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Book II - 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 the Natural State of Men
I.Condition of MAN. L. N. N. l. 1. c. 1. §6, &c.In the next Place, we are to inquire concerning those Duties which are incumbent upon a Man with Regard to that particular State wherein he finds himself ordained by Providence to live in the World. What we mean by such State, is in general, that Condition or Degree with all its Relatives, in which Men being placed, they are therefore supposed to be obliged to these or those Performances: And such State, whatever it be, has some peculiar Rights and Offices thereunto belonging.1
II.Twofold. Natural and Adventitious. L. N. N. l. 2. c. 3. §24.The State of Man then may be distinguish’d into either Natural or Adventitious. The natural State, by the Help of the Light of natural Reason alone, is to be considered as Threefold, Either as it regards God our Creator, or as it concerns every single Man as to Himself, or as it affects other Men; concerning all which we have spoken before.
III.Natural State Threefold. First.The Natural State of Man consider’d in the first mention’d Way, is that Condition wherein he is placed by the Creator pursuant to his Divine Will, that he should be the most excellent Animal in the whole Creation. From the Consideration of which State, it follows, That Man ought to acknowledge the Author of his Being, to pay Him Adoration, and to admire the Works of His Hands; and moreover, to lead his life after a different Manner from that of the Brutes. So that the contrary to this State is the Life and Condition of Brutes.
IV.Second. L. N. N. l. 2. c. 2. §2.In the second Way we may contemplate the Natural State of Man, by seriously forming in our Minds an Idea of what his Condition would be, if every one were left *alone to himself without any Help from other Men.2 And in this Sense, the Natural State is opposed to a Life cultivated by the Industry of Men.
V.Third.After the third Way we are to regard the Natural State of Man, according as Men are understood to stand in respect to one another, merely from that common Alliance which results from the Likeness of their Natures, before any mutual Agreement made, or other Deed of Man perform’d, by which one could become obnoxious3 to the Power of another. In which Sense, those are said to live reciprocally in a State of Nature, who acknowledge no common Superior, and of whom none can pretend Dominion over his Fellow, and who do not render themselves known to each other, either by the doing of good Turns or Injuries. And in this Sense it is, That a Natural State is distinguish’d from a Civil State, that is, The State of Man in a Community.4
VI.Consider’d again Two ways L. N. N. l. 2. c. 2.Moreover, the Property of this Natural State may be consider’d, either as it is represented to us notionally and by way of Fiction, or as it is really and indeed. The former is done, when we imagine a certain Multitude of Men at the Beginning to have started up into Beings all at once without any Dependence upon one another, as it is fabled of the Cadmean Harvest of Brethren;5 or else when we form a Supposition, that all the mutual Ties, by which Mankind are one way or other united together, were now dissolv’d; so that every Man might set up for himself apart from the Rest, and no one Man should have any other Relation to his Fellow, but the Likeness of their Natures. But the true State of Nature, or that which is really so, has this in it, that there is no Man who has not some peculiar Obligations to some other Men, though with all the rest he may have no farther Alliance than that they are Men, and of the same Kind; and, beside what arises from thence, he owes them no Service at all. Which at this Time is the Case of many Kingdoms and Communities, and of the Subjects of the same, with respect to the Subjects of the other;6 and the same was anciently the State of the Patriarchs, when they liv’d independently.
VII.Paternal Authority.It is then taken for manifest, that all Mankind never were universally and at once in the former Natural State; for those Children who were begotten and born of the Protoplasts, or first created Man and Woman, (from whom the whole Human Race derives its Original, as the Holy Scriptures tell us) were subject to the Paternal Authority. Not but that this Natural State arose afterwards among some People; for Men at first, in order to spread over this wide World, and that they might find for themselves and their Cattle more spacious Abodes, left the Families of their Fathers, and roaming into various Regions, almost every single Man became himself the Father of a Family of his own; and the Posterity of these again dispersing themselves, that peculiar Bond of Kindred, and the Natural Affections thence arising, by little and little were extinct, and no other Obligation remain’d, but that common one, which resulted from the Likeness of their Natures: ’Till afterwards, when Mankind was vastly multiplied, they having observ’d the many Inconveniences of that loose Way of living, the Inhabitants of Places near one another, by Degrees join’d in Communities,7 which at first were small, but grew soon greater, either by the voluntary or forced Conjunction of many which were lesser. And among these Communities, the State of Nature is still found, they being not otherwise obliged to each other, than by the common Tie of Humanity.
VIII.Natural Liberty.Now it is the chief Prerogative of those who are in the State of Nature, that they are subject and accountable to none but God only; in which respect also, this is call’d a State of Natural Liberty, by which is understood, that a Person so circumstanced without some antecedent human Act to the contrary, is to be accounted absolutely in his own Power and Disposition, and above the Controll of all mortal Authority. Therefore also any one Person is to be reputed equal to any other, to whom himself is not subject, neither is that other subject to him.
And farthermore, whereas Man is indued with the Light of Reason, by the Guidance whereof he may temper and regulate his Actions, it follows, That whosoever lives in a State of Natural Liberty, depends not on any other for the Direction of his Doings; but is vested with a Right to do, according to his own Judgment and Will, any Thing he shall think good, and which is consonant to sound Reason.
And whereas Man, from that universal Inclination which is implanted in all living Creatures, cannot but, in order to the Preservation of his Person and his Life, and to the keeping off whatsoever Mischiefs seem to threaten the Destruction thereof, take the utmost Care and Pains, and apply all necessary Means to that End; and yet whereas no Man in this Natural State has any superiour Person, to whom he may submit his Designs and Opinions, therefore every one in this State makes use of his own Judgment only, in determining concerning the Fitness of Means, whether they conduce to his Self Preservation or not. For though he may give ear to the Advice of another, yet it is in his Choice, whether he will approve or reject the same. But that this absolute Power of Governing himself be rightly managed, it is highly necessary, That all his Administrations be moderated by the Dictates of true Reason, and by the Rules of the Law of Nature.
IX.Its Inconveniences.And yet this Natural State, how alluring soever it appears to us with the Name of Liberty, and flattering us with being free from all manner of Subjection, was clogg’d, before Men join’d themselves under Governments,L. N. N. l. 1. c. 3. §3. with many Inconveniences; whether we suppose every single Man as in that Condition, or only consider the Case of the Patriarchs or Fathers of Families, while they liv’d independent. For if you form in your Mind the Idea of a Man, even at his full Growth of Strength and Understanding, but without all those Assistances and Advantages by which the Wit of Man has rendred Human Life much more orderly and more easie than at the Beginning; you shall have before you, a naked Creature no better than dumb, wanting all Things, satisfying his Hunger with Roots and Herbs, slaking his Thirst with any Water he can find, avoiding the Extremities of the Weather, by creeping into Caves, or the like, exposed an easie Prey to the ravenous Beasts, and trembling at the Sight of any of them.
