in every social exercise; so men, as we are constituted, cannot engage one another in mutual assistance, but by shewing each his willingness to assist the rest, and his sincere cordial regard to the well-being and interest of the whole body. Every one, in order to be liked and regarded by others, must at least put on the shew of liking and regarding others; for one would otherwise be looked upon as a common enemy, and as such be abandoned, nay, hated and persecuted by all men. And let me just observe here, in opposition to those who assert that there is not really any benevolence or regard to the interests of others in human nature, but that it is self-love which assumes the affected appearance of it, in order to deceive, well knowing the necessity of seeming to love others, in order to be assisted by them, as our necessities require.11 Let me observe, that were there not generally prevailing among mankind a real principle of sociality and benevolence, this imposition, this counterfeit regard to others, would not be able to answer its end. Were all men utterly devoid of any such principle, and were the appearance of sociality every where counterfeited, the false appearance would nowhere take; it would nowhere be believed, and nothing like trust, or harmony and union could prevail among mankind, but they would live in continual jealousies and suspicions. So that of necessity it must be owned, that there is in the generality of mankind naturally a real principle of sociality and benevolence. This is plain from the necessary effect of one’s being discovered to have acted under a mask of benevolence and honest regard to others; for in that case, hardly can any power or strength such a person may have acquired, protect him against just resentment. Such a one must indeed be strongly defended to secure himself against the condign vengeance of mankind. And whatever his power may be, in consequence of his wrath and guards, or armies attached to him by his wealth, hanging upon him by the teeth (to use the phrase of a very great author),12 yet he cannot avoid being hated by all the rest, and he cannot be loved even by them who are thus tied to him: And consequently, it is no wonder, that every one of this character, and in this situation with regard to mankind, in consequence of his known character, hath ever been found most compleatly miserable; tormented by galling fears, suspicions and jealousies. There never was a tyrant who was not in this terrible condition, as Cicero observes, Offices, book 2.13 then are not only under a necessity by nature of being social, but they are actually provided with affections which make them such, as well as with the various talents necessary to a variety of industry, and communication of industry. So that thus far nature obliges and impels to the same course of life, viz. a course of social industry and communication, a course of honest and cordial interchanges of mutual assistances and services. 2. But besides this general dependence diffused throughout the whole species, there are dependencies of another kind among mankind, to which likewise there are correspondent affections in human nature, that without such dependencies would not have exercise or employment. The Author of nature hath spread over mankind a natural aristocracy, which appears in every assembly of mankind. Some are superior in understanding to the greater part, in every casual or designed meeting of men, consisting of suppose ten, twenty, or any other number. And what is the natural effect of this, in consequence of the hu-man frame? Superiority in wisdom, by fitting to give proper counsel in matters of common concernment, naturally produces esteem, veneration, submission, and gratitude in those who feel the benefit of their superior wisdom, or to whom it serves as a light to direct them; that is, it gives authority to the men of superior wisdom; and it excites cordial dependence and confidence upon them in the breasts of those who reap the advantages of it. And thus those who excel in wisdom, have the pleasure of having authority and respect paid to them. And those who receive counsel and direction from them, have the pleasure of being instructed by them, and the sincere satisfaction which arises from gratitude and affection to benefactors, which is naturally so strong, that it is hard to say who are happiest, those who give, or those who receive. This we may observe, from the pleasure with which youth receive information from a prudent affectionate teacher: and in general, from the warm and zealous affection with which persons obliged attach themselves to a wise and generous patron, follow his directions: and espouse his interest.
But let it be observed, that this is only the case while those of superior parts shew a sincere regard in their counsels and directions to the general good; and do not attempt to deceive those who depend upon them into hurtful measures, with a selfish narrow view. For so soon as that is perceived, veneration is changed into contempt and hatred. And thus the superior in parts deprives himself of one chief reward of superior prudence, which is, the authority, leading and dependence it would other-wise give him. History is full of instances, which are so many clear proofs of this. The Roman history in particular, in the language of which republic, as an excellent author hath observed, the influence of superiority in wisdom united with benevolence, was called auctoritas patrum; and the veneration paid by the people to it was called verecundia plebis.15 There is in every man naturally a desire of power. It indeed enlarges and becomes stronger, in proportion as the mind enlarges and opens. But it is so strong, even in the meanest, that unless they depend, or hang upon others by the teeth, they may be led, but they will not be driven. If nature had not implanted in all men a desire of power, and a strong sensibility to wrong and injury, the veneration which superiority in parts naturally inspires, would have rendered the generality of mankind, who stand in need of leading and direction, too submissive, too tame and humble. But notwithstanding the natural aristocracy diffused over mankind, yet such is the general temper of mankind, that not only superiority in parts, without benevolence, will not gain respect and submission, but even a stricter and closer dependence will hardly be able to keep men in subjection when power over them is abused, if it can by any means be shaken off. 3. And this leads me to take notice of another kind of dependence among mankind; a dependence necessarily resulting from inequality in property. I need not stay to prove that earth, the habitation of men, being given by nature to be possessed and appropriated by the industry of the first occupants, the world could no sooner be tolerably well peopled, but in every district there would be inequality of property. I need not stay to prove how this would naturally happen in consequence of the manner in which mankind is propagated by successive generations, the natural aristocracy among mankind, which hath been mentioned, and other causes; nor to shew what revolutions in property, commerce, not to mention force, will naturally be ever bringing about, where the balance of property is not fixed by civil laws and constitutions; far less need I stay to prove that an over-balance of property will produce power or dominion proportional to it. These things have been sufficiently explained by the most ingenious Harrington.16 All that it belongs to our present purpose to observe with relation to it, is, that as inferiorities and superiorities, with regard to the good of the body as well as of the mind, are necessary to social communication; necessary to make mankind mutually dependent, or to lay a foundation for mutual giving and receiving; so, with respect to external dependencies, or hanging by the teeth, that must necessarily take place among mankind in consequence of unequal property, men are furnished by nature with all the affections such dependencies require, in order to render them a means of agreeable union and coherence, or to found upon them very various social commerce. For, 1. Men have a principle of benevolence to excite them to take delight in doing good, and in being serviceable to one another. And, 2. They have a sensibility to oppression and injustice, which impels them to ward against injury, and resent it with great vehemence. Wherefore, as without some sort of dependencies there could be no such thing as social commerce; so mankind could not be better provided by nature than they are for reaping all the advantages of mutual dependencies, and for securing themselves against all the inconveniencies that can arise from mutual dependency. And as reciprocal dependence lays mankind under a necessity of social communication; so the natural affections with which men are endued, point out to us the manner in which social communication ought to be carried on. For benevolence naturally produces love and gratitude. But no one can be so powerful as not to want assistance in many respects; and the indignation against injury, and aversion to slavery or absolute subjection, natural to mankind, will render power very ineffectual to true happiness without benevolence. Since that alone can excite love, affection, trust, or esteem; and he who knows himself to be hated and despised, must be very unhappy amidst the greatest affluence of outward enjoyments, as well as very unsecure of long possessing them. Thus therefore nature hath made the exercises of benevolence, good-will, compassion, generosity, gratitude, fidelity, integrity and friendship, to be, in every respect, the happiness of mankind, and the happiness of every individual. And therefore, of the mutual wants and dependencies among mankind, which some look upon as an objection against the good government of the world, it may justly be said,
But this will yet more clearly appear, when we consider, 4. The necessary dependence of children upon their parents, in consequence of the manner in which nature hath appointed the propagation of mankind, and the affections which nature hath implanted in men, in order to direct and impel them to the care of their infant-offspring, and to the propagation of mankind in the way necessary to the general happiness of mankind. It is evident, that proper care cannot be taken of infants, as they come into the world in a most helpless condition, unless their parents unite together in concern about bringing them up to a state capable of doing for themselves. Neither their bodies nor their minds can otherwise be taken due care of. Now, in order to excite us to this care, nature hath implanted in us several strong affections, all centering in it as their end; so that a great part of human happiness, a great part of our most agreeable employments, really consists in parental cares, and filial returns to such cares. There is not only a strong mutual sympathy between the sexes, founded in, and supported by many mutual wants and ties. But mankind have a strong natural inclination to continue themselves in a new race, which they may look upon as their own; to which a regular union between the sexes, in such a manner, that love and fidelity may be most securely depended upon, is evidently necessary. And no sooner are children born to parents in such a way, that there is no doubt of their being the offspring of faithful embraces, than a warm love springs up in their minds towards this progeny, which is considerably increased by our sense of their absolute dependence upon our care, and soon receives an additional warmth from the gratitude, love and attachment to us, which they very early discover, and which become firmer, by becoming more rational, in proportion to the care parents take of what is principal in relation to their childrens happiness, the formation of their minds. Desire to be a parent, and the head of a family, is an affection that early sprouts up in every mind, and hath betimes a great share in all our pursuits. And when the marital and parental ties are once formed, then nature points our views more immediately towards our offspring and family, as the most proper object of our care. And this is evidently the manner in which benevolence should operate in order to the general happiness of mankind. Thus nature makes certain persons nearer and dearer to one another, and by so doing ascertains or appropriates to every one certain more immediate objects of his concern and affection; and, at the same time, instead of severing or dividing mankind by this means into so many separate bodies, with separate interests, binds mankind together by so many more ties. For every one, who hath a warm attachment to the welfare of many endeared to him by special bonds and affections, must feel a stronger obligation, than those who are strangers to such motives, to gain the love of mankind, without which his own power to do good to such would be of very little consequence, however great it might be with it. There is this remarkable difference between the instinct of brutes, that impels them to the care of their offspring, and the natural affections of mankind.
Now nature, by thus ordering the propagation of mankind, and enduing us with corresponding affections as parents and as children, assigns to eve-ry one a more immediate and particular task or care; the faithful discharge of which by each in his sphere, would make human life all peace, love and harmony. Our general benevolence hath thus a particular biass, which points it into its proper road, or into its first cares and principal employments. Were mankind to be propagated as they are, and we not endued with the affections which are really implanted in us by nature, to how many bad chances, with regard to their education more especially, would mankind be exposed in their infant-state? And, on the other hand, if we had not those natural affections in us which tend to regular propagation, in order to have certain children, and to due care of our thus certain offspring; would not we want many sincere pleasures, many warm, interesting, delightful cares? Would it not our general benevolence want a strong source for nourishing and supporting it? And would not be left too vague and undetermined by nature? But being constituted as we are, our benevolence is properly directed, and properly invigorated; and nature hath given us affections to impel us to what necessity obliges us; with affections which makes every one feel immediate satisfaction in that regular exertion of benevolence, which the interest of all in general requires. Thus, while every man touches us as such, certain particulars strongly call upon our special attention; and we have each a particular province assigned to us by the natural tendency of our affections, the faithful discharge of which is contributing a very great share towards the public good. And this determination of our mind to particular exercises of benevolence, is so far from stinting and confining benevolence, or from having a natural tendency to degenerate into a narrow clannish disposition, that it naturally produces a fellow-feeling with all other parents and their cares, i.e. with all mankind; and renders the mind in general much more tender and sympathizing than it can be without frequently feeling such kindly emotions. For this plain reason, that humanity and benevolence, like all other affections, grow stronger and stronger by exercise; or, in other words, repeated exercises form a general temper correspondent to them.
We have now therefore found that nature lays us under the necessity of social communication, and impels us to it by strong affections; and lays us under the necessity of social communication in a certain order, to which it likewise prompts and impels us by very strong affections, giving particular determinations to our benevolence, or assigning a nearer, a more immediate province to it. And hitherto certainly we have found our nature to be very well constituted, even in that respect against which the greatest objections have been made (viz. differences or inequalities among mankind): and hitherto also we have found the obligations arising from our constitution, and the connexions of things relative to our happiness, to be very obvious. They stare every one, who considers human nature with any attention, so to speak, in the face.
Other affections in the human mind explained.But we will still perceive another security in our constitution against the degeneracy of family attachments into too narrow, confined, and partial benevolence, when we consider another determination in our nature, excellently adapted to check not only self-love, but partial affection of whatever sort, whether towards relatives by blood or friends; and admirably adapted to the circumstances of human life in general; which is the sympathy and pity distress immediately excites in the human breast, violently interesting us in the miseries of others. An embodied state must necessarily be liable to various calamities, in consequence of the very laws of matter and motion, which make the best, the most or-derly, convenient and beautiful system, as our mundan system is well known to natural philosophers to be. And nature hath, by wise and kind care, implanted in the human heart a principle of compassion, which is admirably well adjusted to such a condition. For by this we are impelled to sympathize with the afflicted, and to run without delay to their relief. And how much doth even sympathy itself alleviate pain and suffering! Such is the nature of compassion, that it considers or attends to no more but distress, is immediately excited, and directly pushes to give the relief which the calamity calls for, without counting kindred, or so much as asking who the sufferer is; and gives indeed no small pain, when help is not in our power. Now, surely nature could not have more clearly pointed out to us the order in which our benevolence ought to work, than by determining it to receive such an impression, such a tendency from distress. It is true, this affection may be too strong to answer its end, as it plainly is, when it quite overpowers and enfeebles one. And by pains taken to harden the heart, it may, on the other hand, become very weak, nay, be almost quite erazed out of the mind. But have we not reason to guide all our affections to their proper end, obedience to which is, as hath been observed, our first duty or obligation by the laws of our nature? And what can be more evident to a considering person, than that the end of this passion is to knit mankind together, and to give them a fellow-feeling with one another, that they might thus be kept from injuring one another, and be prompted to assist one another in the calamities and distresses to which all men in common are obnoxious? Or who will say, that tho’ there be a mixture of pain in this affection, yet it is not, notwithstanding, so agreeable an emotion of the mind, that the pleasures arising from the exercises of it, make a counterbalance to the bodily evils resulting from the necessity of nature sufficient to vindicate providence, when we reflect at the same time upon the many other goods arising from the same excellent laws which make these evils necessary? That the exercise of compassion is a high satisfaction, the tragic art, the principal charm of which lies in violently moving and agitating our pity, is a sufficient proof. And indeed, by the consent of all mankind, a breast quite devoid of compassion, is pronounced inhuman; i.e. unfit for human life; a stranger to the best feelings, the most agreeable and becoming emotions of the human heart. The reason is, because such are in fact found to be equally strangers to natural affections, to friendship, to a sense of honour, and consequently to all the richest sources of human delight; the richest sources of human delight for these affections being removed, what remains but the palate, and a few other organs of sense, in the whole list of human means or capacities of gratification? But wherever compassion prevails, there nature hath given a particular determination to our benevolence, the use of which to mankind in general is very evident; there nature hath made a connexion with regard to public and private happiness that merits our attention; there nature hath given a sense, a capacity of pleasure, that deserves our care and keeping: it cannot be impaired or corrupted, without sadly diminishing the provision nature hath made for our enjoyment, for the happiness of every individual, as well as the common happiness of our kind. Every road that nature hath made to true happiness, is a law of nature to us. And therefore, if natural affections belong to us, or if compassion belongs to us, they are, in this sense, laws of nature to man, that they indicate to us a certain course of affection and action, which nature hath made to be one considerable source of enjoyment to us. For can happiness be found but where nature hath placed it? Can we change and alter the natures of things at our pleasure, and make any thing painful or agreeable as we will? If we cannot, we must take nature’s paths, and seek happiness where nature has laid it. But nature hath placed it in industry, benevolence, natural affection, compassion, and the presidence of reason. These are the chief sources from which we must draw it. We can no more alter these connexions than we can change the laws of motion and gravity. They are therefore laws to us in the same sense, that the laws of motion are laws to human arts for the attainment of their ends.
Other affections adapted to our dependencies and necessities explained.But the human mind is a very complicated structure: It is composed not of one, but many principles of action, all of which are sources of very considerable enjoyment, and at the same time mutual checks or poises one to another, in order to point and lead us into, and keep us in the course of behaviour, which is at once the interest of every individual, and of the whole species. Several such have been already mentioned, and there are yet two others, the use of which in our frame well deserve our attention. 1. The first is a principle of resentment. By this we mean not merely sudden anger, which is nothing else but the necessary operation of self-defence, or sensibility to danger and hurt, and hath hurt as such for its object; for this is common to man with all sensible creatures: But we understand that indignation which injury or wrong, as such, necessarily excites in our mind, which supposes a sense of injustice or injury, and can only take place in minds capable of distinguishing equity and iniquity. In this do these two principles, which are often confounded together, in treating of the human affections, differ, that one hath suffering for its object and motive cause, the other that suffering only which is apprehended to be injurious. It is opposition, sudden hurt, violence, which naturally excites sudden or momentary anger; reflexion on the real demerit or fault of him who offers that violence, or is the cause of that opposition or hurt, is not necessary to occasion this mere sensation or feeling. It is mere instinct, as merely so, as the disposition to shut our eyes upon the apprehension of something falling into them, and no more necessarily implies any degree of reason. For it works in infants, in the lower species of animals, and (not seldom) in men towards them, in none of which instances this passion can be imagined to be the effect of reason, or any thing but mere instinct or sensation. And no doubt the reason and end for which man was made thus liable to this passion, was to qualify and arm him to prevent (or perhaps chiefly) to resist and defeat sudden violence, considered merely as such, and without regard to the fault of him who is the author of it.
