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Book I - Samuel von Pufendorf, The Whole Duty of Man According to the Law of Nature 
The Whole Duty of Man According to the Law of Nature, trans. Andrew Tooke, ed. Ian Hunter and David Saunders, with Two Discourses and a Commentary by Jean Barbeyrac, trans. David Saunders (Indianapolis: Liberty Fund, 2003).
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Of Human Actions in general, the Principles of ’em, and how to be accounted for, or imputed
I.What Duty is.What we mean here by the Word Duty, is, That* Action of a Man, which is regularly order’d according to some prescrib’d Law, which he is oblig’d to obey. To the Understanding whereof it is necessary to premise somewhat, as well touching the Nature of a Human Action, as concerning Laws in general.
II.What a Human Action.By a Human Action we mean not every Motion that proceeds from the Faculties of a Man; but such only as have their Original and Direction from those Faculties which God Almighty has endow’d Mankind withal, distinct from Brutes; that is, such as are undertaken by the Light of the Understanding, and the Choice of the Will.
III.Human Capacity. Knowing and Chusing L. N. N. l. 1. c. 1. §2 c. 3. §1.For it is not only put in the Power of Man to know the various Things which appear in the World, to compare them one with another, and from thence to form to himself new Notions; but he is able to look forwards, and to consider what he is to do, and to carry himself to the Performance of it, and this to do after some certain Manner, and to some certain End; and then he can collect what will be the Consequence thereof. Beside, he can make a Judgment upon Things already done, whether they are done agreeably to their Rule. Not that all a Man’s Faculties do exert themselves continually, or after the same manner, but some of them are stir’d up in him by an internal Impulse; and when rais’d, are by the same regulated and guided. Neither beside has a Man the same Inclination to every Object; but some he Desires, and for others he has an Aversion: And often, though an Object of Action be before him, yet he suspends any Motion towards it; and when many Objects offer themselves, he chuses one and refuses the rest.
IV.Human Understanding. L. N. N. l. 1. c. 3.As for that Faculty therefore of comprehending and judging of Things, which is called the Understanding; it must be taken for granted, first of all, * That every Man of a mature Age, and entire Sense, has so much Natural Light in him, as that, with necessary Care, and due Consideration, he may rightly comprehend, at least those general Precepts and Principles which are requisite in order to pass our Lives here honestly and quietly; and be able to judge that these are congruous to the Nature of Man. For if this, at least, be not admitted within the Bounds of the Forum Humanum, [or Civil Judicature] Men might pretend an invincible Ignorance for all their Miscarriages; * because no Man in foro humano can be condemn’d for having violated a Law which it was above his Capacity to comprehend.
V.What is meant by Conscience rightly inform’d, and what by Probable Conscience. L. N. N. l. 1. c. 3. §5.The Understanding of Man, when it is rightly instructed concerning that which is to be done or omitted, and this so, as that he is able to give certain and undoubted Reasons for his Opinions, is wont to be call’d Conscience rightly inform’d: That is, govern’d by sure Principles, and settling its Resolutions conformably to the Laws. But when a Man has indeed entertain’d the true Opinion about what is to be done or not to be done, the Truth whereof yet he is not able to make good by Reasoning; but he either drew such his Notion from his Education, way of Living, Custom, or from the Authority of Persons wiser or better than himself; and no Reason appears to him that can persuade the contrary, this uses to be call’d Conscientia probabilis,Conscience grounded upon Probability. And by this the greatest part of Mankind are govern’d, it being the good Fortune of few to be able to enquire into, and to know, the Causes of Things.
VI.Conscience doubting. L. N. N. l. 1. c. 3. §8.And yet it chances often, to some Men especially in singular Cases, that Arguments may be brought on both sides, and they not be Masters of sufficient Judgment to discern clearly which are the strongest and most weighty. And this is call’d a †Doubting Conscience. In which Case this is the Rule: As long as the Understanding is unsatisfied and in doubt, whether the thing to be done be good or evil, the doing of it is to be deferr’d. For to set about doing it before the Doubt is answer’d, implies a sinful Design, or at least a Neglect of the Law.
VII.Error, vincible and invincible. L. N. N. l. 1. c. 3. §11.Men also oftentimes have wrong Apprehensions of the matter, and take that to be true which is false; and then they are said to be in an Error; and this is called Vincible Error, when a Man by applying due Attention and Diligence might have prevented his falling thereinto; and it’s said to be Invincible Error, when the Person, with the utmost Diligence and Care that is consistent with the common Rules of Life, could not have avoided it. But this sort of Error, at least, among those who give their Minds to improve the Light of Reason, and to lead their Lives regularly, happens not in the common Rules of living, but only in peculiar Matters. For the Precepts of the Law of Nature are plain; and that Legislator who makes positive Laws, both does and ought to take all possible Care, that they may be understood by those who are to give Obedience to them. So that this Sort of Error proceeds only from a supine Negligence. But in particular Affairs ’tis easie for some Error to be admitted, against the Will, and without any Fault of the Person, concerning the Object and other * Circumstances of the Action.
VIII.Of Ignorance, and the various Kinds of it. L. N. N. l. 1. c. 3. §10.Where Knowledge simply is wanting as to the Thing performed or omitted, such Defect of Knowledge is call’d Ignorance.1
This Ignorance may be two Ways consider’d, either with respect to its Origin, or with respect to its Influence on the Action. With reference to this latter, Ignorance is of two Sorts, one being the Cause of the Thing ignorantly done, the other not; on which account the first of these is call’d Efficacious Ignorance, the other Concomitant.
EFFICACIOUS Ignorance is the Want of such Knowledge as, had it not been wanting, would have hindred the Action: Such was Abimelech’s Ignorance, Gen.xx. 4, 5. who, had he known Sarah to have been Abraham’s Wife, had never entertain’d any Thoughts of taking her to himself. Concomitant Ignorance is the Want of such Knowledge, as had it not been wanting, would not have hindred the Fact: As suppose a Man should kill his Enemy by a chance Blow, whom he would otherwise have kill’d, had he known him to have been in that particular Place.
Ignorance with respect to its Origin is either Voluntary or Involuntary. Voluntary Ignorance is either contracted by mere negligence, idleness and unattention; or else affected, that is, proceeding from a direct and formal Contempt of the means of informing our selves in what we were able, and what it was our Duty to come to the knowledge of. Involuntary Ignorance consists in the want of knowing such Things, as it was neither in our Power, nor a part of our Duty to come to the knowledge of. This likewise is of two Sorts: The former is, when in doing a Thing a Man is not able to overcome the Ignorance from which it proceeds, and yet is in Fault for falling into that Ignorance; which is the Case of Drunken Men. The latter is, when a Man is not only ignorant of such Things as could not be known before the Action, but is also * free from any Blame upon the account of his falling into that Ignorance, or his continuing in it.
IX.The Will, unforced and free. L. N. N. l. 1. c. 4.The other Faculty, which does peculiarly distinguish Men from Brutes, is called the Will; by which, as with an internal Impulse, Man moves himself to Action, and chuses that which best pleases him; and rejects that which seems unfit for him. Man therefore has thus much from his Will: First, that he has a Power to act willingly, that is, he is not determin’d by any intrinsick Necessity to do this or that, but is himself the Author of his own Actions: Next, that he has a Power to act freely, that is, upon the Proposal of one Object, he may act or not act, and either entertain or reject; or if divers Objects are propos’d, he may chuse one and refuse the rest. Now whereas among human Actions some are undertaken for their own Sakes, others because they are subservient to the attaining of somewhat farther; that is, some are as the End, and others as Means: As for the End, the Will is thus far concern’d, That being once known, this first approves it, and then moves vigorously towards the achieving thereof, as it were, driving at it with more or less earnestness; and this End once obtain’d, it sits down quietly and enjoys its Acquist with Pleasure. For the Means, they are first to be approv’d, then such as are most fit for the Purpose are chosen, and at last are apply’d to Use.
X.The Will spontaneous chargeable with the Action. L. N. N. l. 1. c. 4. §2.But as Man is accounted to be the Author of his own Actions, because they are voluntarily undertaken by himself: So this is chiefly to be observ’d concerning the Will, to wit, that its Spontaneity, or natural Freedom, is at least to be asserted in those Actions, concerning which a Man is wont to give an Account before any human Tribunal. For where an absolute Freedom of choice is wholly taken away, there not the Man who acts, but he that imposed upon him the Necessity of so doing, is to be reputed the Author of that Action, to which the other unwillingly ministred with his Strength and Limbs.
XI.The Will variously affected. L. N. N. l. 1. c. 4. §4.Farthermore, though the Will do always desire Good in general, and has continually an aversion for Evil also in general; yet a great Variety of Desires and Actions may be found among Men. And this arises from hence, that all Things that are Good and Evil do not appear purely so to Man, but mixt together, the good with the bad, and the bad with the good; and because different Objects do particularly affect divers Parts, as it were, of a Man; for instance, some regard that good Opinion and Respect that a Man has for himself; some affect the outward Senses; and some that Love of himself, from which he desires his own Preservation. From whence it is, that those of the first Sort appear to him as reputable; of the second as pleasant; and of the last as profitable: And accordingly as each of these have made a powerful Impression upon a Man, it brings upon him a peculiar Propensity towards that way; whereto may be added the particular Inclinations and Aversions that are in most Men to some certain Things. From all which it comes to pass, that upon any Action several Sorts of Good and Evil offer themselves, which either are true or appear so; which some have more, some less Sagacity to distinguish with solidity of Judgment. So that ’tis no wonder that one Man should be carried eagerly on to that which another perfectly abhors.
XII.The Will byass’d by Natural Inclinations. L. N. N. l. 1. c. 4. §5.But neither is the Will of Man always found to stand equally poised with regard to every Action, that so the Inclination thereof to this or that Side should come only from an Internal Impulse, after a due Consideration had of all its Circumstances; but it is very often pusht on one way rather than another by some outward Movements. For, that we may pass by that universal Propensity to Evil, which is in all Mortals (the Original and Nature of which belong to the Examination of another *Forum;) first, a peculiar Disposition of Nature puts a particular kind of byass upon the Will, by which some are strongly inclin’d to certain sorts of Actions; and this is not only to be found in single Men, but in whole Nations. This seems to proceed from the Temperature of the Air that surrounds us, and of the Soil; and from that Constitution of our Bodies which either was deriv’d to us in the Seed of our Parents, or was occasion’d in us by our Age, Diet, the want or enjoyment of Health, the Method of our Studies, or way of Living, and Causes of that sort; beside the various formations of the Organs, which the Mind makes use of in the Performance of its several Offices, and the like. And here, beside that a Man may with due Care very much alter the Temperament of his Body, and repress the Exorbitances of his natural Inclination, it is to be noted, that how much Power soever we attribute hereto, yet it is not to be understood to be of that Force as to hurry a Man into such a Violation of the Law of Nature, as shall render him obnoxious to the Civil Judicature, where evil Desires are not animadverted on, † provided they break not forth into external Actions. So that after all the Pains that can be taken to repel Nature, if it takes its full Swinge, yet it may so far be restrain’d as not to produce open Acts of Wickedness; and the Difficulty which happens in vanquishing these Propensities is abundantly recompens’d in the Glory of the Conquest. But if these Impulses are so strong upon the Mind, that they cannot be contain’d from breaking forth, yet there may be found a Way, as it were to draw them off, without Sin.
XIII.By Custom or Habitude. L. N. N. l. 1. c. 4. §6.The frequent Repetition of Actions of the same kind does also incline the Will to do certain Things; and the Propensity which proceeds from hence is called Habit or Custom; for it is by this that any Thing is undertaken readily and willingly; so that the Object being presented, the Mind seems to be forced thitherward, or if it be absent, the same is earnestly desirous of it. Concerning which this is to be observ’d, That as there appears to be no Custom, but what a Man may, by applying a due Care, break and leave off; so neither can any so far put a force upon the Will, but that a Man may be able at any Time to restrain himself from any external Acts at least, to which by that he is urged. And because it was in the Persons own Power to have contracted this Habit or not, whatsoever easiness it brings to any Action, yet if that Action be good, it loses nothing of its Value therefore, as neither doth an evil Thing abate ought of its Pravity. But as a good Habit brings Praise to a Man, so an ill one shews his Shame.
XIV.By Passion. L. N. N. l. 1. c. 4. §7.It is also of great Consideration, whether the Mind be in a quiet and placid State, or whether it be affected with those peculiar Motions we call the Passions. Of these it is to be known, that how violent soever they are, a Man with the right Use of his Reason may yet conquer them, or at least contain them so far within Bounds, as to hinder them from producing those Actions they prompt Men to do. * But whereas of the Passions some are rais’d from the Appearance of Good, and others of Evil; and do urge either to the procuring of somewhat that is acceptable, or to the avoiding of what is mischievous, it is agreeable to Human Nature, that these should meet among Men more favour and pardon, than those; and that according to such degrees as the Mischief that excited them was more hurtful and intolerable. For to want a Good not altogether necessary to the Preservation of Nature is accounted more easie, than to endure an Evil which tends to Nature’s Destruction.
XV.By intoxication. L. N. N. l. 1. c. 4. §8.Farthermore, as there are * certain Maladies, which take away all Use of the Reason either perpetually or for a time: So ’tis customary in many Countries, for Men on purpose to procure to themselves a certain kind of Disease which goes off in a short time, but which very much confounds the Reasoning Faculty. By this we mean Drunkenness; proceeding from certain kinds of Drink, and Fumes, which hurry and disturb the Blood and Spirits, thereby rendring Men very prone to Lust, Anger, Rashness and immoderate Mirth; so that many by Drunkenness are set as it were beside themselves, and seem to have put on another Nature, than that which they were of, when sober. But as this does not always take away the whole Use of Reason; so, as far as the Person does willingly put himself in this State, it is apt to procure an Abhorrence rather than a favourable Interpretation of what is done by its Impulse.
XVI.Actions Involuntary, mixt. L. N. N. l. 1. c. 4. §11.Now of Human Actions, as those are call’d Voluntary, which proceed from, and are directed by the Will; so if any thing be done wittingly, altogether against the Will, these are call’d Involuntary, taking the Word in the narrowest sense; for taking it in the largest, it comprehends even those which are done through Ignorance. But Involuntary in this place is to signifie the same as forc’d; that is, when by an external Power which is stronger, a Man is compell’d to use his Members in any Action, to which he yet signifies his Dissent and Aversion by Signs, and particularly by counterstriving with his Body. Less properly those Actions are also called Involuntary, which by the Imposition of a great Necessity are chosen to be done, as the lesser Evil; and for the Acting whereof the Person had the greatest Abomination, had he not been set under such Necessity. These Actions therefore are call’d Mixt. With Voluntary Actions they have this in common, that in the present State of Things the Will chuses them as the lesser Evil. With the Involuntary they are after a sort the same, as to the Effect, because they render the Agent either not at all, or not so heinously blameable, as if they had been done spontaneously.
XVII.Voluntary Actions imputable. L. N. N. l. 1. c. 5. §5.Those Human Actions then which proceed from, and are directed by the Understanding and the Will, have particularly this natural Propriety, * that they may be imputed to the Doer; that is, that a Man may justly be said to be the Author of them, and be oblig’d to render an Account of such his Doing; and the Consequences thereof, whether good or bad, are chargeable upon him. For there can be no truer Reason why any Action should be imputable to a Man, than that he did it either mediately or immediately knowingly and willingly; or that it was in his Power to have done the same or to have let it alone. Hence it obtains as the prime Axiom in Matters of Morality which are liable to the Human Forum: That every Man is accountable for all such Actions, the Performance or Omission of which were in his own Choice. Or, which is tantamount, That every Action that lies within a Man’s Power to perform or omit, is chargeable upon him who might or might not have done it. So on the contrary, no Man can be reputed the Author of that Action, which neither in it self nor in its cause, was in his Power.
XVIII.Conclusions from the Premisses.From these Premisses we shall deduce some particular Propositions, by which shall be ascertain’d, what every Man ought to be accountable for; or, in other Words, which are those Actions and Consequences of which any one is to be charged as Author.
The first Conclusion. L. N. N. l. 1. c. 5. §6.None of those Actions which are done by another Man, nor any Operation of whatsoever other things; neither any Accident, can be imputable to any Person, but so far forth as it was in his Power, or as he was oblig’d to guide such Action. For nothing is more common in the World, than to subject the Doings of one Man to the Manage and Direction of another. Here then, if any thing be perpetrated by one, which had not been done, if the other had performed his Duty and exerted his Power; this Action shall not only be chargeable upon him who immediately did the Fact, but upon the other also who neglected to make use of his Authority and Power. And yet this is to be understood with some restriction; so as that Possibility may be taken morally, and in a large Sense. For no Subjection can be so strict, as to extinguish all manner of Liberty in the Person subjected; but so, that ’twill be in his Power to resist and act quite contrary to the Direction of his Superior; neither will the State of Human Nature bear, that any one should be perpetually affix’d to the side of another, so as to observe all his Motions. Therefore when a Superiour has done every thing that was requir’d by the Rules of his Directorship, and yet somewhat is acted amiss, this shall be laid only to the charge of him that did it. Thus, whereas Man exercises Dominion over other Animals, what is done by them to the detriment of another, shall be charged upon the Owner, as supposing him to have been wanting of due Care and Circumspection. So also all those Mischiefs which are brought upon another, may be imputed to that Person, who when he could and ought, yet did not take out of the way the Cause and Occasion thereof. Accordingly it being in the Power of Men to promote or suspend the Operations of many Natural Agents, whatsoever Advantage or Damage is wrought by these, they shall be accountable for, by whose application or neglect the same was occasion’d. Beside, sometimes there are extraordinary Cases, when a Man shall be charged with such Events as are above human Direction, as when God shall do particular Works with regard to some single Person. [So the Pestilence in Israel may be charg’d upon David for numbring the People; 2 Sam. xxiv. or the three Year’s Drought to the Prayers of Elijah, 1 Kings xvii. and the like.] These and such Cases being excepted, no Man is responsible but for his own Actions.
XIX. The second Conclusion. L. N. N. l. 1. c. 5. §7.WHATSOEVER Qualifications a Man has or has not, which it is not in his Power to exert or not to exert, must not be imputed to him, unless so far as he is wanting in Industry to supply such Natural Defect, or does not rouse up his native Faculties. So, because no man can give himself an Acuteness of Judgment and Strength of Body; therefore no one is to be blam’d for Want of either, or commended for having them, except so far as he improv’d, or neglected the cultivating thereof. Thus Clownishness is not blameable in a Rustic, but in a Courtier or Citizen. And hence it is, that those Reproaches are to be judg’d extremely absurd, which are grounded upon Qualities, the Causes of which are not in our Power, as, Short Stature, a deform’d Countenance, and the like.
XX.The Third Conclusion. L. N. N. l. 1. c. 5. §10.Farther, We are not chargeable for those Things, which we do thro’ Invincible Ignorance. Because we have nothing but the Light of our Understanding to direct our Actions by; and in this case it is supposed that the Agent neither had, nor possibly could have, this Light for his Direction at that time, and that it was not his own Fault that made it not possible for him then to come at proper Knowledge. When we say not possible for him to know, we must be understood in a Moral not a Physical Sense; that is, it was not possible to come to this Knowledge by the usual and common Means, by using his best Care and Attention, and by giving such Diligence, Precaution, and Circumspection, as in all reason may be thought sufficient for the attaining such Knowledge.
XXI.The fourth Conclusion.Ignorance of a Man’s Duty, or of those Laws from whence his Duty arises, or Error about either of them, does not excuse from blame. For whosoever imposes Laws and Services, is wont and ought to take care that the Subject have notice thereof. And these Laws and Rules of Duty generally are and should be order’d to the Capacity of such Subject, if they are such as he is obliged to know and remember. Hence, he who is the Cause of the Ignorance shall be bound to answer for those Actions which are the Effects thereof.
XXII.The fifth Conclusion.He who, not by his own fault, wants an Opportunity of doing his Duty, shall not be accountable, because he has not done it. An Opportunity of doing our Duty comprehends these four requisite Conditions: 1. That an Object of Action be ready: 2. That a proper Place be had, where we may not be hindred by others, nor receive any Mischief: 3. That we have a fit Time, when Business of greater Necessity is not to be done, and which is equally seasonable for those Persons who are to concur with us in the Action: and 4. Lastly, That we have natural Force sufficient for the performancer. For since an Action cannot be atchiev’d without these, ’twould be absurd to blame a Man for not acting, when he had not an Opportunity so to do. Thus, a Physician cannot be accus’d of Sloth, when no body is sick to employ him. Thus, no Man can be liberal, who wants himself. Thus he cannot be reprov’d for burying his Talent who having taken a due care to set himself in an useful Station, has yet miss’d of it: tho’ it be said, *To whom much is given, from him much shall be requir’d.† Thus we cannot blow and suck all at once.
XXIII.The sixth Conclusion. L. N. N. l. 1. c. 5. §8.No Man is accountable for not doing that which exceeded his Power, and which he had not Strength sufficient to hinder or accomplish. Hence that Maxim, To Impossibilities there lies no Obligation. But this Exception must be added, Provided, that by the Person’s own Fault he has not impaired, or lost that Strength which was necessary to the Performance; for if so, he is to be treated after the same manner, as if he had all that Power which he might have had: Otherwise it would be easie to elude the Performance of any difficult Obligation, by weakening one’s self on purpose.
XXIV.The seventh Conclusion. L. N. N. l. 1. c. 5. §9.Neither can those things be imputable, which one acts or suffers by Compulsion. For it is supposed, that ’twas above his power to decline or avoid such doing or suffering. But we are said after a twofold manner to be compell’d; one way is, when another that’s stronger than us violently forces our Members to do or endure somewhat; the other, ‡ when one more powerful shall threaten some grievous Mischief (which he is immediately able to bring upon us) unless we will, as of our own accord, apply our selves to the doing of this, or abstain from doing that. For in these cases unless we are expressly obliged to take the Mischief to our selves which was to be done to another, he that sets us under this Necessity, is to be reputed the Author of the Fact; and the same is no more chargeable upon us, than a Murder is upon the Sword or Ax which was the Instrument.
XXV.The eighth Conclusion.The Actions of those who want the Use of their Reason are not imputable; because they cannot distinguish clearly what they do, and bring it to the Rule. Hitherto appertain the Actions of Children, before their reasoning Faculties begin to exert themselves. For though they are now and then chid or whipt for what they do; yet it is not from hence to be concluded, that their Actions are really Crimes, or that in strictness they deserve this punishment for them; which they receive not as from Justice, but in Prudence to prevent their growing troublesome to others, and lest they contract ill Habits in themselves when they are little, and so keep them when they are grown up. So also the Doings of Franticks, Crackbrains, and Dotards are not accounted Human Actions, nor imputable to those who contracted such incapacitating Disease, without any fault of their own.
XXVI.The ninth Conclusion. L. N. N. l. 1. c. 5 §11.Lastly, A Man is not chargeable with what he seems to do in his Dreams; unless by indulging himself in the Day-time with idle Thoughts, he has deeply impressed the Ideas of such Things in his Mind; (tho’ Matters of this Sort can rarely be within the Cognizance of the Human Forum.) For indeed the Fansie in Sleep is like a Boat adrift without a Guide; so that ’tis impossible for any Man to order what Ideas it shall form.
L. N. N. l. 1. c. 5. §14.XXVII. Imputation of another’s Actions. L. N. N. l. 1. c. 5. §14.But concerning the Imputation of another Man’s Actions, it is somewhat more distinctly to be observ’d, that sometimes it may so happen, that an Action ought not at all to be charged upon him that immediately did it, but upon another who made use of this only as an Instrument. But it is more frequent, that it should be imputed both to him who perpetrated the thing, and to the other, who by doing or omitting something, shew’d his concurrence to the Action. And this is chiefly done after a threefold manner; either, 1. As the other was the principal Cause of the Action, and this less principal. Or, 2. As they were both equally concern’d. Or, 3. As the other was less principal, and he that did the Act was principal. To the first Sort belong those who shall instigate another to any thing by their Authority; those who shall give their necessary Approbation, without which the other could not have acted; those who could and ought to have hindred it, but did not. To the second Class appertain, those who order such a thing to be done, or hire a Man to do it; those who assist; those who afford harbour and protection; those who had it in their Power, and whose Duty it was to have succour’d the wronged Person, but refus’d it. To the third Sort are refer’d such as are of *counsel to the Design; † those that encourage and commend the Fact before it be done; and such as incite Men to sinning by their Example, and the like.
Of the Rule of Human Actions, or of Laws in general; and the different Qualifications of those Actions
I.The Necessity of a Rule.Because all Human Actions depending upon the Will, have their Estimate according to the concurrence thereof; but the Will of every Person not only differs in many respects from that of all others, but also alters and changes it self, becoming different in the same Person at one time from what it was before at another; therefore to preserve Decency and Order among Mankind,L. N. N. l. 2. c. 1. it was necessary there should be some Rule, by which they should be regulated. For otherwise, if, where there is so great a Liberty of the Will, and such Variety of Inclinations and Desires, any Man might do whatsoever he had a mind to, without any regard to some stated Rule, it could not but give occasion to vast Confusions among Mankind.
II.Law, defined. L. N. N. l. 1. c. 6. §4.This Rule is call’d Law; which is, *A Decree by which the Superior obliges one that is subject to him, to accommodate his Actions to the Directions prescrib’d therein.2
III.Obligation. L. N. N. l. 1. c. 6. §5.That this Definition may the better be understood, it must first be enquired, What is an Obligation; whence is its Original; who is capable of lying under an Obligation; and who it is that can impose it. By Obligation then is usually meant, A moral Bond, whereby we are ty’d down to do this or that, or to abstain from doing them.3 That is, hereby a kind of a Moral Bridle is put upon our Liberty; so that though the Will does actually drive another way, yet we find our selves hereby struck as it were with an internal Sense, that if our Action be not perform’d according to the prescript Rule, we cannot but confess we have not done right; and if any Mischief happen to us upon that Account, we may fairly charge our selves with the same; because it might have been avoided, if the Rule had been follow’d as it ought.
IV.Man capable of being obliged. L. N. N. l. 1. c. 6. §6.And there are two Reasons why Man should be subject to an Obligation; one is, because he is endow’d with a Will, which may be divers ways directed, and so be conform’d to a Rule: the other, because Man is not exempt from the Power of a Superior. For where the Faculties of any Agent are by Nature form’d only for one Way of acting, there ’tis to no purpose to expect any thing to be done of choice: and to such a Creature ’tis in vain to prescribe any Rule; because ’tis uncapable of understanding the same, or conforming its Actions thereto. Again, if there be any one who has no Superior, then there is no Power that can of right impose a Necessity upon him; and if he perpetually observes a certain Rule in what he does, and constantly abstains from doing many things, he is not to be understood to act thus from any Obligation that lies upon him, but from his own good pleasure. It will follow then, for any one to be capable of lying under Obligation, it is necessary, that on the one hand he have a Superior, and on the other, that he be both capable of understanding the Rule prescrib’d him by his Superior, and also endu’d with a Will which may be directed several ways; and yet which (when the Law is promulged by his Superior) knows he cannot rightly depart therefrom. And with all these Faculties, ’tis plain, Mankind is furnish’d.
V.Who can oblige. L. N. N. l. 1. c. 6. §9.An Obligation is superinduced upon the Will of Men properly by a Superior; that is, not only by such a one as being greater or stronger, can punish Gainsayers: but by him who has just Reasons to have a Power to restrain the Liberty of our Will at his own Pleasure.4 Now when any man has either of these, as soon as he has signify’d what he would have, it necessarily stirs up, in the Mind of the party concern’d, Fear mixt with Reverence; the first arises from the consideration of his Power, the5 other proceeds from those Reasons on which the Authority of our Superior is founded; by which we are convinced, that had we nothing to fear from him, yet we ought to conform our Actions to his Will. For he that can give me no other Reason for putting me under an Obligation against my Will, beside this, that he’s too strong for me, he truly may so terrifie me, that I may think it better to obey him for a while than suffer a greater Evil: but when this Fear is over, nothing any longer hinders, but that I may act after my own Choice and not his. On the contrary, he that has nothing but Arguments to prove that I should obey him, but wants Power to do me any Mischief, if I deny: I may with Impunity slight his Commands, except one more potent take upon him to make good his despis’d Authority. Now the Reasons upon which one Man may justly exact Subjection from another, are two: 6 First, if he have been to the other the Original of some extraordinary Good; and if it be plain, that he designs the others Welfare, and is able to provide better for him than ’tis possible for himself to do; and on the same Account does actually lay claim to the Government of him: Secondly, if any one does voluntarily surrender his Liberty to another, and subject himself to his Direction.
VI.The Legislator and the true meaning of the Law to be known. L. N. N. l. 1. c. 6. §14.Farthermore, that a Law may exert its Force in the Minds of those to whom it is promulged, it is requir’d, that both the Legislator and the Law also be known. For no Man can pay Obedience, if he know not whom he is to obey, and what he is to perform. Now the Knowledge of the Legislator is very easy; because from the Light of Reason ’tis certain the same must be the Author of all the Laws of Nature, who was the Creator of the Universe: Nor can any Man in Civil Society be ignorant who it is that has Power over him.7 Then for the Laws of Nature, it shall be hereafter declar’d how we come to the Knowledge of them. And as to the Laws of a Man’s Country or City, the Subject has notice given of them by a Publication plainly and openly made. In which these two Things ought to be ascertain’d, that the Author of the Law is he, who hath the Supreme Authority in the Community; and that this or that is the true Meaning of the Law. The First of these is known, if he shall promulge the Law with his own Mouth, or deliver it under his own Hand; or else if the same be done by such as are delegated to that purpose by him, whose Authority there is no Reason to call in question, if it be manifest, that such their acting belongs to that Office they bear in the Publick, and that they are regularly placed in the Administration thereof; if these Laws are brought in use at judicial Proceedings, and if they contain nothing derogatory to the Sovereign’s Power. That the Latter, that is, the true Sense of the Law may be known, it is the Duty of those who promulge it, in so doing to use the greatest Perspicuity and Plainness; and if any thing obscure do occur therein, an Explanation is to be sought of the Legislator, or of those who are publickly constituted to give judgment according to the Laws.
VII.Two parts of a perfect Law. L. N. N. l. 1. c. 6. §14.Of every perfect Law there are two Parts: One, [Precept] whereby it is directed what is to be done or omitted: the other, [the Sanction] wherein is declared what Punishment he shall incur, who neglects to do what is commanded, or attempts that which is prohibited. For as through the Pravity of Human Nature ever inclining to things forbidden, it is to no purpose to say, Do this, if no Punishment shall be undergone by him who disobeys; so it were absurd to say, You shall be punish’d, except some Cause preceeded, by which a Punishment was deserv’d. Thus then all the force of a Law consists in signifying what the Superior requires or forbids to be done, and what Punishment shall be inflicted upon the Violators. But the Power of obliging, that is, of imposing an intrinsick Necessity; and the Power of forcing, or, by the proposal of Punishments compelling the Observation of Laws, is properly in the Legislator, and in him to whom the Guardianship and Execution of the Laws is committed.
VIII.It ought to command things possible and beneficial.Whatsoever is enjoyn’d by any Law, ought not only to be in the Power of him to perform on whom the Injunction is laid, but it ought to contain somewhat advantagious either to him or others. For as it would be absurd and cruel to exact the doing of any thing from another, under a Penalty, which it is and always was beyond his Power to perform; so it would be silly and to no purpose to put a Restraint upon the natural Liberty of the Will of any man, if no one shall receive any Benefit therefrom.
IX.Power of Dispensing. L. N. N. l. 1. c. 6 §17.But though a Law does strictly include all the Subjects of the Legislator who are concern’d in the Matter of the same, and whom the same Legislator at first intended not to be exempted: yet sometimes it happens that particular persons may be clear’d of any obligation to such Law: and this is call’d Dispensing. But as he only may dispense, in whose Power it is to make and abrogate the Law; * so great Care is to be taken, lest by too frequent Dispensations, and such as are granted without very weighty Reasons, the Authority of the Law be shaken, and occasion be given of Envy and Animosities among Subjects.