’Tis true, the Way of Living among the Patriarchs, might be somewhat more comfortable, even while they contain’d their Families apart; but yet it could by no Means be compar’d with the Life of Men in a Community; not so much for the Need they might have of Things from abroad, which, if they restrain’d their Appetites, they might perhaps well enough bear withal; as because in that State they could have little Certainty of any continu’d Security.
And, that we may comprehend all in a few words, In a State of Nature, every Man must rely upon his own single Power; whereas in a Community, all are on his Side: There no Man can be sure of enjoying the Fruit of his Labour; here every one has it secur’d to him: There the Passions rule, and there is a continual Warfare, accompanied with Fears, Want, Sordidness, Solitude, Barbarity, Ignorance, and Brutishness; here Reason governs, and here is Tranquillity, Security, Wealth, Neatness, Society, Elegancy, Knowledge, and Humanity.
X.Uncertainty of the State of Nature.9Now though it was the Will of Nature itself,9 that there should be a Sort of Kindred amongst all Mankind, by Virtue of which they might be obliged at least not to hurt one another, but rather to assist and contribute to the Benefit of their Fellows; yet this Alliance is found to be but of little Force among those who live promiscuously in a State of Natural Liberty; so that any Man who is not under the same Laws and Possibilities of Coercion with our selves, or with whom we live loosely and free from any Obligation in the said State, is not indeed to be treated as an Enemy, but may be look’d upon as a Friend, not too freely to be trusted.L. N. N. l. 1. c. 3. §4. And the Reason hereof is, That Man not only is accomplish’d, with an Ability to do Mischief to his Like, but for many Causes has also a Will so to do: For some, the Pravity of their Natures, Ambition, or Covetousness, incite to make Insults upon other Men; others, though of a meek and modest Nature, are forced to use Violence either in defending themselves from imminent Outrages, or by way of Prevention.
Beside that, a Rivalship in the Desire of the same Thing in some; and in others, Competition for Priority in one Quality or other, shall set them at Variance. So that in this State, ’tis hardly possible but that there should be perpetual Jealousies, Mistrusts, Designs of undoing each other, Eagerness to prevent every one his Fellow, or Hopes of making Addition to his own Strength by the Ruin of others.
Therefore as it is the Duty of every honest Man to be content with his own, and not to give Provocation to his Neighbour, nor to covet that which is his; so also it behoves him who would be as wary as is needful, and who is willing to take Care of his own Good, so to take all Men for his Friends, as not to suppose yet but that the same may quickly become his Enemies; so to cultivate Peace with all Men, as to be provided though it be never so soon changed to Enmity. And for this Reason, happy is that Commonwealth, where in Times of Quietness, Consideration is had of Requisites for War.
XI. Most convenient Remedy in Controversies. L. N. N. l. 5. c. 13.Beside, in the Natural State, if any one either will not voluntarily make good what he has covenanted to do, or does another an Injury, or if upon any other Account some Dispute arise; there’s no Man has Authority to force the naughty Person to perform his Bargain, to cause him to repair the Wrong, or to determine the Controversy; as there is in Communities, where I may have recourse for Help to the Civil Magistrate.
And here, because Nature allows not that upon every Occasion we should betake our selves to violent Means, even though we are very well satisfy’d in our Consciences of the Justice of our Cause; therefore we are first to try, whether the Matter may not be composed after a milder Way, either by an amicable Reasoning of the Point in Question between the Parties themselves, or by a free and unconditional Compromise, * or Reference of the Debate to Arbitrators. And these Referees are to manage the Matter with an equal Regard to both Sides, and in giving their Award, they are to have an Eye only to the Merits of the Cause, setting aside all partial Animosity or Affection. For which Reason, it is not best to chuse any Man an Arbitrator in such a Cause wherein he shall have greater Hopes of Profit or particular Reputation, if one Party get the better, rather than the other; and consequently where it is his Interest that that Litigant, at what Rate soever, gain the Point. Hence also there ought not to be any underhand Bargain or Promise between the Umpire and either of the Parties, by which he may be obliged to give his Judgment on the behalf of the same.
Now in this Affair, if the Arbitrator cannot find out the Truth in Fact, neither from the Confessions of the Parties, nor from apparent Writings, nor any other manifest Arguments and Signs; he must then inform himself by the Testimonies of Witnesses; whom, though the Law of Nature obliges, especially being usually reinforced by the Religion of an Oath, to speak the Truth; yet it is most safe not to admit the Evidence of such as are so peculiarly affected to one Party, that their Consciences will be forced to struggle with the Passions either of Love, Hatred, Desire of Revenge, any violent Affection of the Mind, or else some strict Friendship or Dependance; all, or any of which every Man is not endued with Constancy enough to surmount.
Controversies also are frequently made an end of by the Interposition of the common Friends of each Party, which to do, is deservedly accounted among the best Actions of a good Man. For the rest, in the Natural State, when Performances are not made good by either Side of their own Accord, the other seeks his Due after what manner he likes best.
Of the Duties of the Married State
I.Matrimony. L. N. N. l. 6. c. 1.Among those States of Man which we have call’d Adventitious, or in which a Man is placed by some antecedent human Act, Matrimony obtains the first Place. * Which also is the chief Representation of the Social Life, and the Seed-Plot of Mankind.
II.Instituted by Nature.And, first, it is certain, That that ardent Propensity found to be in both Sexes to each other, was not implanted in them by the All-wise Creator, merely that they might receive the Satisfaction of a vain Pleasure; for had it been so, nothing could have been the Occasion of greater Brutishness and Confusion in the World; but that hereby Married Persons might take the greater Delight in each other’s Company; and that both might with the more Chearfulness apply themselves to the necessary Business of Propagation, and go through those Cares and Troubles which accompany the Breeding and Education of Children. Hence it follows, That all Use of the Parts destin’d by Nature for this Work, is contrary to the Law Natural, if it tends not to this End. On which Account also, are forbidden all Lusts for a different Species, or for the same Sex; all filthy Pollutions; and indeed, all Copulations out of the State of Matrimony, whether with the mutual Consent of both Parties, or against the Will of the Woman.
III.Obligation to Matrimony. L. N. N. l. 6. c. 1. §3.The Obligation under which we lye to contract Matrimony, may be consider’d either with respect to Mankind in general, or to our particular Station and Relation in the World. The Strength of the former of these, consists in this, That the Propagation of Mankind, neither can nor ought to be kept up by promiscuous and uncertain Copulations, but is to be limited and circumscribed by the Laws of Wedlock, and only to be endeavour’d in a married State: For without this no Man can imagine any Decency or orderly Society among Men, nor any Observation of the Civil Rules of Life.
But Men singly consider’d, are obliged to enter the Matrimonial State, when a convenient Occasion offers it self; whereto also not only a mature Age, and an Ability for Generation‐Work10 is necessary, but there ought beside to be a Possibility of lighting on a Person of the like Condition, and a Capacity of maintaining a Wife, and the Posterity she shall bring forth; and that the Man may be such a one as is fit to become the Master of a Family.