But resentment, which on account of what it hath in common with sudden anger, may be called deliberate anger, is not naturally excited by mere harm, but in order to move it, harm must be apprehended as injurious or wrong. “This is so much (says an excellent author) understood by mankind, that a person would be reckoned quite distracted, who should coolly resent an harm, which had not to himself the appearance of injury or wrong.”19 Now that the reason and end for which this principle is implanted in us by nature, is to fill us with indignation against injury, and to excite us to resist, defeat and punish it, is evident; for this is the end to which it naturally tends. And therefore, with regard to it, it is plain, that it is in its nature a social affection: it is a fellow-feeling which each individual hath in behalf of the whole species. For tho’ injury to ourselves must affect us more intimately than injury done to others, in consequence of the nearer sensibility to one’s self, which is inseparable from the constitution of every sensible being; yet we find that the way in which injuries to others affect us, is exactly the same in kind. To be convinced of this, we need only attend to the manner in which a feigned story of baseness and villainy works up this passion in us. And such being the nature of this passion, it is far from being any defect or fault in our constitution, or from being in the least degree a-kin to malice: It is, on the contrary, so connected with a sense of moral good and evil, or of virtue and vice, that it could not take place without it; and may be properly said to be resentment or indignation against vice and wickedness. Far less still can this affection in our constitution be reckoned of a pernicious tendency, when we consider it as united in our frame with the other affections we have already mentioned, as compassion in particular; for as it is counter-balanced by them, and intended to co-operate with them, it can be designed for no other end but to make the resistance and opposition to vice which vice demerits, and not to give pain for the sake of tormenting others. For our compassion being moved by the suffering of another as such, and our resentment being only excited by wrong as such, we are thus by nature equally furnished for repelling injuries, and for commiserating innocent sufferers. Reason hath thus, as it were, two handles to guide us by, whether in repelling injuries, or in pitying sufferers, by each of which the other is kept within due bounds. Compassion is of use to moderate resentment, and resentment to hinder compassion from misplacing its tenderness upon the undeserving and vicious, to the prejudice of innocence and merit. So social then is our frame, that there is no passion in our nature which delights immediately in misery as such. But, on the contrary, misery always excites compassion, unless when it is apprehended as the just desert of injury. And so far is resentment generally from being too strong in human nature, that however eagerly it may desire and pur-sue the punishment of injustice, yet the punishment, which is the end of the passion, is no sooner gained, than commonly it gives way to compassion to such a degree, that it requires keeping the injustice of the sufferer very fully and strongly in our view, not to succumb entirely to pity. 2. But I have chiefly mentioned this principle in our nature here, as it, together with what I am now to take notice of, viz. the love of fame and power, renders mankind capable of several great actions. For if we examine narrowly into what it is that impels the human mind to dangerous and bold atchievements, and gives heroic spirits such high delight in pursuits seemingly so opposite to self-love, we will find that these are the sources in our nature, from whence the delight in them, and the motives to them principally flow; I say, principally flow, because no doubt a moral sense of beauty in actions (of which afterwards) hath no small share in true heroism; and religious principles, as they are of a very proper nature to promote true fortitude, patience and courage, so they have often produced the greatest actions, the bravest heroes.
Whence the hazardous enterprizes with which the history of all ages and countries is filled, that strike us with such admiration and amazement? To what do historians ascribe them? And to what source does every reader chiefly refer them in his own mind? Is it not to the love of power or empire, and the love of fame? Now surely, if these be the main incentives to atchievements, in which life and all its advantages are so boldly risked; we may justly conclude, that the love of power and fame may arrive to a very great pitch of vigour and force in the human mind. And such indeed are the circumstances of several most renowned actions in history, that so much of the motives to them must needs be ascribed to these sources, as makes it very proper in an analysis of the human affections, to give particular attention to the love of fame and power, and the ends for which they are implanted in us by nature. Now, into whatever extravagancies the love of fame and power may run; (as what passion in our nature may not be perverted, and so degenerate into something very wild, foolish and hurtful) yet they are implanted in us for very useful purposes. Let us consider the two separately. 1. The love of fame. Is it not a passion that takes its rise from sociability, and that strongly cements us to the interests of our kind? For what is it at bottom but regard to the esteem and love of mankind? Can we love mankind without desiring to be respected, esteemed and honoured by them? or can we like actions which tend to gain us the love of mankind, without liking the love they tend to gain? Love of fame is inseparable from sociality; and true honour consisting in the merited real esteem of mankind, is a noble aim; not a mean or mercenary view, but a truly generous and laudable motive. Nay, so nearly allied is this praise-worthy ambition to virtue, that he who despises fame will soon forsake the paths which lead to it. And therefore Cicero justly says, Vult plane virtus honorem nec est virtutis alia merces.20 2. As for the love of power. It is absolutely necessary to beings made for progress in perfection, and to extend and enlarge their faculties. For what else is it at bottom, but desire to expand and enlarge ourselves, to dilate and widen our sphere of activity? Without this impulse, without being made to receive high delight from the consciousness of our growing and advancing in perfection, in knowledge, in authority, in power to serve others, and promote their interests, how listless and inactive would our minds be? And how listless indeed, sluggish and inactive are the minds, where the love of encreasing all their powers, the desire of being as independent of others, and as sufficient to themselves as they can be, does not prevail in some degree! 3. And in a life subject to evils of various sorts, to many natural calamities, and many greater moral ones, arising from the perverted, corrupt affections of men, how necessary are both these principles to fortify our minds with patience and courage, and to qualify us to oppose and defeat these evils? Where these passions do not obtain in a great degree, how easy a conquest are a people to every proud usurper or tyrant; how tamely and submissively do they yield their necks to the yoke of arbitrary power? But as useful as these noble principles are in our nature, and as great a share as they have in the great actions which chiefly render the history of human life capable of attracting or detaining our attention, yet all must not be ascribed to them. For that just resentment against injury, just indignation against oppression, tyranny and despotic insolence, often kindle the heroe’s breast with a generous ardour to destroy and root out these enemies of mankind, and make him rush intrepidly into the thickest dangers to rescue his fellow-creatures, his country, from slavery and misery;—that this passion is often the patriot’s chief motive in his most perilous and brave enterprizes, almost the only thing he hath in his view to animate and invigorate him, might be proved by many shining instances from history. But all that it belongs to our present purpose to observe is, that none of these passions are inconsistent with a social principle, but on the contrary take their rise from it: it is the only root from which they can spring: Nor are these affections weakened or perverted by any other means than those which equally weaken or pervert every other generous or great affection in our minds. Thus, the same long subjection to arbitrary power, which almost quite effaces all ideas of liberty, all greatness, boldness and freedom of mind, is it not likewise observed to render them, who have been long inured to it, sluggish, indolent, ungenerous, revengeful, and rather nearer to the temper of monkeys or buffoons in all respects, than to the spirit and temper of men? However these principles or dispositions may be corrupted, they are to us, as they naturally stand in our frame, sources of very noble pleasures, and motives to very great and laudable activity. We cannot suppose them removed out of our constitution, without reducing mankind to a very low and contemptible creature, in comparison of what it is the natural tendency of these affections to render us, as they are united in our frame with benevolence, compassion, and natural affections to our parents and offspring. They cannot be taken from us, without cutting off from mankind all capacity of the greater pursuits that now adorn and bless human life. Nor can they indeed be objected against in our frame, when they are thus considered. And when the Author of nature is blamed by any philosopher for having implanted them in our frame, they are represented by such as making the only principles of action in our minds; and are thus disjoined from other principles in us, with which they are naturally united, and consequently intended by nature to co-operate. But certainly, in order to judge of a constitution, we must consider all its parts as they mutually respect one another, and by these mutual respects make a whole. Thus we judge of all other constitutions or structures, natural or artificial. And thus likewise ought we to judge of the fabric of the human mind.
Recapitulation.Now, having thus analized the human mind into the chief principles, dispositions or affections of which it is compounded; what follows, but that, this mind so constituted is a law to itself; or that it, and the connexions relative to it, which have likewise been explained as we proceeded in this resolution of the human mind into its component parts, make to man the laws and rules of his ac-tions? Thus laws of conduct are constituted to man for the government of his affections, in order to the attainment of happiness in the same manner that the laws of matter and motion constitute rules to human arts for the attainment of their ends. In the same sense that it is necessary for man to act consonantly to the properties of air and water, in order to gain certain purposes, such as raising water, &c. in the same sense are the connexions relative to our affections, laws or rules to us, how to regulate and direct them, in order to avoid certain evils and to obtain certain goods. We have not in this enquiry meddled with a question, the manner of handling which hath greatly perplexed the science of morality, viz. the freedom of human will:Why we do not here enter into the dispute about liberty and necessity. For this evident reason, that it neither more nor less concerns morals, than it does an enquiry into the connexions of nature, whence the rules in mechanical arts must be deduced. This is manifest. Because, if man be not at all master of his actions, it must be as much in vain to direct him how to act in any one way, as how to direct him in any other. Directions and counsels, or exhortations, can only be of use with respect to things in human power. But if directions, counsels, or exhortations, with regard to industry in cultivating mechanical arts for the benefit or ornament of human life, can be of any use to man, then must man be acknowledged to be master of almost all the powers, faculties and affections to which any other counsels, directions or exhortations can be addressed. For then must he be master of getting knowledge, if he will; master of applying himself to study and labour; he must be capable of being moved by representations of what the interests of society require, and of making that the end of his pursuits; master of despising toil and hardships in that view; and master of aiming at fame and honour, by doing some laudable service to mankind in that way. But if he be so far master of his af-fections and actions, which affections and actions is he not master of in the same sense? Indeed all the grave sophistry about liberty and necessity, with which moral enquiries have been so sadly embarrassed, to the great obstruction of true and useful knowledge, might as well be prefixed to a system of physics as of morals. For if they prove any thing at all, they prove that mankind ought to fold their arms, and let things go as they will. If they prove, or are designed to prove this, are not rules about sowing in seed-time in order to reap in harvest, rules about building ships, or any other machines, as idle as rules about the government of the affections? And if they are not designed to prove this, what are they intended for? For till this is proved to be a necessary consequence of God’s foreknowledge, or of our being influenced by motives, or of whatever other truth from which necessity is thought to follow,—till this be proved, what is called necessity, cannot be contrary to what is called liberty, viz. our having certain things in our power, or our being the disposers or masters of our actions. In fine, whatever proves any thing repugnant to our liberty, must prove that we are not at all masters of doing, or not doing as we will in any case; that we have no power, no dominion, no sphere of activity; or, in one word, that we are not agents: and this being proved, mechanical arts, which are rules to certain actions, or rules for our attaining certain ends, are just as much affected by it, as the science of morals, which is a system of rules to certain other actions, or for our attaining certain other ends. The arguments brought against human liberty, were never said only to prove that necessity extends merely a certain length, and no further. Nor can it be said; for if they prove any thing at all, they must prove universal necessity. And if they do indeed prove universal necessity, then human action in every sense is absurd, and consequently all rules to human actions of any sort or kind are equally absurd; or by the universal necessity they are said to prove, and brought to prove, is meant a necessity with which human agency is very consistent; which will be to say, that they are brought to prove, and do prove that we are not agents in a sense that is however very compatible with our being agents. Surely the controversy about liberty and necessity must be of very little moment, nay, a very idle, impertinent logomachy, if any asserters of necessity think that the necessity they plead for is absolutely consistent with our being masters of our actions, our having a sphere of power which we are capable of using well or abusing, as we please. For never was liberty understood to mean more than dominion and power, and accountableness, in consequence of our being disposers of our actions. And so in this case their necessity is our liberty. But if they really mean an universal necessity, absolutely repugnant to our agency, i.e. to our having the disposal of our actions, which renders rules and directions about actions absurd, as proceeding upon a false supposition; then are those, who treat of gaining certain natural ends by certain actions adjusted to natural connexions, as much concerned in the controversy as moralists, when they treat of attaining certain other ends by actions adjusted to other natural connexions. And for this reason, we may dismiss it as a question which does not particularly concern our subject; but every subject equally, which supposes man to be an agent.
The conclusion from the whole preceding reasoning.And therefore, to go on with our conclusion, we say, that the connexions which we have found to be fixed by nature, relative to our happiness, are laws of nature to our conduct in the same sense that the connexions in nature, relative to certain physical ends, are laws with regard to certain physical arts. They are laws we cannot alter, but to which we must conform, in order to attain our greatest happiness, our best enjoyments, or greatest goods. And they are laws appointed by the Author of nature to our conduct. For all established connexions in nature must mean connexions appointed and upheld, or subsisting by virtue of the will of the Author of nature, who gave being to all things, and to all orders and connexions of things (§3). Now, all this being true, it follows, that man is in the same sense made for prudence and self-government; for industry; for acting with reason, and agreeably to its dictates; for benevolence, or the pursuit of public good; for paternal cares and filial gratitude; for indignation against injury and oppression, and for compassion towards our suffering or distressed fellow-creatures; it follows, I say, that we are made for these ends in the same sense that the eye is made to see, the ear to hear, that a certain structure is made for flying, and another for swiming and living in water, or that bodies are made to gravitate in proportion to their quantities of matter, or are to be considered as having that property in human arts. The Author of nature, who hath made the one kind of connexions, hath likewise made and fixed the other. And if the preceding account of human nature, or of our internal principles and dispositions, and the connexions relative to them be true, to say man is not made for the exercises above-mentioned, to which we may now certainly give the name of virtues, without taking any thing in morals for granted, is to say, a being endued with a governing principle, by which it is intended he should govern himself, is not intended to be so governed; which is to assert, that a governing principle is not, in its nature and end, a governing principle: it is to say, a being endued with a governing principle, the use and end of which is to give him self-command, or the mastership of his affections, is not made to be master of his affections by his governing principle; which is to assert, that he hath a principle which hath an end and use which it hath not: It is to say, that a being who hath social affections, and a principle of benevolence, determined, or adapted to receive different kindly impressions from different objects, is not intended to have these social, affectionate, generous impressions, nor to exercise these affections; but has them for no end at all, or for a quite opposite and contrary end. In fine, let any man consider these virtues, and compare them with the make of the human mind, and all our internal principles and dispositions, and then say that man is made for imprudence, folly, wilfulness, and precipitancy; to be tossed to and fro by tumultuous contradictory affections, without any order or government; and to be cruel, tyrannical, abusive, oppressive, uncompassionate, quite unsocial. Let him say what reason he can give for affirming that the eye is made to enjoy the light, the ear to receive pleasure from music; or, in one word, what reason he can give for saying any thing natural or artificial is made for an end, that will not equally oblige him to say, man is framed, made and intended for rational government of his affections, for benevolence, and the other virtues which have been named. If he says, whatever affections men may have, man is made to pursue his pleasure, let him shew how men can have pleasure but from the gratifications of particular affections; and let him shew that the affections we have named are not belonging to human nature, or that they are not belonging to it as sources of pleasure and enjoyment. In fine, let him shew what other enjoyments human nature is provided for which are superior to the presidence of reason, affections disciplined by reason, and exerting themselves in the order of benevolence that hath been described. We reason from fact or experiment; and what we have maintained, can only be refuted by shewing our analysis of the human mind not to be fact. For if the resolution of the human mind that hath been given be just, our conclusion stands upon the same bottom with all the reasonings in natural philosophy concerning the structures, properties, laws, and final causes of things.Objection why there is so little virtue, so much vice among mankind. The only thing that can be objected against this deduction of the ends for which men are made and intended, is, that men are in fact very irregular; that the affections of mankind are generally very tumultuous and undisciplined, and there is much malignity, ill humour, envy and hatred amongst them; and that the love of power and fame do not generally lead men to benevolent, but rather to mischievous actions. But let mankind be represented as villainous as they have ever been said to be, by any philosopher or politician; or, if you will, more black and deformed than any hath ever yet called them, it will not shake or weaken our reasoning. For though that be not true, but, on the contrary, a very false charge, yet we can sufficiently account for the vilest corruptions that ever have, or ever can take place among mankind, very consistently with the preceding analysis of human nature, and the deduction of our duties; i.e. our natural ends, from that analysis. 1. First of all, there is no other conceivable way of furnishing or qualifying any agent for pursuing the virtues above-named, but by giving them the affections above described, and reason to conduct them. There is no way of qualifying one for doing all under the direction of reason, but by giving him faculties to be guided by reason, and reason to guide them. There is no other way of qualifying one for benevolence, but by giving him a benevolent disposition, and so disposing him, as that he may feel great pleasure in its exercises. Let the objectors against human nature point out what else could be done. Let them name what is wanting to make us rational and benevolent in our behaviour, that nature hath not done for us. If they say reason is too weak in human nature, or does not grow up fast enough to do us great service as a guide, this leads to the second thing to be considered on this head. 2. Which is, that reason must grow and improve by culture. It can only become strong by exercise and improvement. It can only become so powerful as to be habitually our fixed and settled guide and ruler, by repeated acts. For thus alone can any habits be wrought in us; thus alone can any affections, dispositions, principles, or powers and faculties of action in us become habits; i.e. become strong and prevalent. Repeated exercise is the sole way of acquiring habits. It is therefore the sole way of perfecting reason, or any faculty or principle in our constitution; and what other way can we conceive, by which it is better to attain to perfection of any kind than by industry, diligence, and repeated acts? But if this be a necessary or fit law of our nature, in order to our attainment to perfection, that habits should be formed by repeated exercise, and only be so formed; must not the effect of this be, that bad and hurtful habits will be contracted by repeated bad exercises, and that false or wrong associations of ideas will be very powerful, very difficult to be disjoined or undone? Must not the effect of it be, that if bad habits are suffered to grow up to a great degree of strength in our minds by bad education, or through carelesness about our education, and reason is not early accustomed to rule and govern in young minds, that rational dominion over the affections will be very difficultly acquired; the sensitive appetites will be exceeding riotous; and every passion that has been often called forth, or incited to indulge itself by tempting shews of pleasure, will become imperious, headstrong, and unruly? For it must be remembered, that we are not merely intellectual beings, but that we have senses and corporeal appetites, which will necessarily become, in consequence of the law of habits, too strong for reason and benevolence to govern, if they are not early accustomed to the government and discipline of reason. And it must likewise be remembered, that our opinions of goods must regulate our affections; and therefore, if false ideas have been imbibed early, and have long passed unexamined, uncontroverted in the mind, these wrong associations of ideas, and false judgments of things, will be very hard to overcome; it will be extremely difficult to eradicate or correct them. But what is all this, but, in one word, a long habit of acting without reason, or of despising reason, instead of inuring our ideas, fancies, opinions, and appetites, to receive their direction from our reason, and to act under its presidence and government. And therefore, in speaking of our being made to consult reason, and act under its conduct and guidance, we took notice of the necessity of right education, in order to establish reason early into our governing principle (§8). But having elsewhere* discoursed at great length of the power of habits, and the way in which they are formed, and of the chief sources of corrupt affections amongst mankind, it is sufficient to take notice here in general, that there are almost no vices among mankind which could take place amongst them, were we not endued by nature with the best affections; affections necessary to make us social, benevolent, great and good. They are corruptions or misguidances of them. Every hurtful affection is a very good one perverted. Accordingly Mr. Locke hath shewn us in his excellent treatise on education,21 how easily all the vices may be early engendered, nay, brought to a very great height of obstinacy by bad example and wrong methods of education; but he hath, at the same time, shewn us how all the vir-tues may be yet more easily formed in tender minds. And indeed there is no character in human life however enormous, that shews any affection naturally belonging to us, which is not of the greatest use, however hurtful its wrong turns, degeneracies, perversions or corruptions may be. Nor is there any other cause of degeneracy and corruption but bad habit, or not accustoming ourselves to exert our reason, and to act under its direction; which, how nature could have better furnished us for doing, than by giving us reason capable of high improvements; or have better impelled us to do, than by making us to see from examples, and feel from our own experience, as it does, the dismal effects of not acting rationally, the sad consequences of not consulting, or not obeying our reason, and of rashly giving way to every passion or appetite that circumstances may tempt into hurtful indulgences to specious semblance of pleasure, is inconceivable.