X.Equity. L. N. N. l. 5. c. 2. §21.Yet there is a great Difference between Equity and Dispensing: Equity being a Correction of that in which the Law, by reason of its General Comprehension, was deficient: or an apt Interpretation of the Law, by which it is demonstrated, that there may be some peculiar Case which is not compriz’d in the Universal Law, because if it were, some Absurdity would follow. For it being impossible that all Cases, by Reason of their infinite Variety, should be either foreseen or explicitly provided for; therefore the Judges, whose Office it is to apply the general Rules of the Laws to special Cases, ought to except such from the Influence of them, * as the Lawgiver himself would have excepted if he were present, or had foreseen such Cases.
XI.Actions allowable, good and bad. L. N. N. l. 1. c. 7. §1.Now the Actions of Men obtain certain Qualities and Denominations from their relation to and agreement with the Law of Morality. And all those Actions, concerning which the Law has determin’d nothing on either side, are call’d allowable, [indifferent] or permitted. Here we may observe, that in Civil Life, where it is impossible to come to perfect Exactness in all points, even † those things are said to be allowable, upon which the Law has not assign’d some Punishment, though they are in themselves repugnant to Natural Honesty. We call those Actions which are consonant to the Law good, and those that are contrary to it bad: But that any Action should be good, ’tis requisite, that it be exactly agreeable in every ‡ point to the Law; whereas it may be evil if it be deficient in one Point only.
XII.Justice of Persons. L. N. N. l. 1. c. 7. §6.As for Justice, it is sometimes the Attribute of Actions, sometimes of Persons. When it is attributed to Persons, ’tis usually defin’d to be, A constant and perpetual Desire of giving every one their own.8 For he is called a just Man, who is delighted in doing righteous Things, who studies Justice, and in all his Actions endeavours to do that which is right. On the other side, the unjust Man is he that neglects the giving every Man his own, or, if he does, ’tis not because ’tis due, but from expectation of Advantage to himself. So that a just Man may sometimes do unjust Things, and an unjust Man that which is just. But the Just does that which is right, because he is so commanded by the Law; and never commits any unjust Acts but only through Infirmity; whereas the wicked Man does a just Thing for fear of the Punishment which is the Sanction of the Command, but such unjust Acts as he commits proceed from the Naughtiness of his Heart.
XIII.Of Actions. L. N. N. l. 1. c. 7. §7.But the Justice of Actions not only consists in their due Conformity to Law, but it includes in it likewise a right Application of them to those Persons to whom the Action is perform’d: So that we apprehend that Action to be just, which, with full Design and Intention, is apply’d to the Person to whom it is due. Herein therefore, the Justice of Actions differs from their Goodness chiefly, that the latter simply denotes an Agreement with the Law; whereas Justice also includes the Regard they have to those *Persons upon whom they are exercised. Upon which Account Justice is call’d a Relative Virtue.
XIV.Division of Justice. L. N. N. l. 1. c. 7. §8.Men do not generally agree about the Division of Justice. The most receiv’d Distinction is, into Universal and Particular. The first is, when every Duty is practised and all right done to others, * even that which could not have been extorted by Force, or by the Rigor of Law. The latter is, when that Justice only is done a Man, which in his own right he could have demanded; and this is wont to be again divided into †Distributive and Commutative. The Distributive takes place in Contracts made between Partners in Fellowship, concerning fair Partition of Loss and Gain according to a rate. * The Commutative is mostly in Bargains made upon even hand about Things and Doings relating to Traffick and Dealing.
XV.Injustice what. L. N. N. l. 1. c. 7. §14.Knowing thus, what Justice is, ’tis easie to collect what is Injustice. Where it is to be observ’d, that such an unjust Action is call’d Wrong-doing, which is premeditately undertaken, and by which a Violence is done upon somewhat which of absolute Right was another Man’s due, or, which by like Right he one way or other stood possess’d of. And this Wrong may be done after a threefold Manner: 1. If that be deny’d to another which in his own right he might demand (not accounting that which from Courtesie or the like Virtue may be another’s due): Or, 2. If that be taken away from another, of which by the same right, then valid against the Invader, he was in full possession: Or, 3. If any Damage be done to another, which we had not Authority to do to him. Beside which, that a Man may be charged with Injustice, it is requisite that there be a naughty Mind and an evil Design in him that acts it. For if there be nothing of these in it, then ’tis only call’d Misfortune, or an Error; and that is so much slighter or more grievous, as the Sloth and Negligence which occasion’d it was greater or less.
XVI.Laws distinguisht. Natural and Positive L. N. N. l. 1. c. 6. §18.Laws, with respect to their Authors, are distinguished into Divine and Humane; that proceeds from God, and this from Men. But if Laws be considered, as they have a necessary and universal Congruity with Mankind, they are then distinguisht into Natural and Positive.*Natural Law is that which is so agreeable with the rational and sociable Nature of Man, that honest and peaceable Society could not be kept up amongst Mankind without it, Hence it is, that this may be sought out, and the knowledge of it acquired by the light of that Reason, which is born with every Man, and by a consideration of Human Nature in general. Positive Law is that which takes not its rise from the common condition of Human Nature, but only from the good pleasure of the Legislator: This likewise ought to have its Foundation in Reason, and its End ought to be some Advantage to those Men, or that Society, for which it is designed. Now the Law Divine, is either Natural or Positive; but all Human Laws, strictly taken, are Positive.
Of the Law of Nature in general
I.Law Natural obvious. L. N. N. l. 2. c. 3.That Man, who has thoroughly examined the Nature and Disposition of Mankind, may plainly understand what the Law Natural is, the Necessity thereof, and which are the Precepts it proposes and enjoyns to Mankind. For, as it much conduces to him who would know exactly the Polity of any Community, that he first well understand the Condition thereof, and the Manners and Humours of the Members who constitute it: So to him who has well studied the common Nature and Condition of Man, it will be easie to discover those Laws which are necessary for the Safety and common Benefit of Mankind.
II.Self Preservation.This then Man has in common with all the Animals, who have a Sense of their own Beings; that he accounts nothing dearer than Himself; that he studies all manner of ways his own Preservation; and that he endeavours to procure to himself such things as seem good for him, and to avoid and keep off those that are mischievous. And this Desire of Self-Preservation regularly is so strong, that all our other Appetites and Passions give way to it. So that whensoever an Attempt is made upon the Life of any man, though he escape the danger threatned, yet he usually resents it so, as to retain a Hatred still, and a desire of Revenge on the Aggressor.
III.Society absolutely necessary. L. N. N. l. 2. c. 1. §8.But in one particular, Man seems to be set in a worse condition than that of Brutes, that hardly any other Animal comes into the world in so great weakness; so that ’twould be a kind of Miracle, if any man should arrive at a mature Age, without the aid of some body else. For even now, after so many helps found out for the Necessities of Human Life; yet a many Years careful Study is required before a Man shall be able of himself to get Food and Raiment.* Let us suppose a Man come to his full Strength without any oversight or instruction from other Men; suppose him to have no manner of Knowledge but what springs of it self from his own natural Wit; and thus to be placed in some Solitude, destitute of any Help or Society of all Mankind beside. Certainly a more miserable Creature cannot be imagined. He is no better than dumb, naked, and has nothing left him but Herbs and Roots to pluck, and the wild Fruits to gather; to quench his thirst at the next Spring, River, or Ditch; and to shelter himself from the Injuries of the Weather, by creeping into some Cave, or covering himself after any sort with Moss or Grass; to pass away his tedious life in Idleness; to start at every Noise, and be afraid at the sight of any other Animal; in a Word, at last to perish either by Hunger, or Cold, or some wild Beast. It must then follow, that whatsoever Advantages accompany Human Life, are all owing to that mutual Help Men afford one another. So that, next to Divine Providence, there is nothing in the world more beneficial to Mankind than Men themselves.
IV.Men to Men inclinable to do hurt. L. N. N. l. 2. c. 1. §6. l. 7. c. 1. §4.And yet, as useful as this Creature is, or may be, to others of its kind, it has many Faults, and is capable of being equally noxious; which renders mutual Society between Man and Man not a little dangerous, and makes great Caution necessary to be used therein, lest Mischief accrue from it instead of Good. In the first place, a stronger Proclivity to injure another is observ’d to be generally in Man, than in any of the Brutes; for they seldom grow outragious, but through Hunger or Lust, both which Appetites are satisfi’d without much Pains; and that done, they are not apt to grow furious, or to hurt their Fellow-Creatures, without some Provocation. Whereas Man is an Animal always prone to Lust, by which he is much more frequently instigated, than seems to be necessary to the Conservation of his Kind. His Stomach also is not only to be satisfied, but to be pleased; and it often desires more than Nature can well digest. As for Raiment, Nature has taken Care of the rest of the Creatures that they don’t want any: But Men require not only such as will answer their Necessity, but their Pride and Ostentation. Beside these, there are many Passions and Appetites unknown to the Brutes, which are yet to be found in Mankind; as, an unreasonable Desire of possessing much more than is necessary, an earnest pursuit after Glory and Pre-eminence; Envy, Emulation, and Outvyings of Wit. A Proof hereof is, that most of the Wars with which Mankind is harrass’d, are rais’d for Causes altogether unknown to the Brutes. Now all these are able to provoke Men to hurt one another, and they frequently do so. Hereto may be added the great Arrogance that is in many Men, and Desire of insulting over others, which cannot but exasperate even those who are naturally meek enough; and from a Care of preserving themselves and their Liberty, excite them to make Resistance. Sometimes also Want sets Men together by the Ears,9 or because that Store of Necessaries which they have at present seems not sufficient for their Needs or Appetites.
V.And very capable of it.Moreover, Men are more able to do one another Harm than Brutes are. For tho’ they don’t look formidable with Teeth, Claws, or Horns, as many of them do; yet the Activity of their Hands renders them very effectual Instruments of Mischief; and then the Quickness of their Wit gives them Craft, and a Capacity of attempting that by Treachery which cannot be done by open Force. So that ’tis very easie for one Man to bring upon another the greatest of all Natural Evils, to wit, Death itself.
VI.And likely so to do. L. N. N. l. 2. c. 1. §7.Beside all this, it is to be consider’d, that among Men there is a vast Diversity of Dispositions, which is not to be found among Brutes; for among Brutes, all of the same Kind have the like Inclinations, and are led by the same inward Motions and Appetites: Whereas among Men, there are so many Minds as there are Heads, and every one has his singular Opinion; nor are they all acted with simple and uniform Desires, but with such as are manifold and variously mixt together. Nay, one and the same Man shall be often seen to differ from himself, and to desire that at one Time which at another he extremely abhorred. Nor is the Variety less discernable, which is now to be found in the almost infinite Ways of living, of directing our Studies, or Course of Life, and our Methods of making use of our Wits. Now, that by Occasion hereof Men may not dash against one another, there is need of wise Limitations and careful Management.
VII.The Sum of the foregoing Paragraphs.So then Man is an Animal very desirous of his own Preservation; of himself liable to many Wants; unable to Support himself without the Help of other of his Kind; and yet wonderfully fit in Society to promote a common Good: But then he is malicious, insolent, and easily provok’d, and not less prone to do Mischief to his Fellow than he is capable of effecting it. Whence this must be inferr’d, that in order to his Preservation, ’tis absolutely necessary, that he be sociable,10 that is, that he join with those of his Kind, and that he so behave himself towards them, that they may have no justifiable Cause to do him Harm, but rather to promote and secure to him all his Interests.
VIII.Law Natural defin’d.The Rules then of this Fellowship, which are the Laws of Human Society, whereby Men are directed how to render themselves useful Members thereof, and without which it falls to pieces, are called the Laws of Nature.
IX.The Means design’d where the End is so. L. N. N. l. 2. c. 3. §15.From What has been said, it appears, that this is a11fundamental Law of Nature, That every man ought, as much as in him lies, to preserve and promote Society: That is, the Welfare of Mankind.* And since he that designs the End, cannot but be supposed to design those Means without which the End cannot be obtain’d, it follows that all such Actions as tend generally and are absolutely necessary to the Preservation of this Society, are commanded by the Law of Nature; as, on the contrary, those that disturb and dissolve it are forbidden by the same. All other Precepts are to be accounted only Subsumptions, or Consequences upon this Universal Law, the Evidence whereof is made out by that Natural Light which is engrafted in Mankind.
X.A God and Providence. L. N. N. l. 2. c. 3. §19.Now though these Rules do plainly contain in themselves that which is for the general Good; yet that the same may obtain the Force of Laws, it must necessarily be presuppos’d, that there is a God, who governs all Things by his Providence, and that He has enjoyn’d us Mortals, to observe these Dictates of our Reason as Laws, promulged by him to us by the powerful Mediation of that Light which is born with us. Otherwise we might perhaps pay some obedience to them in contemplation of their Utility, so as we observe the Directions of Physicians in regard to our Health, * but not as Laws, to the Constitution of which a Superior is necessary to be supposed, and that such a one as has actually undertaken the Government of the other.12
XI.God the Author of the Law of Nature. L. N. N. l. 2. c. 3. §20.But, that God is the Author of the Law of Nature, is thus demonstrated13 (considering Mankind only in its present State, without enquiring whether the first Condition of us Mortals was different from this, nor how the Change was wrought.) Whereas our Nature is so framed, that Mankind cannot be preserv’d without a sociable Life, and whereas it is plain that the Mind of Man is capable of all those Notions which are subservient to this purpose; and it is also manifest, that Men not only, like the other Creatures, owe their Original to God, but that He governs them, (let their Condition be as it will) by the Wisdom of his Providence. Hence it follows, that it must be supposed to be the Will of God, that Man should make use of those Faculties with which he is peculiarly endow’d beyond the Brutes, to the Preservation of his own Nature: and consequently, that the Life of Man should be different from the lawless Life of the Irrational Creatures. And since this cannot otherwise be atchiev’d, but by an Observance of the Law Natural, it must be understood, that there is from God an obligation laid upon Man to pay Obedience hereto, as a Means not invented by the Wit, or imposed by the Will of Men, nor capable of being changed by their Humours and Inclinations; but expressly ordain’d by God himself in order to the accomplishing this End. For he that obliges us to pursue such an End, must be thought to oblige us to make use of those Means which are necessary to the attainment thereof. And that the Social Life is positively enjoyn’d by God upon Men, this is a Proof, that in no other Animal is to be found any Sense of Religion or Fear of a Deity, which seems not so much as to fall within the Understanding of the ungovernable Brute; and yet it has the power to excite in the minds of Men, not altogether profligate, the tenderest Sense; by which they are convinced, that by sinning against this Law Natural, they offend him who is Lord of the Soul of Man, and who is to be fear’d, even where we are secure of any Punishment from our Fellow-Creatures.
XII.This Law how written in Man’s Heart.Though it be usually said, that we have the Knowledge of this Law from Nature it self, yet this is not so to be taken, as if there were implanted in the Minds of Men just new born, plain and distinct Notions concerning what is to be done or avoided. But Nature is said thus to teach us, * partly because the Knowledge of this Law may be attain’d by the help of the Light of Reason; and partly because the general and most useful Points thereof are so plain and clear, that they at first sight force the Assent, and get such root in the minds of Men, that nothing can eradicate them afterwards; let wicked Men take never so much pains to blunt the edge and stupifie themselves against the Stings of their Consciences. And in this Sense we find in Holy Scripture, that this Law is said to be written in the hearts of Men.Rom. ii. 15. So that having from our Childhood had a Sense hereof instill’d into us, together with other Learning in the usual Methods of Education, and yet not being able to remember the punctual time when first they took hold of our Understanding and possess’d our Minds; we can have no other opinion of our knowledge of this Law; but that it was connate to our Beings, or born together and at the same time with our selves. The Case being the same with every Man in learning his Mother Tongue.
XIII.Division of Natural Duties. L. N. N. l. 2. c. 3. §24.Those Duties, which from the Law of Nature are incumbent upon Man, seem most aptly to be divided according to the Objects about which they are conversant. With regard to which they are ranged under three principal Heads; the first of which gives us Directions how by the single Dictates of right Reason Man ought to behave himself towards God; the second contains our Duty towards our selves; and the third that towards other Men. But though those Precepts of the Law Natural, which have a relation to other Men, may primarily and directly be derived from that Sociality, which we have laid down as a Foundation; yet even the Duties also of Man towards God may be * indirectly deduc’d from thence, upon this Account, that the strongest Obligation to mutual Duties between Man and Man arises from Religion and a Fear of the Deity; so as that Man could not become a sociable Creature if he were not imbu’d with Religion; and because Reason alone can go no farther in Religion than as it is useful to promote the common Tranquillity and Sociality or reciprocal Union in this Life: For so far forth as Religion procures the Salvation of Souls, it proceeds from peculiar Divine Revelation. But the Duties a man owes to Himself arise jointly from Religion, and from the Necessity of Society. So that no Man is so Lord of himself, but that there are many things relating to himself, which are not to be disposed altogether according to his Will; partly because of the Obligation he lies under of being a religious Adorer of the Deity, and partly that he may keep himself an useful and beneficial Member of Society.
Of the Duty of Man towards God, or, concerning Natural Religion
I.Natural Religion, its Parts.The Duty of Man towards God, so far as can be discover’d by Natural Reason, is comprehended in these two; that we have true Notions concerning him, or know him aright; and then that we conform all our Actions to his Will, or obey him as we ought. And hence Natural Religion consists of two sorts of Propositions, to wit, *Theoretical or Speculative, and Practical or Active.
II.That God is. L. N. N. l. 2. c. 4. §3.Amongst those Notions that every Man ought to have of God, the first of all is, that he firmly believe his Existence, that is, that there is indeed some supreme and first Being, upon whom this Universe depends. And this has been most plainly demonstrated by learned and wise Men from the Subordination of Causes to one another, which must at last be found to have their Original in somewhat that was before them all; from the necessity of having a first Mover; from the Consideration of this great Machin, the World, and from the like Arguments.14 Which if any Man denies himself to be able to comprehend, he is not therefore to be excus’d for his Atheism. For all Mankind having been perpetually, as it were, possest of this Persuasion, that Man who undertakes to oppose it, ought not only solidly to confute all those Arguments that are brought to prove a God, but should advance Reasons for his own Assertion, which may be more plausible than those. And since by this Belief of the Deity the Weal of Mankind may be supposed to have been hitherto preserv’d, he ought to shew that Atheism would better answer that End than sober Religion and the Worship of God. Now seeing this can by no means be done, the Wickedness of those Men who attempt any way to eradicate this Persuasion out of the Minds of Men, is to be above all things abominated, and restrain’d by the severest Punishments.
III.God the Creator of the World. L. N. N. l. 3. c. 4. §4.The Second is, that God is the Creator of this Universe. For it being manifest from Reason, that none of these Things could exist of themselves, it is absolutely necessary that they should have some supreme Cause; which Cause is the very same that we call God,
And hence it follows, that those Men are cheated, who every now and then are putting upon us Nature, forsooth, as the original Cause of all Things and Effects. For, if by that Word they mean that Energy and Power of Acting which we find in every Thing, this is so far from being of any force to prove there is no God, that it proves him to be the Author of Nature it self. But if by Nature they would have us understand the Supreme Cause of all Things, this is only out of a profane Nicety to avoid the receiv’d and plain Appellation of God.
Those also are in a great Error, who believe that any thing can be God, which is the Object of our Senses, and particularly the Stars, among the rest. For the Substance of these argues them all to derive their Beings from somewhat else, and not to be the first Things in Nature.
Nor do they think less unworthily of God, who call him the *Soul of the World. For the Soul of the World, let them conceive of it as they please, must signifie a Part of the World; and how can a Part of a Thing be the Cause of it, that is, be something before it self? But if by the Soul of the World, they mean that first and invisible Being, from which all Things receive their Vigour, Life, and Motion, they only obtrude upon us an obscure and figurative Expression for one that is plain and obvious. From hence also it appears, that the World did not exist from all Eternity; this being contrary to the Nature of that which has a Cause. And he that asserts, that the World is Eternal, denies that it had any Cause of its being, and consequently denies God himself.
IV.God governs the World.The Third is, that Godgoverns the whole World, and particularly Mankind; which plainly appears from the admirable and constant Order which is to be seen in this Universe; and ’tis to the same moral Purpose whether a Man deny that Godis, or that he rules and regards the Affairs of Men; since either of them destroy all Manner of Religion. For let him be never so excellent in himself, ’tis in vain to fear or worship him, if he be altogether regardless of us, and neither will nor can do us either Good or Hurt.
V.God infinitely perfect.The Fourth is, that no Attribute can belong to God, which implies any manner of Imperfection. For it would be absurd, (He being the Cause and Source of all Things) for any Creature of his to think it self able to form a notion of any Perfection, of which he is not fully possest. Nay, His Perfection infinitely surmounting the Capacity of so mean a Creature, it is most reasonable to express the same in negative rather than in positive Terms. Hence nothing is to be attributed to God that is finite or determinate; because what is finite has always somewhat that is greater than it self: And whatsoever is determinate, or subject to Figure and Form, must suppose Bounds and Circumscription: Neither can He be said to be distinctly and fully comprehended or conceiv’d in our Imagination, or by any Faculty of our Souls; because whatsoever we can comprehend fully and distinctly in our Minds, must be Finite. And yet, when we pronounce God to be Infinite, we are not to think we have a full Notion of Him; for by the word Infinite we denote nothing in the Thing it self; but only declare the Impotence of our Understandings, and we do, as it were, say, that we are not able to comprehend the Greatness of his Essence. Hence also it is, that we cannot rightly say of God that he has any Parts, as neither that He is All any thing; for these are Attributes of things finite; nor that he is contain’d in any Place, for that denotes Limits and Bounds; nor that He moves or rests, for both those suppose Him to be in a place: So neither can any thing be properly attributed to God which intimates Grief, or any Passion, such as Anger, Repentance, Mercy. I say properly; because when the inspir’d Writers sometimes use such Expressions, speaking of the Almighty, they are not to be understood in a proper Sense, but as accommodating their Language to the common Apprehensions and Capacities of Men; so that we are not to understand hereby that God receives the same Impressions from external Objects that Man receives, but only by way of similitude, as to the Event or Effect; thus God is said to be angry with, and to be offended at Sinners, not that such Passions or Affections can possibly be in the Divine Nature, but because he will not suffer those who break his Laws to go unpunish’d. Nor may we say of Him ought that denotes the Want or Absence of any Good, as Appetite, Hope, Concupiscence, Desire of any thing; for these imply Indigence and consequently Imperfection; it not being supposable that one should desire, hope, or crave any thing of which he does not stand in some need. And so when Understanding, Will, Knowledge, and acts of the Senses, Seeing, Hearing, &c. are attributed to God, they are to be taken in a much more sublime Sense, than we conceive them in our selves. For the Will in us is a rational Desire; but Desire, as it is said afore, presupposes the Want or Absence of something that is agreeable and necessary. And Understanding and Sense imply some Operation upon the Faculties of Man, wrought by exterior Objects upon the Organs of his Body and the Powers of his Soul; which being Signs of a Power depending upon some other Thing, demonstrate it not to be most perfect.
God but One.Lastly, it is utterly repugnant to the Divine Perfection to say there are more Gods than one; for, beside that the admirable Harmony of the World argues it to have but one Governour, God would not be infinite, if there were more Gods of equal Power with himself, and not depending upon Him; for it involves a Contradiction to say, There are many Infinites. Upon the whole then, ’tis most agreeable to Reason, when we attempt to express the Attributes of God, either to make use of Words of a Negative signification, as Infinite, Incomprehensible, Immense, Eternal, i.e. which had no Beginning nor shall have End; or Superlative, as most Excellent, most Powerful, most Mighty, most Wise, &c. or Indefinite, as Good, Just, Creator, King, Lord, &c. and this in such a Sense as we would not think our selves to express What he is, but only in some sort to declare our Admiration of Him, and profess our Obedience to Him; which is a token of an humble Soul, and of a Mind paying all the Veneration it is capable of.15
VI.Internal Worship of God.The Propositions of Practical Natural Religion are partly such as concern the Internal, and partly the External Worship of God. The Internal Worship of God consists in honouring Him. Now Honour is a high Opinion of another’s Power conjoyn’d with Goodness: And the Mind of Man is obliged, from a Consideration of this his Power and Goodness, to fill it self with all that Reverence towards him, of which its Nature is susceptible. Hence it is, that it is our Duty to love him, as the Author and Bestower of all Manner of Good; to hope in him, as from whom only all our Happiness for the future does depend; to acquiesce in his Will, he doing all things for the best, and giving us what is most expedient for us; to fear him, as being most powerful, and the offending whom renders us liable to the greatest Evil; Lastly, in all things most humbly to obey him, as our Creator, our Lord, and our best and greatest Ruler.
VII.External Worship of God.The External Worship of God is chiefly shewn in these Instances:
VIII.Eternal Salvation not acquired by Natural Religion alone.16And yet, after all, it must be confest, that the Effects of this Natural Religion, nicely consider’d, and with regard to the present State of Mankind, are concluded within the Prospect of this Life; but that it is of no Avail towards procuring eternal Salvation.17 For Human Reason, left alone to it self, knows not that the Pravity, which is so discernable in our Faculties and Inclinations, proceeded from Man’s own Fault, and that, hereby he becomes obnoxious to the Wrath of God, and to eternal Damnation: So that with the Guidance of this only, we are altogether ignorant of the Necessity of a Saviour, and of his Office and Merit; as well as of the Promises made by God to Mankind, and of the several other Matters thereupon depending, by which alone, it is plain from the holy Scriptures, that everlasting Salvation is procured to mortal Men.
IX.Religion the firmest Bond of Society.It may be worth the while, yet a little more distinctly to consider the Benefits which through Religion accrue to Mankind; from whence it may appear, that *It is in truth the utmost and firmest Bond of Human Society.18 For in the Natural Liberty, if you take away the Fear of a Divine Power, any Man who shall have confidence in his own Strength, may do what Violences he pleases to others who are weaker than himself, and will account Honesty, Modesty, and Truth but as empty Words; nor will he be persuaded to do that which is right by any Arguments, but from a Sense of his own Inability to act the contrary. Moreover, lay aside Religion, and the Internal Bonds of Communities will be always slack and feeble; the Fear of a temporal Punishment, the Allegiance sworn to Superiours, and the Honour of observing the same, together with a grateful Consideration that by the Favour of the supreme Government they are defended from the Miseries attending a State of Nature; all these, I say, will be utterly insufficient to contain unruly Men within the Bounds of their Duty. For in this case that Saying would indeed have place, †He that values not Death, can never be compell’d; because to those who fear not God nothing can be more formidable than Death. He that can once bring himself to despise this, may attempt what he pleases upon those that are set over him; and to tempt him so to do, he can hardly want some Cause or Pretence; as, either to free himself of the Uneasiness he seems to lie under by being subject to another’s Command, or that himself may enjoy those Advantages which belong to him that possesses the Government; especially when he may easily persuade himself, that his Enterprise is just, either because He that at present sits at the Helm of Government is guilty of Mal-Administration, or that himself thinks he could manage it by many degrees to better purpose. An Occasion too cannot long be wanting for such Attempts, either from the Prince’s Want of Circumspection in the care of his Person, (and indeed in such a State of Things * who shall guard even the Guards themselves?) or from a powerful Conspiracy, or, in time of foreign War, from a Defection to the Enemy. Beside private Men would be very prone to wrong one another; for the Proceedings in human Courts of Judicature being govern’d by Proofs of Matter of Fact, all those Wickednesses and Villanies which could be secretly acted and without Witnesses, if any thing were to be gain’d by them, would be accounted Dexterities of Wit, in the practice of which a Man might enjoy some Self-satisfaction. Again, no Man would be found that would do Works of Charity or of Friendship, except with probable Expectation of Glory or Profit. From whence it would follow, that, supposing no Punishment from above, one Man not being able to place any solid Confidence in the Troth of another, they must every one always live anxiously in a mutual Fear and Jealousy, lest they be cheated or harm’d each by his Neighbour. The Governours also would have as little Inclination, as the Governed, to Actions that are brave and honourable; for those that govern not being obliged by any Tie of Conscience, would put all Offices, and even Justice itself to sale; and in every thing seek their own private Profit by the Oppression of their Subjects; from whom they being always fearful of a Rebellion, they must needs know, there can be no surer Means to preserve themselves, than by rendring them as heartless and as weak as possible. The Subjects also, on the other side, standing in fear of the Violences of their Rulers, would always be seeking Opportunities to rebel, tho’ at the same time they must be mutually distrustful and fearful of each other. The same would be the Case of married Persons; upon any slight Quarrel, they would be suspicious lest one should make away the other by Poison or some such clandestine Way; and the whole Family would be liable to the like Danger. For it being plain, that without Religion there could be no Conscience; it would not be easy to discover such secret Villanies; they being such as mostly are brought to light by the incessant pricking of the Conscience, and internal Horrors breaking forth into outward Indications. From all which it appears, how much it is the Interest of Mankind, that all Means be used to check the spreading of Atheism in the World; and with what vain Folly those Men are possess’d, who think to get the Reputation of being notable Politicians, by being seemingly inclin’d to Looseness and Irreligion.
Of the Duty of a Man towards Himself 19
I.Man liable to Obligation to Himself.Although the Love of himself be so deeply fix’d in the Mind of Man, as to put him always under a Sollicitous Care of Himself, and upon Endeavours by all means to procure his own Advantage; so as, upon Consideration hereof, ’twould seem superfluous to find out Laws to oblige him to the same: * yet in other Respects it is necessary, that he be bound to the Observation of some certain Rules touching Himself.L. N. N. l. 1. c. 4. For, not being born for himself alone, but being therefore furnish’d with so many excellent Endowments, that he may set forth his Creator’s Praise, and be rendred a fit Member of Human Society; it follows hence, that it is his Duty, to cultivate and improve those Gifts of his Creator which he finds in himself, that they may answer the End of their Donor; and to contribute all that lies in his Power to the Benefit of Human Society. Thus, though true it is, that the Ignorance of any Man is his own Shame and his own Loss; yet we accuse not the Master of Injustice, who chastises his Scholar for Negligence in not learning those Sciences of which he is capable.
II.The general Obligation that every one lies under to take care of his Soul.And since Man consists of two Parts, a Soul and a Body, whereof the first supplies the Part of a Director, the other that of an Instrument or subordinate Minister; so that our Actions are all performed by the Guidance of the Mind, and by the Ministration of the Body; we are hence obliged to take care of both, but especially the former.
The Care of the Soul consists, in general, in the right Formation of the Mind and Heart; that is, not only in framing to our selves true and just Opinions concerning all those Things to which our Duties bear any reference, and in making a true Judgment of, and setting a right Value upon, those Objects which commonly excite our Appetites; but also in regulating the Dispositions of our Minds; in reducing and conforming them to the Dictates of right Reason; in employing our Time and Pains in the Prosecution of honest Arts and Sciences; and, in one word, in getting our selves possest of all those Qualities which are necessary for us to lead an honest and a sociable Life.20
III.Particular Duties to which this Care of our Soul obliges us.Among all the Opinions then, which it highly concerns all Men firmly to settle in their Minds, the chief are those which relate to ALMIGHTY GOD, as the great Creator and Governour of the Universe, such as are represented in the foregoing Chapter. The full Persuasion of these great Truths being not only the principal Ground of the Whole Duty of Man to God,1. To settle in our selves right Opinions of Religion. L. N. N. l. 1. c. 4. §7. but the Foundation of all those Virtues which we are to exercise toward our Neighbour, and the true Source of all that Quiet of Conscience and Tranquillity of Mind, which is one of the greatest Blessings of Life. Since no sober and considering Man can deny these Truths, we must diligently avoid and utterly reject all those Opinions, which contain in them any thing contrariant to Principles so important. By which I mean not only Atheism and Epicurism, but all other Sentiments which are prejudicial to Human Society, or destructive of good Manners; such being incompatible with true Religion, and overturning the very Foundation of the Morality of Human Actions; of which kind there are many Instances.21
The first I shall mention is the Stoical Conceit of Fate or Destiny, and (which nearly resembles it) Judicial Astrology; by which it being supposed, that all things happen in the World by an internal and inevitable Necessity, Men must be looked upon as the simple Instruments only of their own Actions; for which, consequently, they are no more accountable upon this Presumption, than a Clock is answerable for the Motion of its Wheels.
Another Opinion there is very nearly allied to this, which supposes the unalterable Consequences of Causes, and of Effects; or the great Chain of Things, established by the Creator, to stand by such an Immoveable Decree, that even God has left Himself no Liberty of interposing in particular Cases.