Not still, but that any Man is excepted from this Duty, who betakes himself to a chaste Single Life, finding his Constitution accommodated thereto, and that he is capable in that, rather than in the Married State, to be useful to Mankind, or to the Commonwealth; especially also, if the Case be so, that there is no Fear of the Want of People.
IV.Matrimonial Contract. L. N. N. l. 6. c. 1. §9.Between those who are about to take upon themselves the Married State, a Contract ought, and is wont to intervene, which, if it be Regular and Perfect, consists of these Heads:
First, Because the Man (to whom it is most agreeable to the Nature of both Sexes, that the Contract should owe its Original) intends hereby to get himself Children of his own, not spurious or supposititious; therefore the Woman ought to plight her Troth 11 to the Man, That she will permit the Use of her Body to no other Man but to him; the same, on the other Hand, being requir’d of the Husband.
And, Secondly, Since nothing can be more flatly contrary to a Social and Civil Life, than a vagabond, desultory, and changeable Way of Living, without any Home, or certain Seat of his Fortunes; and since the Education of that which is the Off‐spring of both, is most conveniently taken Care of by the joint Help of both Parents together: And whereas continual Cohabitation brings more of Pleasure and Comfort to a Couple who are well match’d, whereby also the Husband may have the greater Assurance of his Wife’s Chastity; therefore the Wife does moreover ingage her Faith to her Husband, That she will always cohabit with him, and join her self in the strictest Bond of Society, and become of the same Family with him. And this mutual Promise must be supposed to be made from the Husband to her of the like Cohabitation, the Nature of this State so requiring.
But because it is not only agreeable to the natural Condition of both Sexes, that the Case of the Husband should be the more Honourable of the two; but that he should also be the Head of the Family, of which himself is the Author; it follows, That the Wife ought to be subject to his Direction in Matters relating to their mutual State and to their Household. Hence it is the Prerogative of the Husband, to chuse his Habitation, and she may not against his Will, wander abroad, or lodge apart.
Yet it does not seem essentially necessary to Matrimony, that the Man should have Power of Life and Death, or of inflicting any grievous Punishment, as neither of disposing at his Pleasure of all the Estate or Goods of his Wife: But these Points may be settled between the Married Couple, by peculiar Agreements, or by the municipal Laws of the Place.
V.One Man and one Woman. L. N. N. l. 6. c. 1. §19.Now tho’ ’tis manifestly repugnant to the Law of Nature, that one Woman should have more Men than one at once; yet it obtain’d among the Jews of old, and many other Nations, that one Man might have two or more Wives. Nevertheless, let us allow never so little Weight to Arguments brought from the primitive Institution of Marriage deliver’d in Holy Writ;* yet it will appear from right Reason, That ’tis much more decent and fit for one Man to be content with one Woman. Which has been approved by the Practice of all the Christians through the World, that we know of, for so many Ages.
VI.Contract perpetual. L. N. N. l. 6. c. 1. §20, 21.Nor does the Nature of this strict Union tell us less plainly, That the Bond of Matrimony ought to be perpetual, and not to be unloosed, but by the Death of one Party; except the essential Articles of the principal Matrimonial Covenant be violated, either by Adultery, or a wicked and dishonest Desertion. But for ill Dispositions, which have not the same Effect with such lewd Desertion, it has obtained among Christians, that a Separation from Bed and Board shall be sufficient, without allowing any Ingagement in a new Wedlock. And one great Reason hereof, among others, is this, That too free a Liberty of Divorce might not give Incouragement to either Party to cherish a stubborn Temper; but rather, that the irremediable State of each, might persuade both to accommodate their Humours to one another, and to stir them both up to mutual Forbearance. For the rest, if any essential Article of the Matrimonial Contract be violated, the wronged Party only is discharged from the Obligation; the same still binding the other, so long as the former shall think good.
VII.Moral Impediments. L. N. N. l. 6. c. 1. §27.Any Man may contract with any Woman, where the Law makes no special Prohibition, if their Age and Constitution of Body render them capable of Matrimony, except some Moral Impediment be in the Way: Presupposing, That he or she is under a Moral Impediment, who are already married to some other Person.
VIII.Kindred L. N. N. l. 6. c. 1. §28.And it is accounted a Moral Impediment of lawful Matrimony, if the Parties are too nearly allied by Blood or by Affinity. On which Score, even by the Law of Nature, those Marriages are accounted incestuous and wicked, which are contracted between any Persons related in the Ascending or Descending Line. And for those in the other transverse Order, as with the Aunt, either on the Father’s or Mother’s Side, the Sister, &c. As also those in Affinity, as, with the Mother-in-law, Step-Mother, Step-Daughter, &c. Not only the positive Divine Law, but that of most civiliz’d Nations, with whom also all Christians agree, does abominate. Nay, the Special Laws of many Countries forbid Marriage even in the more remote Degrees, that so they may keep Men from breaking in upon those which are more sacred, by setting the Barrier at a greater Distance.
IX.Ceremony.Now as the Laws are wont to assign to other Contracts and Bargains some Solemnities, which being wanting, the Act shall not be adjudged of Validity: So also it is in Matrimony, where the Laws require, for the sake of Decency and good Order, that such or such Ceremonies be performed. And these, though not injoined by the Law Natural, yet without the same, those who are Subjects of such a Community,12 shall not consummate a legal Matrimony; or at least, such Contract shall not be allowed by the Publick to be effectual.
X.Mutual Duties.It is the Duty of a Husband to love his Wife, to cherish, direct and protect her; and of the Wife to love and honour her Husband, to be assistant to him, not only in begetting and educating his Children, but to bear her Part in the Domestick Cares. On both sides, the Nature of so strict an Union requires, That the Married Couple be Partakers as well in the good as ill Fortune of either, and that one succour the other in all Cases of Distress; moreover, That they prudently accommodate their Humours to each other; in which Matter, it is the Wife’s Duty to submit.
Duty of Parents and Children
I.Paternal Authority. L. N. N. l. 6. c. 2.From Matrimony proceeds Posterity,13 which is subjected to the Paternal Power,* the most Ancient and the most Sacred Kind of Authority, whereby Children are obliged to reverence their Parents, to obey their Commands, and to acknowledge their Pre-eminence.
II. Its Foundation Twofold.The Authority of Parents over their Children, hath its chief Foundation on a Twofold Cause.
First, Because the Law of Nature it self, when Man was made a Sociable Creature, injoin’d to Parents the Care of their Children; and lest they should herein be negligent, Nature implanted in them a most tender Affection for their Issue. Now that this Care may be rightly managed, it is requisite that they have a Power of ordering the Actions of their Children for their Good; because these, as yet, understand not, for want of Discretion, how to govern themselves.
Next, This Authority is also grounded on the tacit Consent of their Offspring. For it may fairly be presum’d, that if an Infant, at the Time of its Birth, had the Use of its Reason, and saw that its Life could not be preserv’d without the Care of the Parents, to which must be join’d a Power over it self, it would readily consent to the same, and desire for it self a comfortable Education from them. And this Power is actually in the Parents, then when they breed and nurse up the Child, and form him as well as they can, that he may become a fit Member of Human Society.