For howsoever odd, whimsical, or foolish the ruling passion in any heart may be, it is some passion necessary to excellent enjoyments and gratifications, that is become so odd, fantastical, or unreasonable. If it is any sensual appetite that is the ruler, and triumphs over all other affections of whatever kind, intellectual or social, will it follow from hence, that we ought not to have had senses, or to have been capable of sensitive pleasure? If it is the lust of power that has got the ascendant over benevolence in any one, to such a degree, that it is become his maxim; Si violandum est jus, regnandi gratia violandum est; aliis rebus pietatem colas.
Which is almost as great a height of villainy as it can arrive at. Yet ought the desire of power to have had no place in our frame, or is it of no use in it? Or finally, because the desire of getting riches to support a vain and extravagant way of living, if not severely checked, gradually corrupts the honestest minds, and at last engages them in pursuits, which some time before they could not think of without abhorrence; are for this reason all desire of property and power, of preeminence and honour, or even of elegance and grandeur, passions, absolutely condemnable in themselves, and to which human nature ought to have been an utter stranger? What we learn from Salust, Sueton, and other Authors, is by no means improbable, viz. That Julius Caesar had never attempted to destroy the liberties of his country, had he been able to have paid the debts which he had contracted by his excessive prodigality; and that abundance of people sided either with him or Pompey, only because they wanted wherewithal to supply their luxury, and were in hopes of getting by the civil wars, enough to support and maintain their former pride and greatness. But does it follow from hence, that all taste of elegance, all desire of glory, all love of power and wealth, are absolutely pernicious, and that they ought to have no place in our frame, or that we ought to have been made totally incapable of forming any ideas or affections that could ever degenerate into such perverse opinions and lusts? How much more just and truly philosophical is this reasoning in our excellent poet concerning human passions.
Nature, in order to make a necessary diversity of tempers among mankind, must either have made some particular affection originally stronger in one breast, and another in another; or have so ordered the situations of mankind, that the same original affections should of necessity take various turns in consequence of different circumstances calling forth more frequently, some one and some another affection, equally natural to all men. But what follows from hence, but that there is a vice, or a hurtful turn, into which every affection is in peculiar danger of degenerating, as is well known to poets, who describe characters, and place them in various circumstances of actions? Sure it does not follow that any of the affections implanted in the human mind by nature, ought to be wanting. Take them away, and the vices or diseases to which they are incident, will likewise be removed: But so will the perfections or virtues to which they may rise and be improved by due culture, likewise be sent apacking. And to what a low size will men be thus reduced? Tho’ it be reason that forms the virtues, yet our affections are the principles or materials that are formed into virtues by reason. Reason would indeed have nothing to guide, nothing to work upon, if we were not endued with all the affections, from the misguidances of which the most hurtful disturbances of human life proceed.
Man is made for virtue and virtuous happiness.Now what is the result of this, but that man is excellently furnished by nature for attaining, by the due discipline of the affections implanted in him, to prudence, to self-command, to benevolence, to fortitude, and to all that is called virtue; and that this is the end for which he is so made and framed, in the same sense that any thing is said to be made for the end to which its frame and constitution is well adapted; that this is his happiness, his perfection, the ultimate scope and design of his frame and all the laws relative to it, in any sense of end, scope or design.
Another proof of this, from the moral sense natural to us.’Tis true, we are not merely intellectual beings; we have senses and sensitive appetites, as well as moral capacities and social affections (§6): But it hath appeared, that we are made to govern all our appetites and affections by our reason; that our sensitive appetites ought to be under its command, and not to be allowed to obscure it, far less to triumph over it, and trample it under foot; and that our sensitive appetites are so far from engrossing or making the whole of our constitution, that we have other affections, the regular exercises of which, under the presidence and direction of reason, are our highest and noblest enjoyments. This hath been fully proved. And therefore, let it be now observed, that kind nature hath not only placed our happiness in the virtuous exercises which have been described, but hath so constituted and framed us, that the ideas of the presidence of reason, and of benevolence, can no sooner be presented to our minds than we must necessarily assent to and approve those two general rules of life, “That reason ought to hold the reins of government in our minds.” And, “That benevolence, or regard to public good, ought to be the reigning affection in them.” None can reflect upon these two rules without per-ceiving their fitness, and that immediately without making any calculations about their consequences. And therefore we may justly say with an excellent author (Domat in his treatise of laws) “That the first principles of morality or laws, have a character of truth, which touches and persuades more than that of the principles of other human sciences;Of our moral sense.that whereas the principles of other sciences, and the particular truths which depend upon them, are only the objects of the mind, and not of the heart, and that they do not even enter into the minds of all persons; the first principles of morals or laws, and the particular rules essential to these principles, have a character of truth which every body is capable of knowing, and which affects the mind and the heart alike. The whole man is penetrated by them, and more strongly convinced of them, than of the truths of all the other human sciences.”25 Or with another admirable moralist (Hutcheson in his Enquiry, &c.) “The Author of nature has much better furnished us for virtuous conduct, than many philosophers seem to imagine, or at least are willing to grant, by almost as quick and powerful instructions as we have for the preservation of our bodies. He has given us strong affections to be the springs of each virtuous action, and made virtue a lovely form, that we might easily distinguish it from its contrary, and be made happy by the pursuit of it. As the Author of nature has determined us to receive by our outward senses, pleasant or disagreeable ideas of objects, according as they are useful or hurtful to our bodies, and to receive from uniform objects the pleasures of beauty and harmony, to excite us to the pursuit of knowledge, and to reward us for it; in the same manner, he has given us a moral sense to direct our actions, and to give us still nobler pleasures; so that while we are only intending the good of others, we undesignedly promote our own greatest private good.”26 But having else where handled this subject at great length,27 it will be sufficient to remark here, 1. That in consequence of the sense of beauty in outward forms, and of the sense of beauty in affections, actions and characters, with which the human mind is endued, all the pleasures which man is intended by nature to pursue, may properly be comprized under the general notion of order or beauty: For they have all this general or common character, that they proceed from well disciplined and regulated affections, and they all tend to produce order within and without the mind. What is the presidence of reason, but reason maintaining order and harmony; and what do the regular exercises of benevolence which have been described produce, but inward and outward harmony? What makes the pleasure of contemplation and knowledge, besides the views of regularity, order and harmony? What is it that charms the imagination in any of the imitative arts? Or what hath what is called good taste for its object and scope, besides order and harmony in composition? And how gross and contemptible are all the pleasures of sense, when we abstract from them all elegance, all symmetry, proportion and order? Man therefore, may in general be said to be framed by nature to pursue order and harmony. And this is indeed the pursuit of the Author of nature himself, universal order and harmony, or, which is the same, universal good.By this moral sense we are led to conceive the virtues above described as commanded by God the Author of nature. But, 2. As the presidence of reason over all our appetites and affections, and the prevalence of benevolence in our temper, cannot be considered by us without being perceived, or rather felt to be our most reasonable and becoming part, nor the opposite character be reflected upon, without being disapproved and condemned by us; so we cannot consider the Author of nature, without immediately perceiving, that he deserves our highest adoration and love; and that benevolence, and the rational government of our affections, can alone render us like him, or recom-mend us to his favour, upon whom all our interests depend. We must of necessity own an universal cause, by which all things are made, and are upheld in being and governed. And our moral sense of what is the best, the most perfect disposition of mind, naturally leads us at once to ascribe perfect reason and benevolence to the first cause of all things, our Creator: And to apprehend it, 1. “To be his will, that we should act a rational and benevolent part in all our conduct.” And, 2. “That according to the constitution of things in his universal government, such conduct must be the only road to true happiness in the sum of things; so that whatever difficulties and trials may be necessary to the first state of rational agents, for their improvement in moral perfection, yet upon the whole, sincere virtue shall make happy, and confirmed vice shall render miserable.” These truths are obvious necessary consequences, from the idea of an all-perfect Maker and Governor of the universe. But these truths being fixed, then are we under obligation to benevolence and rational government, in this strict and proper sense of obligation, “That the Author and Governor of the Universe, our Lord and Creator, wills or commands us to exert our reason, as the Governor of our affections, and to pursue in all our conduct the good of our kind.” The virtues for which we have found man to be furnished and intended, do, when considered in this light, take the character of laws in a sense applicable to them only, i.e. of universal unalterable commands laid upon us by the Author of nature, the Sovereign disposer of all our interests.And consequently to be enjoined by moral laws properly so called.The connexions observed by nature in the production of physical effects, are very properly called laws of matter and motion, or laws by which the Author of nature has willed that matter should operate, or more properly be operated upon; and they are of necessity laws to human arts, since human art cannot accomplish any end but by acting in conformity to them. But the connexions relative to our moral powers, our reason, our social affections, and the subordinacy of all our appetites and affections to reason, in consequence of which certain rules must be observed by us in order to private and public happiness, are not only laws to us in this respect, that we can only attain to our best enjoyments by acting conformably to them; they are also laws to us in this sense, that acting conformably to them is agreeable to our Creator; and it is his will that we should conform our conduct to them. So that they are not merely moral laws, as they are laws of nature respecting moral ends; but they are moral laws in this respect, that they are rules for the conduct of our life and manners, which cannot be transgressed or departed from without incurring guilt in the sight of God, without offending against his will and authority, and rendering ourselves obnoxious to all the consequences of his regard to virtue or moral perfection, and his disapprobation or detestation of vice. They are rules which he hath necessarily determined our minds to approve, and to conceive as his commands, as often as we consider them, and take a view of the perfections which must belong to the Divine Mind. And therefore, they are laws that come up to this definition of a law, viz. “The will of a superior who hath a just title to command, and sufficient power to enforce conformity to his commands.” And indeed it is when prudence, temperance, fortitude, benevolence, and all the other virtues are considered in this light, that they alone can have their full force. For in this light only are they fully and perfectly considered; or till we conceive of them in this view, we have not an adequate notion of all the obligations to conform our practice to them, which essentially belong to them. It will be readily acknowledged, that two motives must needs have more force than one. But this is not all: No view that can be ta-ken of the virtues above described, can have so much power to influence mankind as the conception of them under the notion of the divine will or law, not commanding arbitrarily or without reason, but for the good of rational agents; since what is thus apprehended or considered, must work upon us in various manners; excite our emulation to be like the most perfect of Beings, and agreeable to him; stir up our gratitude to engage us to act the part he approves and commands; influence our hope with high expectations of great advantages from his love and favour; and raise our fear of offending him to a due pitch of reverence towards his authority.Regard to the divine law is religion.Now, regard to virtue, influenced by these considerations, is properly called religion. And that man is made for religion, as well as for virtue, is evident, since we cannot reason at all about the nature of things, without being led to apprehend a first Supreme Cause: nor can we represent to ourselves the perfections of an eternal all-sufficient Mind, the Creator and Governor of the Universe, without being filled with the highest veneration towards him, and his will with relation to our conduct. And meditation upon the divine perfections, is in reality the noblest source of delight to the human mind, and an exercise that hath the sweetest, the benignest influence upon the temper. But not to insist at present upon the pleasures which a just sense of God and divine providence afford to the mind; if the being of a God be owned, it must certainly be true, that we are under religious obligation to that rational government of our affections, and to the benevolence, for which we have been found to be so excellently furnished and fitted by nature, i.e. under obligation to this conduct, in order to approve ourselves to God; under obligation to it, as the conduct he commands, and will reward. And this being true, this conduct is our duty. And in every sense are we obliged to be virtuous. We shall therefore only add, 1. That the sacred writings give us a very just view of the whole of our duties, arising from our nature, and our relation to our Creator, the Author and Ruler of the universe, when they are reduced there into two commandments, the first of which is to love God, and the other to love mankind; or when it is there asserted that love is the fulfilment of the law of God. And there is no other law which commands every one to love himself, because no one can love himself better than by keeping the law which enjoins love to God and love to our fellow-creatures. Self-love is not so properly a law, as it is a principle inseparable from all beings capable of that reflection, without which they would be incapable of governing their actions, distinguishing rules for their conduct, or pursuing ends. And for this reason the sacred writings do not mention self-love as a law; but they suppose this general desire of happiness as a principle necessarily inherent in us, which is to be directed by reason, i.e. by such rules or laws as reason is able to discover, by due attention to the relations and connexions of things. And these rules it justly reduces sometimes to two, the love of God, and the love of mankind; and sometimes to one general law, love. 2. Yet it may very justly be said, that the whole of our duty consists in well regulated self-love, or in the pursuit of our true happiness. For our greatest happiness consists, by our constitution, in such government of our affections by reason as hath been described, in the exercises of devotion towards God, and the approbation of our moral sense or conscience. As our duties cannot be inferred but from the internal principles of action implanted by the Author of nature in our minds, and the connexions relative to them; so indeed no commands repugnant to our internal principle, and the connexions relative to them,The harmony of this account of our nature and duties with the scripture doctrine. repugnant to what the Author of nature hath placed our happiness and perfection in, can come from the Author of nature. Now, the two great commands which revelation tells us are the whole of human duty, the whole of religion and virtue, love to God, and love to mankind, are the very laws which our constitution prescribes, or makes necessary to be observed by us in all our conduct, in order to attain to the greatest happiness our nature is capable of. They are indicated or pointed out to us by nature with so much clearness, that we may see plainly, that if any man is ignorant of them, it is only because he does not know himself, or does not reflect upon the frame of his mind, and turn his eyes inward to consider the internal principles of action with which he is endued; and therefore nothing is more astonishing than the blindness that hinders any one from seeing them. 3. Tho’ many disputes have been raised about the meaning of, as, in the divine commandment, to love our neighbour as ourself,28 by those who like jangling; yet it plainly means the same with that other precept, to do as we would be done by; the equity of which is so plain, that it hath been acknowledged in all ages and countries of the world as a most perfect summary of all the duties we can owe one to another, and to be a directory, which cannot be applied in any case, without immediately perceiving, or rather feeling what we ought to do. This Grotius, Puffendorf, and Barbeyrac, have fully proved. 4. These two commands have a most strict and intimate alliance. One cannot love God without loving mankind; nor love mankind, and having an idea of an infinitely good supreme Being, the Creator of all things, and the common Father of mankind, not love this all-perfect Being. And the best security men can have for their living together in harmony and love, is from the prevalence of true religion, or of a just notion of a supreme Being, and due regard to his will and authority, among them. It is, in its nature or tendency, the strongest bond of society. And from experience, or the history of mankind, there is reason to say with Cicero, “I know not, but that upon taking away religion and piety, all faith and society of human kind, and even the most excellent of virtues, justice, would soon leave the world.”29
Upon the whole therefore, when we proceed from considering the constitution of the human mind, and the connexions and relations of things respecting man, to the contemplation of the supreme Author of mankind and of these connexions, and of the whole frame of things, we have good ground to conclude, with the same antient, in a passage of his books de republica, preserved to us by Lactantius. “There is indeed a law agreeable to nature, and founded in it, which is no other than right reason, made known to all men, constant and immutable, that calls us to duty by commands, and deters us from fraud and villany by threats; neither are its commands and threats in vain to the good, tho’ they may make but little impression upon the wicked and corrupt. This law we can neither disannul nor diminish; nor is it possible that it should be totally reversed; the senate or the people cannot free us from its authority. Nor do we need any explainer of it besides our own consciences. It will not be different at Rome and at Athens, now or hereafter, but will eternally and unchangeably bind all persons in all places; God himself, the universal Master and King, being its Founder and Author. ’Tis He who is the Establisher, the Enactor, the Interpreter of this law; which, whosoever refuses to obey, shall be afraid to look into his own mind, or converse with himself, because he contemns and vilifies his nature; and shall thus undergo the severest penalties, tho’ he should escape every thing else which falls under our common name and notion of punishment.”30 And thus I am naturally led to consider the origine and design of civil laws.
These two laws are the foundation of civil laws.Now, we may be very short on this head. For, having found what are the laws and rules men must observe, in order to attain to the greatest perfection and happiness their nature is capable of, it is plain, that the rules and laws they ought to observe, or agree to observe, when they unite together in certain civil or political bodies for the promotion of their common happiness, can be no other than those very laws of nature which have been delineated. And it is very easy to trace the civil laws in well regulated states into the principles above explained as their foundations. The laws of a civil or political state may be divided into these three classes; the laws relating to the private property, quiet and happiness of persons; the laws relating to religion; and those which concern the public order of the government. The first comprehends the laws which regulate covenants or contracts of all kinds, the security of property, alienation and prescription, regular propagation and education, guardianships, successions, testaments, and other matters of the like nature. Now, all these laws are, or ought to be nothing else in their spirit, but the order of that love which we reciprocally owe to one another. Thus the spirit and substance of all the laws, with regard to engagements or covenants, consists in forbidding all infidelity, treachery, double dealing, deceit and knavery, and all other ways of doing hurt and wrong. Thus the regular propagation and education of mankind, or the natural order in which our benevolence ought to exert itself, are the foundation of all the laws relating to marriage, and to parental and filial duties, and to unlawful conjunctions. The same is likewise the foundation of the laws relative to successions. For the order of successions is founded on the necessity of continuing and transmitting the state of society from one generation to another; which is done, by making certain persons to succeed in the place of those who die, and enter upon their rights and offices, their relations and engagements, which are capable of passing to posterity. Good laws of this kind have their foundation on the order in which our benevolence ought to exert itself in parents to children, and reciprocally in children to parents; and on that perfect security of property which is necessary to encourage industry; for men are spurred to industry, not merely by regard to themselves, but by regard to their posterity; and would be very indifferent about making acquisitions, were they not sure of disposing of them as they please, and of transmitting them after they are gone to those they love best, and are most nearly interested in. Many other laws have their foundation in the same principles, and are merely intended to secure the perpetuity of property, such as the regulations about prescription; or to render contracts of various sorts about labour and property equally free and certain. Sumptuary laws have their foundation likewise in the care that parents ought to have of making and leaving suitable provisions to their children; and, in general, in the necessity of promoting industry, and discouraging that idleness, effeminacy and debauchery, which is known to be the source of so many direful ills, and the greatest bane of mankind; the very reverse of all that renders human society either great or happy.
The laws of religion, under which we may comprehend all regulations with regard to education, the main design of which is to tincture the mind early with just notions of God and of human duties, and to form good habits and dispositions; as well as regulations about public worship: these have their foundation in the strict alliance between religion and virtue, in the chief duty of pa-rents towards their children, and in the general interest of society, which is universal virtue.