Most pernicious likewise is that Conceit, which makes GOD allow a kind of Market of Sins, so as to suffer them to be bought off with Money, to be commuted for with Offerings, with the Observance of some vain Ceremonies, or the Utterance of some set Forms of Speech, without Amendment of Life, and an honest Endeavour to become Good Men. To this may be joyned, the sottish Imagination of such, who fancy that Almighty GOD is delighted with such Inventions of Men, such Institutions and Ways of Living, as are disagreeable to Human and Civil Society, as it is regulated by the Dictates of Reason and the Laws of Nature.
All superstitious Notions, such as debase and dishonour the Divine Nature and Worship, are carefully to be avoided, as contrary to true Religion.
The same thing must be said of the Notions of those Men, who imagin that the bare Exercise of Piety towards GOD in Acts of Devotion, as they are called, is sufficient, without any Regard had to Honesty of Life, or to those Duties which we are to practice towards our Neighbour. Nor is the Conceit of others less Impious, who fancy, that a Man may be able, not only to fulfil his own Duty towards GOD, but even exceed what is required of him, and thereby transfer some of his Merits on others; so that one Person’s Negligence in his Duty, may be supply’d from the Works of Supererogation, that is, the Over-righteousness of another. Of the same Stamp is that shameful Opinion of some others, that imagine, that the Wickedness of some Actions is overlooked and excused by GOD, on the Account of the Dexterity, the Humour, or the Gallantry of the Persons who do them; as if such Sins passed only as Jests and Trifles in the Cognisance of Heaven. No less wicked is it to believe, that those Prayers can please GOD, by which a Man desires, that others may suffer an undeserved Evil, for the occasioning or promoting an Advantage to himself; or to imagine, that Men may treat, in the worst manner they please, such as are of a different Persuasion from them in Religious Matters. Not to mention some other such like Opinions, which carry indeed the Pretence of Piety, but in reality tend to the Destruction of Religion and Morality.
IV.2. To arrive at a true Knowlege of our selves. The Duties that result from such a knowledge. L. N. N. l. 2. c. 4. §5.When we have thus arm’d our Minds against all false Opinions of the Divine Nature and Worship, the main Concern behind is, for a Man accurately to examine his own Nature, and to study to know himself.22
From this Knowledge of himself, rightly pursued, a Man is brought acquainted with his own Original; he comes to know perfectly his Condition here, and the Part he is to bear in the World. Hereby he will perceive, that he does not exist of himself, but owes his Being and Life to a Principle infinitely superior to him; that he is endowed with Faculties far more noble than he sees enjoy’d by the Beasts about him; and farther, that he was not born by himself, nor purely for his own Service, but that he is a Part of Human kind. From thus knowing a Man’s self he must necessarily conclude, that he lives in Subjection to Almighty GOD, that he is obliged, according to the Measure of the Gifts he hath received from his Maker, to serve and honour Him; and moreover, to behave himself towards his Equals in such a manner, as becomes a Sociable Creature. And in as much as GOD hath bestowed on him the Light of Reason and Understanding, to guide him in the Course of his Life, it evidently follows, that he ought to make a right Use of it: And consequently not to act at random, without End or Design, but, whatever he undertakes, to propose thereby to himself some particular End, in its self both possible and lawful, and to direct his own Actions suitably to that End; as also to use such other Means as he shall find proper for the compassing it. Again, from hence it follows, that since Truth and Right are always uniform and without alteration, so a Man ought always to form the same Judgments of the same Things, and when he hath once judged truly, to be always constant in his Mind and Resolution. Farther it follows, that a Man’s Will and Appetite ought not to get the Superiority over his Judgment, but follow and obey it, never making resistance to its Decrees; or, which amounts to the same thing, Men ought to form no Judgments but upon mature Deliberation, nor ever to act against their Judgments so formed.
L. N. N. l. 2. c. 4. §7.Besides, by considering and knowing himself, a Man will rightly apprehend his own Strength and Power: He will find that it is of a finite nature, having certain Limits beyond which it can never extend it self; and therefore, that there are many Things in the World which he can no ways manage or compass, many that he can no ways hinder or resist, and other Things again not absolutely above Human Power, but which may be prevented and intercepted by the Interposition of other superior Powers. Again, another Sort of Things there are, which though we cannot compass by our bare Strength, yet we may, if it be assisted and supported by Dexterity and Address.
What seems to be most free from outward Restraint, and most within our own Power is our Will; especially so far as it is concerned in producing and exerting Actions suitable to our Species of Being, as we are reasonable Creatures. Hence it follows, that every Man ought to make it his main Care and Concern, rightly to employ all his Faculties and Abilities, in conformity to the Rules of right Reason. For this is the Standard by which we are to rate the Worth of every Person, and to measure his intrinsical Goodness and Excellency.
As to other Matters which lie without us, before he enters upon the Pursuit of them, A Man should diligently examine, Whether they do not surpass his Strength? Whether they tend to a lawful End? and, Whether they are worth the Labour which must be spent in obtaining them? When, upon mature Deliberation, he is resolved to engage in any such Affairs, a wise Man will indeed use his best Efforts to bring his Design about; but if he finds those Endeavours ineffectual, he will not strive against the Stream, and drive on his Designs with vain Hope, but quit his Pursuit without Grief or Anger at his Disappointment. From these Considerations this further Consequence may be drawn; That Man, as he is guided only by the Light of Reason, ought principally to aspire after that Happiness in this World, which arises from the prudent Government of his Faculties, and from those Assistances and Supports which the Divine Providence he knows will afford him in the universal Administration of things. Hence he will not leave things to meer Hazard and Chance, while there is room for Human Caution and Foresight. But then, since human Foresight is very weak in discovering future things, which are so far from being under our Guidance, that they frequently fall out beyond our Hopes and Expectations: Hence it is plain, that we ought neither too securely to trust to our present Condition, nor to spend too much Care and Anxiety on what is to come: and for the same reason, Insolence in Prosperity and Despair in Adversity are to be both avoided, as equally dangerous and equally absurd.
V.3. To regulate the measure of our Desires in proportion to the Just value of the things we desire. How we ought to seek for Honour or Esteem. L. N. N. l. 2. c. 4. §9.Another necessary Improvement of our Mind and Understanding is, To be able to set a just Price on those Things which are the chief in moving our Appetites. For, from this Knowledge it is that the degree of Desire is to be determined, with which we may seek after them.
Among these, that which bears the greatest sway, and appears with most splendor, and which most forceably moves Elevated and Noble Souls, is the Opinion of Worth and Excellency; an Opinion from whence springs what we usually call Glory or Honour: In respect to which we are to form and temper our Minds in the following manner.
We must use our utmost Care and Endeavour to procure and preserve that kind of Esteem that is simply so called, that is, the Reputation of being Good and Honest Men; and if this Reputation be assaulted by the Lies and Calumnies of Wicked Men, we are to use all possible Pains to wipe them off; but if that be not in our Power, we are to comfort our selves with the Testimony of a good Conscience, and with the Assurance, that our Integrity is still known to GOD.
As for that Esteem, which is oft-times called Intensive, or Esteem of Distinction, but more commonly Honour or Glory, we are no otherwise to pursue it, than as it redounds from such worthy Actions as are conformable to Right Reason, and productive of the Good of Human Society; but even then good Heed is to be taken, that hereby our Mind do not swell with Arrogance and Vain-glory. If at any time we have no Opportunity, or want an Occasion of shewing our Worth, without being able to procure one, we must bear this ill Fortune with Patience, since there is nothing in it that can be charged upon our Default. To value our selves upon, and make our boasts of what is empty, vain, and trifling, is most impertinent and ridiculous; but it is abominably Wicked, as well as extremly Foolish, to aspire to Fame and to Honours by evil Arts, and by Deeds repugnant to Reason; and to desire Preheminence above others, only to be able to insult over them, and to make them obnoxious to our Pleasure.
VI.In what manner we may desire Riches.The Desire of outward Possessions, Riches, and Wealth, does also prevail greatly in the Minds of Men; and no wonder, since Men have not only need thereof for their own Support and Preservation in the World, but also often lie under an indispensible Duty to provide them for others. But then, because our Wants are not infinite, but lie in a very narrow Compass, and since Nature is not wanting in a plentiful Provision for the Necessities of her Sons; and lastly, since all that we can heap together must, at our Death, fall to others; we must moderate our Desire and our Pursuit of those Things, and govern our selves in the Use of them according to the just Occasions of Nature, and the modest Demands of Temperance and Sobriety. We must do no dishonest or base Thing for the procuring them; we must not increase them by sordid Avarice, nor squander them away by profuse Prodigality, nor in any ways make them subservient to vicious and dishonest Purposes. Farther, since Riches are of a very perishable Nature, and may be taken from us by many Accidents and Casualties, we must, with respect to ’em, put our Mind in so even a Temper, as not to lose it self if it should happen to lose them.
VII.In what manner we may desire Pleasures. L. N. N. l. 2. c. 4. §11.The Desire of Pleasures does as strongly excite the Minds of Men as that of Honour or Riches: In reference to these we must observe, that there are Innocent Pleasures and Criminal Pleasures. The latter of which must be always avoided; but it is by no means a Fault to enjoy the former, provided it be done with moderation, and in conformity to the Rules of Temperance and Sobriety. As there is no Fault to avoid, as much as may be, unnecessary Grief and Pain, because they tend to the Destruction of the Body; so Reason, on the other side, is so far from forbidding us the Enjoyment of moderate Recreation and innocent Pleasure, that it directs us to entertain our Senses with such Objects as are, in this manner, agreeable and delightful to them, since hereby the Mind is unbent and refresh’d, and render’d more active and vigorous. But then, in the Enjoyment of these lawful and innocent Gratifications, great Care is to be taken, that we enjoy them to such a Degree only, that we be not thereby weakened and enervated; that neither the Vigour of the Body or Soul be thereby lessen’d; that they waste not nor consume our Wealth, when it might be better and more usefully laid out; and that they steal not our Time from better and more necessary Employments. Lastly, This must be an inviolable Rule, that no Pleasure must be purchased at so dear a Rate, as the Neglect or Transgression of our Duty; nor ought any to be receiv’d that brings after it Loss, Disgrace, Sorrow, or Repentance.
VIII.4. We ought to subject our Passions to the Government of our Reason. L. N. N. l. 2. c. 4. §21.Lastly, The chief Care incumbent on us, in order to improve and well cultivate our Mind, is, to use the utmost Diligence, To gain the Mastery over our Passions; to maintain the Sovereignty of our Reason over the Motions and Affections of our Minds; the greatest Part of which, if they gain the Ascendant, and grow masterless, do not only impair the Health of the Body, and the Vigour of the Soul, but cast such a Cloud on the Judgment and Understanding, as to wrest them violently from the Ways of Reason, and of Duty. So that the natural Principle of Prudence and Probity amongst Men, may be justly said to be founded in calming and cooling the Passions. But let us briefly speak of them in particular.
JOY is in it self a Passion most agreeable to Nature; but strict Care is to be taken, that it break not out on improper Occasions, that it shew not itself in Matters vain or trifling, base or indecent.
SORROW, like a Canker, wastes both the Body and Soul: it is therefore as much as possible to be remov’d and expell’d, nor ever to be admitted, even moderately, unless when by the Ties of Humanity, we are obliged to express our Concern, or Pity at the Misfortunes, or at the Deaths of others; and as it is requisite to the great Duty of Repentance.
LOVE is a Passion of a benevolent and friendly Nature to Mankind; but yet it is to be so wisely managed and moderated, that it be not fix’d upon an unworthy Object; that we take not unlawful Ways to satisfy its Demands; that it keep within due Bounds, so as not to degenerate into Disease and Disquiet, if the beloved Object is not to be obtained.
HATRED is a Passion pernicious, as well to the Person who employs it, as to those against whom it is employ’d; it is therefore diligently to be quenched and stifled, lest it betray us to Injuries, and Breach of Duty against our Neighbours. And when any Persons do really deserve our Aversion, we must even then take care not, on their Account, to create Uneasiness and Disquiet to our selves.
ENVY is a most deform’d Monster, sometimes producing ill Effects in others, but always in the Envious Person, who, like Iron cankered with Rust, not only defiles, but destroys himself continually.
HOPE, although in it self a Passion mild, easy, and gentle, yet is it also to be brought under due Regulation. We must be careful not to direct it to Things vain or uncertain; nor, by placing it on Objects out of our Reach, and beyond our Power, make it tire it self to no purpose.
FEAR, as it is a dangerous Enemy to Men’s Minds, so is it a Passion altogether useless and unprofitable. It is indeed by some esteemed the Parent of good Caution, and consequently, the Occasion of Safety; but this good Caution may owe it self to a much better Principle, it may arise without the Assistance of Fear, from a wary Circumspection, and a Prudence alike untouched with Anxiety or with Consternation.
ANGER is the most violent, as well as the most destructive of all the Passions, and is therefore to be resisted with our utmost Strength and Endeavour. It is so far from exciting Men’s Valour, and confirming their Constancy in Dangers, as some alledge, that it has a quite contrary Effect; for it is a Degree of Madness, it renders Men blind and desperate, and runs them headlong into their own Ruin.
DESIRE OF REVENGE is nearly related to Anger; which, when it exceeds a Moderate Defence of our selves and Concerns, and a just Assertion of our Rights against the Invaders of them, turns, beyond Dispute, into a Vice.
IX.How far the Study of Arts and Sciences is necessary. L. N. N. l. 2. c. 4. §13.In such Duties as we have reckoned up doth that Culture of the Mind chiefly consist, which all Men are indispensably obliged to look after: But there is still behind a more peculiar Culture and Improvement of the Mind, consisting in the various Knowledge of Things, and the Study of Arts and Sciences. This Knowledge, it is true, cannot be said to be absolutely necessary to the Discharge of our Duty in general, but yet must by all be allowed to be exceedingly useful to supply the Necessities and promote the Conveniencies of Human Life, and therefore by every one to be followed, according as his own Capacity and Occasion will permit.
No one disputes the Usefulness of those Arts, which supply the Necessities, or contribute to the Convenience of Human Life.
As to Sciences; some may be stiled Useful; others Curious, and others again Vain.
In the Number of useful Sciences, I reckon Logick, which teaches to reason justly, closely, and methodically; those Sciences which have any respect to Morality, Physick, and all such Parts of Mathematicks as lay the Foundation of those practical Arts, which serve to procure and augment the Necessaries or Conveniencies of Life.
By Curious, or Elegant Sciences, I understand such as are not indeed of so necessary Use, as to render the Life of Man less sociable, or less convenient upon the Want of them; but yet such as serve to gratify and please an innocent Curiosity, to polish and adorn our Wit, and to embellish and render our Understanding more compleat: Such Sciences are, Natural and Experimental Philosophy, the more fine and subtile Parts of Mathematicks, History, Criticism, Languages, Poetry, Oratory, and the like.
By Vain Sciences, I mean such as are made up of false and erroneous Notions, or are employ’d about frivolous, trifling, and unprofitable Speculations; such are the Amusements of old Philosophers, the Dreams of Astrologers, and the Subtilties of the School-men.
To employ Labour and Pains in these last Sort of Studies is highly unworthy of any Man, and an unpardonable Waste of his Time. But whosoever would not deserve to be accounted an useless Lump on Earth, a Trouble to himself and a Burthen to others, ought, as far as he has Means and Opportunity, to employ himself in some of the aforemention’d Arts and Sciences. Every one at least ought, in a proper Time, to take upon himself some honest and useful Employment, agreeable to his natural Inclinations, suitable to the Abilities of his Body and Mind, Extraction, and Wealth; or according as the just Authority of his Parents, the Commands of his Superiours, or the Occasion and Necessity of his own private Circumstances shall determine.23
X.Wherein consists the Care of the Body.Altho’ the Care of our Soul, which we have been explaining, is the most difficult, as well as the most necessary Part of our Charge in this Life, yet ought we by no means to neglect the Care of our Body; these two constituent Parts of us being so strictly united and ally’d to each other, that no Injury or Hurt can come to the one, but the other must likewise bear its Part in the Suffering.
We must therefore, as far as possible, continue and increase the natural Strength and Powers of our Bodies, by convenient Food and proper Exercise; not ruining them by any Intemperate Excess in Eating or Drinking, nor wasting and consuming them by unnecessary or immoderate Labours, or by any other Abuse or Misapplication of our Abilities. And upon this Account, Gluttony, Drunkenness, the immoderate Use of Women, and the like, are to be avoided: And besides, since unbridled and exorbitant Passions, not only give frequent Occasion to disturb Human Society, but are very hurtful even to the Person himself; we ought to take care with our utmost to quell them, and subject them to Reason. And because many Dangers may be escap’d, if we encounter ’em with Courage, we are to cast off all Effeminacy of the Mind, and to put on Resolution against all the terrible Appearances that any Event may set before us.
XI.Whether a Man has the Power of his own Life.And yet, because no Man could give himself Life, but it must be accounted as the bounteous Favour of God, it appears, that Man is by no means vested with such a Power over his own Life, as that he may put an End to it when he pleases; but he ought to tarry, till he is call’d off by Him who placed him in this Station. Indeed, since Men both can and ought to be serviceable to one another, and since there are some Sorts of Labour, or an Overstraining in any, which may so waste the Strength of a Man, that old Age and Death may come on much sooner than if he had led an easy and painless Life; there is no doubt but that a Man may, without any Contravention to this Law, chuse that Way of living which may with some probability make his Life the shorter, that so he may become more useful to Mankind. And whereas sometimes the Lives of many will be lost, except some Number of Men expose themselves to a Probability of losing their own on their behalf; in this Case the lawful Governour has Power to lay an Injunction on any private Man under the most grievous Penalties, not to decline by Flight such Danger of losing his Life. Nay farther, he may of his own Accord provoke such Danger, provided there are not Reasons more forcible for the contrary; and by thus Adventuring he has hopes to save the Lives of others, and those others are such as are worthy so dear a Purchase. For it would be silly for any Man to engage his Life together with another to no purpose; or for a Person of Value to die for the Preservation of a paltry Rascal. But for any other Cases, there seems nothing to be required by the Law of Nature, by which he should be persuaded to prefer another Man’s Life before his own, but that all things rightly compared, every Man is allowed to be most dear to himself. And indeed all those who voluntarily put an end to their own Lives, either as tir’d with the many Troubles which usually accompany this Mortal State; or from an Abhorrence of Indignities and Evils which yet would not render them scandalous to Human Society; or thro’ Fear, or Pains, or Torment, by enduring which with Fortitude, they might become useful Examples to others; or out of a vain Ostentation of their Fidelity and Bravery; All these, I say, are to be certainly reputed Sinners against the Law of Nature.
XII.Self-Defence moderated.But whereas it often happens that this Self-Preservation, which the tenderest Passion and exactest Reason thus recommends to Mankind, does seem to interfere with our Precepts concerning Society, then when our own Safety is brought into Jeopardy by another, so far that either we must perish, or submit to some very grievous Mischief, or else we must repel the Aggressor by force and by doing him Harm; Therefore we are now to deliver, With what Moderation the Defence of our selves is to be tempered. This Defence of our selves then will be such as is, either without any Harm to him from whom we apprehend the Mischief, by rendring any Invasion of us formidable to him and full of Danger; or else by hurting or destroying him. Of the former way, [whether (in private Men) by keeping off the Assailant, or by Flight, &c.] there can be no Doubt but that ’tis lawful and altogether blameless.
XIII.We may repel force by force, even so far as to kill an unjust Aggressor. L. N. N. l. 2. c. 5. §2.But the latter may admit of Scruple, because Mankind may seem to have an equal Loss, if the Aggressor be killed, or if I lose my Life; and because one in the same Station with my self will be destroyed, with whom it was my Duty to have lived in Civil Society: Beside, that a forcible Defence may be the Occasion of greater Outrages, than if I should betake my self to flight, or patiently yield my Body to the Invader. But all these are by no means of such Weight as to render this Sort of Defence unlawful. For when I am dealing fairly and friendly with another, it is requisite that he shew himself ready to do the like, or else he is not a fit Subject of such good Offices from me. And because the End of the Law of Society is the Good of Mankind, therefore the Sense thereof is to be taken, so as effectually to preserve the Welfare of every Individual or particular Man. So that if another Man make an Attempt upon my Life, there is no Law that commands me to forgoe my own Safety, that so he may practise his Malice with Impunity: And he that in such case is hurt or slain, must impute his Mischief to his own Wickedness, which set me under a Necessity of doing what I did. Indeed otherwise, whatsoever Good we enjoy either from the Bounty of Nature, or the Help of our own Industry, had been granted to us in vain, if we were not at liberty to oppose the Violences of Ruffians, who would wrongfully ravish all from us; and honest Men would be but a ready Prey for Villains, if they were not allowed to make use of Force in defence of themselves against the others Insults. * Upon the whole then, it would tend to the Destruction of Mankind, if Self Defence even with Force were prohibited to us.
XIV.Extremities last to be used. L. N. N. l. 2. c. 5. §3.Not however that hence it follows, that as soon as any Injury is threatned us, we may presently have recourse to Extremities; but we must first try the more harmless Remedies; for instance, we must endeavour to keep out the Invader by cutting off his Access to us; to withdraw into strong Places; and to admonish him to desist from his outragious Fury. And it is also the Duty of a prudent Man to put up a slight Wrong, if it may conveniently be done, and to remit somewhat of his Right, rather than, by an unseasonable Opposition of the Violence, to expose himself to a greater Danger; especially if that Thing or Concern of ours upon which the Attempt is made, be such as may easily be made amends for or repaired. † But in Cases where by these or the like means I cannot secure my self, in order to it I am at liberty to have recourse even to Extremities.
XV.Self-Defence how far justifiable in a supposed state of Natural Liberty.But that we may clearly judge, whether a Man contains himself within the Bounds of an unblameable Defence of himself, it is first to be examined, whether the Person be one who is in a State of Natural Liberty or subject to no Man, or one who is obnoxious24 to some Civil Power. In the first Case, if another shall offer Violence to me, and cannot be brought to change his malicious Mind and live quietly, I may repel him even by killing him. And this not only when he shall attempt upon my Life, but if he endeavour only to wound or hurt me, or but to take away from me my Goods, without meddling with my Body. For I have no Assurance but from these lesser Injuries he may proceed to greater; and he that has once professed himself my Enemy (which he doth whilst he injures me without Shew of Repentance) gives me, as far as ’tis in his Power to give, a full Liberty of proceeding against him, and resisting him in such manner as I shall find most necessary for my own Safety. And indeed the Sociality necessary to Human Life would become unpracticable, if a Man may not make use even of Extremities against him who shall irreclaimably persist in the Commission tho’ but of meaner Wrongs. For at that rate the most modest Persons would be the continual Laughing-stock of the vilest25 Rakehels.26
XVI.How the Right of Self-defence is limited in a State of Civil Society. L. N. N. l. 2. c. 5. §4.But in Civil Society, those who are Subjects to the Civil Power, may then only use Violence in the Defence of themselves, when the Time and Place will not admit of any Application to the Magistrate for his Assistance in repelling such Injuries by which a Man’s Life may be hazarded, or some other most valuable Good which can never be repaired, may be manifestly endangered.
XVII.Of the Time when in a State of Nature Self defence may be allowable.As for the time when Men may put in practice their just Right of Self-defence, it may be learnt from the following Rules.
Altho’ every one, under that Independence in which all Men are supposed to be in a State of Nature, may and ought to presume, that all Men are inclined to perform towards him all those Duties which the Law of Nature directs, until he has evident Proof to the contrary: Nevertheless, since Men have natural Inclinations to that which is ill, no one ought to rely so securely on the Integrity of another, as to neglect taking all necessary Precautions to render himself secure, and placed, as far as may be, out of the Reach of other Men’s ill Designs. It is but common Prudence to stop up all Avenues against those from whom we apprehend Hostilities, to be provided with serviceable Arms, to raise Troops, to get Succour and Assistance, in case of need, by Alliances and Confederacies, to have a watchful Eye over the Actions and Behaviour of those whom we have reason to apprehend to be our Enemies; and, in a word, to use all other Precautions of this Nature, which appear necessary to prevent our being surprized or found unprovided. The Jealousy and Suspicion which we ought to have of each other, from our Knowledge of the Pravity of Human Nature, will justifie our acting thus far; but then it must stop here: it must not put us upon using Violence to our Neighbours, under pretence of disabling them from injuring us, and of preventing their making a mischievous Use of that superior Power we see them have; especially if we find that this Increase of Power in them, and their Superiority over us, was the Product of their innocent Industry, or the Gift of Providence, and not the Result of Injury and Oppression.
* Nay, if our Neighbour, whom we see powerful enough to hurt us, should shew an Inclination to use that Power mischievously, by actually injuring others, yet shall not this justifie our Assaulting him by way of prevention, till we have good Evidence, that he designs us also Mischief; unless we are under some prior Engagement or Alliance, to support the Persons we see thus injuriously attacked by a superior Power. In this Case we may with greater Vigour oppose the Invader, and take the Part of our injured Ally; since we have very good Reason to apprehend, that when by his superior Power he has oppressed him, he will apply the same Force against us; and that the first Conquest he makes is to be the Instrument of another that he intends.
But when we have evident Proof that another does actually intend, and has taken proper Measures to do us an Injury, altho’ he has not openly declared such his Intention; then we may fairly put our selves on our Defence, and anticipate the Aggressor before he compleats the Preparations he is making to do us the designed Mischief: Provided notwithstanding we have endeavoured, by friendly Advice, to move him to lay aside his ill Purposes so long, that there remains no Hopes of his being prevailed upon to do so by fair and gentle Means: In using which friendly Advice and gentle Means, care must be taken, that it be not done when it may prove a Prejudice and a Disadvantage to our own Affairs. He who first forms the Design to do an injurious Act, and first makes Preparation to bring it about, is to be accounted the Aggressor; altho’ it may perhaps so fall out, that the other using greater Diligence, may prevent him, and so commit the first open Acts of Hostility. It is not absolutely necessary to a justifiable Self-defence, that I receive the first Stroke, or that I only ward off and avoid the Blows that are aimed at me.27
But farther: In a State of Nature of which we are speaking, a Man has not only a Right to repel a present Danger with which he is menaced, but also, after having secured himself from the Mischief intended him, he may pursue his Success against the Aggressor, till he has made him give him satisfactory Security of his peaceable Behaviour for the time to come. Concerning which Caution and Security, the following Rule may be usefully observed: If a Man having injured me, shall presently after, repenting of what he had done, come voluntarily and ask my pardon, and offer Reparation of the Damage; I am then obliged to be reconciled to him, without requiring of him any farther Security than his Faith and Promise to live hereafter in Peace and Quietness with me. For when of his own accord any Person takes such measures, it is a satisfactory Evidence, that he has altered his Mind, and a sufficient Argument of his firm Resolution to offer me no Wrong for the future. But if a Man having injured me, never thinks of asking Pardon, or of shewing his Concern for the Injuries he has done me, till he is no longer in Condition to do them, and till his Strength fails him in prosecuting his Violences; such an one is not safely to be trusted on his bare Promises, his Word alone being not a sufficient Warrant of the Sincerity of his Protestations. In such Case, in order to our farther Security, we must either cut off from him all Power of doing Mischief, or else lay upon him some Obligation of greater Weight and Force than his meer Promise, sufficient to hinder him from appearing ever after formidable to us.
XVIII.When and how far a Man may defend himself with arm’d force in a State of Civil Society.But among Men who live in a Community,28 the Liberties for Self-defence ought not to be near so large. For here, tho’ I may know for certain, that another Man has armed himself in order to set upon me, or has openly threatned to do me a Mischief; this will by no Means bear me out in assaulting him; but he is to be informed against before the Civil Magistrate, who is to require Security for his good Behaviour. The Use of Extremities in repelling the Force being then only justifiable, when I am already set upon, and reduced to such Streights, that I have no Opportunity to require the Protection of the Magistrate, or the Help of my Neighbours; and even then I am not to make use of Violence, that by the Slaughter of my Adversary I may revenge the Injury, but only because without it my own Life cannot be out of Danger.
Of the Time when in a State of Civil Society Self-defence may be allowable.Now the Instant of Time, when any Man may with Impunity destroy another in his own Defence, is, when the Aggressor, being furnished with Weapons for the Purpose, and shewing plainly a Design upon my Life, is got into a Place where he is very capable of doing me a Mischief, allowing me some time, in which it may be necessary to prevent rather than be prevented; although in foro humano a little Exceeding be not much minded in regard of the great Disturbance such a Danger must be thought to raise in the Spirit of Man. And the Space of Time in which a Man may use Force in his own Defence, is so long as till the Assailant is either repulsed, or has with-drawn of his own accord, (whether in that Moment repenting of his wicked Design, or for that he sees he is like to miss of his Aim) so that for the present he cannot hurt us any more, and we have an Opportunity of retiring into a Place of Safety. * For as for Revenge of the Wrong done, and Caution for future Security, that belongs to the Care of the Civil Magistrate, and is to be done only by his Authority.
XIX.Whether a Man may use his Right of Self-defence against one that assaults him by mistake. L. N. N. l. 2. c. 5. §5.Farthermore,29 both in a State of Nature, and in a Civil State, it is lawful for every Man to defend himself, if the Precautions before-mentioned be taken against him who attempts to take away his Life; whether it be designedly, and with a malicious Intention, or without any particular Design against the Party assaulted: As suppose a Mad-man, or a Lunatick, or one that mistakes me for some other Person who is his Enemy, should make an Attempt on my Life, I may justifiably use my Right of Self-Defence; for the Person from whom the Attempt comes, whereby my Life is hazarded, hath no Right to attack me, and I am by no means obliged to suffer Death unnecessarily; on which account it is altogether unreasonable that I should prefer his Safety to my own.
XX.How the most just Self-defence ought to be managed: and of Duels.Nevertheless though true it is, that we ought not to take away another Man’s Life, when it is possible for us after a more convenient way to avoid the Danger we are in; yet in consideration of that great Perturbation of Mind, which is wont to be occasion’d upon the Appearance of imminent Mischief, it is not usual to be over-rigorous in the Examination of these Matters; for it is not likely that a Man trembling under the Apprehension of Danger, should be able to find out so exactly all those Ways of escaping, which to one who sedately considers the Case may be plain enough. Hence, though it is Rashness for me to come out of a safe Hold to him who shall challenge me; yet, if another shall set upon me in an open Place, I am not streight obliged to betake my self to Flight, except there be at hand such a Place of Refuge as I may withdraw into without Peril: Neither am I always bound to retire; because then I turn my defenceless Back, and there may be hazard of falling; beside, that having once lost my Posture, I can hardly recover it again. But as the Plea of Self-defence is allow’d to that Person who shall thus encounter Danger, when he is going about his lawful Business, whereas if he had staid at Home he had been safe enough; so it is denied to him who being challenged to a Duel, shall by appearing set himself in that Condition, and except he kill his Adversary, himself must be slain. * For the Laws having forbidden his venturing into such Danger, any Excuse on account thereof is not to be regarded.
XXI.Defence of Members. L. N. N. l. 2. c. 5. §10.What may be done for the Defence of Life may also for the Members; 30 so as that he shall be acquitted for an honest Man who shall kill a Ruffian, that perhaps had no farther Intention than to maim him, or give him some grievous Wound: For all Mankind does naturally abhor to be maimed or wounded; and the cutting off any, especially of the more noble Members, is often not of much less value than Life itself; beside, we are not sure beforehand, whether upon such wounding or maiming Death may not follow; and to endure this is a Sort of Patience that surpasses the ordinary Constancy of a Man, † to which no man is regularly obliged by the Laws, only to gratifie the outragious Humour of a Rogue.
XXII.Defence of Chastity. L. N. N. l. 2. c. 5. §11.Moreover, what is lawfully to be done for Preservation of Life,‡ is adjudged to be so for Chastity: Since there cannot be a more horrid Abuse offered to an honest Woman, than to force her out of that which being kept undefiled is esteemed the greatest Glory of their Sex; and to put upon her a Necessity of raising an Offspring to her Enemy out of her own Blood.
XXIII.Defence of Goods or Estate. L. N. N. l. 2. c. 5. §16.As for Defence of Goods or Estate, this may, among those who are in a State of Natural Liberty, go as far as the Slaughter of the Invader, * provided what is in Controversie be not a Thing contemptible. For without Things necessary we cannot keep our selves alive; and he equally declares himself my Enemy, who wrongfully seizes my Estate, as he that attempts upon my Life. But in Communities, where what is ravished from us may, with the Assistance of the Civil Authority, be recovered, this is not regularly allowed; unless in such case when he that comes to take away what we have, cannot be brought to Justice: On which account it is, that we may lawfully kill Highwaymen and Night-robbers.