III.Which Parent has greater Right. L. N. N. l. 6. c. 2. §4.But whereas the Mother concurs no less than the Father to the Generation of Children, and so the Offspring is common to both, it may be inquir’d, Which hath the greatest Right thereto? Concerning which Point we are to distinguish: For if the Issue were begotten not in Matrimony, the same shall be rather the Mother’s, because here the Father cannot be known, except the Mother discover him. Among those also who live in a State of Natural Liberty, and above Laws, it may be agreed, that the Mother’s Claim shall be preferr’d to that of the Father. But in Communities,14 which have their Formation from Men, the Matrimonial Contract regularly commencing on the Man’s Side, and he becoming the Head of the Family, the Father’s Right shall take Place, so as though the Child is to pay the Mother all Reverence and Gratitude, yet is it not obliged to obey her, when she bids that to be done which is contrary to the just Commands of the Father. Yet upon the Father’s Decease, his Authority over his Child, especially if not of Age, seems to devolve upon the Mother, and if she marry again, it passes to the Step-Father, he being esteemed to succeed to the Trust and Care of a Natural Father. And he who shall allow liberal Education to an Orphan or a forsaken Child, shall have a Right to exact filial Obedience from the same.
IV.Paternal Authority distinguish’d. L. N. N. l. 6. c. 2. §6.But that we may handle more accurately the Power of Parents over their Children, we must distinguish, first, between Patriarchs, or Chiefs of independent Families; and such as are Members of a Community; 15 and then betwixt the Power of a Father, as Father, and his Power as Head of his Family. And whereas it is injoyn’d by Nature to a Father as such, That he bring up his Children well, in order to render ’em fit Members of Human Society, so long as ’till they can take Care of themselves; hence he has so much Power given him over them, as is necessary for this End; which therefore by no means extends it self so as to give the Parents Liberty to destroy their unborn Offspring, or to cast away or kill it when it is born. For though it is true, the Issue is of the Substance of the Parents, yet it is placed in a Human State equal to themselves, and capable of receiving Injuries from them. Neither also does this Authority vest them with the Exercise of a Power of Life and Death, upon Occasion of any Fault, but only allows them to give moderate Chastisement; since the Age we speak of is too tender to admit of such heinous Crimes as are to be punished with Death. But if a Child shall stubbornly spurn at all Instruction, and become hopeless of Amendment, the Father may turn him out of his own House, and abdicate or renounce him.
V.Childhood. L. N. N. l. 6. c. 2. §7.Moreover, This Power, thus nicely taken, may be considered according to the diverse Age of Children. For in their early Years, when their Reason is come to no Maturity, all their Actions are subject to the Direction of their Parents. During which Time, if any Estate fall to the young Person, it ought to be put into the Possession, and under the Administration of the Father, so that the Property be still reserved to the Child; tho’ it may be reasonable enough that the Profits arising therefrom should be the Father’s till the other arrive at Manhood. So also any Advantage or Profit that can be made by the Labour of a Son, ought to accrew to the Parent; since with the Latter lies all the Care of maintaining and of educating the Former.
VI.Manhood. L. N. N. l. 6. c. 2. §11.When Children are come to Man’s Estate, when they are indued with a competent Share of Discretion, and yet continue themselves a Part of the Father’s Family, then the Power which the Father hath comes differently to be considered, either as he is a Father, or as Head of the Family. And since in the former Case he makes his End to be the Education and Government of his Children, it is plain, That when they are of ripe Years, they are to be obedient to the Authority of their Parents, as wiser than themselves. And whosoever expects to be maintain’d upon what his Father has, and afterwards to succeed to the Possession of the same, is obliged to accommodate himself to the Methods of his Paternal Household; the Management whereof ought to be in his Father’s Power.
VII.Patriarchs Power abridged. L. N. N. l. 6. c. 2. §6.Patriarchs, or Heads of independent Families, before they join’d in Communities,16 acted in many Cases after the manner of Princes, in their Houses. So that their Progeny, who continued a Part of their Families, paid the highest Veneration to their Authority. But afterward, this Family-Royalty (as well as some other private Rights) was moderated for the Benefit and Order of Communities; and in some Places more, in others less of Power was left to Parents. Hence we see that, in some Governments, Fathers have in Criminal Cases a Power of Life and Death over their Children; but in most it is not allowed, either for fear Parents should abuse this Prerogative to the Detriment of the Publick, or to the unjust Oppression of those so subjected; or, lest thro’ the Tenderness of Paternal Affection, many Vices should pass unpunished, which might break forth one time or other into publick Mischiefs; or else, that Fathers might not be under a Necessity of pronouncing sad and ungrateful Sentences.
VIII.17 Marriage with Parents Consent. L. N. N. l. 6. c. 2. §14.And as the Father ought not to turn his Child out of his Family, while he stands in Need of Education and Assistance from him, without the most weighty Reasons; so also ought not the Son or Daughter leave the Parent’s House without his Consent. Now whereas Children frequently leave their Father’s Family on Occasion of Matrimony; and since it much concerns Parents what Persons their Children are married to, and from whom they are to expect Grand-Children; hence it is a Part of filial Duty, herein to comply with the Will of the Parents, and not to marry without their Consent. But if any do actually contract Matrimony against their Liking, and consummate the same, such Marriage seems not to be void by the Law of Nature, especially if they intend to be no longer burthensome to their Parents, and that for the rest their Condition be not scandalous. So that if in any Country such Marriages are accounted null and void, it proceeds from the Municipal Laws of the Place.
IX.Piety ever due to Parents. L. N. N. l. 6. c. 2. §12.But when a Son or Daughter have left their Father’s House, and either have set up a new Family of their own, or joined to another; the Paternal Authority indeed ceases, but Piety and Observance is for ever due, as being founded in the Merits of the Parents, whom Children can never or very seldom be supposed to requite. Now these Merits do not consist in this only, That a Parent is to his Child the Author of Life, without which no Good can be injoyed; but that they bestow also a chargeable and painful Education upon them, that so they may become useful Parts of Human Society; and very often lay up somewhat for them, in order to make their Lives more easie and comfortable.
X.Education intrusted. L. N. N. l. 6. c. 2. §6.And yet, though the Education of Children be a Duty laid upon Parents by Nature it self, it hinders not but that, either in Case of Necessity, or for the Benefit of the Children, the Care thereof may by them be intrusted with another; so still that the Parent reserve to himself the Oversight of the Person deputed. Hence it is, that a Father may not only commit his Son to the Tutorage of proper Teachers; but he may give him to another Man to adopt him, if he perceives it will be advantagious to him. And if he have no other Way to maintain him, rather than he should die for Want, he may hire him out for Wages, or sell him into some tolerable Servitude, reserving still a Liberty of redeeming him, as soon as either himself shall be able to be at the Charge, or any of his Kindred shall be willing to do it. But if any Parent shall inhumanly expose and forsake their Child, he who shall take it up and educate it, shall have the Fatherly Authority over it; so that the Foster Child shall be bound to pay filial Obedience to his Educator.