The public laws are those which fix or regulate the order of making, and of executing laws for the general good. And what these ought to be, must likewise be determined from the nature of mankind, and of that happiness which they are made and intended for by nature. Men may very properly be said to be intended for that civil state, in which, it is plain, from experience, the happiness for which mankind are formed by nature, may be best attained. And the orders of such a civil state must be deduced from the lines of them, as a great author expresses it, which appear in human nature. It is according to them, says he, that this building must be limned. But we are not now to enter into this curious and important enquiry. All we would take notice of, with regard to the civil laws, which it is the design of civil society to make and execute, is, 1. That in all well-regulated states, the sum and substance of what is called its civil laws, are really laws of natural and universal obligation. Whatever hath the force of civil law in civil courts, derives that force from civil authority. Yet the chief part of civil law is really natural law. What belongs particularly to the civil law, may be reduced, as Pufendorff observes, to these two heads: To certain forms prescribed, and certain methods to be observed in civil affairs, either in transferring rights, or else in laying obligations upon persons, which shall be looked upon to be valid in the civil courts; and to the several ways how a man is to prosecute his rights in the same courts.31 So that if we give the law of nature all that belongs to it, and take away from the Civilians what they have hitherto promiscuously treated of, we shall bring the civil law to a much narrower compass than it at first sight appears to be. In all commonwealths the natural law supplies the defects of the civil. And in all commonwealths natural law ought to be the substance of the civil law; and the regulations it adds about things which the law of nature prescribes only in a general and indefinite manner, ought to be conformable to the spirit and scope of the law of nature. For which reason, Hobbes calls the law of nature the unwritten civil law;32 and the constitutions of particular commonwealths, justly adapted to the public good, (which, as Cicero says, ought to be the end of all laws, and is the best comment upon, and interpretation of them)33 are properly called, by some authors, appendages to the law of nature. 2. But all the laws of nature have not the force of civil laws allowed them in commonwealths; but such only, upon the observation of which the common quiet of mankind intirely depends; as well because the controversies about the violation of them would be very perplexed and intricate, as to prevent the multiplication of litigious suits; and also, that the good and virtuous might not be deprived of the most valuable part of their character, the doing well out of reverence to their Creator, and sincere love to mankind, without regard to the fears of human penalties. For this they must necessarily lose, when there is no distinction made whether a man doth well out of love to virtue, or out of fear of punishment. 3. Civil laws are justly said to respect external actions only, whereas moral laws principally regard the habit of the mind, because civil punishments can only be applied against what appears. Yet it is an antient and true observation, that the best and most useful laws, and which are approved of by all such as are subject to them, are of no use, unless subjects be trained up and educated in a manner of living conformable to them. Plato says, that to lay the foundations of a good government, we must first begin by the education of children, and must make them as virtuous as possible; as an experienced gardiner employs his care about the young and tender plants, and then goes on to others.34
Isocrates (in Areopagit.) tells us, “The Athenians did not believe that virtue derived so much advantage and assistance in its growth from good statutes as from custom and practice. The greatest part of men must, said they, of necessity frame their minds according to those patterns by which they were first taught and instructed; but a numerous and accurate establishment of laws, is really a sign of the ill condition of the commonwealth, edicts and ordinances being then heap’d upon one another, when governments find themselves obliged to endeavour the restraining of vice, as it were by banks and mounds. That it became wise magistrates, not to fill the public places with proclamations and decrees, but to take care that the subjects should have the love of justice and honesty firmly rooted in their minds. That not the orders of the senate or people, but good and generous education was the thing which made a government happy: Inasmuch as men would venture to break through the nicest exactness of political constitutions, if they had not been bred up under a strict obedience to them. Whereas those who had been formed to virtue by a regular and constant discipline, were the only persons who by their just conformity could make good laws obtain a good effect. The principal design of the Athenians, when they made these reflexions, was not how they might punish disorders, but how they might find a way of making the people to be willing not to do any thing that might deserve punishment. This last view seemed to them worthy of themselves and their employment. But as for the other, or an exact application to punish people, they thought it a business proper only for an enemy. And therefore they took care of all the subjects in general, but particularly of the youth.”36
Thus I have endeavoured to deduce the laws of nature, and the end of civil society and its laws, by an analysis of the human mind, from our internal principles and dispositions. For the virtue or excellence of any being can be nothing else but its nature brought to the perfection of which it is capable. And therefore, the virtue, excellence, or happiness of a being must be deduced from its constitution and situation. Virtus enim in cujusque rei natura supremum est & perfectio.—Tum oculi, in oculi natura, supremum & perfectio; tum hominis in hominis natura supremum & perfectio.—Hominis virtus est hominis naturae perfectio, nam & equi virtus est ea, quae naturam ejus ad supremum perducit.” Timaeus Locrus de anima mundi, & Metopus Pythagoreus de virtute.37 So Cicero de legibus, l. 1. n. 15. & de finibus passim.
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[3. ] The first paragraph of this quotation (pp. 462–63, above) is from Harrington, Oceana, 241, in Harrington, Political Works. For the remainder see ibid., 326–27, though there are some omissions.
[4. ] Ibid., 167.
[5. ] Ibid., 330.
[6. ] Pope, Essay on Man, epistle III, lines 304–5.
[7. ] See Harrington, Oceana, in Harrington, Political Works, 172: “that such orders may be established as may, nay must, give the upper hand in all cases unto common right or interest, notwithstanding the nearness of that which sticks unto every man in private, and this in a way of equal certainty and facility, is known even unto girls, being no other than those that are of common practice with them in divers cases. For example, two of them have a cake yet undivided, which was given between them. That each of them therefore may have that which is due, ‘Divide,’ says the one unto the other, ‘and I will choose; or let me divide and you shall choose.’ If this be but once agreed upon, it is enough; for the divident dividing unequally loses, in regard that the other takes the better half, wherefore she divides equally, and so both have right.”
[8. ] Horace, Satires II, 1.52: “From where, unless from an internal instinct?”
[9. ] Aristotle Politics 3.16.
[1. ] See Velleius Paterculus, Compendium of Roman History, bk. 2, chap. 89 (not 80), p. 237.
[* ] For tho’ none can deny, that internal justice, or a constant disposition to injure no person, but to render to every one his own, be a more noble degree of virtue; yet that such virtue is not to be expected from so many men as coalesce into the same civil state, will not be controverted. It will therefore be sufficient, so to hold men to their duties by laws, that they shall conform their external actions to laws, and not refuse to any one what he hath a perfect right to demand, or do any thing contrary to justice and equity. Yet it becomes good rulers to take all proper methods, by the right education and discipline of their subjects, to make internal justice or virtue to flourish among them. “It is the duty of prudent magistrates, (says Isocrates in Areopag. p. 27.) not to multiply laws, but to endeavour to render their subjects sincere lovers of justice. For it is not laws and edicts, but good education that will make a state truly happy. Men who are not rightly formed will dare to despise the best laws; but those who are well educated, are led by their inward disposition to approve good laws.” [[A paraphrase rather than a quotation from Isocrates, “Areopagiticus,” secs. 40–42, pp. 129–31, in Isocrates, Isocrates, vol. 1.]]
[* ] Because there is this difference between natural and civil law, that the former hath for its object good and bad actions, internal as well as external; the latter respects indifferent and external actions, as far as the safety of a people or state requires the regulation of them (lib. 1. §18.); it is therefore impossible that the laws of all states should be uniform. Whence it is very difficult to determine which state hath the best laws; and Herodotus says very justly (apud Stobaeum serm. 21. p. 180.), “If one should lay before a people laws of all sorts, and bid them choose the best, every one would approve of the laws of his own state; every people thinks their own laws the best.” And indeed the laws which are best with regard to one state, because of its end and form of government, may not be proper for another state; but, on the contrary, what is very advantageous to one may be very hurtful to another.
[2. ] Ulpian, “The Rules of Ulpian” (3), p. 223, in Justinian, The Civil Law, vol. 1.
[* ] It is true, God hath commanded that nothing be added to or taken from the divine law, Deut. iv. 2. But the former ought certainly to be understood of superstitious rites contrary to the divine law, or of will-worship, to which the Jews were so propense. But this is no reason why the civil legislative may not extend a divine prohibition to cases not expresly included in it, that thus the divine law be more strictly fenced and guarded. The Hebrew doctors call this a mound to law, by which men are kept at a greater distance from the violations of it, and the first steps towards transgression are guarded against. See upon this subject Schickard, jur. reg. cap. 5. theor. 18. p. 391. and Carpz in his notes on that place, and Jo. Selden, de uxor. Heb. 1. 2. [[Wilhelm Schickard (1592–1635), German mathematician and orientalist, professor of Hebrew and Aramaic at the University of Tübingen, author of Jus regium Hebraeorum. The 1674 edition includes the notes by Carpzov referred to in the text.]]
[* ] This it is proper to observe in opposition to Cumberland of the laws of nature, proleg. c. 14. & cap. 5. §40. where he asserts the promise of rewards to be no less necessary to maintaining the authority of laws than the commination of punishments. [[Richard Cumberland, A Treatise of the Laws of Nature, 260 and 587–88. Cumberland (1631–1718) was bishop of Peterborough and a political theorist. His treatise on the laws of nature (De legibus naturae) first appeared in 1672. But a legislator does not owe rewards to those who do what it would be criminal in them not to do, but to those only who do any thing extraordinary for the common good (lib. 1. §99). Hence in vain does he expect a reward, who does not commit murder or adultery, or theft, since he who perpetrates any such crime is worthy of punishment. But one hath a right to claim a reward, if the legislator having proferred a recompence, he is thereby excited to carry provisions to ships, to furnish arms at his own expence, or to do any such like good service to the public, to which all and every one are not obliged. And in this appears the wonderful goodness of God, that whereas he hath a right to threaten punishments to the transgressors of his laws, without promising rewards to the obedient, he profers recompences, recompences even to a thousand generations, to them who obey his will, Exod. xx. 6.]]
[3. ] Ulpian, “The Rules of Ulpian” (1), p. 223, in Justinian, The Civil Law, vol. 1.
[* ] Indeed a father of a family may administer justice in a natural state to his segregate family, as we have already observed (§92). But in a republic that cannot be done, but so far as the laws permit the head of a family to do it (§93). Judiciary power therefore in civil states, belongs to the supreme magistracy, which is chiefly constituted for this very end, according to the ancients, Hesiod. Theog. v. 88.Hac una reges sapienti lege creantur,Dicere jus populis, injustaque tollere facta.
[[Hesiod, Theogony, line 88: “Kings are created by this one, just law, to pronounce justice to the people and to remove unjust deeds.”
[* ] Therefore, it belongs in monarchical states to Kings and Princes; in aristocracies to the college of nobles; and in democracies, the right of appeal is to the people; nor ought any tribunal rashly to be established from which there is no appeal: This the Romans could not long brook under their Kings and Dictators, l. 1. 26. 2. 8. 3. 55. 10. 9. But because the right of appealing may be not a little abused, it is not to be wondered at, that various remedies have been invented to restrain it within due bounds. Such are, the power of determining without appeal lodged in some magistrates, a certain sum being defined by the law above which appeal may be made, an oath of calumny, a certain sum of money to be deposited by the appellant in case he should be cast, and the like; which, whether they be expedient or not, is rather a question of civil prudence than of natural jurisprudence.
[* ] The stoics denied this. Their maxim is known to every one: “Sapientem non dare veniam, nec ignoscere,” Diogenes Laert. 7. 123. Senec. de clement. 2. 6. 7. [[“The wise man does not grant pardon nor forgive” (see Diogenes Laertius, Lives, bk. 7, sec. 123); Seneca, De clementia, bk. 2, chaps. 6–7, in Seneca, Moral Essays, vol. 1). But if the most just God forgives sins without violating his essential justice, why may not a supreme magistrate, who hath the power of making penal laws, cancel these laws; and why therefore may he not pardon a criminal? But we have said for just causes: For as laws ought not to be enacted but for grave and important reasons, so neither ought any indulgence to any one to be granted without just and good reasons. But what if the punishment be appointed by a divine law? If it can be made appear that there is such a penal law, we scruple not to affirm, that no Sovereign hath power to change such a law, or to dispense with it (lib. 1. §17). But whether there be any such law, hath been much disputed among the learned, and is yet undetermined. See Thomasius dissert. de jure adgrat. princip. circa poenam homicid. Thomasius (praeses) and Clusener (respondens), Dissertatio inauguralis juridica, de jure aggratiandi principis Evangelici in causis homicidii.]]
[† ] For we are speaking here of civil punishment, properly so called, and appointed by law, and not of conventional, to which one of his own accord subjects himself; nor of that revenge by which one deprives another of certain benefits on account of his crimes, renounces his friendship and acquaintance, &c. nor of these natural evils, such as diseases, pains, infamy, &c. which one brings upon himself by his wicked practices. Again, there is a great difference between punishing and that right of chastising which the laws give to parents, and sometimes to a husband, and to a master. For chastisements are applied at pleasure by way of discipline: But punishment, properly so called, is inflicted by the prescription or appointment of a law, in the way of jurisdiction. Whence it is self-evident, that an equal cannot punish an equal; but he alone can punish who hath the right of making laws, and of applying them to facts: Which since the supreme magistrate alone hath the power of doing (§151 and 154), he alone therefore hath the power of punishing. It is then a very singular opinion of Grotius (of the rights of war and peace, 2. 20. 3. 1.) to say, “That nature sufficiently shews it to be most proper that punishments should be inflicted by a superior; but that it cannot be demonstrated, that it is necessary, unless the word superior be taken in such a sense as to signify, that he who does a bad action, does thereby, as it were, detrude himself out of the rank of men, into that of the brutes subjected to men.” As if moral superiority or pre-eminence could give any mortal the right of punishing, and superiority of empire were not necessary. See Thomasius, jurisp. divin. 3. 7. 31. Wherefore, if an offender is punished by the person injured, it is not punishment, but revenge; and if he is punished by a third person, it is an injury. But that both these are prohibited in a civil state, Grotius does not deny. And therefore Sanio in Terence reasons much better, Adelph. 2. 1. v. 34. “I am a pimp, I confess: the bane of youth: a perjured villain: a common nuisance and pest: but I have done you no injury.” [[Terence, “The Brothers,” act 2, lines 188–89, in Terence, Terence, vol. 2, 271.]]
[* ] Hence it appears, that to human punishments, the end, of which some speak so much, does not belong, viz. the expiation of guilt, and the satisfaction due to divine justice: For neither can we absolve those from cruelty, like that of Phalaris, who punish delinquents for no other end but to torment them. Nor could the suffering of a guilty person make any satisfaction to the infinite divine justice, had it not been satisfied by another satisfaction truly infinite. But they who talk in this manner do not consider the origine of punishments, which is nothing else but the necessity of them to the security of a civil state; and seem at the same time not to attend to the distinction between human and divine justice, and between civil punishments and those eternal ones which abide sinners in the life to come.
[† ] Yea, because punishment is an evil of suffering, from which nature is abhorrent, what one is willing to undergo would not be a punishment. Quintilian Declam. 11. says, “He is mistaken who measures the atrocity of torments by their names: Nothing is a punishment but what is unwillingly undergone. We suffer no pain but by impatience, and it is fear that alone can make a thing appear cruel or terrible. Will any one call that a punishment to one, to which one runs, and which he calls for? Drag condemned malefactors whither they are unwilling to go.” [[Quintilian, “XI: The Case of the Rich Man Accused of Treason,” 142, in The Major Declamations Ascribed to Quintilian, 137–44. It is a barbarous custom to force men to lay violent hands on themselves, to rip up their bowels, or to take poison, or to choose any other way of death. For we are not obliged to be ourselves the instruments of the punishment we are obliged patiently to submit to.]]
[* ] Thus we find in matters of treason, the very thought or knowledge of it in some states is punished; and in some nations inhospitality is punished: We have given some examples of this, (lib. 1. §216). And we shall now add, that the ancient Germans commanded humanity to strangers by laws, with penalties annexed to them. There are such sanctions in the Lex Burgund. 33. 1. Capitular. 1. 75. in which a pecuniary mulct is ordered against those who shut their house or the market-place against a stranger. The Goths ordered by a law the houses of those to be burnt who had three times refused access to travellers, Joan. Mag. hist. Goth. 4. 1. See Element. juris Germ. 1. 18. §420. [[Burgundian Code, 38.1. Capitularia Regum Francorum. Johannes Magnus, Gothorum Sueonumque historia. The last reference is to Heineccius’s own Elementa iuris Germanici.]]
[† ] The Persians were so barbarous, of which cruelty, see Barn. Brisson. de regno Persic. 2. 227. p. 591. [[Brisson, De regio Persarum principatu libri tres. We have some traces of it in Daniel, vi. 24. and Esther ix. 14. And that this barbarity still prevails very universally in the eastern nations, hath been observed by those who have described their manners with the greatest accuracy. But as this usage is absolutely repugnant to right reason, so it is not possible by any prudence to prevent the falling of punishment inflicted upon parents, indirectly, at least, upon their children, especially when their estates are confiscated by law. And this consideration hath moved more humane legislators very rarely to use this punishment, and not but in case of treason, to confiscate all the goods, that as much as it was possible for them to do, they might prevent punishment from extending so much as indirectly to the children of the punished.]]
[* ] The punishment of injuries by the laws of the twelve tables, furnishes us with an example. For it struck so little terror into wicked rich men, that they rather took pleasure in committing insults, which could cost them but a very trifling fine. The whole matter is related at great length by Aulus Gellius Noct. Attic. 20. 1. who tells us there, “That the fine for an injury or insult being a very few pence, that hardly any one was so poor, as that he could be restrained by it from indulging his arrogance and insolence. And therefore Labeo in his commentary on the twelve tables, did not approve of this law. He mentions one L. Neratius, a person of remarkable pride and insolence, whose great joy it was to give a freeman a blow on the face with his fist, and who went about diverting himself in this outrageous manner, attended with his servant, who carried a purse to count down the fine of five pence, appointed by law for the offence to every one he cuffed. For which reason, the Praetors afterwards abolished this law, and published an edict, in which they constituted themselves repairers of estimable injuries.” [[Gellius, Attic Nights, bk. 20, chap. 1.13, pp. 411–13. So far then was such a slight penalty from checking, that it rather provoked and encouraged insolence and injuriousness.]]
[* ] God himself seems to have approved this law, Exod. xxi. 23. Levit. xxiv. 50. Deut. xix. 19. That law of the Decemviri is also well known, “Si membrum rupsit, ni cum eo pacit, talio esto.” apud Gell. Noct. Attic. 20. 1. [[Gellius, Attic Nights, bk. 20, chap. 1: “If one has broken another’s limb, there shall be retaliation, unless a compromise be made.” But as the Jewish Rabbis themselves so interpret the divine law, that such injuries might have been expiated by money consistently with it: So Caecilius denies that ever this law took place among the Romans, apud Gell. ibid. And they are perhaps proverbs indicating, that he is not injured by one who suffers the same from another, he himself did to him, tho’ perhaps the same thing may not occasion equal suffering to both. See Jo. Clericus ad Exod. xxi. 22. In which sense Pythagoras said punishment was compensation, or equal suffering. However that may be, that the law of like for like hath not always place, may be proved from these considerations. 1. That sometimes such a punishment would scarcely deserve the name of punishment, e.g. if I should be ordered to take as much money from one as he had taken from me, in the highway; or if a man of no rank give a blow to a magistrate, should be struck himself by the magistrate. 2. Sometimes it cannot be done, i.e. the one cannot be made to suffer as much as the other, e.g. if a person with one eye should beat out another’s two eyes. 3. Sometimes equality cannot be so observed but that the delinquent must suffer more than the person injured. Thus, e.g. I know an instance of one run through the body by a night-walker in such a manner, that his intestines not being touched he soon recovered. But could all the physicians in the world, with their united skill, thus run a sword through one without doing him more mischief?]]