XXIV.Self Defence in him that first injur’d. L. N. N. l. 2. c. 6. §19.And thus much for Self-Defence in those who without Provocation are unjustly invaded by others: But for him who has first done an Injury to another, he can only then rightly defend himself with Force, and hurt the other again, when having repented of what he has done, he has offered Reparation of the Wrong and Security for the future; and yet he who was first injured, shall, out of ill Nature, refuse the same, and endeavour to revenge himself by Violence; [shewing hereby that he seeks not so much Reparation and Right to himself, as Mischief to the other.]
XXV.Self Preservation in Cases of Necessity. L. N. N. l. 2. c. 6.Lastly, Self-Preservation is of so much regard, that, if it cannot otherwise be had, in many Cases it exempts us from our Obedience to the standing Laws; and on this Score it is, that Necessity is said to have no Law. For seeing Man is naturally inspired with such an earnest Desire to preserve himself, it can hardly be presumed that there is any Obligation laid upon him, to which he is to sacrifice his own Safety. For tho’ not only God, but the Civil Magistrate, when the Necessity of Affairs requires it, may lay upon us so strict an Injunction, that we ought rather to die than vary a Little from it; yet the general Obligation of Laws is not held to be so rigorous. For the Legislators, or those who first introduced Rules for Mankind to act by, making it their Design to promote the Safety and common Good of Men, must regularly be supposed to have had before their Eyes the Condition of Human Nature, and to have considered how impossible it is for a Man not to shun and keep off all Things that tend to his own Destruction. Hence those Laws especially, called Positive, and all Human Institutions are judged to except Cases of Necessity; or, not to oblige, when the Observation of them must be accompanied with some Evil which is destructive to Human Nature, or not tolerable to the ordinary Constancy of Men; unless it be expressly so ordered, or the Nature of the Thing requires, that even that also must be undergone. Not that Necessity justifies the Breach of a Law and Commission of Sin; but it is presumed, from the favourable Intention of the Legislators, and the Consideration of Man’s Nature, that Cases of Necessity are not included in the general Words of a Law. This will be plain by an Instance or two.
XXVI.Cutting off Members. L. N. N. l. 2. c. 6. §3.I.Though otherwise Man have no such Power over his own Members, as that he may lose or maim any of them at his pleasure; yet he is justifiable in cutting off a gangren’d Limb, in order to save the whole Body; or to preserve those Parts which are sound; or lest the other Members be rendred useless by a dead and cumbersome Piece of Flesh.
XXVII.One lost to save many.II.If in a Shipwrack more Men leap into the Boat than it is capable of carrying, and no one has more Right than another to it; they may draw Lots who shall be cast overboard; and if any Man shall refuse to take his chance, he may be thrown over without any more ado, as one that seeks the Destruction of all.
XXVIII.One hastens the Death of another to save himself. L. N. N. l. 2. c. 6. §4.III.Iftwo happen into imminent Danger of their Lives, where both must perish; one may, as he sees good, hasten the Death of the other, that he may save himself. For instance, If I, who am a skilful Swimmer, should fall into some deep Water with another who could not swim at all, and he clings about me; I not being strong enough to carry him off and my self too, I may put him off with force, that I may not be drowned together with him; tho’ I might for a little while be able to keep him up. So in a Shipwrack, if I have got a Plank which will not hold two, and another shall endeavour to get upon it, which if he does, we are both like to be drowned, I may keep him off with what violence I please. And so if two be pursued by an Enemy meaning to kill them, one may, by shutting a Gate or drawing a Bridge after him, secure himself, and leave the other in great Probability of losing his Life, supposing it not to be possible to save both.
XXIX.Another destroyed or hurt to the same end.IV.Cases also of Necessity may happen, where one may indirectly put another in Danger of Death, or some great Mischief, when at the same time he means no harm to the Person; but only, for his own Preservation, he is forced upon some Action which probably may do the other a Damage; always supposing that he had rather have chosen any other Way, if he could have found it, and that he make that Damage as little as he can. Thus, if a stronger Man than I pursues me to take away my Life, and one meets me in a narrow Way thro’ which I must flee, if, upon my Request, he will not stand out of the Way, or he has not time or room so to do, I may throw him down and go over him, tho’ it be very likely that by the Fall he will be very much hurt; except he should be one who has such peculiar Relation to me, [suppose my Parent, King, &c.] that I ought for his Sake rather to surrender my self to the Danger. And if he who is in the Way cannot, upon my speaking to him, get out of the Way, suppose being lame or a Child, I shall be excused who try to leap over him, rather than to expose my self to my Enemy by delaying. But if any one shall, out of Wantonness or cross Humour, hinder me or deny to give me the Liberty of escaping, I may immediately by any Violence throw him down, or put him out of my Way. And those who in these Cases get any Harm, are to look upon it not as a Fault in the Person that did it, but as an unavoidable Misfortune.
XXX.Case of extreme Want. L. N. N. l. 2. c. 6. §5.V.If a Man, not through his own Fault, happen to be in extreme Want of Victuals and Cloaths necessary to preserve him from the Cold, and cannot procure them from those who are wealthy and have great Store, either by Intreaties, or by offering their Value, or by proposing to do Work equivalent; he may, without being chargeable with Theft or Rapine, furnish his Necessities out of their Abundance, either by force or secretly, especially if he do so with a Design to pay the Price, as soon as he shall have an Opportunity. For it is the Duty of the opulent Person to succour another who is in such a needy Condition. And tho’ regularly what depends upon Courtesie ought by no means to be extorted by Force, yet the Extreme Necessity alters the Case, and makes these Things as claimable, as if they were absolutely due by a formal Obligation. But it is first incumbent upon the Necessitous Person to try all Ways to supply his Wants with the Consent of the Owner, and he is to take care that the Owner be not thereby reduced to the same Extremity, nor in a little time like to be so; and that Restitution be made; * especially if the Estate of the other be such as that he cannot well bear the Loss.
XXXI.Destroying other Men’s Goods to save our own. L. N. N. l. 2. c. 6. §8.VI.Lastly, the Necessity of our own Affairs seems sometimes to justifie our destroying the Goods of other Men;1. Provided still, that we do not bring such Necessity upon our selves by our own Miscarriage:2. That there cannot be any better Way found: 3. That we cast not away that of our Neighbours which is of greater Value, in order to save our own which is of less:4. That we be ready to pay the Price, if the Goods would not otherwise have been destroyed, or to bear our share in the Damage done, if the Case were so that his must have perished together with ours, but now by the Loss of them ours are preserved. And this sort of Equity is generally found in the Law-Merchant.31 Thus in case of Fire, I may pull down or blow up my Neighbour’s House, but then those whose Houses are by this means saved, ought to make good the Damage proportionably.
Of the Duty of one Man to another, and first of doing no Injury to any Man
I.Reciprocal Duties of two Sorts.We come now to those Duties which are to be practis’d by one Man towards another. Some of these proceed from that common Obligation which it hath pleas’d the Creator to lay upon all Men in general; others take their Original from some certain Human Institutions, or some peculiar,*adventitious or accidental State of Men. The first of these are always to be practis’d by every Man towards all Men; the latter obtain only among those who are in such peculiar Condition or State.32 Hence those may be called Absolute, and these Conditional Duties.
II.No wrong to be done. L. N. N. l. 3. c. 1.Among those Duties we account Absolute, or those of every Man towards every Man, this has the first Place, * that one do no Wrong to the other; and this is the amplest Duty of all, comprehending all Men as such; and it is at the same time the most easy, as consisting only in an Omission of acting, unless now and then when unreasonable Desires and Lusts are to be curb’d. It is also the most necessary, because without it Human Society cannot be preserv’d. For I can live quietly with him that does me no Good, or with whom I have no manner of Correspondence, provided he doth me no Harm. Nay this is all we desire from the greatest Part of Mankind; the doing mutually good Offices lying but among a few. But I can by no means live peaceably with him that wrongs me; Nature having instilled into every Man such a tender Love of himself and what is his own, that he cannot but by all possible means repel those Men who shall make any Attempt upon one or t’other.
III.So to do a Crime.By this Duty are fenced not only what we have by the Bounty of Nature; such as our Laws, Bodies, Limbs, Chastity, Liberty; but whatsoever by any Human Institution or Compact becomes our Property; so as by this it is forbidden to take away, spoil, damage, or withdraw, in whole or in part, from our Use, whatsoever by a lawful Title we are possess’d of. Whence all those Actions are hereby made Crimes, by which any Wrong is done to others, as Murther, Wounding, Striking, Rapine, Theft, Fraud, Violence, whether practis’d directly or indirectly, mediately or immediately, and the like.
IV.Reparation of Wrong a necessary Consequence from thence.Farther, hence it follows, That if any Harm or Damage be done to another, he who is truly chargeable as Author of the Wrong, ought, as far as in him lies, to make Reparation: For otherwise the Precept would be to no purpose, That no Man shall be hurt nor receive damage; if when he has actually sustain’d a Mischief, he must put it up quietly, and he who did the Injury shall enjoy securely the Fruit of his Violence without Reparation. And setting aside this Necessity of Restitution, the Pravity of Man’s Nature is such, that they would never forbear injuring one another, and it would be very hard for him who has suffered Wrong, to compose his Mind so as to live peaceably with the other, till Reparation were made.
V.Damage how to be accounted. L. N. N. l. 3. c. 1. §3.Tho’ the Word Damage may seem properly to belong to Loss in Goods, yet we take it here in the large Sense, that it may signifie all Manner of Harm, spoiling, diminishing, or taking away what is already ours, or intercepting that which by an absolute Right we ought to have, whether it be bestowed upon us by Nature, or given us by Man and Human Laws; or lastly, the Omission or Denial of paying what by a perfect Obligation is due to us. But if such Payment only be stopt, as was not due by any perfect Obligation, it is not looked upon as a Damage that ought to be made good: For it would be unmeet to account it a Wrong suffered if I receive not such Stipends; and unreasonable for me to demand as my Right, what I cannot expect from another but under the name of a Free Gift, and which I can by no means call my own, till after I have received it.
VI.Damage in expectations.Under the Head of Damage liable to Reparation, we must also comprise not only a Mischief, Loss or Interception of what is ours or due to us; but also such Profits as do naturally accrue from the Thing, or have already accrued, or may fairly be expected, if it was the Right of the Owner to receive them; allowing still the Expenses necessary for gathering in such Profits. Now the Value of Profits, thus in Expectation only, is to be high or low, according as they are certain or uncertain, and will be sooner or later received. And lastly, that also is to be called Damage, which upon a Hurt given, does of Natural Necessity follow thereon.
VII.Damage mediately or immediately done. L. N. N. l. 3. c. 1. §4.One Man may damnifie33 another not only immediately or by himself, but also by others: And it may happen that a Damage immediately done by one Man may be chargeable upon another, because he contributed somewhat to the Action, either by doing what he ought not, or not doing what he ought to have done. Sometimes among several Persons who concurred to the same Fact one is to be accounted the Principal, others but Accessories; sometimes they may all be equally Parties. Concerning whom it is to be observed, that they are so far obliged to repair the Wrong as they were indeed the Causes thereof, and by so much as they contributed to doing All or Part of the Damage. But where any one did not actually assist in the Trespass committed; nor was antecedently a Cause of its being done, nor had any Advantage by it; there, though upon Occasion of the Injury done, he may be blame worthy, yet he cannot be any ways obliged to Restitution: And of this Sort are such as rejoyce at their Neighbour’s Misfortunes, such as commend the Commission of Outrages, or are ready to excuse them, who wish or favour the Practice of them, or who flatter the Actors therein.
VIIIDamage done by many. L. N. N. l. 3. c. 1. §5.Where many have joined in an Action from whence Damage has come, he in the first place shall be chargeable with Reparation, by whose Command or powerful Influence the others were put upon the Action; and he who immediately perpetrates the Thing, to which he could not decline his helping Hand, shall be esteemed but only as the Instrument. He who without any constraint concerned himself in the Enterprize shall be chiefly liable, and then the rest who assisted in it. But this so, as that if Restitution be made by the former, then the latter are cleared, (which in Penal Cases is otherwise.) If many in Combination have committed an Injury, all are obliged for each one single, and each one single is obliged for all; so as that if all are seized, they must each pay their Shares to make good the Loss; and if all escape but one, he shall be obliged to pay for all; but where some amongst them are insolvent, those who are able must pay the Whole. If many, not in Combination, concur to the same Thing, and it can plainly be discerned how much each of them contributed to the doing of the Mischief; each shall only be accountable for so much as himself was the Cause of. But if one shall pay the whole, they are all discharged for the same.
IX.Damage by Negligence. L. N. N. l. 3. c. 1. §6.Not only he who out of an evil Design does wrong to another, is bound to Reparation of the Damage, but he who does so thro’ Negligence or Miscarriage, which he might easily have avoided. For it is no inconsiderable Part of social Duty,34 to manage our Conversation with such Caution and Prudence, that it does not become mischievous and intolerable to others; in order to which, Men under some Circumstances and Relations, are obliged to more exact and watchful diligence: The slightest Default in this point is sufficient to impose the Necessity of Reparation; unless the Fault lay rather more in him who was harmed, than in him who did it; or unless some great Perturbation of Mind, or some Circumstance in the Matter, would not allow the most deliberate Circumspection; * as, when a Soldier in the Heat of Battle in handling his Arms shall hurt his Comrade.
X. Damage by Chance.But he who by meer Chance, without any Fault of his own, shall do Harm to another, is not obliged to Reparation. Because nothing in this Case being done which can be chargeable upon him, † there is no Reason, why he who unwillingly did a Mischief should rather suffer, than he to whom it was done.
XI.Damage by a Vassal.It is also agreeable to Natural Equity, if my Vassal, though not by my Desire, do Wrong to another, that either I make it good, or surrender him to the Party injured. For ’tis true, this Vassal is naturally obliged to Reparation; but he not having wherewith, and his Body being the Property of his Patron, it is but just that such Patron either repair the Loss sustained, or deliver him up. Otherwise such a Bond-man would be at liberty to do what Mischief he listed, if Amends cannot be had from him, because he is the Owner of nothing, no not of the Body he bears; nor from his Patron. For, let him beat the Slave never so severely, or punish him with the closest imprisonment, that gives no Restitution to the Person wronged.
XII.Damage by Cattle.The same seems to be just in the Case of our Cattle or any living Creature we keep, that, when they against our Wills and by a Motion of their own, contrary to their Natures, do a Mischief to another, we either make Reparation, or give up the same. For if I am hurt by any Animal that lives in its Natural Liberty, I have a Right, by what means I can, to give my self Satisfaction by taking or by killing it; and this Right doubtless cannot be taken away by its being in the Possession of another. And whereas the Owner of this Animal makes some Gain by it, but I have suffered Loss by the same; and whereas the Reparation of Wrong is more to be favoured than procuring Gain; it appears that I may with reason demand Satisfaction from the Owner, or if the Animal be not worth so much, then that it at least be delivered to me on Account of the Damage sustained.
XIII.Recapitulation.Thus then, he who without any evil Intention does an Injury to another, ought of his own accord to offer Reparation, and to protest himself to have done it unwillingly, lest the injured Person take him for his Enemy, and endeavour to retaliate the Mischief. But he, who with a naughty design shall wrong his Neighbour, is not only bound to offer Reparation, but to declare his Repentance for the Fact and to beg Pardon. On the other side, the wronged Party having Satisfaction made him, is obliged, upon the Repentance of the other, and at his Request, to grant him Pardon. For he that will not be content when Reparation is made him, and a fit Submission offered, but still seeks to revenge himself by Force, does nothing else but gratifie his own ill Nature, and so disturbs the common Peace of Men without cause. And upon that account Revenge is by the Law of Nature condemned, as proposing no other End, than doing Mischief to those who have hurt us, and pleasing our selves in their Sufferings. Moreover, there is great Reason that Men should be the more apt to pardon each others Offences, upon a consideration how often themselves transgress the Laws of God, and have therefore daily so much need of begging Forgiveness of Him. [Not still but that the Publick may inflict a Punishment on the Aggressor, tho’ he have given satisfaction to the Private Man, if the Act was Criminal, and in its Nature Evil.]
The Natural Equality of Men to be acknowledged
I.Equality of Mankind.Man is a Creature not only most sollicitous for the Preservation of Himself; but has of Himself also so nice an Estimation and Value, that to diminish any thing thereof does frequently move in him as great Indignation, as if a Mischief were done to his Body or Estate. Nay, there seems to him to be somewhat of Dignity in the Appellation of Man: so that the last and most efficacious Argument to curb the Arrogance of insulting Men, is usually, I am not a Dog, but a Man as well as your self. Since then Human Nature is the same in us all, and since no Man will or can cheerfully join in Society with any, by whom he is not at least to be esteemed equally as a Man and as a Partaker of the same Common Nature: It follows that, among those Duties which Men owe to each other, this obtains the second Place,L. N. N. l. 3. c. 2. §1. That every Man esteem and treat another, as naturally equal to himself, or as one who is a Man as well as he.
II.Wherein this Equality consists. L. N. N. l. 3. c. 2. §2.Now this Equality of Mankind does not alone consist in this, that Men of ripe Age have almost the same Strength, or if one be weaker, he may be able to kill the stronger, either by Treachery, or Dexterity, or by being better furnished with Weapons; but in this, that though Nature may have accomplished one Man beyond another with various Endowments of Body and Mind; yet nevertheless he is obliged to an Observation of the Precepts of the Law Natural towards the meaner Person, after the same manner as himself expects the same from others; and has not therefore any greater Liberty given him to insult upon his Fellows.35 As on the other side the Niggardliness of Nature or Fortune cannot of themselves set any Man so low, as that he shall be in worse Condition, as to the Enjoyment of Common Right,36 than others. But what one Man may rightfully demand or expect from another, the same is due to others also (Circumstances being alike) from him; and whatsoever one shall deem reasonable to be done by others, the like it is most just he practise himself: For the Obligation of maintaining Sociality among Mankind equally binds every Man; neither may one Man more than another violate the Law of Nature in any part. Not but that there are other popular Reasons which illustrate this Equality; to wit, that we are all descended of the same Stock; that we are all born, nourished, and die after the same Manner; and that God has not given any of us a certain Assurance that our happy Condition in the World shall not at one time or other be changed. Besides, the Precepts of the Christian Religion tell us that God favours not Man for his Nobility, Power, or Wealth, but for sincere Piety, which may as well be found in a mean and humble Man, as in those of high degree.
III.This Equality should make us benevolent, courteous and complaisant to each other. L. N. N. l. 3. c. 2. §4.Now from this Equality it follows, That he who would use the Assistance of others in promoting his own Advantage, ought to be as free and ready to use his Power and Abilities for their Service, when they want his Help and Assistance on the like occasions. For he who requires that other Men should do him Kindnesses, and expects himself to be free from doing the like, must be of opinion that those other Men are below himself and not his Equals. Hence as those Persons are the best Members of a Community, who without any difficulty allow the same things to their Neighbour that themselves require of him; so those are altogether uncapable of Society, who setting a high Rate on themselves in regard to others, will take upon them to act any thing towards their Neighbour, and expect greater Deference and more Respect than the Rest of Mankind; in this insolent manner demanding a greater portion unto themselves in those things, to which all Men having a common Right, they can in reason claim no larger a Share than other Men: Whence this also is an universal Duty of the Law Natural, That no Man, who has not a peculiar Right, ought to arrogate more to himself, than he is ready to allow to his Fellows, but that he permit other Men to enjoy Equal Privileges with himself.
IV.It ought to make us observe exact Justice in distributing to each his own. L. N. N. l. 3. c. 2. §5.The same Equality also shews what every Man’s behaviour ought to be, when his business is to distribute Justice 37 among others; to wit, that he treat them as Equals, and indulge not that, unless the Merits of the Cause require it, to one, which he denies to another. For if he do otherwise, he who is discountenanced is at the same time affronted and wronged, and loses somewhat of the Dignity which Nature bestowed upon him. Whence it follows, that Things which are in common, are of right to be divided by equal Parts among those who are equal: Where the Thing will not admit of Division, they who are equally concerned, are to use it indifferently; and, if the Quantity of the Thing will bear it, as much as each Party shall think fit: But if this cannot be allowed, then it is to be used after a stated manner, and proportionate to the Number of the Claimants; because ’tis not possible to find out any other Way of observing Equality. But if it be a Thing of that nature as not to be capable of being divided, nor of being possest in common, then it must be used by turns; and if this yet will not answer the point, and it is not possible the rest should be satisfied by an Equivalent, the best Way must be to determin Possession by Lot; for in such Cases no fitter Method can be thought on, to remove all Opinion of Partiality and Contempt of any Party, without debasing the Person whom Fortune does not favour.
V.This Equality a sufficient Remedy against Pride. L. N. N. l. 3. c. 2. §6.The Consideration of this Natural Equality among Men, ought to take from us all Pride; a Vice that consists herein, When a Man, without any Reason, or, without sufficient Reason, prefers himself to others, behaving himself contemptuously and haughtily towards them, as being in his Esteem base Underlings, unworthy of his Consideration or Regard. We say, without any Reason. For where a Man is regularly possest of some Right, which gives him a Preference to other Men; he may lawfully make use of, and assert the same, so it be without vain Ostentation and the Contempt of others; as on the contrary every one is with good reason to yield that Respect and Honour which is due to another. But for the Rest, true Generosity has always for its Companion a decorous Humility, which arises from a Reflection on the Infirmity of our Nature, and the Faults, of which our selves either have been, or may hereafter be guilty, which are not less heinous than those which may be committed by other Men. The Inference we ought to make from hence is, that we do not over-value our selves with regard to others, considering that they equally with us are endowed with a free Use of their Understanding, which they are also capable of managing to as good Purpose; the regular Use whereof is that alone which a Man can call his own, and upon which the true Value of Himself depends. But for a Man, without any Reason, to set a high esteem upon himself, is a most ridiculous Vice; first, because ’tis in it self silly, for a Man to carry it high for nothing at all; and then, because I must suppose all other Men to be Coxcombs, if I expect from them a great Regard, when I deserve none.
The Violation of this Duty is yet carried farther, if a Man shew his Contempt of another by outward Signs, Actions, Words, Looks, or any other abusive way. And this Fault is therefore the more grievous, because it easily excites the Spirits of Men to Anger and Revenge: So that there are many who will rather venture their Lives upon the spot, much more will they break the Publick Peace, than put up an Affront of that nature; accounting that hereby their Honour is wounded, and a Slur is put upon their Reputation, in the untainted Preservation of which consists all their Self-satisfaction and Pleasure of Mind.
Of the mutual Duties of Humanity
I. Doing good to others. L. N. N. l. 3. c. 3.Among the Duties of one Man towards another, which must be practis’d for the sake of Common Society, we put in the third place this, That every Man ought to promote the Good of another, as far as conveniently he may. For all Mankind being by Nature made, as it were, akin to each other; such a Relation requires more than barely abstaining from offering Injury and doing Despight to others. It is not therefore sufficient that we neither hurt nor despise our Fellows, but we ought also to do such good Offices to others, or mutually to communicate the same, as that common brotherly Love may be kept up among Men. Now we become beneficial to our Neighbour, either indefinitely or definitely; and that either parting with something or nothing our selves.
II. Benefactors of the first Sort. L. N. N. l. 3. c. 3. §2.That Man indefinitely promotes the Good of others, who takes such necessary care of his Mind and Body, that he may be able to perform such Actions as may be profitable to his Neighbour; or who by the Acuteness of his Wit finds out something that may be of Advantage to Mankind. So that those are to be accounted guilty of a Breach of this Duty, who betaking themselves to no honest Calling spend their Lives in Sloth, as if their Souls were given them but to serve as Salt to keep their Bodies from stinking, or as if they were born but to make up a Number, and eat their Share: And such as, being content with the Estates their Ancestors have left ’em, think they may give themselves up to Idleness without blame, because they have whereon to live by the Industry of others: And those who alone enjoy what they have got, not bestowing any Part upon others: Finally, all those who, like Hogs, do Good to no one till they die; and all that Sort of Wretches who only serve to load the Earth with their useless Weight.
III. Such deserve Honour as make themselves useful to the Publick. L. N. N. l. 3. c. 3. §3.On the other side, to those who make it their Business to deserve well of Mankind, the Rest of the World owe thus much, that they don’t envy ’em, nor lay any Rubs in their way, while by their noble Actions they seek the Universal Good: And if there be no Possibility for themselves to imitate ’em, they at least ought to pay a Regard to their Memory and promote their Honour, which perhaps is all they shall get by their Labours.
IV. Good done to others without any charge or cost to the Benefactor.Now not to do readily all that Good to others which we can do without Detriment, Labour, or Trouble to our selves, is to be accounted detestable Villany and Inhumanity. The following are wont to be called Benefits which cost nothing, or which are of Advantage to the Receiver, without being a Charge to the Bestower. Such as, to allow the Use of the running Water; the letting another light his Fire by mine; the giving honest Advice to him that consults me; the friendly Directing a wandring Man to the right Way, and the like. So, if a Man have a mind to quit the Possession of a Thing, either because he has too much, or because the keeping of it becomes troublesome, why should he not rather leave it fit for Use to others, (provided they are not Enemies) than to mar or destroy it? Hence it is a Sin for us to spoil Victuals, because our Hunger is satisfied; or to stop up, or cover a Spring, because we have quenched our Thirst, or to destroy Buoys set up to discover Shelves and Sands, or *Mercuries in Roads, when our selves have made use of them. Under this Head may be comprehended also the little Alms bestow’d by the Wealthy upon those who are in Want; and that Kindness which we justly shew to Travellers, especially if under Necessities, † and the like.
V. Good done to others with an Expence to the Benefactor. L. N. N. l. 3. c. 3. §15.But it is a higher Degree of Humanity, out of a singular Favour to do a good Turn freely, which costs either Charge or Pains, that so another may either have his Necessities relieved, or acquire some considerable Advantage. And these, by way of Excellence, are called Benefits, and are the fittest Matter for rendring Men Illustrious, if rightly tempered with Prudence and Magnanimity. The Dispensation of which, and the Manner, are to be regulated according to the Condition of the Giver and Receiver. Wherein Care is first of all to be taken; 1. That the Bounty we are about to exercise do not more Hurt than Good to the Person to whom we design a Kindness, and to others: Next, 2. That our Bounty be not greater than consists with our Ability: Then, 3. That the Worthiness of Men be regarded in our Distribution, and Preference given to the Well-deserving. We must therefore consider how far each stands in need of our Help, and observe the Degrees of Relation among Men; moreover, ’tis to be observ’d what every one wants most, and what they can or cannot compass with or without our Assistance.‡ The Manner also of exercising Acts of Kindness will render them more acceptable, if they be done chearfully, readily, and heartily.
VI. Gratitude. L. N. N. l. 3. c. 3. §6.And then he who receives a Benefit ought to have a grateful Mind, by which he is to make it manifest, that it was acceptable to him, and that for its sake he has a hearty Respect to the Donor, and that he wants nothing but an Opportunity or an Ability of making, if possible, a Requital of the full value or more. For it is not absolutely necessary that the Returns we make be exactly tantamount to the Courtesy we receive, but our Good-will and hearty Endeavour are in lieu to be accepted. Not but that sometimes he who pretends to have done me a Kindness, may, notwithstanding, have no Reason to say, he has obliged me thereby; as if a Man shall drag me out of the Water, into which he pushed me before; in such a Case I owe him no thanks.
VII. Thanks.Now by how much the more Benefits are apt to oblige and place Engagements on the Minds of Men, by so much ought the Party who is beholden to be the more eager to return his Thanks. If it be but because we ought not to suffer our Benefactor, who out of a good Opinion he had of us has done us a Kindness, to think worse of us; and because we should not receive any Favour, but with a Design to endeavour, that the Giver shall never have Cause to repent of what he has done for us. For, if for any particular Reason we are not willing to be beholden to such or such a Man, we may civilly avoid the Accepting of the Courtesy. And truly if no grateful Returns were to be made upon the Receipt of Benefits, it would be unreasonable for any Man to cast away what he has, and to do a good Turn where beforehand he is sure it will be slighted. By which means all Beneficence, Good-Will, and Brotherly-Love would be lost among Men; and there would be no such things as doing Kindnesses frankly, nor any Opportunities of procuring mutual Friendships, left in the World.
VIII. Ingratitude. L. N. N. l. 3. c. 3. §17.And though the ungrateful Man, cannot be precisely said to do a Wrong; yet the Charge of Ingratitude is look’d upon as more base, more odious, and detestable than that of Injustice; because ’tis judged a Sign of an abject and rascally Soul for a Man to shew himself unworthy of the good Opinion, which another had entertain’d of his Probity, and not to be mov’d to some Sense of Humanity by Benefits, which have a Power to tame even the Brutes. But, let Ingratitude be never so abominable, yet simply considered as it is a bare Forgetting of a Courtesy, and a Neglect of making a due Return upon occasion, Courts of Judicature take no cognizance of it; for it would lose the Name of Bounty, if it were redemandable by Law, as Money lent is; because then it would be a Credit. And whereas it is a high Instance of Generosity to be grateful, it would cease to be a generous Action, when so to do could not be avoided. Beside that it would take up the Business of all Courts, by reason of the great Difficulty in making an Estimate of all the Circumstances, which either would enhance or lessen the Benefit: And that it was to this End I bestow’d it, (to wit, that I did not therefore demand a Promise of Repayment,) that so the other might have an Occasion of shewing his Gratitude, not for Fear of Punishment, but out of Love to Honesty; and to manifest, that it was not in Hopes of Gain, but only out of mere Kindness that I was liberal of that, which I would not take care should be reimburs’d to me. But for him who improves his Ingratitude, and not only gives no thanks to, but injures his Benefactor; * this shall cause an Aggravation of his Punishment, because it plainly demonstrates the profligate Villany and Baseness of his Mind.
The Duty of Men in making Contracts
I.Contracts.From the Duties Absolute to those that are Conditional we must take our Passage, as it were, through the intermediate Contracts; 38 for, since all Duties, except those already mentioned, seem to presuppose some Covenant either expressed or implied; † we shall therefore in the next place treat of the Nature of Contracts, and what is to be observed by the Parties concerned therein.
II.The Necessity of ’em.Now it is plain that it was absolutely necessary for Men to enter into mutual Contracts. For though the Duties of Humanity diffuse themselves far and near thro’ all the Instances of the Life of Man; yet that alone is not Ground sufficient, whereon to fix all the Obligations which may be necessary to be made reciprocal between one and another. For all Men are not endowed with so much Good Nature as that they will do all good Offices to every Man out of meer Kindness, except they have some certain Expectation of receiving the like again: And very often it happens, that the Services we would have to be done to us by other Men are of that Sort, that we cannot with Modesty desire them. Frequently also, it may not become one of my Fortune, or in my Station, to be beholden to another for such a Thing. So that many times another cannot give, neither are we willing to accept, unless that other receive an Equivalent from us; and it happens not seldom, that my Neighbour knows not how he may be serviceable to my occasions. Therefore, that these mutual good Offices, which are the Product of Sociality, may be more freely and regularly exercised, it was necessary that Men should agree among themselves, concerning what was to be done on this side and on that, which no Man from the Law of Nature alone could have assured himself of. So that it was beforehand to be adjusted what, this Man doing so by his Neighbour, he was to expect in lieu of the same, and which he might lawfully demand. This is done by means of Promises and Contracts.
III.Veracity. L. N. N. l. 3. c. 4. §2.With respect to this general Duty it is an Obligation of the Law of Nature, that every Man keep his Word, or fulfil his Promises and make good his Contracts. For without this, a great Part of that Advantage, which naturally accrues to Mankind by a mutual Communication of good Offices and useful Things, would be lost. And were not an exact Observance of one’s Promise absolutely necessary, no Man could propose to himself any Certainty in whatever he design’d, where he must depend upon the Assistances of others. Besides that Breach of Faith is apt to give the justest Occasions to Quarrels and Wars. For if, according to my Agreement, I perform my Part, and the other falsifie his Word, whatsoever I have done or deposited in Expectation of his Performance, is lost. Nay, though I have done nothing as yet, yet it may be a Mischief for me by this Disappointment to have my Affairs and Purposes confounded, which I could have taken care of some other way, if this Man had not offered himself. And there is no reason I should become ridiculous, only for having trusted one whom I took to be an honest and a good Man.