XI.Duty of Parents.The Duty of Parents consists chiefly in this, That they maintain their Children handsomly, and that they so form their Bodies and Minds by a skilful and wise Education, as that they may become fit and useful Members of Human and Civil Society, Men of Probity, Wisdom, and good Temper. So that they may apply themselves to some fit and honest Way of Living, by which they may, as their Genius and Opportunity shall offer, raise and increase their Fortunes.
XII.Duty of Children.On the other Hand, ’tis the Duty of Children to honour their Parents, that is, to give them Reverence, not only in outward Shew, but much more with a hearty Respect, as the Authors not only of their Lives, but of many other invaluable Benefits to ’em; to obey ’em; to be assistant to ’em to their utmost, especially if they are Aged, or in Want; not to undertake any Business of Moment, without paying a Deference to their Advice and Opinion; and, lastly, To bear with Patience their Moroseness, and any other their Infirmities, if any such be.
The Duties of Masters and Servants
I.Servile State how begun. L. N. N. l. 6. c. 3.After Mankind came to be multiplied and it was found how conveniently Domestic Affairs might be managed by the Service of other Men, * it early became a Practice to take Servants into a Family, to do the Offices belonging to the House. These at first probably offer’d themselves, driven thereto by Necessity, or a Consciousness of their own Want of Understanding; but upon being assur’d that they should constantly be supplied with Food and Necessaries, they devoted all their Services for ever to some Master: And then Wars raging up and down the World, * it grew a Custom with most Nations, that those Captives, to whom they granted their Lives, should be made Slaves ever after, together with the Posterity born of them; though in many Countries, no such Servitude is in Use; but all Domestic Offices are perform’d by mercenary Servants hired for a certain Time.
II.A Temporary Servant. L. N. N. l. 6. c. 3. §4.Now as there are several Degrees, as it were, of Servitude, so the Power of the Masters, and the Condition of the Servants do vary. To a Servant hired for a Time, the Duty of the Master is to pay him his Wages; the other making good on his Part the Work as agreed for: And because in this Contract the Condition of the Master is the better, therefore such Servant is also to pay Respect to his Master according to his Dignity; and if he have done his Business knavishly or negligently, he is liable to Punishment from him; provided it go not so far as any grievous Maiming of his Body, much less so far as Infliction of Death.
III.A Voluntary Perpetual Servant.But to such a Servant as voluntarily offers himself to perpetual Servitude, the Master is obliged to allow perpetual Maintenance, and all Necessaries for this Life; it being his Duty on the other hand to give his constant Labour in all Services whereto his Master shall command him, and whatsoever he shall gain thereby, he is to deliver to him. In thus doing, however, the Master is to have a Regard to the Strength and Dexterity of his Servant, not exacting rigorously of him what is above his Power to do. Now this Sort of Servant is not only subject to the Chastisement of his Master for his Negligence, but the same may correct his Manners, which ought to be accommodated to preserve Order and Decency in the Family: But he may not sell him against his Will; because he chose this for his Master of his own Accord, and not another; and it concerns him much with whom he serves. If he have been guilty of any heinous Crime against one not of the same Family, he is subject to the Civil Power, if he live in a Community; but if the Family be independent, he may be expell’d. But if the Crime be against the same Family, it being independent, the Head thereof may inflict even Capital Punishment.
IV.Captive Slaves L. N. N. l. 6. c. 3. §7Captives in War being made Slaves, are frequently treated with greater Severity, something of a hostile Rage remaining towards ’em, and for that they attempted the worst upon us and our Fortunes. But as soon as there intervenes a mutual Trust, in order to Cohabitation in the Family, between the Victor and the vanquish’d Person, all past Hostility is to be accounted as forgiven: And then the Master does Wrong even to a Servant thus acquir’d, if he allow him not Necessaries for Life, or exercise Cruelty to him without Cause, and much more if he take away his Life, when he has commited no Fault to deserve it.
V.AlienableIt is also the Practice to pass away our Property in such Slaves who are taken in War, or bought with our Money, to whom we please, after the same manner as we do our other Goods and Commodities; so that the Body of such Servant is holden to be a Chattel of his Master. And yet here Humanity bids us not to forget that this Servant is a Man, however, and therefore ought not to be treated as we do our Moveables, use ’em or abuse ’em, or destroy ’em as we list. And when we are minded to part with him, we ought not to deliver him into the Hands of such, as we know will abuse him inhumanly and undeservedly.
VI.Offspring of Slaves. L. N. N. l. 6. c. 3. §9.Lastly, ’Tis every where allow’d, That the Progeny of Parents who are Bondmen, are also in a servile State, and belong as Slaves to the Owner of their Mother. Which is justified by this Maxim, That whosoever is Proprietor of the Body, is also Proprietor of whatsoever is the Product thereof, and because such Issue had never been born, if the Master had executed the Rigor of War upon the Parent; and for that the Parent having nothing she can call her own, the Offspring cannot otherwise be brought up but at her Master’s Charge. Whereas, therefore, the Master afforded such Infant Nourishment, long before his Service could be of any Use to him; and whereas all the following Services of his Life could not much exceed the Value of his Maintenance, he is not to leave his Master’s Service without his Consent. But ’tis manifest, That since these Bondmen came into a State of Servitude not by any Fault of their own, there can be no Pretence that they should be otherwise dealt withal, than as if they were in the Condition of perpetual hired Servants.
The Impulsive Cause of Constituting Communities18
I.This Inquiry necessary. L. N. N. l. 7. c. 1.Altho’ there be hardly any Delight or Advantage, but what may be obtain’d from those Duties, of which we have already discours’d; it remains, nevertheless, that we inquire into the Reasons, why Men, not contenting themselves with those primitive and small Societies, have founded such as are more ample, call’d Communities.19 For from these Grounds and Foundations is to be deduced the Reason of those Duties, which merely relate to the Civil State of Mankind.
II.Difficulty herein. L. N. N. l. 7. c. 1. §2.Here, therefore, it suffices not to say, That Man is by Nature inclin’d to Civil Society, so as he neither can nor will live without it.20 For since, indeed, it is evident, that Man is such a Kind of Creature, as has a most tender Affection for himself and his own Good; it is manifest, that when he so earnestly seeks after Civil Society, he respects some particular Advantage that will accrue to him thence. And altho’ without Society with his Fellow-Creatures, Man would be the most miserable of all Creatures; yet since the natural Desires and Necessities of Mankind might be abundantly satisfied by those primitive Kind of Societies, and by those Duties to which we are obliged, either by Humanity or Contracts; it cannot immediately be concluded from this natural Society between Man and Man, that his Nature and Temper does directly incline him to the forming of Civil Communities.