[* ] Thus, with respect to the delinquent, he deserves a greater punishment whom kindred, prudence, age, dignity ought to have kept back from a crime, than a stranger, an ignorant unthinking person, one under no special obligation, a boy or stripling, one of the lower rank of mankind (l. 1. §113). A robust person will require a severer corporal punishment than one of a weakly delicate constitution; and if a pecuniary mulct is to be inflicted, more ought to be laid upon a rich Neratius, than upon a poor man. In like manner, if an injury be done to a magistrate, or to a person of dignity, who will deny that it ought to be more heavily punished than an affront to one of the vulgar and dregs of mankind? Besides, if it be a crime to seize the goods of a private person to make gain of them; how much greater a crime must it be to rob the public, or to commit sacrilege? Thus we find a soldier’s deserting from his post in an encampment is more severely punished than one’s running away from winter-quarters, on account of the more dangerous consequences of the former. And in like manner, all equal judges pronounce an injury done in church, or during divine worship, more heinous than one done in a private place, and at another time. So that the public sense does not approve the doctrine of the Stoics, concerning the equality of all crimes, Cic. Paradox. 3. Diogen. Laert. 7. 120. against which we find Horace reasoning thus:Non vincet ratio hoc, tantumdem ut peccet, idemque,Qui teneros caules alieni infregerit horti,Et qui nocturnus divûm sacra legerit. AdsitRegula, peccatis quae poenas irroget aequas:Ne scutica dignum horribili sectere flagello.
Horat. Serm. 1. 3. v. 115.
[[Horace, Satires I, 3.115: “Nor will reason prove this, that the sin is one and the same, for one who cuts the young cabbages from someone else’s garden and for one who steals the sacred objects of the gods by night. Let there be a rule to assign fair penalties to offences, to avoid flaying with the terrible scourge what only deserves the strap.”
[* ] We confess that this term is not very apposite to express the thing, the ideas of empire and dominion being very different, and because the former and not the latter belongs to Sovereigns. Wherefore, what Grotius (of the rights of war and peace) first termed dominium eminens; Seneca of benefits, 7. 4. has more properly called potestas. “Ad reges, potestas omnium, ad singulos proprietas pertinet.” [[“[E]verything belongs to the king, and yet property, to which the king lays claim by his universal right” (Seneca, Moral Essays, vol. 3, 465). See V. A. Corn. van Bynkersh. Quest. jur. publ. 2. 15. p. 290. Bynkershoek, Quaestionum juris publici libri duo, vol. 1, 290. And hence certain lawyers of Wirtemberg have contended against Jo. Fr. Hornius Johann Friedrich Horn (ca. 1629–65), German jurist, that this supreme right is not to be derived from dominion, but from sovereignty. (See Guil. Leyseri collectio scriptorum eristicorum pro imperio contra dominium eminens.) Wilhelm Leyser (1592–1649), Dissertatio pro imperio contra dominium eminens. But this debate being about words, while all are agreed that a Sovereign hath the right of applying the goods of subjects to public uses, when necessity requires it, there is no reason for exploding a received phrase.]]
[* ] Upon this depends the right of Sovereigns to give tutors and curators to minors, to persons labouring under any disease which incapacitates for business, to mad persons, to prodigals, to women, &c. and of prescribing rules to such administrators, calling them to an account, and removing them from their trust, if they are unfaithful. See Plato de legibus, l. 11. where he says, that pupils are under the care and guardianship, not of private persons, but of the public, and are one of its most sacred charges. Hence the Germans, from the most ancient times, claimed from their Emperors a certain supreme guardianship or tutorage, of which I treated long ago in a dissertation de suprema principum & magistratuum tutela. [[Heineccius (praeses) and Russel (respondens), De suprema principum magistratuumque tutela dissertatio iuridica inauguralis.]]
[4. ] Bynkershoek, Quaestionum juris publici libri duo, vol. 1, p. 292.
[* ] We have added these limitations, because without them this right would degenerate into the highest injuriousness. Hence God was exceeding wroth with King Achab, when he would have violently extorted Naboth’s vineyard from him, because contiguous to his palace, that he might make a Kitchen-garden of it, 1 Kings xxi. 2. For such a demand proceeded rather from the wantonness and voluptuousness of a wicked King, than from real utility. The Roman senate refused an action to the Praetors against M. Licinius Crassus, when they would have carried an aqueduct thro’ his ground, because they said it was rather a matter of pleasure and ornament than of public utility, Liv. 40. 51. Thus the case is represented by Marc. Zuer. Boxhorn. Disquisit. polit. casu 31. [[Boxhorn, Disquisitiones politicae. Yet Bynkersh, hath produced a charter by William Prince of Orange, in which he gives power to the magistracy of Leyden, of taking possession of the court-yards of private persons, paying them the price, even though it was not otherwise necessary, but for the ornament of the Academic buildings, and the pleasure of the students: upon which, however, he adds this remark, “Such a right I would not use, nor did the Roman senate use it in the case of Crassus; nor did even Augustus use it, of whom Sueton tells us, Aug. c. 56. ‘That the Roman Forum was made narrow by him, because he would not take the neighbouring houses from their proprietors.’” Bynkershoek, Quaestionum juris publici libri duo, vol. 1, p. 295.]]
[* ] This is acknowledged by Grotius of the rights of war and peace, 2. 14. 7. by Pufendorff of the law of nature and nations, 8. 5. 7. by Huber de jure civitatis, 1. 3. 6. 44. and by all who have treated at any length of this dominion; among whom Bynkersh. ibid. deserves the first place, who has shewn that the Romans followed this maxim, from Tacitus Annal. 1. 75. and l. 9. cod. de oper. pub. And undoubtedly the same principle of equity takes place here, upon which the Rhodian law concerning goods thrown over board, was founded, Paulus l. 1. D. ad leg. Rhod. viz. That what is given up for all should be made up by the contribution of all.
[* ] Since the Greeks returning from the expedition of Cyrus, could not so much as use this colour, what they did is so much the less excusable, tho’ Grotius does not seem to condemn it (of the rights of war and peace, 2. 2. 10). By Xenophon’s advice, as he himself tells us, de expedit. Cyr. 5. 1. 6. they, “having the most pressing occasion for shipping, seized such as passed by, but so that the cargo was preserved untouched for the owners, and to the seamen they not only gave provisions, but paid them the freight.” [[See Xenophon, Anabasis, vol. 2, bk. 5, chap. 1, 10–12. This indeed had been excusable on account of necessity, had it been a public expedition. But we cannot see how this right could in any way belong to a handful of soldiers, who had engaged in an expedition with Cyrus without the consent of their several states, an expedition more memorable by its greatness than its justice.]]
[† ] It is right to distinguish these two, tho’ not unfrequently in monarchies princes take all to themselves in such a rapacious manner, that there is in fact no difference between the two. Dion. Cassius, hist. 53. p. 506. tells us, That Augustus had both money and soldiers at his absolute command; and he adds, “And tho’ in words he distinguished between his own money and the public treasury, yet in fact he made use of both at his pleasure.” [[Cassius, Roman History, bk. 53, chap. 22, p. 251. But here we are not enquiring what is done, but what ought to be done: and therefore, it is proper to distinguish between these two public coffers, as is carefully done even in aristocracies and other republics.]]
[* ] The nations of German origine chiefly, of whom Grotius of the rights of war and peace, lib. 2. c. 8. §5. says, “The people of Germany consulting about making some allowances to their Princes and Kings to support their dignities, thought it proper to begin with such things as might be given without damage to any one, such are those which no person could lay particular claim to, which I find that the Egyptians also practised. For there the King’s Intendant, whom they called ἴδιον λόγον, seized on all such things to the use of the crown.” But what Grotius says here of the Egyptians, as from Strabo, whom he quotes in the margin, Geog. l. 17. p. 1148. edit. noviss. does not relate to the Egyptians, but to the Romans, after they had reduced that country to the form of a province. [[Presumably the “editio novissima” of Strabo’s work is the Rerum geographicarum libri XVII, published in Amsterdam in 1707. The office which Strabo calls ἴδιος λόγος, was the same as the Digest calls Procurator Caesaris, or Rationalis. What Strabo says is this, “There is another officer called ἴδιος λόγος a kind of “special agent” of Caesar (see Strabo, Geography, vol. 8, bk. XVII, chap. 1.12, p. 51) whose business it was to demand such things as had no master, and consequently ought to fall to Caesar.” This is justly observed by Casaubon on this passage of Strabo.]]
[* ] Whether the people originally consented, or afterwards ratified the alienation, of which innumerable instances hath happened in Germany. For the ancient Emperors being so very profuse in giving away their demains, especially to the church, that at present hardly any of them remain; none will say, that the Emperor can now reclaim them, since these alienations have been confirmed long ago by the orders of the Empire; yea, tho’ the Emperor usually promises to recover the rights and revenues of the Empire, Capitul. Caroli 6. art. 10. yet this is understood by the interpreters of the public law of Germany, to mean so far as it can be done consistently with the public laws. [[This refers to the so-called electoral capitulation of Charles VI, Holy Roman Emperor from 1711 to 1740. The electoral capitulation contained the concessions the emperor elect made to the Holy Roman Empire’s electoral princes in return for their votes (see Charles VI, Capitulatio Caroli VI). And the Emperors and Kings, who were sollicitous about this recovery, had very bad success, such as Henry V. Rudolph I. Albert I. and others. See Schweder dissert. de domanio imperii. Schweder (praeses) and Pregitzer (respondens), Dissertatio inauguralis de Domanio S. Romani.]]
[* ] The disputes about the dominion of the sea between Grotius and Selden, Rob. Jonston, Petr. Bapt. Burgus, Guil. Welwood, Jo. Isaac Pontanus, Theod. Graswinckelius, and more lately between Pufendorff, Huber, Jac. Gothofredus, Jo. Hen. Boeclerus, Corn. van Bynkershoek, and Christ. Thomasius, and others, are known; nor need we enter into the controversy. [[These works are Grotius’s Free Sea (1609); Selden, Mare clausum (1635), written around 1618; Robert Johnson, Nova Brittannia (1609); Borgo (Burgus), De dominio serenissimae Genuensis reipublicae in Mari Ligustico libri II (1641); Welwood, “Of the Community and Propriety of the Seas” (1613), in Grotius, Free Sea; Pontanus, Discussionum historicarum libri duo (1637); and Graswinckel, Maris liberi vindiciae (1652), which was directed against Borgo’s treatise. Pufendorf, Huber, and Thomasius did not publish separate treatises on the freedom of the seas, though they referred to this question in their more general juristic works. The jurist Jacques Godefroy (Jacobus Gothofredus, 1587–1652) published De imperio maris deque iure naufragii colligendi (1637). The work by Boecler (1611–72) presumably is a university dissertation for which he acted as praeses, with the title Minos maris dominus (1656); Bynkershoek published De dominio maris dissertatio (1703). It is not clear who “Rob. Jonston” is. We are of opinion, that as none can doubt that the sea is under the dominion of none, so it cannot be questioned but it may be occupied, and falls to the occupant, (lib. 1 §241); especially since that hath been long ago done, and is still, as experience teaches us. But because things of exhaustless use are not occupied, nor is it lawful to exclude others from the use of them by occupancy, (lib. 1. §235), some things in the sea being of exhaustible use, such as the larger kinds of fishes, pearls, tolls, and such other emoluments; and other things being of inexhaustible use, as navigation; others may be excluded from the former, but not from the latter. Much more then have they who have certain territories beyond sea, a right to exclude all others from navigation to them, whether with a view to occupancy or for commerce, unless it be otherwise provided by treaties and pacts; since it depends upon the will of every nation, to permit or not permit commerce with foreigners to its subjects. But navigation to other territories not belonging to us, for the sake of commerce, is as unjustly denied by us as the use of a public road, unless this navigation be hindered by pacts and treaties. This is our opinion about this celebrated question. Nor need we be very anxious about it, since this matter is rather decided by force than by words and arguments; so true is what Horace says, Carm. 1. 3. v. 21.Necquidquam Deus absciditPrudens Oceano dissociabilesTerras, si tamen impiaeNon tangenda rates transiliunt vada.Audax omnia perpetiGens humana ruit per vetitum nefas.
Horace, Odes 1.3.21ff. in Odes and Epodes: “All to no avail did God deliberately separate countries by the divisive ocean if, in spite of that, impious boats go skipping over the seas that were meant to remain inviolate.”
[* ] This appeared most equal to Serv. Tullius King of the Romans, and by that means he was very popular, Dion. Halicar. antiq. Rom. lib. 4. p. 215. He declared he would not suffer the poor to be over-loaded with taxes, and to be obliged to contract debt; and therefore, that he would rather make a valuation (census) of the estates of his subjects, and make every one contribute according to his fortune, as used to be done in well constituted and regulated states. “For (said he) I reckon it just that he who has large possessions should contribute largely, and that little should be exacted from those who have but little.” [[Dionysius of Halicarnassus, Roman Antiquities, vol. 2, bk. IV, chap. 9.7, p. 297.]]
[* ] But an unfraudulent counsel or design, disappointed by the event, is not punishable, since none can be obliged to answer for the event of things. Nor does he deserve punishment who executes the commands of his prince or country, if it be not contrary to justice and morality. See V. A. Corn. van Bynkersh. Quaest. jur. publ. 2. 2. p. 196. & seq. [[Bynkershoek, Quaestionum juris publici libri duo, vol. 1, p. 196. It was therefore a barbarous custom of the Carthaginians to punish their best Generals, if their designs missed of success. Nor is that custom of the Turks and other eastern nations less detestable, who measuring a counsel by the event, condemn those whose designs prove successless. For this is not only contrary to justice, but to prudence. “If any one,” says that excellent writer, “desire advice in difficult affairs; there are many who are capable of giving it; but none will answer for the event; and if you require this, none will assist you with their counsel, no, not one.”]]
[* ] Such are usually called (ministrissimi) chief ministers; and concerning these, two questions are commonly asked; first, whether it be for the interest of a state to entrust the care of the whole state to one: And secondly, whether it can be lawfully done. The first is a question of civil prudence or expediency, upon which it is worth while to read Hert. Elem. prud. civil. 1. 10. 11. Guil. Schroeter and Jac. Thomas their dissertations on this subject. [[Jacob Thomasius (praeses) and Georg Heinrich Groer (respondens), De ministrissimo. Wilhelm Schroeter’s (d. 1689) treatise on chief ministers continued to appear in several editions in the early eighteenth century, including one in 1737 (Fürstliche Schatz- und Rent-Kammer). The latter may be easily answered by any who have considered with any attention the principles of the law of nations. For since we may delegate to another what we do not think ourselves sufficient to manage, why may not princes likewise delegate their office to others, especially when age, the weight of government, and other just reasons induce to it: And if it be not unjust to put a Kingdom under tutorage, while the King is not of an age to take the reins of government into his own hands, why should it be deemed unjust for a King to commit it to a minister? However, a prince would act most unjustly, if he should devolve the care of the public upon a first minister, merely that he might pursue his pleasure, and not be troubled with it, since he ought to use him as a minister, and not transfer the government absolutely to him. The Persians seem to have been sensible of this, when they called ministers the eyes and ears of the King, Xenophon Cyrop. 8. 2. 7. p. 483. of which Brisson. de regno Persic. has discoursed at large, lib. 1. §190. p. 264.]]
[* ] Therefore this right belongs to a Sovereign as Sovereign, and not as Bishop, as some have said, who have been solidly refuted by Hen. Boehmer. dissert. de jure Episcop. princip. evangel. [[Boehmer (praeses) and de Becquer (respondens), Doctrina de jure episcopali principum evangelicorum. And therefore that distinction of Constantine the great (in Eusebius vita Constant. mag. 4. 24) between the oversight of things without the church and within the church, is without any foundation. Eusebius of Caesarea (260–339), author of the Vita Constantini (Life of Constantine). Nor do they come nearer to the truth, who attribute this right about sacred things to a Sovereign, as the primary member of the church; or they who derive it from compact; the first of which opinions is defended by Jaeger. de jure suprem. potest. circa sacra, cap. 3. p. 74. & seq. Jäger, De concordia imperii [et] sacerdotii sive de jure potestatum supremarum circa sacra. For it being a right of majesty or sovereignty, a Sovereign wants no other title to the exercise of it but his sovereignty; whence the Roman lawyers have pronounced long ago, “Jus publicum etiam in sacris & sacerdotibus consistere,” “That public law also extends to sacred affairs and priests,” trans. T. A. l. 1. §2. D. de inst. & jur.]]
[* ] The doctrine of Hobbes and others is therefore monstrous, which subjects the consciences of subjects to a Sovereign (§129). [[Heineccius’s harsh criticism of Hobbes is unfounded, since Hobbes clearly makes the distinction between conscience (foro interno) and external actions (foro externo); cf. Hobbes, On the Citizen, 3.27, p. 54, and Hobbes, Leviathan, chap. 16, p. 110. See also Leviathan, chap. 46, p. 471: “There is another Errour in [. . .] Civill Philosophy [. . .] to extend the power of the Law, which is the Rule for Actions only, to the very Thoughts, and Consciences of men.” For not to insist upon what was just now said, that the understanding cannot be forced; and that a Sovereign can no more command it to believe or not believe, than he can command the eye not to see what it sees; what horrible butchery would these principles occasion, if a Nero or a Domitian, possessed of sovereignty, should take it into his head that the Pagan or Mahometan religion was better for society than the Christian, or to forge a new one? Nay, who does not see, that this doctrine, despising the true, the sole end of religion, perverts it into an engine of tyranny.]]
[* ] Hence it is plain, that the supreme magistrate has no right to hinder any one from praising God with hymns, and offering prayers to him, or performing other such religious actions; but he hath a right to prescribe the order and manner in which these actions ought to be publickly performed. Therefore, the command of Darius, that none should dare to petition either God or man during thirty days, was most absurd, Dan. iv. 7. But the care of David and other pious Kings, to order the worship of God in such a manner, that the people might neither want hymns to sing to God, nor be ignorant of the most serious and decent way of singing them, was most reasonable.