IV.Distinction between what is due on Courtesy or Humanity, and what in particular Contract or Promise. L. N. N. l. 3. c. 4.But it is to be observed, that such Things as are due to me only of Courtesie, differ from those which I can claim on account of a Contract or Promise, in this respect chiefly: That, ’tis true, I may fairly desire the honest Performance of the first: But then, if the other shall neglect my Request, I can only charge him with Rudeness, Cruelty or hard dealing; but I cannot compel him to do me reason either by my own Power or by any superior Authority. Which I am at liberty to do in the latter Case, if that be not freely performed which ought to have been according to an absolute Promise or Covenant.* Hence we are said to have an imperfect Right to those things, but to these our Claim is perfect; as also that to the Performance of the first we lie under an imperfect, but to the other under a perfect Obligation.
V.Obligations different. L. N. N. l. 3. c. 5.Our Word may be given, either by a single Act, where one Party only is obliged; or by an Act reciprocal, where more than one are Parties. For sometimes one Man only binds himself to do somewhat; sometimes two or more mutually engage each other to the Performance of such and such things. The former whereof is called a Promise, the latter a Covenant or Contract.
VI.Promises imperfect. L. N. N. l. 3. c. 5. §6.Promises may be divided into imperfect and perfect. The former is, when we mean indeed to be obliged to make good our Word to him to whom we promise; but we intend not to give him a Power of requiring it, or of making use of force to compel us to it. As, if I say thus, I really design to do this or that for you, and I desire you’ll believe me. Here I seem more obliged by the Rules of Veracity than of Justice; and shall rather appear to have done the promised Service out of a Regard to Constancy and Discretion, than to Right. Of this Sort are the Assurances of great Men who are in favour, whereby they seriously, but not upon their Honours, promise their Recommendation or Intercession, their Preferring a Man, or giving him their Vote, which yet they intend shall not be demanded of them as Matters of Right, but desire they may be wholly attributed to their Courtesie and Veracity; that the Service they do may be so much the more acceptable, as it was uncapable of Compulsion.
VII.Promise perfect.But this is called a perfect Promise, when I not only oblige my self by my Word, but I give the other Party Authority to require at my hands the Performance of what I stipulated, as if ’twere a Debt.
VIII.No Obligation where the voluntary Consent of Parties is wanting. L. N. N. l. 3. c. 6.Moreover, that Promises and Contracts may have a full Obligation upon us to give and to do somewhat, which before we were at liberty not to have done; or to omit that which we had a Power to do, ’tis especially requisite that they be made with our free Consent. For whereas the making good of any Promise or Contract may be accompanied with some Inconvenience, there can be no readier Argument why we should not complain, than we consented thereto of our own accord, which it was in our power not to have done.
IX.Consent express or tacit. L. N. N. l. 3. c. 6. §16.And this *Consent is usually made known by outward Signs, as, by Speaking, Writing, a Nod, or the like; tho’ sometimes it may also be plainly intimated without any of them, according to the Nature of the thing and other Circumstances. So Silence in some Cases, and attended with some Circumstances, passes for a Sign expressing Consent. To this may be attributed those tacit Contracts, where we give not our formal Consent by the Signs generally made use of among Men; but the Nature of the Business, and other Circumstances make it fairly supposable. Thus frequently in the principal Contract, which is express, another is included which is tacit, the Nature of the Case so requiring: And it is usual, in most Covenants that are made, that some tacit Exceptions and imply’d Conditions must of necessity be understood.
X.Who capable of giving Consent. L. N. N. l. 3. c. 6. §4.But to render a Man capable of giving a valid Consent, ’tis absolutely requisite, that he have so far the Use of his Reason, as fully to understand the Business that lies before him, and to know whether it be meet for him, and whether it lie in his Power to perform it; and having consider’d this, he must be capable of giving sufficient Indications of his Consent. Hence it follows, that the Contracts and Promises of Ideots and Madmen (except such whose Madness admits of lucid Intervals) are null and void: And the same must be said of those of Drunken Men,L. N. N. l. 3. c. 6. §4. if they are besotted to that degree as that their Reason is overwhelm’d and stupify’d. For it can never be accounted a real and deliberate Consent, if a Man, when his Brains are disorder’d and intoxicated, shall on a sudden and rashly make foolish Engagements, and give the usual Demonstrations of Consent, which at another time would have obliged him: and it would be a Piece of Impudence for any Man to exact the Performance of such a Promise, especially if it were of any considerable weight. But if one Man shall lay hold on the Opportunity of another’s being drunk, and craftily making an advantage of his Easiness of Temper under those Circumstances, shall procure any Promise from him, this Man is to be accounted guilty of a Cheat and Knavery: Not but that, if, after the Effects of his Drink are over, he shall confirm such Promise, he shall be obliged; and this not with regard to what he said when drunk, but to his Confirmation when sober.
XI.Consent in young Persons. L. N. N. l. 3. c. 6. §5.As for Consent in young Persons, it is impossible for the Laws Natural to determine so nicely the exact Time how long Reason will be too weak in them to render ’em capable of making Engagements; because Maturity of Discretion appears earlier in some than in others; Judgment therefore must be made hereof by the daily Actions of the Person. Though this is taken care for in most Commonwealths, by Laws prescribing a certain Term of years to all in general; and in many Places it is become a commendable Custom to set these under the Guardianship of wiser Men, whose Authority must be had to any Contracts they make, till the other’s youthful Rashness be a little abated. For Persons of this Age, however perhaps they may well enough understand what they do, yet for the most part act with too much Vehemence and Rashness; are too free and easie in their Promises, eager and over confident in their Hopes, proud of being thought generous and liberal, ambitious and hasty in contracting Friendships, and not furnished with prudent Caution and necessary Diffidence. So that he can hardly pass for an honest Man, who makes any advantage of the Easiness of this Age, and would gain by the Losses of young people, who for want of Experience could not foresee, or place a true Estimate thereon.
XII.Mistake in Contracts. L. N. N. l. 3. c. 6. §6.Another Thing which invalidates Consent, and by consequence the Promises and Pacts that are built upon it, is Errour or Mistake; thro’ which it comes to pass, that the Understanding is cheated in its Object, and the Will in its Choice and Approbation. Concerning Error, these three Rules are deligently to be observ’d. (I.) That when to my Promise, some Condition is supposed, without the Consideration whereof I should not have made such Promise; the same shall, without the other, have no Obligation upon me. For in this Case the Promiser does not engage absolutely, but upon a Condition, which not being made good, the Promise becomes null and void. (2.) *If I am drawn into a Bargain or Contract by a Mistake, which Mistake I find, before as we use to say Bulk is broke,39 or any thing done in order to the Consummation thereof, it is but Equity that I should be at liberty to retract; especially if upon the Contract making, I plainly signify’d for what Reason I agreed to it; more particularly, if the other Party suffers no Damage by my going off from my Bargain, or, if he does, that I am ready to make Reparation. But when, as was said afore, Bulk is broke, and the Mistake is not found till the Covenant is either wholly or in part already performed, the Party who is under an Errour cannot retract, any farther than the other shall of Courtesy release to him. (3.) When a Mistake shall happen concerning the Thing, which is the Subject of the Contract, such Contract is invalid, not for the sake of the Mistake, but because the Laws and Terms of the Agreement are not really fulfilled. For in Bargains of this nature, the Thing and all its Qualifications ought to be known, without which Knowledge a fair Agreement cannot be supposed to be made. So that he who is like to suffer Wrong by any Defect therein, either may throw up his Bargain, or force the other to make the Thing as it should be, or else to pay him the Value, if it happen’d through his Knavery or Negligence.
XIII.Guileful Contracts. L. N. N. l. 3. c. 6. §8.But if a Man be drawn into a Promise or Bargain by the Craft and fraudulent Means of another; then the Matter is thus to be considered. (1.) If a third Man were guilty of the Cheat, and the Party with whom the Bargain is driven was not concerned in it, the Agreement will be valid: But we may demand of him who practis’d the Knavery, so much as we are Losers by being deceiv’d. (2.) He who knavishly procures me to promise or contract with him, shall not set me under any Obligation. (3.) If a Man will indeed come freely with a plain* Design to drive a Bargain, but in the very Action shall perceive a Trick put upon him; suppose in the Thing bargain’d for, its Qualities or Value; the Contract shall be so far naught, as to leave it in the Power of him who is deceiv’d, either to relinquish his Bargain, or to require Satisfaction for his Loss. (4.) If unfair Dealing chance to be us’d in some things not essential to the Business, and which were not expressly under regard, this weakens not the Agreement, if, for the rest, it be regularly made; tho’ perhaps one Party might have a Secret and sly Respect to some such thing, at the very time of driving the Bargain, and cunningly conceal’d such his View till the Contract were perfectly transacted.
XIV.Contracts suspicious. L. N. N. l. 3. c. 6. §9.Whensoever Fear is to be consider’d in Promises or Bargains, it is two-fold, and may either be call’d a probable Suspicion lest we should be deceiv’d by another, and this because he is one who is very much addicted to unjust Practices, or has sufficiently intimated his fraudulent Design; or else a panic Terror of the Mind, arising from some grievous Mischief threatned, except we make such a Promise or Contract. Concerning the first Sort of Fear, (or Mistrust rather) these Things are to be observ’d. (1.) He who trusts the Engagements of one who is notoriously negligent of his Word and Troth, acts very imprudently; but, for that Reason only can have no Remedy, but shall be obliged. (2.) When a Bargain is fully made and compleated, and a Man hath no new Reasons to apprehend any knavish Designs from the other Party, it shall not be sufficient to invalidate the Agreement that the other was, on other Occasions before this Agreement, known to have been trickish and deceitful. For since our Knowledge of such his former Behaviour did not prevent our making the Agreement with him, it ought not to prevent our making it good to him. (3.) Where after the Bargain made, it appears plainly that the other Person intends to elude his Part of the Contract, as soon as I have perform’d mine; here I cannot be forced to comply first, till I am secure of a Performance on the other side.
XV.Contracts thro’ Fear. L. N. N. l. 3. c. 7. §11.As for the other Sort of Fear, these Rules are to be observ’d. (1.) If a Man has taken an Obligation upon him, thro’ Fear of Mischief threatned by a third Person, neither at the Instigation, nor with the Confederacy of the Party to whom the Engagement was made, he stands firmly bound to perform what he promis’d. For there appears no Fault in him to whom the Promise was made, which can render him uncapable of acquiring a Right to the Performance of it; on the contrary, he may justly challenge a Requital, in that he lent his Assistance to the other, in warding off the Danger he apprehended from the third Person. (2.) All such Covenants that are made out of Fear or Reverence of our lawful Superiours, or by the Awe we have for those to whom we are very much beholden, shall be firm and good. (3.) Those Bargains which are wrongfully and forcibly extorted from a Man by the Person to whom the Promise or Agreement is made, are invalid, For the Violence he unjustly uses to set me under that Fear, renders him uncapable of pretending to any Right against me on account of such Action of mine. And whereas in all other Cases, every Man is bound to Reparation of what Wrong he shall do to another: this * Restitution to which he is bound is understood as it were to take off any Obligation from such Promise, since if what was promised were paid, it ought to be immediately restored.
XVI.Consent mutual. L. N. N. l. 3. c. 6. §15.Moreover not only in Contracts, but in Promises the Consent ought to be reciprocal; that is, both the Promiser and he to whom the Promise is made must agree in the Thing. For if the latter shall not consent, or refuse to accept of what is offered, the thing promised remains still in the Power of the Promiser. For he that makes an offer of any thing, cannot be supposed to intend to force it upon one that is unwilling to receive it, nor yet to quit his own Title to it; therefore when the other denies Acceptance, he who proffered it loses nothing of his Claim thereto. If the Promise was occasion’d by a Request before made, the same shall be accounted to oblige so long, as till such Request be expressly revok’d; for in that case the thing will be understood to be accepted beforehand; provided yet that what is offer’d be proportion’d to what was desired. For if it be not, then an express Acceptance is requisite; because it may often do me no good to answer my Request by halves.
XVII.Impossible Engagements. L. N. N. l. 3. c. 7.As for the Matter of our Promises and Contracts, it is absolutely necessary, that what we promise, or make a Bargain for, be in our Power to make good, and that so to do be not prohibited by any Law; otherwise we engage our selves either foolishly or wickedly. Hence it follows that no Man is obliged to do Things impossible. But if it be a Thing which at the time of the Bargain making was possible, and yet afterwards by some Accident, without any Fault of the Contracter, became altogether impossible, the Contract shall be null, if there be nothing as yet done in it; but if one Party have perform’d somewhat towards it, what he has advanced is to be restor’d to him, or an Equivalent given; and if this cannot be done, by all means it is to be endeavour’d that he suffer no loss thereby. For in Contracts that is principally to be regarded which was expressly in the Bargain; if this cannot be obtain’d, it must suffice to give an Equivalent; but if neither can this be had, at least the utmost Care is to be taken that the Party undergo no Damage. But where any Man shall designedly, or by some very blameable Miscarriage, render himself uncapable of making good his Part of the Bargain, he is not only obliged to use his utmost Endeavour, but ought also to be punish’d, as it were, to make up the amends.
XVIII.Unlawful Engagements. L. N. N. l. 3. c. 7. §6, 7.It is also manifest, that we cannot set our selves under any Obligation to perform what is unlawful. For no Man can engage himself farther than he hath lawful Authority so to do. But that Legislator who prohibits any Action by a Law takes away all legal Power of undertaking it, and disables any Man from obliging himself to perform it. For it would imply a Contradiction, to suppose, that from a Duty enjoyn’d by the Laws should arise an Obligation to do that which the same Laws forbid to be done. So that he transgresses who promises to do what is unlawful, but he is doubly a Transgressor who performs it. Hence also it follows, that neither are those Promises to be kept, the Observation of which will be mischievous to him to whom they are made; because it is forbidden by the Law-Natural to do hurt to any Man, even though he do foolishly desire it. And if a Contract be made to do some filthy and base Thing, neither shall be obliged to fulfil it. If such filthy Thing be done by one Party pursuant to the Bargain, the other shall not be bound to give the Reward agreed for; * but if any thing be already given on that account, it cannot be demanded again.
XIX.Engagements concerning other men, L. N. N. l. 3. c. 7. §10.And then, it is plain, that such Engagements and Bargains as we shall make of what belongs to other Men are altogether insignificant, so far as they are not ours, but subject to the Will and Direction of others. But if I promise thus; I will use my Endeavour that such a Man (always supposing him to be one not absolutely under my Command) shall do so or no: Then I am obliged by all methods morally possible, (that is, so far as the other can fairly request of me, and as will consist with Civility) to take pains to move that Person to perform what is desired. Nay we cannot promise to a third Man Things in our own possession, or Actions to be done by our selves, to which another has acquir’d a Right, unless it be so order’d, as not to be in force till the time of that other’s Claim is expir’d. For he who by antecedent Pacts or Promises has already transferr’d his Right to another, has no more such Right left to pass over to a third Person: And all manner of Engagements and Bargains would be easily eluded, if a Man after having contracted with one, might be at liberty to enter a Treaty with another, wherein Disposals should be made contrary to the first Agreement, and with which it is impossible this should consist. Which gives foundation to that known Rule, First in Time, prior in Right.
XX.Conditions various L. N. N. l. 3. c. 8. §1.Beside all which it is to be chiefly observ’d concerning Promises, that they are wont to be made positively and absolutely; or conditionally, that is, when the Validity thereof lies upon some Event depending on Chance or the Will of Man.
Now Conditions are either possible or impossible; and the former are subdivided into Casual or fortuitous, which we cannot cause to be or not to be; or Arbitrary, or such as are in the Power of him to whom the Promise is made, that they are or are not comply’d with; or else Mixt, the fulfilling of which depends partly on the Will of the Person receiving the Promise, and partly on Chance.
Impossible Conditions are either such as are naturally or morally so, that is, some Matters by the Nature of Things cannot be done; others by the Direction of the Laws ought not to be done. Such Conditions then as these being annex’d, do, according to the plain and simple Construction of the Words, render the Promise Negative, and therefore null; tho’ it is true it may be so provided by Law, that if to Affairs of great Concernment any such impossible Conditions should be annex’d the Agreement may remain good, rejecting these Conditions as if they had never been made; that so Men may not have busied themselves about that which otherwise can signifie nothing.
XXI.Mediatory Contracts. L. N. N. l. 3. c. 9 §1.Lastly, we promise and contract, not only in our own Persons, but oftentimes by the Mediation of other Men, whom we constitute the Bearers and Interpreters of our Intentions; by whose Negociations, if they deal faithfully by us in following the Instructions we gave, we are firmly obliged to those Persons who transacted with them as our Deputies.
XXII.Conclusion.And thus we have done with the Absolute Duties of Man, by which, as it were, we naturally pass to the Conditional Duties of Men. And these do all presuppose some Human Institution, founded upon an Universal Agreement, and so introduced into the World, or else some peculiar State or Condition. And of this Sort of Institutions, there are three chiefly to be insisted on, to wit, Speech or Discourse, Property and the Value of Things, and the Government of Mankind. Of each of these, and of the Duties arising therefrom we shall next discourse.
The Duty of Men in Discourse
I.General Rule. To deceive no one by any means established to express our Thoughts.How useful and altogether necessary an Instrument of Human Society Discourse 40 is, there is no Man can be ignorant; since many have made that only an Argument to prove Man to be by Nature design’d for a Social Life. Now that a lawful and beneficial Use may be made hereof for the Good of the same Human Society, the Law of Nature has given Men this for a Duty, That no Man deceive another either by Discourse, or any other Signs which customarily are accepted to express our inward Meaning.
II.Uniform Signification of Words. L. N. N. l. 4. c. 1.But that the Nature of Discourse may be more throughly understood, it must first be known, that there is a two-fold Obligation respecting Discourse, whether exprest with the Voice, or written in Characters. The first is, that those who make use of the same Language, are obliged to apply such certain Words to such certain Things, according as Custom has made them to signify in each Language. For since neither any Words nor any particular Strokes form’d into Letters can naturally denote any certain Thing (otherwise all Languages and Characters for writing would be the same; and hence the Use of the Tongue would be to no purpose if every Man might call every Thing by what Name he pleas’d;) it is absolutely necessary among those who speak the same Language, that there be a tacit Agreement among them, that this certain Thing shall be so, or so call’d, and not otherwise. So that unless an uniform Application of Words be agreed upon, ’twill be impossible for one Man to gather the Meaning of another from his Talk. By virtue then of this tacit Compact, every Man is bound in his common Discourse to apply his Words to that Sense, which agrees with the receiv’d Signification thereof in that Language: From whence also it follows, that albeit a Man’s Sentiments may differ from what he expresses in Words, yet in the Affairs of Human Life he must be look’d upon as intending what he says, tho’, as was said, perhaps his inward Meaning be the clear contrary. For since we cannot be inform’d of another’s Mind otherwise than by outward Signs, all Use of Discourse would be to no purpose, if by mental Reservations, which any Man may form as he lists, it might be in his power to elude what he had declar’d by Signs usually accepted to that end.
III.Discourse to be plain. L. N. N. l. 4. c. 1. §6.The other Obligation which concerns Discourse, consists in this, that every Man ought by his Words so to express to another his Meaning, that he may be plainly understood. Not but that it is in a Man’s power to be silent, as well as to speak; and whereas no Man is bound to tell every one all that he bears in his Mind; it is necessary that there be some peculiar Obligation that shall engage him first to speak, and then so to speak as that another shall fully understand his Meaning. Such Obligation may arise from a particular Compact, or some common Precept of the Law Natural, or from the Nature of the present Affair, in which Speech is made use of: For oftentimes a Bargain is made expressly with a Man, that he shall disclose to me all that he knows in some Matter; as suppose I desired to be instructed in any Science: Frequently also I may be commanded by some Precept of the Law of Nature to communicate my Skill to another, that by this Means I may be helpful to him, or that I may save him from Mischief, or that I may not give him some Cause or Occasion of receiving a Harm: And lastly, the present Case may require me to declare my Opinion in a Matter wherein another is concerned; as it often happens in Contracts of the greatest Importance.
IV.Silence. L. N. N. l. 4. c. 1. §7.But because it cannot always happen, that upon any of these Heads I am obliged to signify my Thoughts upon any Matter, it is plain that I am not bound to disclose in Words any more than another has a Right either perfect or imperfect to require. So that I may, by holding my Tongue, lawfully conceal what he has no just Claim to the Knowledge of, or to the Discovery whereof I lie under no Obligation, however earnestly it be desir’d.
V.Counterfeit Discourse.Nay, since Speech was not only ordain’d for the Use of others, but our own Benefit also; therefore whensoever my private Interest is concern’d, and it occasions Damage to no Body else, I may so order my Words, that they may communicate a Sense different from that which I bear in my Mind.
VI.Figurative Speech.Lastly, because oftentimes those to whom we talk upon some Matters may be so disposed, that from a downright and plain Discourse they would perceive the true State of the Case, which ought rather to be conceal’d, because a full Knowledge would not procure the good End we drive at, but be a Detriment to ’em; we may in such Cases use a figurative or shadow’d way of Speech, which shall not directly represent our Meaning and plain Sense to the Hearers. For he who would and ought to benefit another, cannot be bound to attempt it after such a manner, as shall incapacitate him from obtaining his End.
VII.Verity. L. N. N. l. 4. c. 1. §8.From what has been said may be gather’d wherein that Verity consists, for their Regard to which good Men are so much celebrated; to wit, that our Words do fitly represent our Meaning to any other Person who ought to understand ’em, and which it is our Duty to express plainly to him, either by a perfect or imperfect Obligation; and this to the end either that he upon knowing our Minds may make to himself some Benefit thereby, or that he may avoid some undeserv’d Evil, which he would incur upon a wrong Understanding of the Case. Hence by the Bye it is manifest, that it is not always to be accounted Lying, when even for the nonce a Tale is told concerning any Thing in such a manner as does not exactly quadrate with the Thing it self, nor with our own Opinion of it; and consequently, that the Congruity of Words with Things, which constitutes the Logical Verity, is not in all Points the same with Moral Truth.
VIII.A Lye.On the contrary that is rightly call’d a Lye, when our Words bear a different Signification from that which we think in our Minds, whereas the Person to whom we direct our Discourse has a Right to understand the Thing as it really is, and we are under an Obligation of making our Meaning plain to him.
IX.Innocent Untruths. L. N. N. l. 4. c. 1. §11.From what is said it appears, * that those are by no Means chargeable with Lying, who entertain Children or the like with Fables and fictitious Discourses for their better Information, they being suppos’d uncapable of the naked Truth. As neither are those who make Use of a feign’d Story to some good End, which could not be attain’d by speaking the plain Truth; suppose, to protect an Innocent, to appease an angry Man, to comfort one who is in Sorrow, to encourage the Fearful, to persuade a nauseating Patient to take his Physick, to soften the Obstinate, or to divert the evil Intention of another, and the like; or, if the Secrets and Resolutions of a Community41 are to be kept from publick Knowledge, we may raise false Rumours in order to conceal ’em, and to mislead the importunate Curiosity of others; or, if we have an Enemy, whom by open Force we cannot Annoy, we may, by way of Stratagem, make Use of any lying Tales to do him Mischief.
X.Equivocation and mental Reservation. L. N. N. l. 4. c. 1. §14.On the other side, if any Man be bound in Duty to signifie plainly his true Meaning to another, he is not without Blame, if he discover only a part of the Truth, or amuse him with ambiguous Discourse, or use some mental Reservation not allow’d in the common Conversation of Men.
The Duty of those which take an Oath
I.An Oath. L. N. N. l. 4. c. 2.All Men agree in the Opinion, That an Oath gives a great additional Confirmation to all our Assertions, and to those Actions which depend upon our Discourse. An Oath is, *A Religious Asseveration, by which we disavow the Divine Clemency, or imprecate to our selves the Wrath of God if we speak not the Truth. Now when an All-wise and an Almighty Witness and Guaranty is invok’d, it causes a strong Presumption of the Truth, because no Man can easily be thought so Wicked, as to dare rashly to call down upon himself the grievous Indignation of the Deity. Hence it is the Duty of those that take an Oath, To take the same with awful Reverence, and religiously to observe what they have sworn.
II.The End and Use.Now the End and Use of an Oath is chiefly this, To oblige Men the more firmly to speak the Truth, or to make good their Promises and Contracts out of an Awe of the Divine Being, who is infinitely Wise and Powerful; whose Vengeance they imprecate to themselves when they Swear, if they wittingly are guilty of Deceit; whereas otherwise the Fear of what Men can do may not be sufficient; because possibly they may have Hope to oppose or escape their Power, or to beguile their Understandings.
III.Swearing by what. L. N. N. l. 4. c. 2. §3.Since GOD alone is of infinite Knowledge and of infinite Power, it is a manifest Absurdity to swear by any other Name but the Name of GOD only; that is, in such a Sense, as to invoke it for a Witness to our Speech, and for an Avenger of our Perjury: But if in the Form of Oaths any other Things, that we hold Dear, or have in Veneration or Esteem, be mention’d, it is not to be understood that such Things are invok’d as Witnesses to our Truth or Avengers of our Falsehood; but GOD only is herein invok’d, with a Desire, that if we swear falsely, he would be pleas’d to punish our Crime, in these Things especially for which we are most nearly and tenderly concern’d.
IV.Forms how to be accommodated. L. N. N. l. 4. c. 2. §4.In Oaths the Form which is prescrib’d, (by which the Person swearing invokes GOD as a Witness and an Avenger) is to be accommodated to the Religion of the said Swearer; that is, to that Persuasion and Opinion of GOD which he is of. For ’tis to no Purpose to make a Man swear by a God, whom he does not believe, and consequently does not fear. But no Man supposes himself to take an Oath in any other Form, nor under any other Notion, than that which is consonant to the Precepts of his Religion, which, in his Opinion, is the true. Hence also it is, that he who swears by false Gods, which yet himself takes to be true ones, stands obliged, and if he falsifies is really guilty of Perjury; because whatever his peculiar Notions were, he certainly had some Sense of the Deity before his Eyes; and therefore by wilfully forswearing himself he violated, as far as he was able, that Awe and Reverence which he ow’d to Almighty GOD.
V.Deliberation necessary. L. N. N. l. 4. c. 2. §5.That an Oath may be binding, ’tis necessary it be taken with deliberate Thoughts, and a real Design: Whence he shall not be obliged by an Oath who meerly recites it; or speaking in the first Person, dictates the concept formal Words thereof to another who is to say after him. But he who shall seriously behave himself as one that is about to swear solemnly, shall be obliged, whatsoever mental Reservations he all the while may harbour in his Mind. For otherwise all Oaths, nay, all Methods of mutual Obligation by the Intervention of the plainest Significations would be of no Use to human Life, if any Man by his tacit Intention could hinder such an Act from obtaining such an Effect as it was first instituted to produce.
VI.Oaths how obliging. L. N. N. l. 4. c. 2. §6.We ought likewise carefully to observe, that Oaths do not of themselves produce a new and peculiar Obligation, but are only apply’d as an Accessional Strength, and an additional Bond to an Obligation, in its nature valid before. For whenever we swear, we always suppose some Matter, upon non-performance of which we thus imprecate the Vengeance of Heaven. But now this would be to no purpose, unless the Omission of the Thing suppos’d had been before unlawful, and consequently, unless we had before been obliged. Tho’ indeed it frequently happens, that we comprehend in one Speech, both the principal Obligation and the additional Bond of the Oath; as thus, As God help me, I’ll give you a hundred Pounds. Where the Oath is not superfluous, albeit ’tis added to a Promise that might have been valid of it self. Because tho’ every good Man believes a bare Promise to oblige, yet ’tis look’d upon to be the more firm when ’tis reinforced with an Imprecation of Vengeance from above upon a Failure. Hence it follows, that any Acts which were before attended with some inward Flaw, hindring any Obligation to arise from them, cannot be made obligatory by the Accession of an Oath; as neither can a subsequent Oath avoid a former legitimate Engagement, or annul that Right which another may claim thereby; thus a Man would swear in vain not to pay another Person what is justly due to him: Nor will an Oath be of any Validity, where it appears, that ’twas made by the Juror upon Supposition of a Thing to be done which was not really so; and that he would not have so sworn, had not he believ’d it to be done; especially if he were cajol’d into such his Error by the Craft of him to whom the Oath was made: * Neither shall he, who by setting me under panick Fear forces me to take an Oath, have any good Title to require my Performance. Farthermore, an Oath shall have no Obligation upon me to do any unlawful Act, or to omit the performing any Duty enjoyn’d by the Laws of God or Man. Lastly, an Oath cannot alter the Nature or Substance of the Contract or Promise to which it is annex’d: Hence it cannot oblige to Impossibilities. Again, a Conditional Promise, by the Addition of an Oath, is not changed into a Positive and Absolute Promise: In like manner, it is no less requisite to Promises confirm’d by Oaths, than to others which are not so confirm’d, that they be accepted by the other Party: So that he who obtains a Right by any Covenant, may equally release the Performance of it, whether it was sworn to or= not.
VII.Punishment. L. N. N. l. 4. c. 2. §12.But the taking of an Oath has this Effect among Men, for the sake of that Invocation of God which is therein made use of, whose Wisdom no Man’s Cunning can elude, and who suffers not the Man that mocks Him to escape unpunish’d; that not only a heavier Punishment is assign’d to him who forswears himself, than to him who barely breaks his Word; but it puts them in mind to avoid all Deceit and Prevarication in the Matters which it is added to confirm.
VIII.Strict Interpretation. L. N. N. l. 4. c. 2. §14.Not yet that all Oaths are to be consider’d in their greatest Latitude, but that sometimes they must be interpreted in the narrowest Sense, if so it be, that the Subject-matter seem to require it: For instance; if the Oath be made to promote some malicious Design against another, to execute something threatned, and not to perform somewhat promis’d. Neither does an Oath exclude tacit Conditions and Limitations, provided they are such as plainly result from the Nature of the Thing; as suppose, I have sworn to give another whatsoever he shall request, if he ask what it is wicked or absurd for me to grant, I am not at all obliged. For he who indefinitely promises any Thing to him that desires, before he knows what he is like to ask, presupposes the other will crave nothing but what is honest, and morally possible, not Things absurd or mischievous to himself or any Body else.
IX.Sense of an Oath. L. N. N. l. 4. c. 2. §15.This is also to be noted, that in Oaths the Sense of all the Words thereof is to be such as he shall acknowledge himself to take them in, who accepts the Oath, that is, to whom the other Party swears. For the Oath is to be look’d upon to be made for his sake, and not for the sake of the Juror. Whence it is his Part to dictate the Form of the Oath, and this to do in Words as plain as is possible, so that himself may signify in what Sense he conceives them; and the Person swearing may profess that he well understands his Meaning, and then those Words are distinctly to be express’d, that so no room may be left for Cavils or Shuffling.
X.Oaths divided.Oaths may most fitly be distinguish’d according to the Use they are apply’d to in Human Life. * Some are annex’d to Promises and Contracts, thereby to procure a strict and religious Observance of the same; others are apply’d to the Confirmation of any Man’s Assertion concerning a Matter of Fact not altogether evident, and where the Truth cannot by other Means be more conveniently search’d out; such are the Oaths administred to Witnesses, and those who are privy to another Man’s doings; sometimes also two Adversaries, or Litigants, may, with the Consent of the Judge, or the Concession of one Party, by taking such or such an Oath put an end to their Law-Suit.
Duties to be observ’d in acquiring Possession of Things
I.Other Creatures useful to Man.Whereas such is the Condition of Man’s Body, that it cannot be supported and preserved from that which would destroy its Fabric, without the Assistance of Things without him; and whereas by making Use ofL. N. N. l. 4. c. 3. §2.other Creatures42 his Life may be render’d much more comfortable and easie; we may safely gather, that it is the Will of the supreme Moderator of the World, that he be allow’d to apply such other Creatures to his Service, and that he may even destroy many of them for his Occasions. * Neither doth this hold, as to Vegetables only, which have no Sense of the Loss of their Beings; but it reaches even the innocent Animals, which though they die with Pain, yet are kill’d and devour’d by Men for their Sustenance without Sin.