III.Twofold Inquiry. L. N. N. l. 7. c. 1. §4.Which will more evidently appear, if we consider, What Condition Mankind is placed in by the Constitution of Civil Communities: What that Condition is, which Men enter into when they make themselves Members of a Civil State:21 What Qualities they are which properly intitle them to the Name of Political Creatures, and render them good Patriots or Subjects to the State.22 And, lastly, What there is in their Frame and Constitution, which seems, as we may say, to indispose them for living in a Civil Community.23
IV.Natural State.Whosoever becomes a Subject,24 immediately loses his Natural Liberty, and submits himself to some Authority, which is vested with the Power of Life and Death; and by the Commands of which, many Things must be done, which otherwise he would have been no ways willing to do, and many Things must be let alone, to which he had a strong Inclination: Besides, most of his Actions must terminate in the Publick Good, which in many Cases seems to clash with Private Men’s Advantage. But Man by his Natural Inclinations is carried to this, To be subject to no one, to do all Things as he lists, and in every thing to consult his single Advantage.
V.The Qualities of a good Member of the Community.But we call him a (Political Animal or) True Patriot, and Good Subject,25 who readily obeys the Commands of his Governours; who endeavours with his utmost to promote the Publick Good, and next to that, regards his Private Affairs; nay, more, who esteems nothing profitable to himself, unless the same be likewise profitable to the Community; lastly, who carries himself fairly towards his Fellow-Subjects. But there are few Men to be found, whose Tempers are naturally thus well inclin’d. The greater Part being restrain’d merely for fear of Punishment; and many continue all their Lifetime ill Subjects and unsociable Creatures.
VI.How Men naturally disturb and hinder the Benefits of Society. L. N. N. l. 1. c. 3. §4.Farthermore, there is no Creature whatsoever more fierce or untameable than Man, or which is prone to more Vices that are apt to disturb the Peace and Security of the Publick. For besides his inordinate Appetite to Eating, Drinking, and Venery, to which Brute Beasts are likewise subject, Mankind is inclin’d to many Vices, to which Brutes are altogether Strangers; as is the unsatiable Desire and Thirst after those Things which are altogether superfluous and unnecessary, and above all to that worst of Evils, Ambition; also a too lasting Resentment and Memory of Injuries, and a Desire of Revenge increasing more and more by Length of Time; besides an infinite Diversity of Inclinations and Affections, and a certain Stiffness and Obstinacy in every one to indulge his own particular Humour and Fancy. Moreover, Man takes so great Delight in exercising his Cruelty over his Fellow Creatures, that the greatest Part of the Evils and Mischiefs, to which Mankind is obnoxious,26 is wholly owing to the merciless Rage and Violence of Men to each other.
VII.Reason of Change. L. N. N. l. 7. c. 1. §7.Therefore the genuine and principal Reason which induced Masters of Families to quit their own natural Liberty, and to form themselves into Communities,27 was, That they might provide for themselves a Security and Defence against the Evils and Mischiefs that are incident to Men from one another.28 For as, next under God, one Man is most capable of being helpful to another; so nothing is able to create Man more Distress, and work him more Mischief, than Man himself; and those Persons have entertain’d a right Conception of the Malice of Men, and the Remedy thereof, who have admitted this as a common Maxim and Proverb; That unless there were Courts of Judicature, one Man would devour another. But after that, by the Constituting of Communities, Men were reduced into such an Order and Method, that they might be safe and secure from mutual Wrongs and Injuries among themselves, it was by that means provided, that thereby they might the better enjoy those Advantages, which are to be reap’d and expected from one another; to wit, That they might from their Childhood be brought up and instructed in good Manners, and that they might invent and improve several Kinds of Arts and Sciences, whereby the Life of Man might be better provided and furnished with necessary Conveniences.
VIII.Farther Penalties. L. N. N. l. 7. c. 1. §8.And the Reason will be yet more cogent for the Constituting of Communities, if we consider, that other Means would not have been capable of curbing the Malice of Men. For although we are enjoyn’d by the Law of Nature not to do any Injury one to another; yet the Respect and Reverence to that Law is not of that Prevalence as to be a sufficient Security for Men to live altogether quietly and undisturbed in their Natural Liberty.
For although by Accident, there may be found some few Men of that moderate quiet Temper and Disposition, that they would do no Injury to others, tho’ they might escape unpunish’d; and there may be likewise some others, that in some measure bridle in their disorderly Affections thro’ fear of some Mischief that may ensue from thence; yet, on the contrary, there are a great Number of such, as have no Regard at all to Law or Justice, whenever they have any Prospect of Advantage, or any Hopes, by their own subtle Tricks and Contrivances, of being too hard for, and deluding the injur’d Party. And as it behoves every one, that would take care of his own Safety, to endeavour to secure himself against this Sort of Persons; so no better Care and Provision can be made, than by means of these Communities and Civil Societies. For altho’ some particular Persons may mutually agree together to assist each other; yet unless there be some Way found out, whereby their Opinions and Judgments may be united together, and their Wills may be more firmly bound to the Performance of what they have agreed upon, it will be in vain for any one to expect and rely upon any certain Succour and Assistance from them.
IX.Advantage of Penalties. L. N. N. l. 7. c. 1. §11.Lastly, Altho’ the Law of Nature does sufficiently insinuate unto Men, that they who do any Violence or Injury to other Men, shall not escape unpunished; yet neither the Fear and Dread of a Divine Being, nor the Stings of Conscience are found to be of sufficient Efficacy to restrain the Malice and Violence of all Men.29 For very many Persons, thro’ the Prejudice of Custom and Education, are, as it were, altogether deaf to the Force and Power of Reason. Whence it comes to pass, that they are only intent upon such Things as are present, taking very little Notice of those Things which are future; and that they are affected only with those Things which make a present Impression upon their Senses. But since the Divine Vengeance is wont to proceed on but slowly; from whence many ill Men have taken Occasion to refer their Evils and Misfortunes to other Causes; especially since they very often see wicked Men enjoy a Plenty and Abundance of those Things wherein the vulgar Sort esteem their Happiness and Felicity to consist. Besides, the Checks of Conscience, which preceed any wicked Action, seem not to be of that Force and Efficacy, as that Punishment which follows the Commission of the Fact, when, that which is done, cannot possibly be undone. And therefore the most present and effectual Remedy, for the quelling and suppressing the evil Desires and Inclinations of Men, is to be provided by the Constituting of Civil Societies.
Of the Internal Frame and Constitution of any State or Government
I.Conjunction necessary. L. N. N. l. 7. c. 2.The next Enquiry we are to make, is upon what Bottom Civil Societies have been erected, and wherein their Internal Constitution does consist. Where, in the first Place, this is manifest, That neither any Place, nor any Sort of Weapons, nor any Kind of brute Creatures can be capable of affording any sufficient and safe Guard or Defence against the Injuries to which all Men are liable, by reason of the Pravity of Mankind: From such Dangers, Men alone can afford an agreeable Remedy by joining their Forces together, by interweaving their Interests and Safety, and by forming a general Confederacy for their mutual Succour; that therefore this End might be obtain’d effectually, it was necessary that those who sought to bring it about, should be firmly joined together and associated into Communities.