[* ] They are called for various reasons; as to confirm doctrines called into doubt by new decrees and creeds, and to consult about indifferent rites; and in fine, to settle matters relating to discipline. Synods of the first kind are contrary to the nature and genius of religion; first, because that is not always true, which appears to be such to the greater number; and in matters of opinion and belief, ’tis not the plurality of votes but the weight of arguments that ought to preponderate and determine. Next, because these decrees of councils are obtruded upon the members of a church by way of laws, with public authority, whereas laws cannot be given to the understanding. Besides, it often happens, that one part of the judges usurps power over the rest, and thus the wounds of the church are not so likely to be healed as to be festered; which is so confirmed by experience, that Gregory Nazianzenus, ep. 55. ad Procopium, says, “That he never expected any good from councils, and that they generally rather exasperated than cured any evil.” [[Gregory of Nazianzus (ca. 330–ca. 389), Greek saint and theologian. The other synods may be sometimes of use to the church; but only when the church has no legislative power without the direction and authority of the supreme magistrate.]]
[* ] The mischief scholastic wars do to youth, and to useful learning, cannot be expressed. They are frequently occasioned by stupid sluggish men, to whom the learning and industry of others in their proper business is an eye-sore. For the more learned men are, the further they are removed from a spirit of contention. And the scufle is carried on with calumnies, libels, and fraudulent arts, by which they hope to bear down their enemy, or render him suspected by his auditors. And hence it comes about, that the hours which ought to be devoted to the education and instruction of youth, are consumed in writing controversial pamphlets, and that the students, tho’ not capable of judging of the dispute, and unacquainted with the true nature and rise of it, are divided into factions; so, that from words it not seldom comes to blows. But how prejudicial such feuds must be to the most flourishing universities, is very manifest.
[* ] This whole subject is well illustrated by two dissertations: one by Jo. Fridr. L. B. Bachovius ab Echt dissert. de eo quod justum est circa commercia inter gentes, Jenae 1730. [[Bachovius, i.e., Johann Friedrich Freiherr Bachoff von Echt (1643–1726), German jurist and civil servant (1680, Geheimrat) at the court of Sachsen-Gotha (Bachoff von Echt, De eo quod Iustum est). Another by Jo. Jac. Mascovius de foederibus commerciorum, Lip. 1735. Johann Jacob Mascov (1689–1761), German jurist and historian, Ratsherr (councillor) in Leipzig; see Mascov (praeses) and Plessen (respondens), De foederibus commerciorum. To which, if we add the writings pro and con with regard to the disputes between the Dutch and the Imperial Netherlands, about the Ostend Company, we shall not need to look further into this subject. See Refutation des argumens avancés de la part de Mrs. les Directeurs de Compagnies d’ orient & d’ occident des provinces-unies, contre la liberté du commerce des habitans des Pais-bas, Hague 1723, and Jo. Barbeyrac Defense du droit de la compagnie Hollandoise des Indes orientales, contre les nouvelles pretensions des habitans des Paisbas Autrichiens. Macneny, Réfutation des argumens avancés de la part de MM les directeurs des Compagnies d’Orient et d’Occident des Provinces-Unies contre la liberté du commerce des habiters des Pays-Bas; Barbeyrac, Defense du droit de la Compagnie Hollandoise des Indes Orientales contre les nouvelles prétensions des habitans des Pays-Bas Autrichiens.]]
[* ] This might be proved by other arguments. For nature hath not only endued men, but even brute animals with a principle of self-defence; and hath furnished the latter with certain arms to protect themselves.Ut, quo quisque valet suspectos terreat; utqueImperet hoc natura potens, sic collige mecum.Dente lupus; cornu taurus petit. Unde, nisi intusMonstratum?Horat. Serm. 2. 1. v. 50.
[[Horace, Satires II, 1.50–53: “How everyone, using the weapon in which he is strong, terrifies those he fears, and how powerful nature commands that this should be so, you must infer, along with me, in this way: the wolf attacks with its fangs, the bull with its horn; from where did this come, except from an internal instinct?”
Many testimonies of the ancients to this purpose are collected by Grotius, of the rights of war and peace, 1. 2. 1. 4. Again, since private persons living in society have the right of self-defence, when they cannot have recourse to public protection (lib. 1. §181), much more must it be allowable to a free people to defend themselves, since in a state of nature there is no common magistrate to judge between the injurer and the injured, and to defend against violence (ibid. §183). The ancient fathers of the church have brought several arguments from the sacred writings against the right of war, as Tertullian de idolol. cap. 18. & de corona milit. cap. 11. Tertullian, De idololatria, ed. Waszink and van Winden; Tertullian, De corona militis, in Tertullian, Tertulliani libri tres. Origen adv. Cels. l. 8. p. 425. Origen, Adversus Celsum, in part 2 of his Opera quae quidem extant omnia. Erasmus in milite Christiano, & Adagiorum Chil. 4. Cent. 1. adag. 1. and likewise the Anabaptists, of whom Arnold. in Hist. eccles. & haeret. part. 2. l. 16. cap. 21. n. 24. Erasmus, Enchiridion militis Christiani; Erasmus, Adages iv.i. 1, vol. 35, of Collected Works of Erasmus; Arnold, Unpartheyische Kirchen- und Ketzer-Historie. But these objections have been sufficiently answered by Grotius in his masterly way (ibid. §5. & seq.) and by Huber de jur. civ. 3. 4. 4. 6. & seq.]]
[* ] Thus we think it proper to define war, tho’ it be otherwise defined by others. According to Cicero (off. 1. 11.) all contention by force is war. But Grotius (of the rights of war and peace, 1. 1. 2. 1.) observing, that not the act but the state is properly denominated war, amends this definition, by calling war a state of contention by force, as such. Yet because this definition agrees as well to tumults, or private and public violence, as to war, the definition of Albericus Gentilis (of the rights of war, 1. 2.) is rather preferable. [[Albericus Gentilis (1552–1608), Italian jurist considered to be the founder of the theory of international law. Grotius drew extensively on his main work, De jure belli. He defines it to be a just contention by public arms. But the best of all, is the definition given by V. A. Corn. van Bynkersh. Quaest. juris publ. 1. 1. which we follow.]]
[* ] It is well known, that there are three kinds of armies: one when every subject bears arms for his country, as in the Grecian republics of old, and among the Romans during their freedom, and as at present in Switzerland: another is mercenary, when soldiers, even foreigners, are listed for money; which kind of army Augustus, by the advice of Maecenas, preferred for certain reasons to the other, Dion. Cass. hist. lib. 52. p. 482. and which is at present preferred by all monarchs, who are not secure of the hearts of their people: another is confederate, when republics by alliance, or in consequence of due homage, are bound to furnish a certain quota of forces; such were the auxiliaries furnished by the Latins to the Romans: of which kind of armies see a curious dissertation by Herm. Conringius. [[Hermann Conring (1606–81), German philosopher at the University of Helmstedt and councillor and doctor to the Swedish queen Christina. Conring held views similar to those of Machiavelli on the uselessness of mercenary armies. Heineccius here is probably referring to Conring (praeses) and Koch (respondens), Discursus politicus de militia lecta, mercenaria et sociali. Concerning hired or mercenary troops, it hath been often questioned, whether it be lawful for a prince to keep up such amidst his well-affected subjects. Upon which question, see V. A. Corn. van Bynkershoek, Quaest. jur. publ. 1. 22.]]
[* ] Hence the war of Cn. Manlius [[Gnaeus Manlius, Roman proconsul in 187 bc against the Gallo-Graeci was unjust. And for this reason, he was refused a triumph, Liv. 38. 45. “because, says he, he did it without any reason, and without the authority of the senate, or the command of the people, which none ever had dared to do.” And it is known that the senate were not far from giving up Julius Caesar to the Germans, for having made war against them without the command of the people, Sueton. Jul. Caes. cap. 24. But the governors sent by the Spanish, Portuguese, Dutch, &c. into American provinces, have commonly such full power of making war and peace, that the news of the victory are often the first news of the war.]]
[† ] For such kind of single combats were a sort of representative war, used among the ancients, when they chose persons out of each army to decide the fate of the war by a single combat, agreeing that the party which had success in it, should have the right of victory or conquest. Ancient annals are full of such examples. Many of them are gathered together by Grotius, (of the rights, &c. 3. 20. 43. & seq.) who, however, pronounces such combats unlawful, because no person is master of his life and members. But sure, if a Sovereign may expose whole armies to an enemy, he may expose one or a few persons. Whether this practice be agreeable to civil prudence, is another question. Of that there is reason to doubt, because thus the whole republic is submitted to one chance, nor can they afterwards try their fortune with the remains of their strength, as the Albans felt to their sad experience, Dionys. Halicar. antiq. lib. 3.
[* ] Nor does the reason assigned by Grotius prove any thing else, ibid. n. 1. “As many sources as there are of judicial actions, so many causes may there be of war. For where the methods of justice cease, war begins. Now in the law there are actions for injuries not yet done, or for those already committed. For the first, when securities are demanded against a person that has threatened an injury, or for the indemnifying of a loss that is apprehended, and other things included in the decrees of the superior judge, which prohibited any violence. For the second, that reparation may be made, or punishment inflicted; two sources of obligation, which Plato has judiciously distinguished. As for reparation, it belongs to what is or was properly our own, from whence real and some personal actions do arise; or to what is properly our due, either by contract, by default, or by law; to which also we may refer those things which are said to be due by a sort of contract, or a sort of default, from which kind all other personal actions are derived. The punishment of the injury produces indictments and public judgments.” [[Grotius, Rights of War and Peace, bk. II, chap. 1, 2.1. So far Grotius. But as we cannot reason from a state of nature to a civil state; so no more can we reason from a civil state to a state of nature. One nation hurts another, either by its default, or does not hurt any other, e.g. if it worships idols, or eats human flesh. In the first case, the injured people attacks the delinquent people with a just and lawful war, not a punitive but a defensive war. In the last case, there is absolutely no right to make war, because none but a superior can punish a delinquent.]]
[* ] That rarely happens. For either there is danger from the army that demands liberty to pass, or from the enemy, who may take it amiss that passage was granted. But if the passage be absolutely without danger, and so necessary that there is no other way for them who ask it to take, he does an injury who refuses such passage. And to this cause we may refer the war waged by the Israelites at God’s command, Num. xxi. 21, 22. But the Idumeans were not touched for the same reason, Num. xx. 21. either because that passage was not so safe, or not so necessary, there being another way to Kadesh.
[* ] And I know not but the cruel wars carried on in the middle ages against the Mahometans by Christians, must be referred to this class: as likewise those which the Spaniards dared to undertake against the Americans, a nation not inured to war, and that had never done any injury to the Europeans. The former were not coloured over with any other pretext, but that the Holy-land, Jerusalem chiefly, were possessed by aliens from the Christian church, and that it was the interest of Christians thus to promote and propagate their religion. The latter with this only pretext, that the Americans were impious idolaters, or rather worshippers of demons. But since Christianity does not permit of propagation by force; and neither reason nor revelation allows places which appear sacred to certain men, to be therefore claimed by arms and violence; and since besides all this, all wars in order to punish are unlawful (§193), these wars must needs be pronounced most unjust. Wherefore, Herm. Conringius ad Lampad. p. 242. says very justly, “Tho’ many things were done in them which deserve the praise of zeal and courage; yet, if we may speak the truth, all these expeditions were owing to the weakness, imprudence, and superstition of the Kings and Princes of that age.” [[Conring, “Discursus ad Lampadium posterior ex manuscripto editus,” in Conring, Opera, vol. 2, pp. 238–461. See likewise Jo. Franc. Buddeus, exercitat. de expeditionibus cruciatis, §5. & seq. Budde (praeses) and Greulinck (respondens), De expeditionibus cruciatis dissertatio politica. As to the opinion of the Spaniards, about a right to punish the Mexicans for their crimes against nature, which Grotius defends (of the rights of war and peace, 2. 20. 40. & seq.) it is given up even by the Spanish doctors themselves, Victoria, relat. 1. de Indes. n. 40. Vasquius controver. illust. 1. 25. Azorius, Molina, and others. Vitoria, Relectio de Indis; Vazquez, Illustrium controversiarum, aliarumque usu frequentium libri sex. Luis de Molina (1535–1600) was a Spanish Jesuit theologian, as was Juan Azor (1535–1603).]]
[* ] Grotius of the rights of war and peace, and Alberic. Gentilis of the rights of war, lay great stress on this distinction, who are followed in this matter by Pufendorff, Huber and others, for a double reason. First, because by such an appeal or declaration, it is made evident, that we cannot otherwise obtain what is due to us. And secondly, because thus it appears that the war is made by the consent of the whole body in both nations. But these reasons only prove, that a previous declaration of war is of use and laudable, not that it is necessary to make a war just, because both these facts may be evidenced by other means, besides a solemn declaration. Wherefore, Dio. Chrysostom. Orat. ad Nicomed. asserts with reason, and agreeably to the principles of the laws of nations, “Several wars are undertaken without denunciation.” [[Dio Chrysostom, “The Thirty-eighth Discourse: To the Nicomedians, on Concord with the Nicaeans,” p. 67, in Dio Chrysostom, Dio Chrysostom, vol. 4, pp. 48–93. But this subject hath been exhausted by Thomasius ad Huber. de jur. civ. 3. 4. 4. 27. and by V. A. Corn. van Bynker. Quaest. jur. publici, 1. 2. p. 5. & seq. who hath there likewise treated of the most modern European customs.]]
[* ] Three means are particularly recommended by Grotius, of the rights of war and peace, 2. 23. 7. and Pufendorff of the law of nature and nations, 5. 13. 3. and 8. 6. 3. an interview or friendly conference, reference to arbitrators, and lot. But as for the last, besides that it can rarely have place but when a thing is to be divided, princes and states seldom choose to submit their fortunes to chance. The other methods are received in all civilized nations, and are most agreeable to right reason; for no wise man will take a dangerous way to obtain what he may have without force (lib. 1. §181), so true is what the soldier in Terence says, tho’ upon a ridiculous occasion,Omnia prius experiri, quam armis, sapientem decet.Qui scis, an, quae jubeam, sine vi faciat?
[[Terence, The Eunuch, lines 789–90: “The wise man should try everything before resorting to arms. For all you know, she will do what I tell her without force” (see Terence, vol. 1).
For this end are these public writings called Manifestos and Declarations, tho’ the former are more commonly published at the very point of striking the blow, rather to declare and justify the war, than with a view to decline and prevent it. See Jo. Henr. Boecler. exercitat. de clarig. & manifestis. Boecler (praeses) and Barnekow (respondens), Dissertatio de clarigatione et manifestis.]]
[* ] Grotius (of the rights of war and peace, 3. 4. 15. and 18.) is of a different opinion. But actions, because they are more glorious, and shew more greatness of mind, are not for that reason so obligatory, that it is unjust not to do them. Poison is not used by more civilized nations; but the Turks and Tartars poison their darts and arrows. We may therefore call them less humane on that score, but not unjust, because every thing is lawful against an enemy. Thus we may justly refer to the class of greatness of mind, what the Roman consuls are said to have wrote to Pyrrhus, “We do not choose to fight by bribery or by fraud,” Gell. Noct. Attic. 3. 8. But we cannot call Ehud unjust for killing Eglon, Jud. iv. 20; nor Jael for driving a nail into the temples of Sisera, Jud. iv. 21. or Judith for cutting off Holofernes’s head, if the story be true. Besides, the manners of nations, who pretend to greater politeness than others, often degenerate into vile dissimulation; of which see Bynker. Quaest. jur. publ. 1. 3. p. 17. [[Bynkershoek, Quaestionum juris publici libri duo, vol. 1, 17–18. “To such a height did flattery rise in the preceding age, and is it at present, that princes do not lay it aside even in war. For now it is common for enemies most politely to wish one another all prosperity, and to exchange compliments of condoleance. So do the letters of the States General to the King of England run, 10th July, 16th September, and 26th November 1666, and those of the King of England to the States General, 4th August and 4th October 1666, tho’ they were then preparing for destroying one the other, yet the states wrote, that the offices of friendship might take place amidst the rights of war, July 10. ep. 1666. So the King of France, tho’ he was in war with the King of England in the year 1666, sent an envoy to condole him upon the burning of London. It is indeed glorious to exercise humanity, clemency, and other virtues of a great mind in war, but it is silly and absurd to use such unmeaning unsincere words. For what is it but to use deceitful false words, to regret the burning of a city one would willingly have set fire to?” Are not these rare specimens of humanity? Shall we then pronounce C. Popilius Laenas Roman consul in 172 bc more unjust than those princes and states, who being saluted by Antiochus king of Syria, declared he would not return his salute till they were friends; and refused the King’s hand when he stretched it out to him? Polyb. Excerpt. legat. cap. 92. probably Polybius, Ex libris Polybii Megapolitani selecta de legationibus Liv. 45. 12. These are harsher methods, but not unjust, yea much more decent than hostile adulations and false compliments.]]
[* ] Agesilaus in Plutarch, p. 600, well distinguishes between an allowable stratagem and perfidy. There is there recorded an excellent saying of his: “To break the faith of a treaty is to contemn the Gods: but to outwit an enemy is a laudable, and withal a saving method.” [[Plutarch, “Agesilaus,” in Plutarch, Lives, vol. 5, p. 23. But what if an enemy had formerly proved treacherous and false? May we not then render like for like? I think not. For tho’ the perfidy of one of the contracting parties exempts the other from his obligation (l. 1. §413), yet this is to be understood of the same bilateral pact, the conditions of which are not fulfilled by one of the parties. But if we make a new pact with one who had not stood to his former, we are deemed to have passed over his former perfidy, and are therefore bound to fulfil our new contract.]]
[* ] This is granted by Grotius, l. 3. cap. 17. §3. but with a restriction. “It is the duty,” says he, “of those that are not engaged in a war, to sit still and do nothing that may strengthen him that prosecutes an ill cause, or to hinder the motions of him that hath justice on his side.” But because a neutral party ought not to take upon them, as it were, to sit as judges, and determine upon which side justice lies, but, on the contrary, to take no part in the matter, as Livy observes, 35. 48; hence it is evident, that there is no place for this restriction. See V. A. Corn. van Bynkersh. Quaest. jur. publ. 1. 9. p. 69.
[1 ] Heineccius (praeses) and Kessler (respondens), De navibus ob mercium illicitarum vecturam commissis.
[† ] Here many questions occur in Grotius, 3. 5. & seq. Pufend. 8. 6. 20, as how things taken in war are acquired? whether incorporeal things and actions, &c? But since all these things depend rather upon the customs of nations than the laws of nations, and many of them may be easily decided from the principles already explained, we shall not insist upon them. All these are handled by V. A. Corn. van Bynkershoek Quaest. jur. public. l. 1. cap. 4. & seq. in a masterly manner.