II.Possession introduced.Farther, all these outward Things are understood to have been left in the Beginning by God indifferent to the claim of all Men; that is, so that none of them were the Property of this Man rather than that. Not but that Men were at liberty to dispose Things so, as should seem requisite to the Condition of Mankind, and the Conservation of Peace, Tranquillity and good Order in the World. Hence it was, that at first, while the Human Race was but of a small Number,L. N. N. l. 4. c. 4. §5.† it was agreed, That whatever any one did first seize should be his, and not be taken from him by another; provided however, that he only possesses himself out of the common Store of what is sufficient for his private Service, but not so as to destroy the whole Fund, and so prevent a Stock for future Uses. But afterward, when Mankind was multiply’d, and they began to bestow Culture and Labour upon those Things which afforded them Food and Raiment; for the prevention of Quarrels; and for the sake of good Order, those Bodies or Things also, which produced such Necessaries, were divided among particular Men, and every one had his proper Share assign’d him, with this general Agreement, That whatsoever in this first Division of Things, was yet left unpossest, should for the future be the Property of the first Occupant.* And thus, God so willing, with the previous Consent, or at least by a tacit Compact of Man, Property, or the Right to Things, was introduced into the World.
III.Property what. L. N. N. l. 4. c. 4. §2.Now from Property flows a Right, whereby the Substance, as it were, of any Thing so belongs to One, that it cannot after the same manner wholly belong to Another. From whence it follows, that we may at our own Pleasure dispose of those Things which are our Property, and hinder all other People from the Use of them; unless by Agreement they have procur’d from us some special Right. Although in Communities it does not always happen that Properties are kept so unmix’d and absolute, but are sometimes circumscrib’d and limited by the Municipal Laws thereof, or by Orders and Agreements of Men among themselves.43 But when any certain Thing belongs jointly to more Persons than one after the same manner, then it is said to be common to those several Persons.
IV.All things not possessed.But as Things did not all at once become the Possessions of Men, but successively, and according as the State of Mankind seem’d to require; so it was not necessary neither that every Thing in the World should be claim’d by one Man or other,L. N. N. l. 4. c. 5. §2. but, the Peace of Mankind being preserv’d, some Things may, and some Things ought to continue, as at the Beginning, common to all. For there are Things which are, indeed, very advantagious to Man, but then since they are inexhaustible, so that every Man may have the Benefit of ’em, and yet no single Person can have the less Use of them, it would be foolish, and to no purpose, for any one to enclose or lay claim to ’em. Such are the Light of the Sun, the Air, the running Water, and the like: Among which also may be accounted the vast Ocean flowing between great Continents, for so much of it as is very far distant from the Shore. Because ’tis not only more than sufficient for the promiscuous Use of all Men, but ’tis morally impossible for any single Nation to guard it. * For where a Thing is of that Nature, that other Men cannot by any Means be hinder’d from the Use of it, it is not only in vain to divide or lay claim to it, but it is apt to give Occasion for insignificant Quarrels.
V.Property twofold. L. N. N. l. 4. c. 6.The Methods of acquiring Property are either Original or Derivative: The Original Ways of obtaining Property, are those by which the Property of Things was first introduced: The Derivative Ways are those, by which a Property already settled passeth from one Man to another. Again, the Original Way of acquiring Property is twofold; either, first, simple and absolute; as when we obtain Dominion and Property over the Body or Substance of the Thing: Or, secondly, primitive and respective; as when we add to a Thing already our own some farther Improvement and Increase.
VI.Premier SeisinAfter it had been covenanted among Mankind that Things should be appropriated to this or that Man, it was also agreed, That what Things soever had not fallen within that first Division, should thereafter become the Property of the first Occupant, that is, of him, * who before any other,L. N. N. l. 4. c. 6. §3, 4. should actually seize it with a Design of possessing the same. So that even at this time the Original Method of acquiring Property in many Things is only Premier Seisin, or the first Occupancy. After this manner Titles are made to desolate Regions, which no Man ever claim’d, which become his who first enters upon ’em with an Intention of making them his own, provided he cultivate them and assign Limits how far he propounds to occupy. But when any Number of Men jointly possess themselves of any Tract of Land, ’tis customary to assign to each Member of the Company a Share, and to account what is left undivided to belong to the Society in common.† By this first Occupancy also are gain’d all the wild Beasts, Birds, and Fishes living in the Sea, Rivers, or Lakes thereunto appertaining; as well as what by the Sea shall be thrown upon the Shore; except particular Laws inhibit the promiscuous Seizure of the same, or assign them to some certain Claimant. These, if we would make our own, we must actually seize ’em, and take ’em into our Possession. By this Occupancy also we may rightfully acquire Possession of Things whereof the Property which any other Person could have is extinct. As for instance, in Things which are cast away with Intention of the Owner not to have ’em any more, or in Things which at first we lost unwillingly, but in Time relinquish’d and forewent. ‡ To which may be added what the Lawyers call Treasure trove, or Money found, the Owner whereof is not known, which goes to the Finder, except by the special Laws of a Country it be otherwise provided.
VII.Accessional Improvements. L. N. N. l. 4. c. 7.Moreover, there are many Things capable of being possess’d which continue not always in the same State, but soon after several manners increase of themselves or inlarge their Substance; to others some external Additions are made; many bring forth Fruit, and not a few by Man’s Labour and Workmanship admit of Improvement. All these are comprised under the Head of Accessional Advantages, and may be divided into two Sorts; for some without the Help of a Man accrue from Nature alone; while others either wholly or in part are to be attributed to Human Industry.* Concerning both which this is to be the Rule, To him who is the Owner of the Thing, to the same belong the Improvements and Accessional Advantages; and he who has form’d any Matter of his own into such or such a Fashion, is Owner of that Form or Fashion.
VIII.Services.But Cases often happen, where, either by Contract, or some different Way, another Man may get a Right to receive a certain Profit out of Things that are ours, or to prohibit us the Using even of what is our own to every Purpose.L. N. N. l. 4. c. 8. These Rights are wont to be call’d Services, and they are of two Sorts, either Personal, where the Advantage from what belongs to another Man comes to the Person immediately; or Real, where such Benefit is receiv’d from that which is another’s by the Means or Mediation of that which is ours; among which are accounted the Right of receiving Profits, of making use of what is another’s, of living in such a Place, of commanding the Work of Servants. The Real Services are again subdivided into such as regard the City or the Country; the first Sort are the supporting my Neighbour’s House or Wall which cannot but bear upon mine, affording the Benefits of Lights, not stopping them up, allowing Prospects, carrying off the Rain-Water, and the like: The latter are Liberty of Passage for Men or Cattle, Leave to derive or draw Water, or to water Cattle, or to graze ’em for a time, &c. All which Services have been introduced for the Preservation of good Neighbourhood.
IX.Derivative Property. L. N. N. l. 4. c. 9.Among the derivative Methods of acquiring Property, some are when by the Disposal of the Law Things are devolv’d from one upon another; others are when Possession is transferr’d by the former Owner; and this sometimes affecting the same in whole, and sometimes in part.
X.Inheritance to those who die intestate. L. N. N. l. 4 c. 11.The * Whole of an Estate by the Death of the former Owner generally passes by Succession to the next Heir of the Intestate. For it being repugnant to the common Inclinations of Men, and altogether disserviceable to the Peace of Mankind, that such Possessions should be accounted as foregone and relinquish’d, and as left to be a Prey to any who shall seize ’em, which such Owner had, while he liv’d, taken so much Care and Pains to get: Hence, by the Dictates of Reason it has obtain’d among all civiliz’d Nations, that if any Man dies, not having dispos’d of what he had, the same shall devolve to those, whom, according to the general Inclination of Mankind, he must be thought to have holden most dear to him. And these, regularly consider’d, are those who descend from us, as our Children, &c. after them those who are of the same Consanguinity, according as they are nearly ally’d. And tho’ there may be many, who either for having receiv’d Benefits, or from some particular Affection, have a greater Respect for Persons not at all by Blood related to them, than for the nearest Kin; yet for Peace sake it is necessary, without taking Notice of the peculiar Case of some Few, rather to follow the universal Propensity of Man, and to observe that Method of Succession which is most plain, and least obnoxious to Controversies; which would be very apt to arise, if the Benefactors and Friends of the deceased might be admitted to contest Succession with the next of Kin. So that if a Man has a mind to prefer those to whom he stands obliged by Kindnesses, or such as he has on any other account a Love for, he is to make such Disposals openly and expressly.
XI.Children Heirs. l. 4. c. 11. §3.Whence it follows, that the next Heirs to any Man are his Children, which are given by Nature to Parents to be carefully bred and educated, and for whom every Parent is supposed to wish a most plentiful Provision, and to design to leave whatsoever he shall die possess’d of. But by Children are chiefly understood such as are born in lawful Matrimony: For to these much Favour is due from Reason itself, from the Honour and Decency of the married Life, and from the Laws of all civiliz’d Countries, above the Illegitimate. All which Considerations obtain yet with these Exceptions, to wit, unless the Father has sufficient Reason not to acknowledge such a one for his Son, or disinherits him for some heinous Wickedness. In the same Case with Children are also to be consider’d Progeny of lower Degrees, as Grand-children, whom the Grand-father is bound to bring up, and who have Right to share his Inheritance together with the Uncles on both sides; and this, because there can be no Reason, that the Misery of losing their deceased Parent should be aggravated by being excluded from their Proportion of Inheritance in the Estate of their Grand-father. Upon failure of Heirs descendant, ’tis reasonable the Goods of Children revolve to their Parents; and that to those who are Fatherless, Motherless, and Childless their Brethren should succeed; and upon Default of these, the next of Kin to the deceas’d ought to inherit. Tho’ in order to prevent Contentions, to which on this score great Occasions are frequently given, and that this Matter may be settled for the publick Good, in most Communities the Order of Succession is found to be accurately stated; and such Directions of the Government it is most safe for every private Man to follow in this case, unless very weighty Causes force him to the contrary.
XII.Of Prescription.44 L. N. N. l. 4. c. 12.Another derivative Method of acquiring Property justifiable by Law, was by the *Romans call’d Usucaptio, by the Modern’s Prescription; by which he who by honest Means and a just Title hath gotten Possession of what was really another’s, and hath also held it for a considerable time, without being disturb’d or oppos’d, obtains the full Property of the Thing thus possess’d, so as to extinguish all the Right and legal Claim of the former Owner.
The Reasons on which this Right of Prescription is grounded, are, First, The former Proprietor having for so long time neglected claiming what was his, is judged voluntarily to have relinquish’d all Right and Title to it; it being reasonable to believe, that in a sufficient Space of time he could not want Opportunities, had he had Inclinations to put in his Claim: Secondly, The Preservation of the Peace of Society demands, that he who by honest Methods comes to the Possession of what he has, should not be perpetually liable to have taken from him, what became his Purchase by a fair and honest Title; especially it being much more grievous to the present Possessor to be turn’d out of a Possession honestly acquir’d, than to the former Owner not to be put into Possession of what he had long since lost the Hopes and Expectations of. The Rules of Natural Equity are sufficient to determine what time shall suffice to create Prescription in particular Cases: However, it is much better, for the Prevention of Strife and Controversies, that certain limited times, according to Reason and Convenience, should be stated and mark’d out by all Communities, whereby it may be determined what shall make a good Prescription.
XIII.Last Will. L. N. N. l. 4. c. 10.The Whole also of an Estate may, by an Act of the former Proprietor, upon his Death be pass’d away by his †Last Will and Testament; for this has been allow’d by most Nations, that for some kind of Ease to our Thoughts of Mortality, a Man yet alive may, if Death happen, transfer what he has of outward Goods to some Person that he loves best. Now whereas in the most ancient Times it seems to have been customary, that the dying Man upon the Approach of his End openly declar’d his Heirs, and with his own Hands deliver’d such or such Portions into the Hands of them who were to receive; yet afterwards, for good Reasons, another manner of Bequeathing was approved by many People; to wit, that a Man may at any time, when himself thinks good, make his own Will, and either declare it openly, or keep it close in Writing; which Will also he may at his Pleasure alter, and of which the Heirs he has named or written down cannot make any Use till the Testator be dead. Not but that such Last Wills, of how much Authority soever they are among Men, yet are to be order’d with Consideration of the Party’s various Relations to Men, and of the Good of the Community; the Neglect whereof has given Occasion for the Laws oftentimes to provide and give Rules for making them; from which prescribed Directions, if any Man depart, he has no Reason to complain, that Regard was not had to his Last Will.
XIV.Gift.While Men are yet living, Things are transferr’d by the Act of the first Proprietor, either Gratis or Freely; or else by the Mediation of some Contract. The former Way of Transferring is call’d Gift: And of the latter, which is Contracting, we shall speak hereafter.
XV.Forcible Possession.Sometimes also Things change their Owner without the Consent, and even against the Will of the same Owner; and this is mostly in Communities, by way of Fine, when sometimes all the Estate of a Convict, sometimes such a Portion only shall be forfeited, and the same shall be given either to a private Person who has suffer’d Wrong, or applied to the Uses of the Publick.L. N. N. l. 4. c. 6. §14 l. 2. c. 16. §13. So in War Goods are forcibly taken from the Possessor, who parts with them very unwillingly, by an Enemy who is too strong for him, and become the true Property of the Seizer; not but that the first Owner has still a Right with a greater Force, whenever he can, to recover them, so long as till by subsequent Treaties of Peace he does in effect renounce his Pretences thereto.
The Duties which naturally result from Man’s Property in Things
I.We must conscientiously abstain from invading our Neighbours Property. L. N. N. l. 4. c. 13.Property in Things being established among Men, these Duties naturally arise. * EveryMan is obliged to suffer another, who is not a declared Enemy, quietly to enjoy whatsoever Things are his; and neither by Fraud or Violence to spoil, imbezzel, or convert them to his own Use. Whence it appears, That Theft, Rapine, removing of Boundaries, and the like Crimes, which tend to the Invading and Incroaching upon other Mens Properties, are forbidden.
II.Restitution to be made if we possess what belongs to another. L. N. N. l. 4. c 13. §2.When any Thing, that belongs to another, falls into our Hands, although it be fairly on our Part, that is, without Trick or Fraud of ours; yet if it belongs to another Person, and we have Possession of it, we are obliged to take care, as far as in us lies, to return it to its right Owner. By this is not to be understood, That when we have procur’d any Thing to our selves by fair and honest Means, and enjoy it by a rightful Title, we are to make groundless Doubts and Scruples about the Validity of our Right, and make Proclamation, as it were, That we are in Possession of such a Thing; that, if possibly it should belong to another Person, the Proprietor might come and demand it. It is enough that, if we come to the Knowledge that what we possess is another Person’s, we then give notice to the Proprietor, that it is in our Possession, and that we are ready to deliver it up to the right Owner. And in this Case, we are not bound to restore it, unless we are repay’d the necessary Charges we have been at in procuring, or preserving it; which we may justly demand to be reimbursed, or stop the Thing ’till Satisfaction be made. And the Duty of Restitution of which we are speaking, is so indispensably necessary, that it sets aside all private Ingagements or Contracts to the contrary, and takes away all Right that may seem to arise from any such private Obligations: As for Instance, Should a Thief trust and deposite with me, upon my Promise of Redelivery, somewhat that he has stollen, I being altogether ignorant of the Matter; if after this, the Right Owner appears, the same is to be restor’d to him, and not to the Thief.
III.Restitution Part consum’d. L. N. N. l. 4. c. 13. §6.But if any Thing belonging to another, which yet we came by fairly and honestly, be wasted and consum’d, ’tis our Duty to restore only so much to the Owner as we have made Profit or Advantage to our selves from it. All that lies upon us to do herein, being to refund so much as we have gain’d thereby, that so we may not be the richer by another Man’s undeserved Loss.
IV.Conclusions. First. L. N. N. l. 4. c. 13. §7.From these Premisses, we may deduce the following Conclusions: 1. A Presumptive Owner, (or one who without any Covin45 on his Part, becomes the Possessor of what belongs to another Man) is not obliged to make any Restitution, if the Thing perishes; because neither the Thing it self is in his Power, neither has he receiv’d any Gain or Advantage thereby.
V.Second. L. N. N. l. 4. c. 13. §8.2. Such a Presumptive Owner is obliged to make Restitution, not only of the Thing it self, but also of the Fruits and Profits, which are in being at the Time. For to whomsoever the Thing really belongs, to the same likewise the Profits and Advantages thence arising do accrew. Nevertheless, it is lawful for the Possessor to deduct what Charges he has been at upon the Thing, or upon its Culture and Improvement, by means whereof it has produced those Fruits and Profits.
VI.Third. L. N. N. l. 4 c. 13. §9.3. A Presumptive Owner is obliged to make Restitution of the Thing, and of the Fruits and Profits of it that are consumed, if otherwise he would have consum’d as much of his own, and can recover the Value thereof from him of whom he received Possession. For otherwise he would inrich himself, whilst by spending what belongs to another, he spares his own.
VII.Fourth. L. N. N. l. 4. c 13. §10.4. A Presumptive Owner is not oblig’d to make good the Fruits and Profits which he might have made of the Thing in his Possession, but neglected so to do: Because he has not the Thing it self, nor any Thing in Lieu thereof, and he must be consider’d, to have done by it, as he would have done by that which was truly his own.
VIII.Fifth. L. N. N. l. 4. c. 13. §11.5. If a Presumptive Owner makes a Present or Donation of any Thing belonging to another, which was given to himself, he is not bound to restore it; unless he had been obliged in Duty to have given the like Value. For in such a Case, he would be a Gainer, by saving what he must have given of his own.
IX.Sixth. L. N. N. l. 4. c. 13. §12.6. If a Presumptive Owner makes over what he hath purchased of another Man, upon a valuable Consideration, he is not bound to make Restitution; unless so far as he has made any Advantage by it.
X.Seventh. L. N. N. l. 4. c. 13. §13.7. A Presumptive Owner is obliged to restore that which belongs to another, tho’ he bought it upon a valuable Consideration; nor can he demand of the true Owner the Price he paid for it, but only of him from whom he had it; unless so far as the Charges which the Owner must necessarily have been at, in regaining the Possession of his Right; or that otherwise he did freely promise some Reward for the Recovery.
XI.Things found. L. N. N. l. 4. c. 13. §15.Whosoever happens to find any Thing belonging to another, which, ’tis probable, the right Owner lost against his Will, he cannot take it up with an Intention to detain it from him when he requires it. But if the Owner appear not, he may fairly keep it himself.
Of the Price and Value of Things
I.Price. L. N. N. l. 5. c. 1. §1.After Property was introduced into the World, all Things not being of the same Nature, nor affording the same Help to Human Necessities; and every Man not being sufficiently provided with such Things as were necessary for his Use and Service, it was early brought into Practice among Men to make mutual Exchanges of one Thing for another. But because it very often happened, that Things of a different Nature and Use were to be transferred; lest either Party should be a Loser by such Exchanging, it was necessary, by a common Agreement or Consent among themselves, to assign to Things a certain Quantity or Standard, by which those Things might be compar’d and reduced to a Balance between each other. The same also obtained as to Actions, which it was not thought good should be done gratis by one Man for another. And this Quantity or Standard is that which we call Price or Value.
II.Price twofold. L. N. N. l. 5. c. 1. §3.This Price is divided into Common and Eminent; The First is in Things or Actions which come within the compass of ordinary Commerce, according as they afford either Usefulness or Delight to Mankind. But the other is in Money, as it virtually contains the Value of all Things and Works, and is understood to give them their common Estimate.
III.Common Value. L. N. N. l. 5. c. 1. §4.The natural Ground of the Common Value,* is that †Fitness which any Thing or Action has for supplying, either mediately or immediately, the Necessities of Human Life, and rendring the same more easie or more comfortable. Hence it is we call those Things which are not of any Use to us, Things of no Value. There are nevertheless some Things most useful to Human Life, which are not understood to fall under any determinate Price or Value; either because they are or ought to be exempted from Dominion and Property, or because they are not capable of being exchanged, and therefore cannot be traded for; or else, because in Commerce they are not otherwise regarded than as Appendages to be supposed of course to belong to another Thing. Besides also, when the Law of God or Man places some Actions above the Reach of Commerce, or forbids that they should be done for a Reward, it is to be understood that the same Laws have set them without the Bounds of Price or Valuation. Thus the Upper Regions of the Air, the Sky, and the Heavenly Bodies, and even the vast Ocean are exempt from Human Property, so that no Rate or Value can be put upon them. So there is no Rate or Price to be set upon a Freeman, because Freemen come not within the Compass of Commerce. Thus, the Lying open to the Sun, a clear and wholesome Air, a pleasant Prospect to the Eye, the Winds, Shades, and the like, consider’d separately in themselves, bear no Price, because they cannot be enjoy’d and purchas’d separately from the Lands they belong to; but yet of what Moment they are in raising the Value of Lands and Tenements to be purchas’d, no Man is ignorant. So likewise ’tis unlawful to set any Rate or Price on Sacred Actions, to which any moral Effect is assign’d by Divine Institution; which Crime is call’d Simony. And it is great Wickedness in a Judge to expose Justice to Sale.
IV.Inhansing or Debasing a Price. L. N. N. l. 5. c. 1. §6.Now there are various Reasons, why the Price of one and the same Thing should be increas’d or diminish’d, and why one Thing should be preferr’d before another, though it may seem to be of equal or greater Use to Human Life. For here the Necessity of the Thing, or its extraordinary Usefulness, is not always regarded; but, on the contrary, we see those Things are of the least Account or Value, without which Human Life is least able to subsist; and therefore, not without the singular Providence of Almighty God, Nature has been very bountiful in providing plentiful Store of those Things. But the Rarity or Scarceness of Things conduces chiefly to the inhansing their Value; which is the more look’d upon, when they are brought from remote Countries. And hence the wanton Luxury of Mankind has set extravagant Rates upon many Things which Human Life might very well be without; for Instance, upon Pearls and Jewels. But the Prices of Things, which are of daily Use, are then chiefly rais’d when the Scarcity is join’d with the Necessity or Want of them. The Prices of Artificial Things, besides their Scarceness, are for the most Part inhans’d by the ingenious Contrivance and Curiosity of Art, that is seen in them, and sometimes by the Fame and Renown of the Artificer, the Difficulty of the Work, the Want of Artists in that Way, and the like. The Prices of Works and Actions are rais’d by their Difficulty, Neatness, Usefulness, Necessity, by the Scarcity, Dignity, and Ingenuity of the Authors of them; and lastly, by the Esteem and Reputation which that Art has gotten in the World. The Contrary to these are wont to diminish the Price of Things. Sometimes again, there may be some certain Thing, which is not generally much esteem’d, but only by some particular Persons, out of a peculiar Inclination; for Example, because he, from whom we had it, is mightily belov’d by us, and that it was given as a Token of his particular Affection to us; or because we have been accustom’d thereto, or because it is a Remembrancer of some remarkable Accident, or because by the Help thereof, we have escap’d any extraordinary Danger, or because the Thing was made by Our selves. And this is called The Estimate of singular Affection.
V.Particular Prices Legal. L. N. N. l. 5. c. 1. §8.But there are other Circumstances likewise to be consider’d in stating the Rates and Prices of particular Things. And among those indeed, who live in a Natural Independance on any other, the Prices of particular Things are determin’d no otherwise, than by the Will of the Persons contracting; since they are intirely at their own Liberty to make over or to purchase what they please, nor can they be controlled in their Dealings by any superior Authority. But in States and Governments the Prices of Things are determin’d two several Ways: The First is by an Order from the Magistrate, or some particular Law; the Second is by the common Estimate and Judgment of Men, or according as the Market goes, together with the Consent and Agreement of those who contract among themselves. The former of these by some is call’d the Legal, the other the Vulgar Price. Where the Legal Rate is fix’d for the sake of the Buyers, as it is for the most part, there it is not lawful for the Sellers to exact more; though they are not forbidden, if they will, to take less. So where the Rate of any Labour or Work is tax’d by the Publick Magistrate for the sake of those who have Occasion to hire, it is not lawful for the Workman to demand more, though he be not prohibited to take less.
VI.Vulgar Price. L. N. N. l. 5. c. 1. §9.But the Vulgar Price, which is not fix’d by the Laws, admits of a certain Latitude, within the Compass whereof more or less may be, and often is, either taken or given, according to the Agreement of the Persons dealing; which yet for the most part, goes according to the Custom of the Market. Where commonly there is Regard had to the Trouble and Charges which the Tradesmen generally are at, in the bringing home and managing their Commodities, and also after what manner they are bought or sold, whether by Wholesale or Retail. Sometimes also on a sudden the Common Price is alter’d by reason of the Plenty or Scarcity of Buyers, Money, or the Commodity. For the Scarcity of Buyers and of Money, (which on any particular Account may happen) and the Plenty of the Commodity, may be a Means of diminishing the Price thereof. On the other hand, the Plenty of Buyers and of Money, and the Scarcity of the Commodity, inhanses the same. Thus as the Value of a Commodity is lessen’d, if it wants a Buyer, so the Price is augmented when the Possessor is solicited to sell what otherwise he would not have parted with. Lastly, it is likewise to be regarded, whether the Person offers ready Money, or desires Time for Payment; for Allowance of Time is Part of the Price.
VII.Price eminent. L. N. N. l. 5. c. 1. §12.But after Mankind degenerated from their primitive Simplicity, and introduced into the World several kinds of Gaining, it was easily discern’d, that that Common and Vulgar Price was not sufficient for the dispatching the Business of Men, and for the carrying on of Commerce, which then daily increas’d. For at first all Kind of Trading consisted only in Exchanging and Bartering, and the Labours of others could no otherwise be valued than by Work for Work, or some Thing given in Hand for Recompence. But after Men began to desire so many several Things for Convenience or Pleasure, it was not easie for every one to become Master of That which another would be willing to take in Exchange, or which might be of equal Value to the Things he wanted from him. And in civiliz’d States or Societies, where the Inhabitants are distinguish’d into several Stations, there is an absolute Necessity there should be different Degrees and Sorts of Men, which, if that simple and plain Way of bartering of Things and Works had been still in Use, could not, or at least, not without great Difficulty, support themselves. Hence most Nations, which were pleased with a more sumptuous Way of Living, thought fit, by Publick Consent, to set an Eminent Price or Value upon some Certain Thing, whereby the Common and Vulgar Prices of other Things should be measured, and wherein the same should be virtually contain’d. So that by Means of this Thing, any one may purchase to himself whatsoever is to be sold, and easily manage and carry on any Kind of Traffick and Bargain.
VIII.Gold, Silver, &c. L. N. N. l. 5. c. 1. §13.For this purpose, most Nations chose to make use of the nobler Kind of Metals, and such as were not very Common; because these being of a very compacted Substance, they cannot easily be worn out, and admit of being divided into many minute Parts; nor are they less proper to be kept and handled; and for the Rarity of ’em are equivalent to many other Things. Altho’ sometimes for Necessity, and by some Nations for Want of Metals, other Things have been made Use of instead of Money.
IX.Coin. L. N. N. l. 5. c. 1. §14.Moreover, in Communities, it is only in the Power of the Chief Magistrates46 to assign the Value of Money; and thence Publick Stamps are wont to be put upon them. Nevertheless, in the assigning thereof, respect is to be had to the Common Estimate of the Neighbouring Nations, or of those with whom we have any Traffick or Commerce. For otherwise, if the State should set too high a Value on their Money, or if they should not give it a just and true Alloy, all Commerce with Foreign Nations, which could not be carried on by Exchange or Barter alone, would be at a Stand. And for this very Reason, the Value of Money is not rashly to be alter’d, unless a very great Necessity of State require it. Tho’ as Gold and Silver grow more plentiful, the Value of Money, in Comparison to the Price of Land, and Things thereon depending, is wont, as it were insensibly and of its self, to grow lower.
Of those Contracts in which the Value of Things is pre-supposed; and of the Duties thence arising
I.Pacts and Contracts. L. N. N. l. 5. c. 2. §1.A Pact or Agreement in general, is the Consent and Concurrence of Two or more in the same Resolution. But because oftentimes simple Agreements are contra-distinguish’d to Contracts, the Difference seems chiefly to consist herein, That by Contracts are understood such Bargains as are made concerning Things and Actions, which come within the compass of Commerce, and therefore suppose a Property and Price of Things. But such Covenants as are concluded upon, about other Matters, are called by the common Term of Pacts or Agreements.
* Although even to some of these is promiscuously given the Name of Pacts and Contracts.
II.General Division of Contracts. L. N. N. l. 5. c. 2. §8.Contracts may be divided into Gratuitous and Chargeable. The former Sort affords gratis some Advantage to one of the Parties contracting: the latter subjects each of the Parties contracting to some Charge, or lays upon them some Condition or Obligation equally burdensome to them both; in which Case, nothing is done or delivered by either Party, but with a Prospect of receiving an Equivalent.
III.L. N. N. l. 5. c. 4. §1.Of Gratuitous Contracts, there are three Sorts; a Commission, a Loan, and a Charge.
A Commission is, When any one takes upon himself gratis, and in mere good Will, to transact the Business of his Friend, who requests this Trouble of him on the Account of Friendship only. And this may be done two Ways; first, When the Method of transacting the Business is prescribed to the Person who is so kind as to undertake it; and, secondly, When it is wholly left to his Judgment and Discretion.
But as no one would commit the Management of his Affairs to any one but a Friend, and one of whose Honesty and Integrity he has a good Opinion; so he who undertakes this Trust, ought to be careful not to abuse this Confidence reposed in him; but to execute it with the greatest Care, and with the utmost Fidelity. But then, on the other hand, he who has given him this Commission, ought to prevent its being any Loss to him that executes it, by repaying him any Expences he is at in the Execution of it, and likewise by satisfying him for any Loss he may suffer in his own Affairs, while he spends his Pains and Time thus in Friendship to him.
IV.Of Loans. L. N. N. l. 5. c. 4. §6.When we give to another the free Use of what is ours, without any Consideration for the Use of it, this is called a Loan; and the Rules to be observed in this Case, are:
He that lends any Thing to another, lies under no other Obligation to the Person he lends it to, but this only; If the Borrower has been at any necessary Charge, more than what the ordinary Use of the Thing requires, in preserving it, then this extraordinary Expence ought to be made good to him by the Proprietor.
V.Deposit or Trust. L. N. N. l. 5. c. 4. §7.The Third and Last Sort of gratuitous Contracts, is a Charge, Trust, or Deposit: Which is, When we commit any Thing of our own, or which we have any manner of Title to, or Interest in, to the Trust and Care of another Person, to keep the same Gratis: And what the Person’s Duty is, to whom the Deposit is made, will easily be understood.
1. The Thing thus trusted in his Hands, must be carefully looked after, nor must any Use be made of it, without the Knowledge and Consent of the Proprietor, if it can in any ways receive Damage by such using it; as also if it be any Profit or Benefit to the Proprietor to have it kept concealed from any one’s Sight: And if the Person intrusted shall take the Liberty of using it, he ought to make good any Damage or Disadvantage that shall accrue from the Use of it to the Owner. Likewise, it is not just to untye, unseal, or otherwise open any Thing we are intrusted withal, that is sealed or ty’d up, or to take it out of any Box, Chest, or other Thing in which the Owner had inclosed and secured it, when he put it into our Hands.
2. We ought immediately to restore any Thing deposited with us, as soon as ever the Proprietor claims it; at least, unless the Redelivery of it, at such Time it is so claimed, should be a real Prejudice to the Claimant, or to some other Person. But to deny that we have it, when the Owner comes to reclaim what he trusted us with, is a most infamous Piece of Wickedness, and even more base than Theft it self: And it is yet a more detestable Crime, to withold or disown a miserable Deposit; that is, what is put into our Hands in the Time of any Misfortune, during the Danger of Fire, or in the Midst of Tumults and Confusions, or the like Calamities.
He who makes the Deposit on his Part, ought to re-imburse, to the Person with whom it is made, all the Charges that he has necessarily laid out upon the Thing deposited, while it continued in his Hands.
VI.Equality in all chargeable Contracts. L. N. N. l. 5. c. 3. §1.In all Contracts that are purely chargeable, and have nothing gainful in them, where the Law or the Market hath fix’d the Prices of Things, a just Equality is to be observed, that is, one Party ought to receive as much Benefit as the other; and if it happens, that one receives less than the other, he has a Right to demand the Rest, which if denyed him by the other Party, he is at Liberty to set aside the Contract.