II.Numbers Necessary. L. N. N. 1. 7. c. 2. §2.Nor is it less evident, that the Consent and Agreement of Two or Three particular Persons cannot afford this Security against the Violence of other Men: Because it may easily happen, that such a Number may conspire the Ruin of those few Persons, as may be able to assure themselves of a certain Victory over them; and ’tis very likely they would with the greater Boldness go about such an Enterprise, because of their certain Hopes of Success and Impunity. To this end therefore it is necessary, that a very considerable Number of Men should unite together, that so the Overplus of a few Men to the Enemies, may not be of any great Moment to determine the Victory to their Side.
III.Agreement to be perpetual. L. N. N. 1. 7. c. 2. §3.Among those many, which join together in order to this End, it is absolutely requisite that there be a perfect Consent and Agreement concerning the Use of such Means as are most conducive to the End aforesaid. For even a great Multitude of Men, if they do not agree among themselves, but are divided and separated in their Opinions, will be capable of effecting but very little; Or, although they may agree for a certain Time, by reason of some present Motion or Disposition of the Mind; yet as the Tempers and Inclinations of Men are very variable, they presently afterwards may divide into Parties. And although by Compact they engaged among themselves, that they would employ all their Force for the common Defence and Security; yet neither by this Means is there sufficient Provision made, that this Agreement of the Multitude shall be permanent and lasting: But something more than all this, is requisite, to wit, That they who have once entered into a mutual League and Defence for the Sake of the Publick Good, should be debarr’d from separating themselves afterwards, when their private Advantage may seem any ways to clash with the Publick Good.30
IV.Faults herein how remedied. L. N. N. 1. 7. c. 2. §5.But there are two Faults, which are chiefly incident to Human Nature, and which are the Occasion that many who are at their own Liberty, and independent one upon the other, cannot long hold together for the promoting of any Publick Design. The One is the Contrariety of Inclinations and Judgments in determining what is most conducive to such an End; to which in many there is join’d a Dulness of Apprehending which, of several Means propos’d, is more advantagious than the rest; and a certain Obstinacy in defending whatsoever Opinion we have embraced. The other is a certain Carelesness and Abhorrence of doing that freely, which seems to be convenient and requisite, whensoever there is no absolute Necessity, that compels them, whether they will or no, to the Performance of their Duty. The First of these Defects may be prevented by a lasting Uniting of all their Wills and Affections together. And the Latter may be remedied by the constituting of such a Power as may be able to inflict a present and sensible Penalty upon such as shall decline their Contributing to the Publick Safety.
V.Union of Wills.The Wills and Affections of a great Number of Men cannot be united by any better means, than when every one is willing to submit his Will to the Will of one particular Man, or one Assembly of Men; so that afterwards whatsoever he or they shall will or determine concerning any Matters or Things necessary for the Publick Safety, shall be esteemed as the Will of All and every particular Person.31
VI.And of Forces.Now such a Kind of Power, as may be formidable to All, can by no better means be constituted among a great Number of Men, than when All and every one shall oblige themselves, to make Use of their Strength after that Manner, as he shall command, to whom All Persons must submit and resign the Ordering and Direction of their united Forces: And when there is an Union made of their Wills and Forces, then this Multitude of Men may be said to be animated and incorporated into a firm and lasting Society.32
VII.Other Requisites. Two Covenants. The First. L. N. N. 1. 7. c. 2. §6.Moreover, that any Society may grow together after a regular Manner, there are required Two Covenants, and One Decree, or Constitution.33 For, first, Of all those many, who are supposed to be in a Natural Liberty, when they are joined together for the forming and constituting any Civil Society, every Person enters into Covenant with each other, That they are willing to come into one and the same lasting Alliance and Fellowship, and to carry on the Methods of their Safety and Security by a common Consultation and Management among themselves: In a Word, That they are willing to be made Fellow Members of the same Society.34 To which Covenant, it is requisite, that All and singular Persons do consent and agree, and he that does not give his Consent, remains excluded from such Society.35
VIII.Constitution.After this Covenant, it is necessary, that there should be a Constitution agreed on by a publick Decree, setting forth, what Form of Government is to be pitched upon. For ’till this be determined, nothing with any Certainty can be transacted, which may conduce to the publick Safety.
IX.The other covenant. L. N. N. 1. 7. c. 2. §8.After this Decree concerning the Form of Government, there is Occasion for another Covenant, when he or they are nominated and constituted upon whom the Government of this Rising Society is conferr’d; by which Covenant the Persons that are to govern, do oblige themselves to take Care of the Common Safety, and the other Members do in like manner oblige themselves to yield Obedience to them; whereby also all Persons do submit their Will to the Will and Pleasure of him or them, and they do at the same Time convey and make over to him or them the Power of making Use of, and applying their united Strength, as shall seem most convenient for the Publick Security. And when this Covenant is duly and rightly executed, thence, at last, arises a complete and regular Government.
X.A Community defined. L. N. N. 1. 7. c. 2. §13.A Civil Society and Government, thus constituted, is look’d upon as if it were but One Person, and is known and distinguished from every particular Man by one Common Name; and it has peculiar Rights and Privileges, which neither each One alone, nor Many, nor All together can claim to themselves, without him, who is the Supreme, or to whom the Administration of the Government is committed.36 Whence a Civil Society is defined to be, One Person morally incorporated, whose Will containing the Covenants of many united together, is looked upon and esteemed as the Will of All; so that he is in a Capacity of making Use of the Strength and Power of every particular Person for the Common Peace and Security.
XI.How subjected to One. L. N. N. 1. 7. c. 2. §14.Now the Will and Intention of any Constituted Government or Society exerts it self, as the Principle of Publick Actions, either by one particular Person, or by one Council or Assembly, according as the Power of Managing Affairs is conferr’d on him, or on such an Assembly. Where the Government of the State is in the Power of One Man, the said Society is supposed to will, whatsoever shall be the Will and Pleasure of that Man, allowing that he is in his perfect Senses; and it being about those Affairs which only relate to Government.37
XII.How to many. L. N. N. 1. 7. c. 2. §15.But when the Government of a State is conferr’d upon a Council, consisting of several Men, every one of them retaining his own Natural Free-Will, that regularly is esteemed to be the Will and Pleasure of the State, whereto the Major Part of the Persons, of whom the Council is composed, does give their Assent; unless it be expressly declared, how great a Part of the Council consenting is required to represent the Will of the Whole. But where two differing Opinions are equally balanced on both sides, there is nothing at all to be concluded upon, but the Affair still remains in its former State. When there are several differing Opinions, that shall prevail which has more Voices than any of the other differing Opinions, provided so many concur therein, as otherwise might have represented the Will and Pleasure of the Whole, according to the Publick Constitutions.