[* ] This right, since ever it hath been practised, hath been called Reprisals. The ancients not being acquainted with it, there is no word in the Latin language that properly expresses it, (Corn. van Bynkersh. ibidem. 1. 24). Grotius derives this right from the right of taking pawn, competent to every person (of the rights of war and peace, 3. 2. 7. 3.); and so likewise Bodinus de republica, 1. 10. [[Bodin, De republica libri sex. This was Bodin’s own translation of his Les six livres de la République. But this opinion is refuted by Hertius ad Pufendorff, 8. 6. 13 Pufendorf, Acht Bücher vom Natur- und Völkerrecht; and before him by Ziegler de jure majestatis, 1. 34. 8. Ziegler, De juribus majestatis where he asserts, §32. that this right proceeds rather from the rights of war. And certainly, if a republic may justly vindicate by war an injury done to it and its members (l. 1. §245), it may likewise lay its hands on the goods of others, for an injury done to any one of its subjects, unless the greater and not the less may be allowable.]]
[* ] And then in both these cases, it is most equal that recovered towns, cities, provinces, nations, should have the right of postliminy (§202), and thus recover their former rights, if their falling into the enemy’s hands was not by their own fault, or even if it be not very clear, that they could have made a longer or stronger opposition to the enemy. Hence, when the French Garisons having left the country, a dispute arose between the states of Utrecht and Friezeland about the right of precedency, upon pretext that the former had given themselves up without resistance, yet the province of Utrecht recovered its former place and state, Huber. Prelect. ad Dig. l. 49. tit. 15. §9. But the case would be quite different, if a city or province, which, unmindful of their faith to their Sovereign, had wilfully deserted and gone over to the enemy, should afterwards be recovered by war. For such would be justly deemed unworthy of this benefit, and therefore it is in the conqueror’s power and right to reduce them into any condition he pleases. Such examples did the Romans make of the Brutii, Lucani and Campani, who deserted to Hannibal; of Capua chiefly, which city was so far from having its ancient rights restored to it, that it was deprived of its municipal privileges, its right of magistracy, and its territories, and reduced into the form of a province, Liv. 26. 16. & seq.
[† ] Thus one of the confederate parties being stronger, engages to furnish the other not so powerful, a certain pecuniary subsidy, or a certain quota of ships, troops, or marines, and stipulates little or nothing to itself. In this case the treaty or alliance is unequal, in respect of the things to be done. But it is often provided by treaties, that one republic shall be bound to pay homage to another; not to undertake war without another’s consent; not to keep a fleet; to pay an annual tribute; to make use of no iron or iron-smiths, except for agriculture, 1 Sam. xiii. 19, 20. which Pliny, hist. nat. 34. 14. says was done in the first treaty of Porsena with the Roman people. All these are unequal treaties with respect to the manner of doing, since the one makes itself the other’s client by this manner of treating.
[* ] To these treaties Grotius (of the rights of war and peace, 2. 15. 5. 3.) refers leagues which provide for the entertainment of strangers, and the freedom of commerce on both sides, as agreeable to the law of nature. But since the law of hospitality comprehends many good offices, which are not perfectly due by the law of nature alone (of which Jo. Schilterus has treated very accurately) [[Schilter, De jure hospitii, and since the permission of commerce with foreigners depends upon the will of the supreme powers in every state (§187), such leagues can hardly in any case be referred to those, by which one nation stipulates to itself from another nothing more than is due by the law of nature. As to leagues of commerce, that there is not so much difficulty about any others as about them, is proved by Jo. Jac. Mascou. dissert. de foeder. commerc. §6. Mascov (praeses) and Plessen (respondens), De foederibus commerciorum by an example from Jac. Basnag’s Hist. Belg. tom. 1. p. 51. and 439. Basnage, Annales des Provinces-Unies. And the Athenians, Smyrnians, and other republics, struck medals to be monuments of such treaties, as the same author has shewn from Ezek. Spanheim. de usu & praestantia numismatum, diss. 3. p. 143. & dissert. 13. n. 4. as likewise in his Orbe Rom. cap. 4. Spanheim, Dissertationes de praestantia et usu numismatum antiquorum; Spanheim, Orbis Romanus and from Vaillant de numis imp. Graec. p. 221. Vaillant, Numismata imperatorum. But who ever thought a simple league of mere friendship worthy of being commemorated by such monuments?]]
[* ] Upon these treaties it is worth while to consult Ulr. Obrecht. diss. de sponsore pacis, the seventh of his Academic dissertations, and Henr. Cocceii de guarantia pacis, Franckfort 1702. [[Ulrich Obrecht (1646–1701), German jurist and historian, professor of history and eloquence in Strasbourg; see Obrecht (praeses) and Stauffer (respondens), Sponsor pacis sive de garantia dissertatio. Cocceji (praeses) and Stephani (respondens), Disputatio juris gentium publici de guarantia pacis. The principal question that is moved on this subject is, whether the guarantees of a peace be obliged in general to enter into a war-alliance with the injured party, for any breach of peace whatsoever? But Pufendorff (of the law of nature and nations, 8. 8. 7.) has justly denied that the guarantees are bound to send aids in any war that takes its rise from other reasons than the violation of the articles of peace of which they are guarantees. For as it would be absurd for a creditor to demand a debt from a surety, contracted by the principal debtor after the suretiship; so it would be no less unjust for a prince or a state to demand that a guarantee should take up arms in his defence, if the war takes its rise from some new cause. For a guarantee is only bound, when the peace of which he was surety is broken. But peace (as Grotius has well observed, 3. 20. 27. & seq.) is broken, if any thing be done contrary to what is included in every treaty of peace, or may be inferred from the very nature of peace in general, or to the express articles of a particular peace. And the matter is clear enough in general theory; yet when the question comes to be, whether a particular deed be a violation of a certain treaty of peace; it is not so easily determined, as very recent examples abundantly prove.]]
[* ] Here it is usually asked, when that time commences? Grotius 3. 21. 5. insists that the day from which the measure of the time is to commence, is not included within that measure or compass of time: but he is solidly refuted by Pufendorff of the law of nature and nations, 8. 7. 8. And therefore, if for instance, it should be agreed that there shall be a truce from the first of July to the first of September, both these days are included; and in like manner, if from the first of June for thirty days, the first day of June is the first day of the truce, and the thirtieth day is the last day of it, so that the day after it is lawful to take arms.
[† ] This question arose when the Romans changed their regal government. For the Sabines having contracted with their Kings, upon the change of the government they declared war against the Romans, pretending that the Roman people, in a popular state, had no right to the advantage of treaties made with their Kings, Dionys. Halicarn. Antiq. l. 5. p. 307. In the year from the foundation of Rome 267, the Hernici had recourse to the same plea, denying that they had ever made any treaty with the people of Rome, and asserting that their treaty made with Tarquin had ceased, because he being dethroned had died in exile, Dionys. Hal. 8. p. 530. But both these nations having made a treaty upon their being conquered by the Roman arms (See Dionys. ib. l. 4. p. 252. & seq.) it is indisputable that they had not contracted with Tarquin only, but with the Roman state, and therefore their treaties continued obligatory even after his expulsion.
[* ] This question really happened when Hannibal besieged Saguntum. For the Romans complained that Hannibal had unjustly attacked them, because the Carthaginians were bound by their treaty with the Romans not to annoy their allies. The Carthaginians insisted, on the other hand, that the Saguntini were not comprehended in their treaty, because they were not allies to the Romans at the time it was made, Polyb. hist. 3. 29. Liv. 21. 19. But tho’ both these authors take the part of the Romans, I do not hesitate to say with Grotius, 2. 16. 13. that this treaty could not hinder the Carthaginians from making war against the Saguntines, and yet the Romans had a right to make new allies, and to defend them against the Carthaginians. For the Romans had not in the treaty made any provision for their future allies, and could not oblige the Carthaginians to understand as comprehended in the treaty things not thought of in making it; nor did the Carthaginians stipulate to themselves from the Romans, that they should make no new allies; and therefore they had no right to object against their defending their new allies.
[* ] There are two remarkable instances of this in the Roman history, the Sponsio Caudina & Numantina, Liv. 9. 8. & seq. and 55. 15. The Romans would not stand to the treaty by which Posthumius Coss. and the other Generals had extricated the army at the Furculae Caudinae, nor to that of Hostilius Mancinus with the Numantines, pretending that both were done without their orders. But who can doubt but Generals, when an army is in danger, have all the power necessary to deliver them from it, and which the safety of the army and the state requires. Such sponsions ought therefore either to have been confirmed, or things ought to have returned to the posture they were in before the sponsions, if the Romans had not been more ingenious in devising cavils, than faithful in observing their treaties. See Christ. Thomasius and G. Beyerus de sponsionibus Numantina & Caud. [[Thomasius (praeses) and Ryssel (respondens), Dissertatio juris publici ad l. 4. de captiv. & l. ult. de legation; Thomasius (praeses) and Brix von und zu Montzel (respondens), De sponsione Romanorum Caudina. There does not appear to be a dissertation by the jurist Georg Beyer (1665–1714) on this subject.]]
[† ] Thus before the Mosaic law was given, Abraham and Isaac made a covenant with Abimelech, and Jacob with Laban, who most certainly worshipped idols, Gen. xxi. 22. xxvi. 26. xxxi. 44. And after the law of Moses was given, we know David and Solomon made leagues with Hierom King of the Tyrians, 2 Sam. v. 11. 1 Kings v. 12. We likewise read in the sacred records, of the alliances of Abraham with Escol and Aner, Gen. xiv. 13. of David with Achish King of the Philistines, 1 Sam. xxvii. 2. & seq. and with Toi King of Hemath, 2 Sam. viii. 10. of Asa with Benhadad, 1 Kings xv. 18. & seq. The objections brought from Scripture are answered by Grotius.
[* ] But this is to be understood, not of pretended but real danger. For that false pretexts are used by Sovereigns, as well as by private persons, is daily complained. And the excuses and delays of friends are elegantly represented by Aesop in the fable of the Lark in Aulus Gellius Noct. Attic. 2. 29. who there advises every one to place his chief dependence on himself, and not on his friends or allies, who often promise mountains of gold, and do nothing. This is likewise the counsel of Ennius in his Satires, preserved to us by the same Gellius.Hoc erit tibi argumentum, semper in promtu situm:Ne quid exspectes amicos, quod tute agere possis.
[[From the Satires of the Roman poet Ennius, quoted in Gellius, Attic Nights, bk. II, chap. xxix, 20: “This adage ever have in readiness; Ask not of friends what you yourself can do.”
[* ] And yet such truces not unfrequently are called peace, because not only all hostile acts cease, but even a state of war ceases, as if the contending parties had laid aside their hostile intentions. Thus we are told by historians, that the Lacedemonians made peace for fifty years; the Romans for a hundred years, Justin. hist. 3. 7. Livy. 1. 15. Sozom. hist. eccles. 9. 4. [[Sozomenos (fifth century ad), Greek ecclesiastical historian (see Sozomenos, Historia ecclesiastica). And we have more recent examples of such truces between Spain and Portugal, Sweden and Denmark, England and Scotland, Venice and the Turks, who seldom make peace with Christians, but for a limited period of time. See Pufendorff 8. 7. 4. & ibidem Hertius, p. 1249.]]
[† ] Provided it be evident, from the articles of the peace, that the conquered submitted to these terms. For if by malitious cavil, invidious interpretation, or by open force, harder terms are obtruded on the conquered than they consented to, they have just reason to complain that they are injured. Thus Q. Fabius Labeo egregiously cavilled, when Antiochus having promised to deliver up to him the half of his navy, he ordered all his ships to be cut in two, and thus ruined his whole fleet, Valer. Maxim. 7. 3. which piece of false cunning he had perhaps learned from the Campani, who, as Polyaenus Stratag. 6. 15. [[Polyaenus, Stratagems of War tells us, had thus destroyed the arms of their enemies, one half of which was to be surrendered to them by treaty. And how detestable was the open force with which the Galli Senones insulted the Romans, with whom, tho’ conquered by them, they had transacted, obliging themselves to pay them a thousand pound weight of gold, when they not only brought false weights, but put a sword into the scale with the gold, saying insolently, vae victis esse “Alas for the conquered”, Liv. 5. 48.]]
[* ] And hence we may see what ought to be answered to Pufendorff, who maintains against Grotius, that this exception takes place. See Grotius l. 2. cap. 17. §20. & ib. 3. cap. 18. §11. and Pufendorff of the law of nature and nations, 8. 8. 1. For these are two very different things, viz. to oppose an exception of fear, and to renew the war because the conquering party had taken occasion to do something contrary to the articles of peace. In the latter case we readily grant there is a just reason for war (§117); but we deny that the first is valid. But these two are not sufficiently distinguished by Pufendorff, as is plain from the example he brings. Polyb. hist. 3. 30. asks whether the Carthaginians had just reasons for their declaring the second punic war against the Romans? And he thinks they had, on this account, that the opportunity the Carthaginians took to revenge themselves, was of the same kind with that the Romans had taken to injure them; which is the same as if he had said, that the Carthaginians might justly plead the exception of fear, because, while they were embroiled in troubles and confusions at home, the Romans had forced them to give up Sardinia, and extorted a vast sum of money from them. But tho’ in the articles of peace between the Romans and the Carthaginians, nothing was transacted concerning Sardinia, yet the Romans acted unjustly, and contrary to their treaty of peace, in taking advantage of the confusions the Carthaginians were involved in at home, to make themselves masters of Sardinia, as Polybius himself acknowledges, 1. 88. And therefore the Carthaginians did not object an exception of fear against the treaty of peace which put a period to the first punic war, but they complained that this treaty was broken by the Romans, by their taking occasion from their distress to force them to give up Sardinia.
[2 ] Boxhorn, Institutionum politicarum libri tres.
[* ] Thus in the year 1488, the people of Bruges having invited Maximilian I. to their city, forced him by an unparalleled treachery to a very shameful pact with them: But so far was the Emperor Frederick, from ratifying it, that in a convention of the nobles at Mechlin, it was decreed that Maximilian was not bound by these promises, Jo. Joach. Muller Reichs-tags-Theatr. in Maximilian I. act. 1. cap. 8. [[Müller, Des Heiligen Römischen Reichs, Teutscher Nation, Reichs Tags Theatrum, wie selbiges, unter Keyser Maximilians I. Maximilian I was king of Germany and later Holy Roman Emperor from 1493 to 1519. And surely the people having by knavery and unjust force made a prisoner of the King till he should promise whatever they were pleased to demand of him; such an extorted promise was no more binding upon him than the promise a robber on the highway forces from one.]]
[* ] The same is to be said of hostages, i.e. persons pledged for the faith of a state, whether they voluntarily offered themselves, or they were given up as such by the supreme power in a state. Grotius of the rights of war and peace, 3. 4. 14. In the former case they are bound by their own consent; in the latter, by the convention between their sovereign and the other state with whom the peace is made. Whence it is plain, 1. That hostages may not fly. Nor, 2. a republic receive them by the right of postliminy. Therefore, when Cloelia being a hostage, fled, Porsena demanded that the hostage might be sent back, threatening to hold the treaty as broken if it was not, and the Romans acted justly in delivering back this pledge of their treaty. 3. That hostages ought not to be treated as slaves, or even as prisoners of war. And therefore, 4. That their estates cannot be confiscated as persons incapable of testating, tho’ this was the old rigid Roman law, l. 31. D. de jure fisci. 5. That their obligation expires with their persons; and therefore, that when one hostage dies, ransom only is due for the other. 6. But if the treaty of peace be broken, the hostages may be kept in chains, and spoiled of their liberty and effects, tho’ it be very hard, to kill them, if the treaty be violated without any fault of theirs. But of all this see Grotius of the rights of war and peace, 3. 20. 52. & seq. Pufendorff of the law of nature and nations, 8. 8. 6. and Schilter. opusculum singulare de jure obsidum. [[Schilter, De jure et statu obsidum dissertatio juridica.]]
[3 ] Bynkershoek, De foro legatorum tam in causa civili, quam criminali liber singularis.
[* ] If there are evident proofs of this hostile disposition, neither a prince nor a republic is obliged to receive an ambassador, and may command him to get out of their territories, as is usually done when war begins to rekindle between two states, the treaty of peace being broken: For we are not obliged to admit an enemy into our bosom or house, and therefore not his minister or commissioner.
[4 ] Fredericus de Marselaer (1584–1650), author of the treatise Legatus libri duo. Abraham van Wicquefort (1598–1682), author of a treatise on ambassadors (L’ambassadeur et ses fonctions) published in French, German, and English editions in the early eighteenth century.
[* ] And this is that obligation to one’s country, which some ancients carried to such a height, that they said, it comprehended in it all the other branches of benevolence, and that none ought to hesitate about sacrificing his life for his country, when its good called for it at his hands. Cicero in his offices, 1. 17. 3. 23. The ancient saying, “Dulce est pro patria mori,” is in every one’s mouth. But Jo. Clericus, in his examination of this maxim, Ars Critica, 2. 2. 5. 16. says, “Men rarely know what they mean by the word country. And in reality,” says he, “what was it an Athenian or a Roman called his country? If by it was understood the soil of Italy or Attica, there is no more reason why it should be a more glorious thing to die for it, than to die for that of Africa or Asia. For the soil in which one is born no more belongs to him, than the soil upon which he may live conveniently: It is therefore foolish to prefer dying in a country lying to the east or west, to living in another that lies to the south or north. If by it was understood the inhabitants, what were the Athenian and Roman republics but societies of robbers, if we look narrowly into the matter? And therefore, he who died for them was a robber, and sacrificed his vile life for a band of thieves.” [[Jean le Clerc, Ars critica, part 2, sec. 2, chap. 5.16, pp. 428–29. But all this is very empty stuff, of which we may justly say,Nil intra est oleam, nil extra est in nuce duri.
Horace, Epistles 2.1.31, in Satires, Epistles, and Ars Poetica: “The olive has no hardness within, the nut has none without.”
For by one’s country is meant not a spot of ground, nor yet a set of men among whom there may be many knaves and fools, but that civil constitution which connects our happiness and safety with that of the whole state: And certainly, it is better to die than to see that society dissolved, upon which our liberty, dignity, and all our happiness depends. The prophet Jeremiah philosophizes in a very different manner from Mr. le Clerc; Jeremiah xxix. 7. “And seek the peace of the city, whither I have caused you to be carried away captive, and pray unto the Lord for it, for in the peace thereof you shall have peace.” Might not these captives have said, Why should we be more concerned about this soil than any other? Why should we pray for so many robbers, idolaters, for so many impure and wicked persons, with which this city of Babylon is filled? But God does not command them to be concerned about the Babylonian soil, nor its inhabitants, but about the republic, upon the safety of which their safety depended. “In the peace thereof shall ye have peace.”]]