Now to find out and adjust this Equality, it is necessary that the Parties contracting be each of them alike thoroughly acquainted with the Commodity about which they are treating, and with the several Qualities of it; and therefore whosoever is going, by way of Contract, to make over the Property of a Thing to another, is indispensably obliged to expose not only the good Qualities of it, but also, to the best of his Knowledge, the Faults and Defects of it; since otherwise no just Price or real Value of the Thing can be assign’d. But this is not to be extended to minute and circumstantial Matters, which affect not the Substance of the Thing; nor need the Faults already known to the Buyer, be mention’d to him; for if, knowing the Faults, he purchases the Thing, such Defects do not annull the Contract, which shall stand good, and the Buyer must be contented with the Inconvenience he has consented hereby to bring on himself.
VII.If an Inequality is discover’d after the Bargain is made, it must be redress’d. L. N. N. l. 5. c. 3. §9.The Equality we have been mentioning, is so absolutely necessary in all chargeable Contracts, that although in making such a Contract, all the Faults of the Thing contracted for, have been fairly expos’d, and nothing demanded more than was really believed to be the just Value of the Thing; yet if afterwards there appears to have been an Inequality, without any Fault of the Contractors, (as suppose some Defect or Blemish lay undiscover’d, or there was some Mistake in the Price) it ought to be corrected, and he that has too much, must make Amends to the Sufferer. In notorious Abuses of this Kind, the Laws of every Country have made Provision for Reparation; but in lesser Breaches of this Duty, they are silent, for the avoiding a Multitude of unnecessary Suits, supposing herein, that every Body will take Care, in his own Concerns, not to be impos’d upon.
VIII.Bartering L. N. N. l. 5. c. 5. §1.Now among chargeable Contracts, or Covenants which imply somewhat to be done or given on both Parts, the most ancient, and that whereby Trading and Commerce was carried on before the Invention of Money, was Permutation or Bartering, whereby, on each Side, something was given for some other Thing equivalent thereto. Altho’ at this Day, since the Invention of Money, that Sort of Exchange is chiefly practis’d among Merchants, whereby Things are not simply compar’d between themselves, but they are first reduced to Money, and afterwards deliver’d as so much Money. But reciprocal Donation is a different Sort of a Thing from the Contract of Barter; for in this there is no Necessity that an Equality should be observ’d.
IX.Buying and Selling. L. N. N. l. 5. c. 5. §2.Buying and Selling, is, When for Money the Property of any Thing is acquired, or else such a Right as is equivalent thereto; of which Kind this is the most plain and obvious; When the Buyer, after the Value is agreed upon, immediately pays down the Price, and the Seller thereupon delivers the Commodity. Yet oftentimes the Agreement is made so, that the Commodity shall be immediately delivered, and the Price thereof paid at a certain Time. And sometimes the Price is agreed upon, but the Delivery of the Thing or Commodity is to be within a certain Time limited. In which Case, it seems but Equity, that before the Time be elaps’d, the Seller should stand to the Hazard of it; but if, after the Time is elaps’d, the Buyer makes Delay, and neglects the taking it away, then, if the Commodity perishes, the Buyer shall stand wholly to the Loss thereof. Now to this of Buying and Selling, are wont to be added several other Kinds of Bargains: As that which is term’d Addictio in diem,47 whereby any Thing is sold with this Proviso, That it may be lawful for the Seller to accept of better Terms, offered by another within a certain Time. So also the Lex Commissoria,48 which is such a Condition in any Contract, as not being perform’d within a Time limited, the Bargain becomes void. So likewise any Kind of Recalling, or Privilege of Recanting a Bargain, which is to be either so understood, That if the Price be laid down within a certain Time limited, or at any Time whatever is offer’d, the Buyer shall be obliged to restore it again to the Seller; or else so, as if the Thing be offer’d again, the Seller is bound to return back again the Price thereof; or so as if the Buyer be willing to sell the same again, the first Seller should have the Refusal of it, before any other, which is likewise call’d Jus Protimeseos, or the Right of Pre-emption. It is also customary that the Seller should reserve to himself a certain Portion of the Lands which he sells, or some Use or Acknowledgement for the same.
There is another Way of Buying, which they call Per Aversionem,49 when several Things of different Prices are not valued singly, but at Hap-hazard, and, as it were, in the Lump.
In that Way of Sale, which is call’d an Auction, the Thing is adjudged to that Person who, among several Bidders, offers most.
Lastly, There is another Way of Buying, whereby not any certain Thing is bought, but only the probable Hopes and Expectation thereof which implies something of Chance; so as neither the Buyer, if his Expectation fails him, nor the Seller, though it much exceed, hath any Reason to complain.
X.Hiring and Letting. L. N. N. l. 5. c. 6. §1.Hiring and Letting, is, When the Use of a Thing, or any Labour is granted to another, upon a certain Consideration.
XI.Things lent. L. N. N. l. 5. c. 7.In a Contract of Things lent, Something is given to a certain Person upon this Condition, That he be obliged to restore the same Kind after a certain Time in the same Quantity and Quality. Now those Things which are usually lent, are called Fungibiles, that is, such Things as are capable of being repaid in Kind, though not in Specie; 50 because any Thing of that Kind may so perform the Part of another Thing, that he who receives any Thing of that Kind in the same Quantity and Quality, may be said to have receiv’d the same, which he gave. The same Things are likewise determined and specified by Number, Weight, and Measure, in which Respect also they are commonly called Quantities, as they are contra-distinct to Species. Now a Thing is lent either gratis, so as no more is to be received than was deliver’d; or else for some Profit or Advantage, which is call’d Usury; and which is no Ways repugnant to the Law of Nature, provided it be moderate, and proportionable to the Gain, which the other Person makes of the Money or the Thing lent; or to that Gain I my self might have made with the same Money; or to the Loss I suffer by the Want of the present Use of it; or, lastly, that it be not exacted of Poor Men, to whom a Thing lent, is sometimes as good as an Alms.
XII.Partnership. L. N. N. l. 5. c. 8.In a Contract of Partnership, Two or more join together their Money, Wares, or Works, with an Intention that every one should receive a proportionable Share of the Profit; and if there happens to be any Loss, that likewise must be born ratably51 by each Party. In which Kind of Society, as all Parties are obliged to Faithfulness and Industry; so no Party must break off the Partnership before the Time, or to the Detriment of his Partner. But when the Time of the Partnership is expired, after the Gain and Loss is allow’d, each Party is to receive what Stock he put in. But if one Person puts in Money or Goods, and the other contributes his Labour, we must consider, after what Manner such a Contribution was made. For when one Man’s Labour is only concern’d about the Managing and Disposing of the other Person’s Money or Goods, the Shares of the Gain are so to be determin’d, as the Profit of the Money or Commodity bears Proportion to the Value of the Labour; the Principal still remaining the Property of him only, who first contributed it. But when any Labour is bestow’d in the Improvement of any Commodity, which is put in by another, he is suppos’d to have such a Share in the Thing it self, as is proportionable to the Improvement it has received. Again, when Men ingage all that they have in any Joint-Stock, as each of the Partners must faithfully bring into the Account the Profits they have made; so also every one of them is to be maintain’d out of the Joint-Stock according to their Condition. But when the Partnership is broken off, the Division of the Goods is made ratably, according as each Party at first brought in; without any Regard had, by whose Goods any Gain or Loss happened to the Company, unless before-hand it was otherwise agreed.
XIII.Contracts upon Chance. L. N. N. l. 5. c. 9.There are likewise several Contracts which imply a Chance: Amongst which may be reckon’d *Wagers, when the Certainty of any Event, which is not yet known by either Party, is affirmed by one, and denied by the other, a Certain Value being laid on both Sides, it is adjudg’d to that Person, to whose Assertion the Event is found to agree. Hitherto may also be referr’d all Sorts of †Games, wherein we play for any Thing of Value. Among which, those have the least Chance which contain a Trial of Wit, Dexterity, Skill, or Strength. In some of these Skill and Chance have both a like Share. In others, Chance does chiefly determine the Matter. Altho’ it is the Part of the Civil Magistrate52 to consider how far such Kind of Contracts may be tolerated, as consistent with the publick or private Good: Among these we may reckon the various Sorts of Lotteries; as either when several Men, having paid for a Thing by Money laid down jointly, refer it to a Decision by Lot, which of them shall have the Whole; or when a Box or Pot of Lots is made Use of, into which a certain Number of Lots or Papers, both Blanks and Prizes are put, and for some set Price, Liberty is granted of drawing them out, so that the Person drawing, may receive the Prize mark’d upon the Lot. To these Contracts, the receiv’d Methods of ‡Insurance have some kind of Affinity, which are such Bargains whereby is undertaken the securing from, and making good any Damage, so that the Insurer, for a certain Sum of Money paid down, takes upon himself, and is obliged to satisfie for whatsoever Losses or Damages any Commodities may undergo in their Transportation to remote Countries; so that if it shall happen that they be lost, he is bound to pay the Owner the Value of them.
XIV.Sureties and Pledges. L. N. N. l. 5. c. 10. §8,9, &c.For the rendring of Contracts and Covenants more firm and secure, Sureties and Pledges are frequently made Use of. * A Surety is, when another Person, who is approv’d of by the Creditor, takes upon himself the Obligation of the principal Debtor; so that unless he makes Payment, the other must make it good; yet so, that the principal Debtor is obliged to repay him, and save him harmless. And altho’ the Surety cannot stand bound for a greater Sum than the principal Debtor, yet nothing hinders but that the Surety is more firmly ty’d than the other, because more is rely’d upon his Credit, than upon that of the principal Debtor. Yet in course, the principal Debtor is to be call’d upon before the Surety, unless he has wholly taken the Obligation upon himself; and such a Person in the Civil Law is commonly called Expromissor, or an Undertaker. Now if several Persons be Security for one, each of them is to be call’d upon for his Proportion only; unless by Accident, any one of them becomes insolvent, or is not to be found: For in such a Case, the others must be charged with his Share.
XV.Pledge or Mortgage. L. N. N. l. 5. c. 10. §13.’Tis likewise oftentimes customary for the Debtor to deliver, or make over to the Creditor for the securing his Debt, some certain Thing, which is call’d a Pledge or a Mortgage, until the Debt be paid. The Intent of which is, not only that the Debtor should be excited to make Payment out of a Desire of recovering what belongs to him; but also that the Creditor should have some Prospect how he may be satisfied. And upon this Account, Pledges ought regularly to be of equal, or greater Value than the Debt it self. Now the Things which may be offer’d as Pledges, are either Improveable, or not Improveable: As to the former Kind, there is commonly added a Covenant called Pactum αντιχρησεωσ,53 which impowers the Creditor to enjoy the Fruits and Profits of that Pledge, instead of Interest: Now as to the other Sort, the Lex Commissoria takes Place; which provides, That the Pledge shall be forfeited to the Creditor, if Payment be not made within a certain Time limited: And this is no ways unreasonable, when the Pledge is not of greater Value than the Debt, together with the Use for the intermediate Time, and provided the Overplus be restored to the Owner. But as the Creditor is obliged to restore the Pledge upon Payment of the Debt; so in the mean Time he ought to be as careful in the preserving thereof, as if it were really his own. And when there is no Pactum αντιχρησεωσ, and the Thing be of that Nature, as to receive any Damage by Use, or if it be any way for the Debtor’s Advantage, he ought not to make Use of it without his Consent. Now a Mortgage differs from a Pledge in this, That a Pledge consists in the Delivery of the Thing, but a Mortgage, though the Thing be not deliver’d, holds good by the bare Assignation of a Thing altogether immoveable, from which, Payment not being made, the Creditor may receive Satisfaction for his Debt.
And thus what the Duties of Persons contracting are, will plainly appear from the End and Nature of these Contracts.
The several Methods by which the Obligations arising from Contracts are dissolved
I.Fulfilling or Payment. L. N. N. l. 5 c. 11.Among the several Ways of discharging Obligations arising from Contracts, and by which likewise the Duties and Offices which proceed from thence do utterly expire, the chiefest and most natural of all, is the Fulfilling or Payment of what was agreed upon. Where, although generally he that is the Debtor, is obliged to make the Payment; yet, if it be perform’d by any other in his Name who contracted the Obligation, the same is dissolv’d; since ’tis no ways material by what Person the Thing is perform’d. Yet with this Proviso, That he who pays for another, without any Intention of bestowing it upon him, may demand from the same again what he laid out upon his Account. Moreover, Payment must be made to that Person to whom it is due, or else to one whom he has appointed to receive the Debt in his Name. And lastly, That very Thing must be perform’d or paid which was agreed upon, not any Thing else instead thereof, intire and not mangled, nor in Parcels, nor by Piece-meal; and likewise at the Place and Time appointed: Altho’ frequently the Courtesie of the Creditor, or the Inability of the Debtor, may be the Occasion of prolonging the Time of Payment, or receiving a Debt by little Sums at once, or else of accepting of one Thing for another.
II.Compensation. L. N. N. l. 5. c. 11. §5.Obligations are likewise taken away by *Compensation which is an Adjusting or Balancing the Credit and the Debt, one against the other; or when the Debtor is therefore discharged, because ’tis manifest that the Creditor himself stands indebted to him for something that is of the same Kind, and of the same Value. Especially since in those Things (called Res Fungibiles, that is) which admit of being repaid in Kind, tho’ not in Specie, an Equivalent is look’d upon to be the same Thing; and where the Debt is mutual, since I must presently return back as much as I have received, for the declining of unnecessary Payments, it seems to be the most convenient Way so to order the Matter, that each Party may keep what he has. Now it is evident, that those Things aforementioned, may very properly be brought to a Balance, of which the Time for Payment is either present, or past. But it is not so in other Things or Performances, which are of a different Nature; unless they are estimated on both Sides, and reduced to Money.
III.Release. L. N. N. l. 5. c. 11. §7.An Obligation also ceases when the Thing is released and forgiven by him to whom it was due, and whose Interest it was that the Obligation should have been perform’d. And this is done either expressly, by some certain Tokens declaring his Consent; as by giving a Discharge, by giving up or cancelling the Bonds and Writings; or else tacitly, if he himself hinders, or is any ways the Occasion that what is owing to him cannot be paid.
IV.Breaking off mutually. L. N. N. l. 5. c. 11. §8.Those Obligations are likewise sometimes dissolved, which imply some Performance on both Sides, by a mutual Breaking off before any Thing on either Side be done in the Contract; unless this be expressly forbidden by the Laws. But if any Thing is performed by one of the Parties, the Obligation in this Case cannot be cancelled, unless he who perform’d his Part, releases the other, or has Amends made him some other Way.
V.Falseness on one Side. L. N. N. l. 5. c. 11. §9.Besides, an Obligation is not indeed properly dissolv’d, but rather broken off by the Falseness of either Party; for when the one does not perform what was agreed upon, neither is the other obliged to make good what he undertook upon a Prospect of the other’s performing. For as to the main Things which are to be performed in Contracts, the former are always included in the latter by way of Condition; as if it should be said, I will perform this, if you perform that first.
VI.Case altered. L. N. N. l. 5. c. 11. §10.Obligations likewise cease when that State of Things upon which they chiefly depended, is either alter’d by the Party who was obliged to perform somewhat, or by him to whom, or for whose Sake it was to be done.
VII.Time. L. N. N. l. 5. c. 11. §11.Sometimes also Time it self puts an End to some Obligations, whose Duration depends upon a certain precise Day; unless it be prolong’d by the express or tacit Consent of each Party. Yet there is a Necessity that the Power of exacting the Obligation within the Time limited, should stand good.
VIII.Assignment. L. N. N. l. 5. c. 11. §13.Any one may make over by Assignment, his Debtor to his Creditor, provided he approves him, that he, instead of the other, may discharge the Debt. Where indeed there is required the Consent of the Creditor, but not of that third Person who is the Debtor, whom I may turn over without his Knowledge or Consent, to the other Person that is to accept him. For it is no great Matter to whom any Person makes Payment; but from whom the Debt is to be required, is very material.
IX.DEATH. L. N. N. l. 5. c. 11. §12.Lastly, By Death those Obligations expire, which were founded in the Person of the Deceas’d; for the Subject being gone, the Accidents must necessarily follow, and the Performance is hereby rendred impossible in Nature. Yet oftentimes the Obligation that lay on the Deceas’d, is continued to the Survivors; and this, either when the Survivor takes it upon him of his own Accord to preserve the Reputation of the Deceased, or for other Reasons; or when the Goods of the Deceased being made over to the Heir, the Incumbrance goes along with them.
Of Meaning, or Interpretation
I.Rules for Interpretation necessary. L. N. N. l. 5. c. 12.As in all Commands and Directions which Men receive from their Superiors, no other Obligation is derived on them from thence, but such as is conformable to the Will and Intention of the Superior; so likewise, when any Man of his own free Will, sets himself under any Obligation, he is bound only to that which himself intended, when he entered into that Obligation. But then, because one Man cannot make a Judgment of another Man’s Intention, but by such Signs and Actions as are apparent to the Senses; hence, therefore, every one, in foro humano,54 is adjudged, To be obliged to that Thing, which he may fairly be supposed to have suggested by a right Interpretation of the outward Signs made by him. Wherefore ’tis of great Use for the true Understanding both of Laws and Covenants, and for the better Discharging the Duties thence arising, that there should be laid down *Certain Rules for the true Interpretation of Words, especially they being the most common and ordinary Signs whereby we express our Mind and Intention.
II.Popular Terms. L. N. N. l. 5. c. 12. §3.Concerning Common and Vulgar Terms, this is the Rule: Words are generally to be taken in their most proper and receiv’d Signification, which they have not so much from Analogy and Construction of Grammar, or Conformity of Derivation, as by Popular Use and Custom, which is the Sovereign Comptroller and Judge of Speech.
III.Terms of Art. L. N. N. l. 5. c. 12. §4.Terms of Art are to be explain’d according to the Definitions of Persons knowing in each Art. But if those Terms are differently defin’d by several Persons, for the avoiding of Disputes, ’tis necessary that we express in Vulgar Terms, what we mean by such a Word.
IV.Conjectures. L. N. N. l. 5. c. 12. §6.But for discovering the genuine Meaning of Words, ’tis sometimes necessary to make Use of Conjectures, if either the Words in themselves, or the Connexion of them, be ambiguous, and liable to a double Interpretation; or if some Parts of the Discourse seem to contradict the other, yet so as by a fair and true Explanation they may be reconcil’d. For where there is a plain and manifest Contrariety, the latter Contract55 vacates the former.
V.Taken from the Subject Matter. L. N. N. l. 5. c. 12. §7.Now Conjectures of the Mind, and the right Meaning thereof in an ambiguous or intricate Expression, are chiefly to be taken from the Subject Matter, from the Effects and the Accidents or Circumstances. As to the Matter, this is the Rule: Words are generally to be understood according to the Subject Matter. For he that speaks is suppos’d to have always in View the Matter of which he discourses, and therefore agreeably thereunto, the Meaning of the Words is always to be applied.
VI.From the Consequences. L. N. N. l. 5. c. 12.§8.As to the Effects and Consequences, this is the Rule: When Words taken in the literal and simple Sense, admit either of none, or else of some absurd Consequences, we must recede so far from the more receiv’d Meaning, as is necessary for the avoiding of a Nullity or Absurdity.
VII.From Circumstances. L. N. N. l. 5. c. 12. §9.Farthermore, most probable Conjectures may be taken from the Circumstances; because of Consequence every one is presum’d to be consistent with himself. Now these Circumstances are to be consider’d either as to their Place, or only as to the Occasion of them. Concerning the former of these, this is the Rule: If the Sense in any Place of the Discourse be express’d plainly and clearly, the more obscure Phrases are to be interpreted by those plain and familiar ones. To this Rule there is another nearly related: In the Explaining of any Discourse the Antecedents and Consequents must be carefully heeded, to which those Things that are inserted between are presum’d to answer and agree. But concerning the latter, this is the Rule: The obscure Expressions of one and the same Man are to be interpreted by what he has deliver’d more clearly, though it was at another Time and Place; unless it manifestly appears that he has changed his Opinion.
VIII.The Reason of the Thing. L. N. N. l. 5. c. 12. §10.It is likewise of very great Use for finding out the true Meaning, in Laws especially, to examine into the Reason of that Law, or those Causes and Considerations which induced the Legislator to the making thereof; and more particularly when it is evident, that that was the only Reason of the Law. Concerning which, this is the Rule: That Interpretation of the Law is to be followed, which agrees with the Reason of that Law; and the contrary is to be rejected, if it be altogether inconsistent with the same. So likewise when the sole and adequate Reason of the Law ceases, the Law it self ceases. But when there are several Reasons of the same Law, it does not follow, that if one of them ceases, the whole Law ceases too, when there are more Reasons remaining, which are sufficient for the keeping it still in Force. Sometimes also the Will of the Law-giver is sufficient, where the Reason of the Law is conceal’d.
IX.Words of various Signification. L. N. N. l. 5. c. 12. §11.Moreover, it is to be observ’d, That many Words have various Significations, one Meaning being of great Latitude, and the other more strict and confin’d; and then the subject Matter is sometimes of a favourable Nature, sometimes invidious, sometimes between both or indifferent. Those are favourable where the Condition is equal on both Sides, where Regard is had to the publick Good, where Provision is made upon Transactions already ratified, and which tend to the promoting of Peace, and the like. The Invidious, or more distastful, is that which aggrieves one Party only, or one more than the other; that which implies a certain Penalty; that which makes any Transaction of none Effect, or alters what went before; that which promotes Wars and Troubles. That which is between both and Indifferent is, That indeed which makes some Change and Alteration in the former State of Things, but ’tis only for the sake of Peace. Concerning these, this is the Rule: That those Things which admit of a favourable Construction, are to be taken in the largest and most comprehensive Meaning; but those Things which are capable of an unpleasing Construction, in the most literal and strictest Sense of the Words.
X.Conjectures extended. L. N. N. l. 5. c. 12. §11.There are likewise some Kind of Conjectures which are elsewhere to be fetch’d than from the Words, and which are the Occasion that the Interpretation of them is sometimes to be extended, and at other times to be confin’d: Although ’tis more easie to give Reasons why the Explanation thereof should be confin’d and limited, than extended. But the Law may be extended to a Case which is not express’d in the Law, if it be apparent, that the Reason which suits to this Case, was particularly regarded by the Law-giver amongst other Considerations, and that he did design to include the other Cases of the like Nature. The Law also ought to be extended to those Cases wherein the Subtlety of ill Men have found out Tricks in order to evade the Force of the Law.
XI.Conjectures limited. L. N. N. l. 5. c. 12. §19.Now the Reason why some Expressions deliver’d in general Terms should be restrain’d, may happen either from the original Defect of the Will, or from the Repugnancy of some emergent Case to the Will and Intention. That any Person is to be presum’d not at first to have intended any such Thing, may be understood,
XII.Emergent Cases. L. N. N. l. 5. c. 12. §21.Now that an emergent State of Things is repugnant to the Intention of the Person who made the Constitution, may be discover’d either from Natural Reason, or else from some declared Mark and Signification of his Meaning.
The first happens, when we must exclude Equity, if some certain Cases be not exempted from the universal Law. For Equity is the Correcting of what is defective in the Law by reason of its Universality.
And because all Cases could neither be foreseen, nor set down, because of the infinite Variety of them; therefore when general Words are apply’d to special Cases, those Cases are to be look’d upon as exempt, which the Law-giver himself would likewise have exempted, if he had been consulted upon such a Case.
But we must not have Recourse to Equity, unless there be very sufficient Grounds for it. The Chiefest of which, is, If it be evident, that the Law of Nature would be violated, if we followed too closely the Letter of that Law.
The next Ground of Exception is, That though it be not indeed unlawful to keep to the very Words of the Law; yet, if, upon an impartial Consideration, the Thing should seem too grievous and burdensome, either to Men in general, or to some certain Persons; or else, if the Design be not of that Value, as to be purchas’d at so dear a Rate.
XIII.Exception with Regard to Time. L. N. N. l. 5. c. 12. §23.Lastly, There are also some certain Signs of the Legislator’s Will, from whence it may be certainly collected, That a Case ought to be excepted from the general Expressions of the Law; as when the Words of the Legislator in another Place, though not directly opposite to the Law now supposed to be before us, (for that would be a Contradiction) yet, by some peculiar Incident, and unexpected Event of Things, happen to oppose it in the present Case; or, which amounts to the same Thing, When there are two different Laws, which don’t interfere, and which easily may and ought to be observ’d at different Times, but can’t both of them be satisfy’d, when by some Chance, they call for our Obedience at the same Instant: In this Case we must observe some certain Rules to know which Law or Pact ought to give Place to the other, where both cannot be fulfill’d.
[*] The ancient Stoicks call’d Actions by the Greek Word καθηκον, and by the Latin OFFICIUM, and in English we use the Word OFFICE in the same Sense, when we say, Friendly Offices, &c. but then the Definition hereof given by the Philosophers, is too loose and general, since thereby they understood nothing but an Action conformable to Reason. As may appear from a Passage of Cicero (de Fin. Bon. & Mal. L. 3. c. 17.) Quod autem ratione actum sit, id OFFICIUM appellamus. See also De Offic. l. 1. c. 3. & Diogenes Laertius Lib. VII. Sect. 107, 108. [This slightly modified version of Barbeyrac’s note I.1, p. 1 is intended to clarify Pufendorf’s conception of duty (officium), as action commanded by a superior, by contrasting it with the philosopher’s conception, as action in accordance with right reason.]
[*] This is evident from the Example of the Heathen, and the Holy Scriptures are express in this Point; for thus they say: For when the Gentiles, which have not the Law (Written or Revealed, as was that of Moses) do by NATURE the things contained in the Law, these having not the Law are a Law unto themselves: Which shew the Work of the Law written in their Hearts, their Conscience also bearing Witness, and their Thoughts the mean while accusing, or else excusing one another; (that is, when they do ill, they condemn themselves in their own Conscience, and on the contrary, when they do well, they have in themselves an inward Approbation and Satisfaction: From whence it plainly appears they have Ideas of Good and Evil.) Rom. ii. 14, 15. [In this note (IV.1, p. 3) Barbeyrac seeks to close the gap between Pufendorf’s conception of understanding (as the capacity to deduce the rules of civil tranquillity) and the Calvinist conception of conscience (as the individual’s inner access to moral laws inscribed in the heart by God).]
[*] L. N. N. l. 1. c. 3. §3. Apol. §21. Eris. Scand. p. 37.
[†] A scrupulous Conscience, proceeding mostly from Weakness and Superstition, is only to be help’d by better Information. Here our Author’s Definition of Conscience may be noted, that it is an Act of the Mind judging of what a Man has omitted or done, according to some Rule to which he was rightly oblig’d. Nay, in strict Sense, to act against Conscience is no other than wittingly and willingly to do Evil. [Added by the English editors, this note expounds Pufendorf’s conception of conscience rather than Barbeyrac’s. In treating conscience as judgment in accordance with an imposed rule—rather than as individual insight into God’s laws or intentions—Pufendorf was counteracting doctrines (some of them Calvinist) that placed conscience above civil duty.]
[*] Such Circumstances are the Manner, the Intention, the Instrument, the Quality of the Thing done, &c. Thus, for Example, A Man may happen to kill another without any Thought of doing so; he may mistake him for an Enemy, may give him Poison when he thinks what he gives him is wholsom Liquor. Tho’ we may believe Actions so circumstantiated to be innocent, yet no Man can innocently assert, that Murder or Poisoning are lawful. [Barbeyrac’s note VII.1, p. 6.]
This subsection is an example of the editors’ attempting to improve on Tooke’s version, using Barbeyrac as their model to change the order of exposition, and then adding their own biblical examples to clarify the different forms of morally significant ignorance. In general, Tooke’s original is clearer.
[*] There is no other but this last sort of Ignorance that is really involuntary and invincible, and capable entirely to excuse Men in doing any prejudicial Acts; for it is Men’s own Faults that they fall into any of the forementioned sorts of Ignorance. [Barbeyrac’s note VIII.2, p. 8.]
[*] The Judgment of the Divines. [One of Tooke’s own (rare) marginal notes from the first edition of 1691.]
[†] Hugo Grotius de Jure Belli & Pacis. Lib. 11. c. 20. §18.
[*] Apolog. Sect. 22. in Eris. Scandic. p. 39.
[*] The Effect of these sort of Maladies, and of Drunkenness is not, to speak properly, a giving to the Will a bent and inclination to this or that thing, so much as an entire destroying the Principle of Human Actions; because Men under these Circumstances know not any thing of what they do. [Barbeyrac’s note XV.1, p. 14.]
[*] L. N. N. l. 1. c. 5. §3. Spicileg. Jur. Nat. §12. in Eris. Scandic. Page 343.
[*] The Words of our Blessed Saviour, Luc. xii. 48. [Barbeyrac’s note XXII.3, p. 22.]
[†] Our Author, who frequently makes use of Plautus, does without doubt in this place allude to the Mostellaria, Act. 3. Sc. 2 v. 104, 105.
[‡] The Author seems here to give too great an Allowance to this second sort of Compulsion. It must indeed be owned, that it greatly lessens the Offence, especially in Courts of Human Judicature; but then it frees us not from Imputation intirely in the Sight of God. The Example our Author gives of the Sword or Ax reaches not the Case, for they are Instruments meerly passive: But on the other hand, a Person who is no other ways forced but by the Menaces of some great Mischief, without any physical or irresistible Violence, acts with some degree of Willingness, and gives a sort of a Concurrence to an Action which he plainly knows to be ill, when he is thus constrained to do it. There is but one Case wherein, with a safe Conscience, we may obey the injurious Orders of a Superior, in order to avoid the Mischiefs he menaces us with in case of a Refusal; and that is, when the Person, on whom the Mischief is to fall by our Compliance with the injurious Orders of a Superior, does himself consent that we should avoid the Mischief threatned to us, by doing the Action commanded, altho’ it be injurious to him, and rather contents himself to suffer such Injury, than to expose us to the Violence of the Person menacing: But this also must be understood only of such Cases as the Person has it in his Power to give Consent, namely, when the Injury he consents to suffer is the Violation only of such a Right as is in the power of the suffering Person to quit; otherwise this Case holds not good; for should any one, for example, consent that I should act the Command of another to kill him, such consent would not acquit me of the Guilt of Murder, should I by the Menaces of any one be constrained to take away his Life. See L. N. N. lib. I. cap. V. §9. & lib. VIII. cap. I. §6. [This note (Barbeyrac’s XXIV.1, p. 23) continues his attempt to blur Pufendorf’s strict separation of the civil and religious judgment. By insisting against Pufendorf that someone who commits an evil act under coercive threats may still be blameworthy in the sight of God, Barbeyrac refuses to allow civil obligation to cancel out the individual’s conscience and moral responsibility.]
[*] That is, when, for example, a Man advises another to steal this or that thing, shewing him at the same time the properest Manner to take it without discovery, the favourablest Time of conveying himself into the House where it is, the Place where the thing is reposited, the best Way of getting off with it, and the like Particulars; but this is not meant of simply advising any one in general terms to steal for his Support rather than starve. L. N. N. lib. I. cap. V. §14. [Barbeyrac’s XXVII.1, p. 26.]
[†] That is, provided this Advice, these Encouragements and Commendations contribute to make him do the criminal Act; for in such case only the Imputation lies; otherwise the Person thus counselling and encouraging is only guilty of the ill Intention which he had. Lib. III. cap. I. §4. [Barbeyrac’s XXVII.2, p. 27.]
[*] On this Head consult H. Grotius de Jure Belli & Pacis, l. 1. c. 1. §9.
[2.]Pufendorf’s construction of law in terms of the commands of a superior is aimed squarely at the Thomistic- scholastic conception of law as the rule of an (independently) moral action or nature.
[3.]The phrases “moral Bond” and “Moral Bridle” are innovations by the English editors. Pufendorf’s original phrase is vinculum juris, which Tooke translated correctly as “rightful Bond” and Barbeyrac as lien de Droit. Here the editors seek to add a moral- philosophical inflection to Pufendorf’s juristic construction of obligation.