[* ] And that not only internal but external, which consists in giving them certain titles, and paying them certain honours, according to the custom of the state. Thus, among the Persians the subjects were obliged to call their Kings Βασιλέαν Βασιλέων, and to salute them with this acclamation vivas aeternum, and other such like. Of other titles of honour and gestures of respect, many have treated, as Becman Notitia dignitatum, diss. 6. [[Becmann, Notitia dignitatum illustrium civilium, sacrarum, equestrium. But tho’ Sovereigns may justly require certain titles and ceremonies of honour and respect from their subjects; yet there is no reason why strangers should be forced to pay them, as the ambassadors of other princes or republics, who do their duty if they render reverence to a foreign prince according to the received manner and custom of their own nation. See Corn. Nep. Conon, cap. 3. Nepos, “Conon,” chap. 3, p. 105, in Cornelius Nepos, Cornelius Nepos.]]
[* ] This is the vice to which democracies are exceeding liable; for such governments can neither bear with vices, nor brook more eminent virtues. Hence that horrible decree of the Ephesini, on account of which Heraclitus pronounced them all worthy of dying in the prime of life. “Let none of our citizens excel others in merit; if he does, let him live elsewhere and with others.” (Diogenes Laert. 9. 2.) How many eminent men suffered at Athens by their ostracism is well known. See Corn. Nep. Themistocles, cap. 8. Aristides cap. 1. Cimon. cap. 3. and Sigonius de Republ. Atheniensium. 2. 4. [[Sigonius, De republica Atheniensium libri IV, in Jacobus Gronovius, Thesaurus Graecarum antiquitatum, vol. 5 of Attici imperii amplitudinem ac mutationes.]]
[* ] It is not therefore necessary to speak more fully of the special duties belonging to every station. Of those Pufendorff of the duties of a man and a citizen, 2. 18. 7. has treated at large, and may be consulted.
[† ] A few so surviving, Grotius, 2. 9. 4. thinks, may, as private persons, seize the dominion or property of the things which the whole people formerly possessed, but not the empire. But so long as the surviving persons have a mind to have a common supreme magistrate, and to submit themselves to his will for their common internal and external security, why does not the republic remain? Thus did the Athenian republic remain, when the people were reduced to the greatest extremity, insomuch, that all fit to bear arms being destroyed, they gave the right of citizenship to strangers, freedom to slaves, indemnity to condemned persons, and after all, that medley was scarcely able to maintain their liberty, Just. Hist. 5. 6.
[* ] Thus the Athenians, when they had got rid of the thirty tyrants, made a law that all their acts and judgments, private or public, should be null, Demost. in Timocrat. p. 782. [[Demosthenes, “Against Timocrates,” chap. 56, p. 409, in Demosthenes. The Emperor Honorius made a like constitution with relation to the deeds of the tyrant Heraclianus, l. 13. C. Theod. de infirm. quae sub tyrann. But here prudence and moderation are requisite, 1. If the obligation arise from something that hath been profitable to the people, and turned to their advantage. 2. If one chosen by the people holds the sovereignty for some time by mistake, l. 3. D. de off. praet. upon which law there is a most learned dissertation by Jac. Gothofredus, De electione magistratus inhabilis. Jacques Godefroy (Jacobus Gothofredus), 1587–1652, author of De electione magistratus inhabilis seu incapacis per errorem facta. 3. If one’s government was originally just, and he afterwards degenerates into a tyrant, to which case I refer l. 2. & 3. C. Theod. eodem, where Constantine the Great justly confirms all the lawful deeds and rescripts of Licinius.]]
[* ] Such colonies the ancient Greeks used to send. Whence in Thucydides, l. 1. p. 25. the Corcyraeans say, “They are not sent into colonies on these terms that they may be slaves, but that they may be equal to those who still remain in their native country.” To which the Corinthians answer, “We did not plant a colony of them to be affronted and despised by them, but that we might still remain their masters, and have homage paid by them to us. For the other colonies love and respect us.” [[Thucydides, History of the Peloponnesian War, vol. 1, bk. I, chap. 34, p. 61. Therefore, it was the only duty of those colonies to pay respect to their mother country, and to testify that respect by some solemnities, as the same Thucydides speaks, p. 18. ibidem, adding (as his scholiast explains it) that these honours chiefly consisted, in giving, at the public sacrifices, when they distributed the entrails, the first share to the citizens of the metropolis. Hen. Valesius not. ad Excerpta Peiresc. p. 7. has largely treated of the other honours rendered in colonies to the subjects of their ancient mother-country. Henri de Valois (Valerius) (1603–76), French scholar and editor of Polybii, Diodori Siculi, Nicolai Damasceni, Dionysii Halicar., . . . excerpta; a reference to de Valois’ edition of manuscripts acquired by his countryman Nicolas-Claude Fabri de Peiresc (1580–1673). But the customs amongst the Romans were different: For their colonies received their laws and institutions from the Romans, and did not make them themselves. See Gellius Noct. Attic. 17. Yet the Albanian colony was their own masters from the first, and not only did not pay any homage to their primitive country, but scrupled not to bring it under subjection to them; for which Metius Fufetius reproaches them in Dionys. Halicarn. Antiq. Rom. l. 3. p. 143.]]
[1 ] Ovid, Metamorphoses 15, line 28, vol. 2: “[H]is country’s laws prohibited his departure. The punishment of death was appointed to the man who should desire to change his fatherland.”
[1. ] Cicero, De inventione 2.22.66 and 2.54.163–64.
[2. ] Cicero, Topica 2.9, in Cicero, De inventione.
[3. ] Cicero, Pro Caecina, chap. 26, in Cicero, Pro lege Manilia.
[4. ] Ibid., 27.77.
[5. ] Charles Talbot, first baron Talbot of Hensol (1685–1737), lord chancellor from 1734; Philip Yorke, first earl of Hardwicke (1690–1764), succeeded Talbot as lord chancellor in 1737.
[* ] Because this study is generally supposed to belong only to those who are to follow the law as a profession, and not to make a necessary part of liberal education, I can’t choose but insert here the account that is given us of ancient education in the schools at Apollonia, to which Augustus was sent by Julius, and Maecenas by his parents. See Dion. lib. 45. p. 307. [[Dio Cassius, Dio’s Roman History, vol. IV, bk. 45, p. 413 and Velleius Paterculus, l. 2. cap. 59. with Boecler’s note upon these words,—“Apoloniam cum in studia miserat.” (edit. Petri Burmanni.) See Velleius Paterculus, Compendium of Roman History, bk. 2, chap. 59. The edition Turnbull is using appears to be C. Velleii Paterculi quae supersunt ex historiae Romanae voluminibus duobus (1719). First, it is observed, that Julius took care to have Octavius instructed in all the arts of government, and in every thing requisite to qualify him for a suitable behaviour in the exalted station for which he had designed him. Then the several particular parts of his education are mentioned, such as the languages, rhetoric, military exercises, and which was chief, morals and politics, τὰ πολιτικὰ και τὰ ἀρχικὰ and in all these useful arts it is said the youth were instructed diligently, accurately and practically, τὸ ἀκριζως, τὸ ἐῤρωμενως. Boecler refers to Lipsius, l. 1. polit. c. 10. where there are several observations on this subject. Politicorum sive civilis doctrinae libri sex. And how indeed can that but be a principal part in the education of young men, whose birth and fortune call them to the higher stations of life? What good purpose can their education serve if this be neglected? Or what is principal, if that be not, which is absolutely necessary to qualify them for their principal duties, and for the noble employments by which alone they can acquire glory to themselves, or do good to their country? Is the art of ruling, law-giving, or of discharging any important office in the state, the only one that requires no preparation for it, no previous study or practice?]]
[* ] I have said his best commentator; because he is constantly examining Grotius’s reasonings and determinations, and very rarely differs from him. And they ought to be read together, which may be easily done, Barbeyrac in his notes upon Grotius having all along mentioned the chapters in Pufendorff where each question in Grotius is handled.
[6. ] See Montaigne, Essays, vol. 1, bk. I, chap. 3, pp. 26–27.
[7. ] Pierre Charron, De la sagesse.
[8. ] Sallust, “Letter of Mithridates,” sec. 4, 433, in Sallust, Sallust.
[9. ] It is not clear which work by Tacitus Turnbull is referring to here.
[10. ] The source of this quotation is not clear.
[11. ] See Isocrates, “To Nicocles,” secs. 4–6, in Isocrates, vol. 1.
[12. ] Again, the exact source of this is not clear, though it may be a reference to Xenophon, Cyropaedia, vol. 1, bk. II, chap. ii, 20.
[13. ] Pliny, Panegyricus 45.6, in Pliny, Letters and Panegyricus, vol. 2. The phrase “& mitius jubetur exemplo” is missing in the Loeb edition.
[14. ] Arrian, The Campaigns of Alexander the Great. It is not clear which specific passage Turnbull is referring to here, but Arrian repeatedly criticized Alexander for his immoderate ambition.
[15. ] Cicero, Pro Ligario 12.37, p. 493, in Cicero, The Speeches.
[16. ] “Bravery, justice, earnestness, dignity, magnanimity, liberality, kindliness, generosity—these are the qualities we commend in a king.” Cicero, Pro rege Deiotaro 9.26, p. 525, in Cicero, Pro T. Annio Milone, . . . Pro rege Deiotaro.
[17. ] Ibid. “[I]n nothing is he more remarkable and more admirable than in his sobriety; although I know that kings are not commonly praised in such terms. . . . Everyone is free to put what construction he pleases upon my words; none the less I pronounce sobriety, by which I mean moderation and temperance, to be the highest of virtues.”
[18. ] Cicero, De legibus 3.3.8 (see Cicero. De re publica; De legibus).
[19. ] Presumably a reference to Marcus Aurelius’s Meditations, though in that case the book and chapter number are incorrect and it is not clear which passage Turnbull had in mind.
[20. ] “One who wields the sceptre with tyrannical harshness / fears those who fear him; terror rebounds on its author.” Seneca, Oedipus, line 705, in Seneca, Tragedies.
[21. ] François Fénelon, bishop of Cambrai (1651–1715).
[22. ] Fénelon, Telemachus, bk. 10, pp. 170–71.
[23. ] This is quoted in Plutarch, “How to Tell a Flatterer from a Friend,” chap. 16, sec. 58, in Moralia: in Fourteen Volumes, vol. 1.
[24. ] Presumably a reference to Fénelon’s Telemachus.
[25. ] Cicero, De officiis 1.25.85–86.
[26. ] Ibid., 2.7.23.
[1 ] Joseph Butler, sermon XIII, “Upon the Love of God,” 259, in Butler, Fifteen Sermons Preached at the Rolls Chapel.
[2 ] Locke, Some Thoughts Concerning Education, pp.142-43.
[3 ] “The Gods sell good things in exchange for toil”: Turnbull’s Greek appears not to be accurate, but this is probably a phrase attributed to Epicharmus by Xenophon in his Memorabilia 2.1.20. Xenophon, Memorabilia and Oeconomicus. We are very grateful to Dr. Antony Hatzistavrou for identifying the probable source of this quotation.
[4 ] “So if I’m to be impressed by you and not your heritage, offer me something personal, something I can inscribe in your record of achievement, apart from those titles which we gave and (continue to give) to those men to whom you owe everything” (Juvenal, Juvenal and Persius, Satire 8, lines 68–70).
[5 ] “Some may lean and hearken to our kind.” Turnbull uses a similar phrase in his Observations upon Liberal Education, 99.
[6 ] Presumably Turnbull has Thomas Hobbes in mind, since he denied that a natural sense of benevolence would allow for man’s security and happiness. See Leviathan, chap. 13.
[7 ] “I’m human, and I regard no human business as other people’s”: Terence, The Self-tormentor (Heauton timoroumenos), act 1, scene 1, line 77, in Terence, vol. 1.
[8 ] Turnbull, Principles of Moral Philosophy.
[9 ] Shaftesbury, An Enquiry Concerning Virtue or Merit , in Shaftesbury, Characteristics of Men, Manners, Opinions, Times.
[10 ] Pope, An Essay on Man, epistle IV, 56.
[11 ] Turnbull is again criticizing Hobbes and Mandeville. See, for example, Hobbes, Leviathan, chap. 13; Mandeville, “A Search into the Nature of Society,” in The Fable of the Bees, vol. I, 344, and Mandeville, “Dialogue between Horatio, Cleomenes, and Fulvia,” in The Fable of the Bees, vol. II, 132.
[12 ] “Hanging upon him by the teeth.” This phrase is derived from James Harrington’s Oceana: “To begin with riches, in regard that men are hung upon these, not of choice as upon the other [that is, authority], but of necessity and by the teeth: for as much as he who wanteth bread is his servant that will feed him, if a man thus feed an whole people, they are under his empire,” Harrington, Political Works, 163. Harrington distinguishes between “authority” and “power.” The former is based on “prudence, or the reputation of prudence.” Contrary to Hobbes, however, Harrington believes that this authority is insufficient as a basis of political power, which must rest on “riches,” in particular land ownership. See the discussion in Fukuda, Sovereignty and the Sword.
[13 ] Cicero, De officiis 2.7.23–26.
[14 ] Pope, An Essay on Man, epistle IV, 57–60.
[15 ]Auctoritas patrum is the “authority of the fathers,” verecundia plebis the “reverence of the people.” See Harrington, “The Prerogative of Popular Government,” bk. I, chap. v., p. 416, in Political Works.
[16 ] Harrington argued that political power depended on the distribution of wealth, especially landed property. See note 12, p. 583.
[17 ] Pope, Essay on Man, epistle II, 255–56.
[18 ] Ibid., III, 119–38.
[19 ] Butler, Sermon VIII, “Upon Resentment,” Fifteen Sermons, 145. There are minor discrepancies between the original text and Turnbull’s quotation.
[20 ] “Virtue clearly desires honour, and has no other reward.” Cicero De re publica, III, xxviii, 40.
[* ] Principles of moral philosophy.
[21 ] Locke, Thoughts Concerning Education, 127–34.
[22 ] Pope, An Epistle to the Right Honourable Richard Lord Viscount Cobham, 11.
[23 ] Cicero, De officiis 3.21.82. The passage is a Latin translation from Euripides’ play Phoenician Women, lines 524–25, in Euripides, vol. 5.
[24 ] Pope, An Essay on Man, epistle II, 191–202.
[25 ] Jean Domat (1625–96), Les loix civiles dans leur ordre naturel. Turnbull quotes (with near accuracy) from the English translation: The Civil Law in Its Natural Order: Together with the Publick Law, page ii (in both eds.).
[26 ] Francis Hutcheson, An Inquiry into the Original of Our Ideas of Beauty and Virtue (London, 1725; 3rd ed. 1729; 4th ed. 1738), pp.9 and 99. Turnbull spliced together two separate passages and also inserted a few words of his own. He used either the third or the fourth edition.
[27 ] In his Principles of Moral Philosophy of 1740.
[28 ] For the golden rule, see Matthew 7:12 and Luke 6:31.
[29 ] “Atque haud scio an pietate adversus deos sublata fides etiam et societas generis humani et una excellentissima virtus iustitia tollatur” (Cicero, De natura deorum, I, 4).
[30 ] This is from Cicero’s De re publica (see Cicero, De re publica, xxii, 33). Until a major part was found in 1819, this work of Cicero was known only in the form of few and brief quotations, especially by patristic authors such as Lactantius.
[31 ] See Pufendorf, Of the Law of Nature, VIII.I.I.
[32 ] “Civill, and Naturall Law are not different kinds, but different parts of Law; whereof one part being written, is called Civill, the other unwritten, Naturall” (Thomas Hobbes, Leviathan, chap. 26).
[33 ] Perhaps a reference to Cicero’s statement in De legibus that “the well-being of the people should be the supreme law” (“salus populi suprema lex esto”); see Cicero, De legibus, III, iii, 8, in De re publica; De legibus.
[34 ] The importance of children’s education for the political community was a central theme in Plato’s Republic. See in particular the passages from 376d.
[35 ] “What use are laws, vain as they are without morals?” Horace, Odes, 3.24.35–36, in Odes and Epodes.
[36 ] Isocrates, Areopagiticus, 182–83, in Isocrates, Opera omnia, vol. II, 174–91.
[37 ] This quote is in fact from Hippodamus Thurius, Peri eudaimonias: “For virtue is the highest level and the perfection in the nature of everything. The highest level and the perfection of the eye is in the nature of the eye. The highest level and the perfection in a man is in the nature of a man.” In Gale, Opuscula mythologica, physica et ethica, 660. It is also used by Turnbull in his Principles of Moral Philosophy, vol. I, 185.
[† ] [I do not see how this conclusion follows. But not to enter into so trite a dispute, it is sufficient to observe here, That by the confession of our Author, Grotius, Pufendorff, and every writer on the law of nature, these states, kingdoms or republics, which are constituted by pact, and with what is called by the civilians lex commissoria, (a peremptory condition, that in case the king act otherwise, the subjects shall not be obliged) have the power of judging when their pact is satisfied, and of taking care it be fulfilled. In such states, the sovereign and the people hold their respective rights by the same express tenure or charter. But no pact being valid that is contrary to the law of nature, the law of nature really lays this restriction upon every pact about government, that the good of the people, or the governed, shall be the supreme law, and that nothing shall be imposed upon subjects repugnant to their good, as much, as if that restriction had been expresly made in the pact, by a commissory clause. All immoral things are impossible things in the language of the doctors of laws and civilians. And therefore a pact by a people, giving power to a prince to act contrary to their happiness, or to prefer whatever he may fancy to be his private interest, to their good, is a pact originally and in itself invalid. A pact by a people, giving a prince power to rule over them, otherwise than agreeably to the law of nature, that is, the law of justice and benevolence, or in one word, the law of love, and binding themselves to obey his commands, whatever they be, is a pact a people cannot make; it is an impossible pact, because an immoral one; and therefore it can never be obligatory, but to make it is a crime; and to stand to it, is to continue, nay, to increase the guilt. It is a mutual agreement between prince and people, to put the arbitrary will of a prince in the place of the law of nature, the law of God. And if such a pact can be valid, why hath our Author so often pronounced all immoral pacts invalid? But if such a pact cannot be valid, then every pact about government, and all consent to government, express, tacite, or presumed, hath, in consequence of the immutability and eternal obligation of the law of nature, this condition contained unalterably and essentially in it, “Provided the government be agreeable to the law of nature, the law of justice and benevolence.” There is therefore, in all pacts about government, in all consent to government, this commissory article naturally and necessarily included, inasmuch, as it cannot be left out, but must be understood to be there by the law of nature itself, whether it be mentioned or not, its truth, existence, or obligation, being of the law of nature, and therefore universal and indispensable.]