[4.]Pufendorf’s construction of the superior—hence of obligation—in terms of the combination of coercive power and just reasons is one of the most crucial and controversial passages in the Whole Duty. This is largely because moral theologians and moral philosophers, including Barbeyrac, require their separation, insisting on the priority of the just reasons, understood as moral justifications for the exercise of political authority. Pufendorf, however, treats the power of the superior and the rationale (“just reasons”) for accepting one as conjoint conditions for the creation of obligation. (See note 6 on p. 45). This is one of the central points at issue in Barbeyrac’s commentary on Leibniz’s attack on Pufendorf. See Barbeyrac’s Judgment of an Anonymous Writer in the appendix to this volume.
The following formulation—“the other proceeds … is founded”—in which the reasons for complying with the superior’s will are characterized as founding his authority, is not Pufendorf’s, having been borrowed from Barbeyrac by the editors. Tooke’s original rendering—“for the sake of those other Reasons, which even without Fear, ought to allure any man to compliance with his [the superior’s] Will”—is accurate. Barbeyrac’s modification is an attempt to insert the notion of a rational moral grounding of political authority into a text from which it has been deliberately excluded.
This division of the “just reasons” for political subjection into two groups—the first concerning the relations of vulnerability and protection linking subject and superior, the second with the subject’s voluntary consent to subjection—is another of Barbeyrac’s innovations carried across by the editors of the 1716/35 edition. Absent this division, Pufendorf’s original (and Tooke’s translation) treats consent not as a separate condition for legitimate subjection but simply as the subject’s agreement to exchange obedience for security. The exchange of obedience for security constitutes the “just reasons” for legitimate political authority.
This and the sentences immediately following contain characteristic instances of the manner in which Tooke adapts Pufendorf’s political lexicon to its English dissemination. Tooke’s “Man in Civil Society” translates Pufendorf’s civis, or citizen, translated by Barbeyrac as citoien and by Weber as Bürger. Similarly, in the next sentence but one, Tooke’s “Laws of a Man’s Country or City” represents his domestication of Pufendorf’s leges civiles, or civil laws. Finally, in the next sentence, Tooke’s characterization of the author of the law as “he, who hath the Supreme Authority in the Community” is his rendering of Pufendorf’s quem summum in civitate est imperium, “he who holds sovereignty in the state.” These and similar circumlocutions, which are used throughout Tooke’s translation, represent his transposition of Pufendorf’s statist political vocabulary—derived from Roman law and German political jurisprudence (Staatsrecht)—into a cultural register dominated by English common law and sovereignty conceived of as the “king in parliament.”
[*] See Grotius de Jure Belli & Pacis, L. 2. c. 20. Sect. 21. &c.
[*] See Grotius de Jure Belli & Pacis, L. 2. c. 20. Sect. 26, 27.
[†] See Grotius de Jure Belli & Pacis, Lib. 3. cap. 4. §2.
[‡] The Points here spoken of mean the Quality, or the Intention of the Agent; the Object, the End pursued thereby, and other like Circumstances of the Action. Thus, though an Action may in every respect answer the Direction of the Law, it may be nevertheless charged on the Doer as a bad Action, especially in the Sight of God, not only when it was done upon an ill Principle with a vitious Intention, but also when it was done through Ignorance, or on some other Motive different from what the Law prescribes. I say it may be accounted a bad Action in the Sight of God; for the outward Obedience of the Laws sufficiently answering the Ends of Civil Society, which is the Aim only of Politick Legislators, they never concern themselves with the Intention of the Agent, whether it be just or unjust, provided the External Act has nothing in it but what is conformable to the Law. See L. N. N. L. I. Cap. VII. §3, 4 and Lib. I. Cap. VIII. §2, 3. [In borrowing Barbeyrac’s note (XI.2, p. 36) the editors again make use of his softening of Pufendorf’s strict separation of the civil and theological domains. In observing that not all natural law will be enacted as civil law, Pufendorf accepts that the civil law will permit actions contrary to morality. In keeping with his desire to maintain some continuity between civil and religious morality, however, Barbeyrac treats this state of affairs as lamentable, insisting that the perpetrators of such actions remain guilty in the sight of God. This is a central theme of Barbeyrac’s two discourses—the Discourse on What Is Permitted by the Laws and the Discourse on the Benefits Conferred by the Laws—which are reproduced in the appendix to this volume.]
Here Pufendorf invokes the standard Roman law formula, from the Institutes of Justinian, that Justitia est constans et perpetua voluntas jus suum cuique tribuere. Like Hobbes, Pufendorf restricts this concept to the civil state, for only under civil authority are men capable of adhering to contracts.
[*] Good Actions might have been more properly distinguished with respect to the three Objects they may have; which are, G O D, our Neighbour, and our selves. (see §13. of the following Chapter.) Such good Actions, as have G O D for their Object, are comprehended under the general Name of P I E T Y. Such good Actions as have for their Object other Men, are signify’d by the Name of J U S T I C E. And those good Actions which have only a direct respect to our selves, may be contain’d in the Term Moderation, or T E M P E R A N C E. This Division of good Actions being the most Simple and Natural one, is also the most Ancient one. See L. N. N. Lib. II. Cap. III. §24. [Barbeyrac’s note (XIII.1, p. 38) is a response to Pufendorf’s discussion of justice as a relational virtue, which derives from Aristotle’s Nichomachean Ethics (V. 4–5). Having already refused to accept that goodness can be equated with conformity to the law, Barbeyrac now provides it with an independent foundation, in the relations to God, others, and myself. He thus seeks to outflank Pufendorf’s civil ethics, where these relations are subordinated to natural law understood as the rules of sociability. For more on this, see Barbeyrac’s two discourses in the appendix.]
[*] The Duties here meant, by such as could not have been extorted by Force or Law, are such as are not absolutely necessary for the Preservation of Mankind, and for the Support of Human Society in general, although they serve to embellish it, and render it more commodious. Such are the Duties of Compassion, Liberality, Beneficence, Gratitude, Hospitality, and in one word all that is contain’d under that comprehensive Name of Charity, or Humanity, as it is oppos’d to rigorous Justice properly so call’d, the Duties of which, generally speaking, have their Foundation in Agreement. I say generally speaking; for tho’ there be no Agreement made, we lie under an indispensible Obligation to do wrong to no one, to make good the Damage any one has sustain’d by us, to look upon each other as Equals by Nature, &c. But here we ought to observe, that in case of extream Necessity, the Imperfect Right that others have to these Duties of Charity from us, becomes a Perfect Right; so that Men may by force be obliged to the performance of these Duties at such a time, tho’ on all other Occasions the Performance of them must be left to every Man’s Conscience and Honour. See L. N. N. lib. 1. cap. 7. §7. lib. 3. cap. 4. §6. [In this note (XIV.1, p. 38), Barbeyrac seeks to soften Pufendorf’s distinction between imperfect duties (duties of conscience incapable of being compelled as strict right) and perfect duties (compellable duties grounded in contract and positive law). He argues that some moral duties are also compellable, while others may become so under conditions of extremity.]
[†] This Division is not compleat, because it comprehends no other Duties but what Men are oblig’d to the performance of towards others, by virtue of an Engagement enter’d into to that purpose; but there are Duties that our Neighbour may in strict justice demand at our hands, independently of all such Engagement or Agreement. See the preceeding Note. I should rather approve of Mr. Buddeus’s Division of this Particular, or Strict Justice (Elem. Pract. Phil. par. II. Cap. II. §46) into Justice as it is exercised between Equals and Equals, and as it is exercised between Superiors and Inferiors. The Former of these is subdivided into as many different Sorts as there are Duties, which one Man may demand in strictness the performance of from every other Man, consider’d as such, and one Citizen from every other Member of the same Body. The Latter of these comprehends as many different Sorts as there are kinds of Societies wherein some command and others obey. [As in the preceding note, in this one (XIV.2, p. 39) Barbeyrac attempts to forestall the clear tendency of Pufendorf’s discussion, namely, the identification of strict or particular justice with positive law. As always, Barbeyrac wishes to subordinate the positive institutions of law and state to the higher moral necessities of conscience and universal justice, arguing that some moral rights might be claimed as a matter of justice.]
[*] See Grotius de Jure Belli & Pacis, l. 1. c. 1. §8.
[*] See Grotius de Jure Belli & Pacis, Lib. I. Cap. 1. §10.
[*] L. N. N. l. II. c. 1. §8. c. 2. §2. Dissert. Acad. ult. p. 458. Eris. Scandic. in Apol. p. 20. seq Specim. Controv. c. 3. p. 217. c. 4. §161. p. 258. Spicileg. Controv. c. 3. §1. p. 379. Jul. Rondin. Dissert. Epist. §1. seq. p. 396, Comment. super invenusto Ven. Lipsiens. pull. p. 11, 16, 36, 44, 46, 52, 54.
[9.]I.e., sets them to harm each other.
[10.]In treating it not as man’s natural condition or destiny, but as something for which he must strive against his own propensity for mutual harm, Pufendorf’s conception of sociability differs from the Aristotelian- scholastic conception, and also from Grotius’s. Natural law for Pufendorf is thus not the law realizing man’s essentially sociable nature, or telos, but consists of the rules through which man imposes sociability on himself, as the comportment needed for security.
[11.]Should be “the” fundamental law of nature.
[*] See Grotius de Jure Belli & Pacis in Prolegomenis passim. L. N. N. l. 2. c. 3. §14. seq. Element. Jurispr. universal. l. 2. observ 14. Eris. Scandic. Apol. p. 46, 75. Specim. Controvers. c. 4. p. 231. sequ. Spicileg. Jur. Nat. c. 1. §14. p. 348. seq. c. 2. §8. p. 366. c. 3. §13. p. 389. seq. Venet. Lipsiens. pull. p. 11. & passim.
[*] Grotius de Jure Belli & Pacis, Lib. 1. Cap. 1. §10.
Pufendorf thus invokes God after the fact, in order to provide the rules of sociability with the obligatory force of law. Yet he simultaneously denies that God directly enforces natural law commands, thereby calling their obligatoriness into question. This is the gap that will be filled by the civil sovereign, whose role is to transform natural law into enforceable civil law.
The ensuing treatment of God as the author of natural law is limited and indirect in comparison with scholastic accounts. For Pufendorf, man comes to understand natural law as commanded by God not by recovering a transcendent reason he shares with God, but by observing what it takes to preserve a creature whose existence must be regarded as willed by its creator.
[*] L. N. N. lib 2. c. 3. §13. seq. Eris. Scandic. Apol. §24 p. 40. Epist. ad Amicos.
[*] But these Duties, as well as those which regard our selves, have another more immediate and direct Foundation, which makes part of the general Principles of the Law of Nature. For it is not necessary that all those Duties, the Necessity and Reasonableness of which may be collected from the Light of Reason only, should be deduced from this one Fundamental Maxim. It may more justly be said, that there are three grand Principles of Natural Right, that is, RELIGION, which comprehends all the Duties of Man towards God; the LOVE OF OUR SELVES, which contains all those Duties which we are bound to do, with respect only and directly to our selves; and SOCIABILITY, from whence results all that is due from us to our Neighbour. These are fruitful Principles, which, tho’ they have a great Affinity and Respect to each other, are yet very different at the bottom, and ought wisely to be considered and regarded, so that an equal and just Balance may, as much as possible, be preserv’d between them. See L. N. N. lib. 2. cap. 3. §15. [In selecting this note (Barbeyrac’s XIII.1, p. 53) the editors import one of Barbeyrac’s central disagreements with Pufendorf. Pufendorf conceives of natural religion—that is, of the duties to God known through reason alone—as a subordinate part of natural law. He thus derives its duties from the requirements of sociability and denies it any role in salvation, which is to be pursued through faith in revealed religion. Barbeyrac rejects this civil subordination of natural religion, insisting that duties to God (and to one’s neighbor and oneself ) should be treated as an independent principle of natural law alongside the principle of sociability. Once again, the editors use Barbeyrac to soften or evade Pufendorf’s secularization of civil ethics.]
[*] See Mons. Le Clerc’s Pneumatologia, §3. and Mons. Budaeus’s Discourse, de Pietate Philosophica, being the fourth Discourse in his Selecta Jura Naturae & Gentium. [Barbeyrac’s note (I.1, p. 54), where he indicates that these texts should be consulted for “all of this.”]
[14.]The prime- mover argument—that, considering the whole chain of causes and effects, there must be a first cause—was a standard nonrevealed demonstration of God’s existence, hence compatible with a natural law known through the light of reason alone.
[*] See the Continuation of various Thoughts about Comets, &c. by Mr. Bayle. [(Barbeyrac’s note III.1, p. 57.) Like Bayle, Pufendorf was opposed to Stoic and Deistic treatments of God, in the pantheistic manner, as the world’s animating principle. This formed part of Pufendorf’s rejection of natural theologies purporting to offer metaphysical insight into God’s nature.]
[15.]This sentence summarizes Pufendorf’s almost entirely negative view of metaphysics and speculative (natural) theology. God is not an object of knowledge and understanding but of faith and will. Leibniz’s metaphysical counterattack is presented, and criticized in turn, in Barbeyrac’s Judgment of an Anonymous Writer in the appendix.
[17.]Pufendorf’s denial that natural religion has any role to play in salvation—his insistence that the whole soteriological drama of sin, justification, and redemption is inaccessible to natural reason—demonstrates the non- transcendental, wholly civil character of his natural religion.
[*] L. N. N. lib. 7. cap. 4. §8. Eris. Scand §6. p. 7. Epist. ad Schetzer, p. 84. Append. p. 108. seq. Spicileg. Controv. §16. p. 350. Exam. Doctrin. §2. quaest. 316. Discuss. Calumn. Beckmann. p. 169.
[18.]The theme of religion as the cement of society (societatis vinculum) was a standard one capable of several constructions. Unlike the scholastics (and Barbeyrac to a degree), Pufendorf refused to derive human society from man’s community with God, deriving it instead from the need for peace and the cultivation of sociability. In what follows, Pufendorf thus treats conscience and the fear of God not as the foundation of natural law, but as a psychological factor useful for securing adherence to it.
[19.]Despite the English editors’ publicity claim to have made many useful additions to Pufendorf’s text, the only substantial ones are to be found in this chapter. The added material begins with the second paragraph of section II and continues through sections III–IX, which consist of material on the care of the self taken from Pufendorf’s Law of Nature and Nations, II.iv. The ultimate source of this reconstruction is Immanuel Weber, who claims to have introduced the interpolations with Pufendorf’s approval, when undertaking the first German translation in 1691. Tooke’s translation, which appeared in the same year, did not borrow them. Barbeyrac’s first French edition of 1707 did, however, and it is from here that the editors of the 1716/35 English edition borrowed their reconstruction. Thus their wording of the added paragraphs is clearly an English translation of Barbeyrac’s French.
[*] The Duties of every Man, which directly and solely respect himself, have their immediate Foundation in that LOVE which every Man by Nature hath OF HIMSELF; which was before laid down as one of the grand Principles of Natural Right, and which not only obliges a Man to preserve himself, as far as possibly he can, without prejudice to the Laws of Religion or Sociality; but also to put himself into the best Condition he can, and to obtain all the Happiness of which he is innocently capable. See L. N. N. Lib. II. Cap. III. §15. [Barbeyrac’s note (I.1, p. 71) in fact refers to the “three great principles of natural right”—love of oneself, of God, and of society—continuing his attempt to evade Pufendorf’s subordination of these to the need for security and the cultivation of sociability.]
[20.]The interpolated sections begin here.
[21.]The following duties related to the care of the soul, taken from LNN, II.iv.4–5, represent a characteristically Lutheran rejection of “fatalistic” philosophical rationalism and “ritualistic” Catholicism.
[22.]Despite Pufendorf’s objections to Stoic fatalism, the advice on care of the self in sections IV–VIII contains a compendium of neo- Stoic rules for cultivating the self and restraining the passions and desires in accordance with the limited ends of personal and civil tranquillity.
[23.]This marks the end of the sections on the care of the self added by Weber and subsequently copied by Barbeyrac and thence the editors of the 1716/35 edition. The following section, X, on the care of the body, was section III in Pufendorf’s original Latin text and in Tooke’s first English edition.
[*] See Grotius de Jure Belli & Pacis, Lib. I. & Chap. 2. Lib. II. c. 1. §3. Et seq.
[†] Grotius de Jure Belli & Pacis, Lib. 1. cap. 1.
[24.]Here and elsewhere Tooke uses “obnoxious” in the early modern (Latin) sense of “subject to.” The distinction he draws is thus between self- defense where there is no prevailing law or civil authority and self- defense where these conditions prevail.
[26.]In Pufendorf’s original and Tooke’s first English edition a further paragraph begins here. Barbeyrac moved this to the bottom of section XVII, and the English editors show their fidelity to Barbeyrac’s text by altering Tooke’s version accordingly.
[*] See Grotius de Jure Belli & Pacis, Lib. 2. cap. 1. §17, &c. and c. 22. §5.
[27.]The following paragraph originally stood as the final paragraph of section XV (i.e., section VIII in Pufendorf’s original). It is not clear why Barbeyrac moved it.
[28.]Here and elsewhere in the discussion of self- defense, Tooke again opts for “community” in place of Pufendorf’s “state” (civitas).
[*] Grotius de Jure Belli & Pacis, Lib. 2. Cap. 1. §5.
[29.]The opening word is incongruous because, far from continuing the thought of the preceding section, this one contradicts it, indicating circumstances in which individuals may defend themselves regardless of the civil magistrate. In fact this section (XIX) is not in its original location. It was originally Pufendorf’s section X, which means that it should be located between sections XV and XVI in Barbeyrac’s augmented version of Chapter V. In relocating this section Barbeyrac evidently intended it to undermine Pufendorf’s transfer of the right of self- defense to the civil magistrate. That this was Barbeyrac’s intent is clear from the long note (XIX.1, p. 99) that he added near the end of this section in his translation, the burden of which is to justify a subject’s right of defence against the unjust aggression of the civil magistrate himself. In choosing not to include this incendiary note, the editors largely defeated the purpose of Barbeyrac’s rearrangement of Pufendorf’s text.
[*] See Grotius de Jure Belli & Pacis, Lib. 2. Cap. 1. §15.
[30.]The “members” or limbs of the body.
[†] See Grotius de Jure Belli, & Pacis, Lib. 2. Cap. 1. §6.
[‡] Mr. Budaeus denies this (in the 2d Part of his Elements of Practical Philosophy, chap. 4. sect. 3.) and his Reason is, That there is no Proportion between the Life and the Honour of any Person. But can any Violation be too great for a Woman to expect from a Man that is arriv’d to such a Pitch of Brutality? Besides, Honour is a Good whose Loss is not only irrecoverable, but which, among civiliz’d Nations, is placed in the same Degree of Value with Life it self. After all, does not such an Act of Hostility as this, give her a perfect Right to have recourse to Extremities against a Man, who to satisfie his brutish Passion, irreparably stains the Honour and takes away the Liberty of an honest Woman? See Grotius de Jure Belli & Pacis, lib. 2. cap. 1. §7. [Barbeyrac’s XXII.1, p. 102.]
[*] The Author I just now quoted pretends in the same place, that no one can justifiably kill a Thief, unless he attempts to steal from him so considerable a Part of his Substance, as that he could not live upon the Remainder. But this learned Author has said nothing to invalidate the Principles, and confute the Reasons alledged to the contrary by our Author, in his large Work of The Law of Nature and Nations, of which this is an Abridgment. See Lib. 2. Cap. 5. §16. [Barbeyrac’s XXIII.1, p. 102.]
[*] See Grotius de Jure Belli & Pacis, lib. 2. cap. 2. §6. lib. 3. cap. 17. §1, 2. seq.
[31.]The leges nauticae (lex mercatoria), or “law of the sea.”
[*] This Status adventitius is that State of Life we come into in consequence of some Human Constitution; whether we enter into it at our Birth immediately, or whether it happens after our Birth. Such are, for example, all those Conditions of Life where the Duties and Relations are reciprocal; such as a Parent and his Child, an Husband and a Wife, a Master and a Servant, a Sovereign and his Subject. &c. [Barbeyrac’s I.1, p. 111.]
[32.]The key to understanding Pufendorf’s division of duties to others lies in his doctrine that duties attach not to human beings as such—that is, not to a human substance or essence—but to a particular condition, state, or status that humans occupy. This is defined at the beginning of Book II: “By ‘state’ [status] in general, we mean a condition in which men are understood to be set for the purpose of performing a certain class of actions” (Tully, ed., Duty, p. 115). All of the states of man and their associated duties are thus understood to be imposed or instituted, rather than to be expressions of an essence. The common or universal duties to others attach to man’s natural status which was imposed by God. These are discussed in Chapters VI (to harm no one), VII (to treat others as equals or fellow humans), and VIII (to practice benevolence). The artificial or adventitious statuses are those men have imposed on themselves via pacts, which means that their duties are conditional on particular institutional arrangements. These states are those of linguistic communication, property ownership, marriage, parenthood, and, especially, the political state. In between the natural and adventitious duties to others come the duties relating to pacts, discussed in Chapter IX of Book I.
[*] See Grotius de Jure Belli & Pacis, lib. 2. and the whole 17th Chapter.
[34.]Here Tooke’s “social Duty” translates Pufendorf’s socialitas, or “sociability.”
[*] See Grotius de Jure Belli & Pacis, lib. 3. c. 1. §4.
[†] See Grotius de Jure Belli & Pacis, lib. 3. c. 1. §5.
[35.]For Pufendorf equality arises neither from a common ability to inflict harm (Hobbes) nor from the universal possession of a soul or rational faculties (the scholastics), but from the fact that all men are subject to the same duties of sociability.
[36.]Pufendorf’s Latin is communis juris, which Weber renders as Gemeinen Rechte, Barbeyrac as Droits commun à tous les Hommes, while Silverthorne opts for “common law.”
[37.]Originally jus, which might here be better translated as “right.”
[*] Inscribed Posts set up in Highways to direct Travellers.
[†] See Grotius de Jure Belli & Pacis, lib. 2. cap. 2. §11, 12. seq.
[‡] Grotius de Jure Belli & Pacis, Lib. 2. Cap. 5. §10.
[*] See Grotius de Jure Belli & Pacis, Lib. 2. Cap. 20. §20.
[38.]Pufendorf’s term is pacts (pacta), or agreements. Duties in relation to pacts are transitional between the natural and adventitious duties because it is through pacts that men institute the statuses to which these latter duties attach.
[†] Compare herewith the whole Eleventh Chapter of the Second Book of Grotius de Jure, &c.
[*] See Grotius de Jure Belli & Pacis, Lib. 1. cap. 1. §4. seqq.
[*] See Grotius de Jure Belli & Pacis, Lib. II. Cap. 4. §4. Lib. III. c. 1. §8. c. 24. §1, 2.
[*] Provided this Error concerns something essential to the Bargain made; that is to say, that it does necessarily and naturally concern the Affair in hand, or respects plainly the Intention of those who contract, notified sufficiently at such time as the Contract was made: And on both Sides allowed as a Reason without which such Contract had never been made; otherwise, as the Errour had no Influence on the Contract to be made, so can it not disannul it when made, whether it be executed or not. An Example will make the meaning hereof plain. Suppose I imagin that I have lost my Horse and that I shall never recover him again; and buy another, which otherwise I wouldn’t have done: If I happen afterwards, contrary to Expectation, to find my own again, I can’t oblige the Person I bought the new one from to take it again, altho’ at that time he shou’dn’t have sent me the Horse, or have receiv’d the money agreed for: Unless when we bargain’d, I had expressly and formally made this a Condition of annulling such Agreement: For without such formal Stipulation, the Agreement stands good against me, altho’ I might (in way of Discourse only) mention, that I would not have bought this Horse, had I not lost my other. See L. N. N. lib. 3. c. 6. §7. See also Grotius de Jure Belli &. Pacis, lib. 3. cap. 23. §4. [Barbeyrac’s XII.1, p. 147.]
[39.]Roughly, “before the cargo is unloaded.”
[*] See Grotius de Jure Belli & Pacis, Lib. 2. cap. 17. §17.
[*] There was no need to have recourse to this Duty of Restitution, thereby to shew the Invalidity of such Contracts. For the want of Liberty in the Person promising, and the want of Capacity in the Person obtaining by force the Promise, of creating to himself thereby any Right to the Thing promised, are sufficient to shew the plain Nullity of the Agreement thus obtained. [Barbeyrac’s XV.1, p. 152.]
[*] This determination seems not altogether just, because he who had parted with his Goods, had parted with them by an act invalid and of no effect. See L. N. N. l. 3. c. 7. §9. [Barbeyrac’s XVIII.1, p. 155.]
[40.]In Pufendorf’s Latin the word is sermo, meaning “conversation” or “discourse,” which Barbeyrac translates as parole and Silverthorne as “language.”
[*] See Grotius de Jure Belli, &c. lib. 3. cap. 1. §9. seqq.
[41.]This is Tooke’s English euphemism for Pufendorf’s arcana reip[ublicae], appropriately translated by Barbeyrac as secrets de l’Etat (secrets of state).
[*] Compare herewith the whole 13th Chapter of the 2d Book of Grotius de Jure, &c.
[*] Grotius de Jure Belli & Pacis, Lib. 3. cap. 19. §5.
[*] These are call’d Obligatory or Promissory Oaths, (Juramenta Promissoria:) the other Assertory or Affirmative Oaths, (Assertoria.) [Barbeyrac’s X.1, p. 172.]
[42.]Meaning not just animals but created things in general.
[*] See Grotius de Jure Belli & Pacis, lib. 2. cap. 2. §2. seqq.
[†] There was no need of any Convention, either exprest or tacit for this purpose. The Right of the first Occupant is necessarily concluded to be conformable to his Intention who bestows any Thing in common to many, provided, that in possessing one’s self of that which no one has a particular Right to, we content our selves with a modest Proportion, not engrossing the Whole, but leaving what is sufficient for the Occasions and Use of others. See L. N. N. l. 4. c. 4. §4. [Barbeyrac’s note (II.1, p. 174) dissents from Pufendorf’s treatment of all property rights as adventitious or conditional on “social” contracts. Barbeyrac views the property right of the first occupant as a natural and unconditional expression of his liberty. Pufendorf rejects the notion of natural rights, which he regards as a mortgage on sovereignty, treating rights instead as capacities arising from instituted offices and obligations.]
[*] See Grotius de Jure Belli & Pacis, lib. 2. cap. 3. §1.
[43.]The preceding sentence provides a good example of the manner in which Tooke’s anglicization adapts Pufendorf’s statist jurisprudence to the image of a community governed by common law. In Pufendorf’s original it is the state (civitas) that may set limits to private ownership of property, which is done not through “Municipal laws” but at the direction of civil government (imperium civile) or as a result of human agreements. Barbeyrac opts for sociétez civiles in which the limits are set by les Loix & par la volonté du Souverain or else by human conventions (p. 175).
[*] See Grotius de Jure Belli & Pacis, l. 3. c. 2. §3.
[*] That whereon the first Occupant properly grounds his Right is, his giving open Notice, before any other, of his Design and Intention to preserve to his own Use this or that Thing, which he has made himself the first Possessor of. If therefore he has given any such fair and significant Notice of such his Intention; or if any others, who might with him have a common Right to the Thing, shall freely and significantly set forth their Intention to depart from their Share, or Part of the Thing in favour of this Claimant: He then comes to have the Original Property in the Thing, even before he may have taken actual Possession of it. See L. N. N. l. 4. c. 6. [Barbeyrac’s VI.1, p. 177.]
[†] See Grotius de Jure Belli, &c. L. II. c. 8. §2. seqq.
[‡] See Grotius de Jure Belli & Pacis, lib. 2. c. 8. §2. seq.
[*] See Grotius de Jure Belli & Pacis, Lib. 2, cap. 8.
[*] See Grotius de Jure Belli, & c. l. 2. c. 7. §3. seqq.
[*] See the whole 4th Chap. of the 2d Book of Grotius de Jure Belli, &c.
[†] See Grotius de Jure Belli, &c. lib. 2. cap. 6. §14.
[*] See Grotius de Jure Belli & Pacis, Book II. Ch. 10.
[*] See Grotius de Jure Belli & Pacis, l. 2. c. 12. §14.
[†] Our Author here gives an imperfect Account of the proper and intrinsick Value of Things. For Things capable of Valuation or Price, ought not only to be of some Use and Service to human Life, if not really, yet at least in the Opinion and Fancy of those who desire them; but also they ought to be of such a Nature, as not to be sufficient for the Occasions and Demands of every one. The more any Thing is useful or scarce, in this Sense, the greater is its intrinsick Price or Value. Nothing can be more useful to human Life than Water, yet it never bears any Price or Value, unless in such Places, or under such Circumstances, as make it not sufficient for every one’s Use, or difficult to be come at. [Barbeyrac’s III. 1, p. p. 193–94.]
[46.]In Pufendorf’s Latin this occurs in the “state” (civitas), not “Communities,” at the direction of the “sovereign” (summus imperator) rather than the “Chief Magistrates.”
[*] Grotius de Jure Belli & Pacis, lib. 2. cap. 12.
[*] There is, in Cases of this Nature, always a tacit Agreement, by Virtue of which, he that borrows any Thing, ingages to restore the Thing lent, either in Kind, or to make Amends by something of equal Value. See L. N. N. l. 5. c. 4. §6. [Barbeyrac’s IV.1, p. 204.]
[49.]Buying a job lot.
[50.]Added by Tooke, “in Specie” is a now archaic legal term meaning the precise or actual form of something. The idea is that fungibles are items that may be repaid by any acceptable thing, rather than by something exactly the same as the loaned item.
[51.]That is, in a rateable or proportionate manner.
[*] A Wager shall be deem’d Good, though one of the Parties, who lay the Wager, knows perfectly the Truth of what he lays upon; unless he pretends himself ignorant or doubtful about it, in order to draw the other Party on to lay with him. See L. N. N. l. 5. c. 9. §4. [Barbeyrac’s XIII.1, p. 215.]
[†] To make Games, and other Contracts, in which there is Hazard, lawful, it is not only necessary that what both Parties playing run the Risk of losing, be equal; but also, that the Danger of losing, and the Hope of gaining, on both Sides, bear a just Proportion with the Thing plaid for. [Barbeyrac’s XIII.2, p. 215.]
[52.]This is Tooke’s rendering of Pufendorf’s rector civitatis, or “ruler of the state,” which Barbeyrac translates without embarrassment as Souverain.
[‡] The Insurer may demand more or less, according as there is more or less Hazard run. But the Contract shall be null, if, at the Time of making thereof, the Insurer knew, that the Goods were safe arrived, or if the Owner of the Goods at that Time, knew that the Goods were lost. [Barbeyrac’s XIII.3, p. 216.]
[*] Grotius de Jure Belli & Pacis, l. 3. c. 20. §59.
[*] Grotius de Jure Belli & Pacis, l. 3. c. 19. §15.
[54.]“In the human forum”; i.e., regardless of how things appear in the sight of God.
[*] Grotius de Jure Belli & Pacis, l. 2. c. 16.
[55.]The word “Contract” has been added, unnecessarily, by the English editors. Tooke’s wording was “the later part must be accounted to contradict that which went before,” which, while not entirely perspicuous, is closer to Pufendorf’s original posterius derogabit prioribus, “the later passage supersedes the earlier.”
[*] 1. This Rule is not true, unless we suppose the Permission general, and the Command particular. For it is certain, on the contrary, that a particular Permission takes Place of a general Command; the Permission in this last Case, being an Exception to the Command; as in the former Case, the Command restrains the Extent of the Permission. [Barbeyrac’s XIII.1, p. 233.]
[†] 3. Here, likewise, it must be distinguish’d, whether these Laws forbidding or commanding, be general or particular, as was laid down in the foregoing Note. [Barbeyrac’s XIII.2, p. 233.]
[*] 6. This Rule is not true, unless in such Case, where all other Circumstances are exactly equal. For when two Covenants are directly opposite, the latter shall be binding, whether the former be upon Oath, or not. But if the Two Covenants are not directly opposite, but only in some Respects different, the particular one shall be preferr’d before the general one. [Barbeyrac’s XIII.3, p. 234.]
[†] 7. These Two last Rules are comprehended in the Fifth, of which they are, as is obvious, only Consequences. [Barbeyrac’s XIII.4, p. 234.]
Tooke’s subheading is quite contrary to the spirit of this section, in which Pufendorf states that eternal salvation is not acquired by natural religion at all.
This section on prescription (usucapio) was originally Pufendorf’s final section (section XV), where it remains in Tooke’s first edition. It was relocated here by Barbeyrac, without explanation.