XIII.Various Forms of Government. L. N. N. 1. 7. c. 2. §20.A State or Government being thus constituted, the Party on whom the Supreme Power is conferr’d, either as it is a single Person, or a Council consisting of select Persons, or of All in General, is called a Monarchy, an Aristocracy, or a Free State; the rest are looked upon as Subjects or Citizens, the Word being taken in the most comprehensive Sense: Although, in Strictness of Speech, some call only those Citizens, who first met and agreed together in the forming of the said Society, or else such who succeeded in their Place, to wit, House-holders or Masters of Families.
Moreover, Citizens are either Originally so; that is, such as are born in the Place, and upon that Account claim their Privileges: Or else Adscititious; that is, such as come from Foreign Parts.
Of the first Sort, are either those who at first were present and concerned in the forming the said Society, or their Descendants, whom we call Indigenae, or Natives.
Of the other Sort are those who come from Foreign Parts in order to settle themselves there. As for those who come thither only to make a short Stay, although they are for that Time subject to the Laws of the Place; nevertheless, they are not looked upon as Citizens, but are called Strangers or Sojourners.
XIV.Government from GOD. L. N. N. 1. 7. c. 3.Not that what we have delivered concerning the Original of Civil Societies, does any ways hinder, but that Civil Government may be truly said to be from GOD. For it being his Will, that the Practices of Men should be ordered according to the Law of Nature; and yet upon the Multiplication of Mankind, Human Life would have become so horrid and confused, that hardly any Room would have been left for the same to exert its Authority; and seeing the Exercise thereof would be much improved by the Institution of Civil Societies; therefore (since He who commands the End, must be supposed to command likewise the Means necessary to the said End) God also, by the Mediation of the Dictates of Reason, is to be understood antecedently to have willed, That Mankind, when they were multiplyed, should erect and constitute Civil Societies, which are, as it were, animated with a Supreme Authority. The Degrees whereof He expressly approves in Divine Writ, ratifying their Divine Institution by a peculiar Law, and declaring, That Himself takes them into his especial Care and Protection.
Of the several Parts of Government38
I.L. N. N. l. 7. c. 4.What are the Constituent Parts of Supreme Power, and by what Methods it exerts its Force in Civil Societies, may easily be gather’d from the Nature and End of the said Societies.
II.Will of the Supreme to be made known. L. N. N. l. 7. c. 4. §2.In a Civil Society all Persons are supposed to have submitted their Will to the Will and Pleasure of the Governours, in such Affairs as concern the Safety of the Publick, being willing to do whatsoever they require. That this may be effected, it is necessary, that the Governors do signify to those who are to be governed, what their Will and Pleasure is concerning such Matters. And this they do, not only by their Commands, directed to particular Persons about particular Affairs; but also by certain general Rules, whence all Persons may, at all Times, have a clear and distinct Knowlege of what they are to do or omit. By which likewise it is commonly defined and determined what ought to be looked upon to be each Man’s Right and Property, and what does properly belong to another; * what is to be esteemed Lawful, and what Unlawful in any Publick Society; what Commendable, or what Base; what every Man may do by his own Natural Liberty, or how every one may dispose and order his own particular Rights towards the Advancement of the common Peace and Tranquillity: In fine, what, and after what manner, every one by Right may lay Claim to from another. For it conduces very much to the Peace and Prosperity of any Civil Society, that all these Things should be clearly and plainly laid down and determined.
III.Penalty. L. N. N. l. 7. c. 4. §3.Moreover, this is the Chief End of Civil Societies, That Men, by a mutual Agreement and Assistance of one another, might be secured against the Injuries and Affronts, which may, and very often do, befall us by the Violence of other Men. Now that this End may the better be obtained by those Men, with whom we are link’d together in the same Society; it is not sufficient, that they should mutually agree among themselves not to injure one another: Nor is it enough, that the bare Will and Pleasure of the Supreme Magistrate should be made known to them; but ’tis likewise requisite, that there should be a certain Fear and Dread of Punishment, and a Power and Ability of inflicting the same. Which Punishment or Penalty, that it may be sufficient for this End, is to be so ordered, that there may plainly appear a greater Damage in violating the Laws, than in observing them; and that so the Sharpness and Severity of the Penalty, may outweigh the Pleasure and Advantage gotten, or expected by doing the Injury: Because it is impossible but that of two Evils Men should chuse the least. For although there are many Men who are not restrained from doing Injuries by any Prospect of Punishment hanging over their Heads; yet that is to be looked upon as a Case that rarely happens, and such as, considering the present Condition and Frailty of Mankind, cannot be wholly avoided.
IV.Controversies. L. N. N. l. 7. c. 4. §4.Because also it very often happens, that many Controversies do arise about the right Application of the Laws to some particular Matters of Fact, and that many Things are to be nicely and carefully considered in order to determine whether such a Fact may be said to be against Law; therefore, in order to the Establishment of Peace and Quietness amongst the Subjects, it is the Part of the supreme Governour to take Cognizance of, and determine the Controversies arising between Subject and Subject, and carefully to examine the Actions of particular Persons, which are found to be contrary to Law, and to pronounce and execute such Sentence as shall be agreeable to the same Law.
V.Power of Peace and War. L. N. N. l. 7. c. 4. §5.But that those, who by mutual Agreement have constituted a Civil Society, may be safe against the Insults of Strangers, the supreme Magistrate has Power to assemble, to unite into a Body, and to arm, or, instead of that, to list as many Mercenaries as may seem necessary, considering the uncertain Number and Strength of the Enemy, for the maintaining the publick Security; and it is likewise intirely left to the Discretion of the same Magistrate, to make Peace whenever he shall think convenient.
And since, both in Times of Peace and War, Alliances and Leagues with other Princes and States are of very great Use and Importance, that so the different Advantages of divers States and Governments may the better be communicated to each other, and the Enemy, by their joint Forces, may be repulsed with the greater Vigour, or be more easily brought to Terms. It is also absolutely in the Power of the supreme Magistrate to enter into such Leagues and Treaties as he shall think convenient to each Occasion; and to oblige all his Subjects to the Observation of them, and at once to derive and convey down to the whole Civil Society, all the Benefits and Advantages thence arising.
VI.Publick Officers. L. N. N. l. 7. c. 4. §6.Seeing also the Affairs of any considerable State, as well in Time of War as Peace, cannot well be managed by one Person, without the Assistance of subordinate Ministers and Magistrates, it is requisite that able Men should be appointed by the supreme Magistrate, to decide and determine in his Room39 the Controversies arising between Subject and Subject; to inquire into the Councils of the Neighbouring Princes and States; to govern the Soldiery; to collect and distribute the publick Revenue: and, lastly, in every Place to take special Care of the Common Good. And from each of these Persons the supreme Magistrate may, and ought to exact the Performance of their Duty, and require an Account of their Behaviour in their respective Stations.
VII.Taxes. L. N. N. l. 7. c. 4. §7.And because the Concerns of any Civil Society can, neither in Time of War nor Peace, be managed without Expences, the supreme Authority has Power to compel the Subjects to provide the same. Which is done several Ways; either when the Community appropriates a certain Portion of the Revenues of the Country they possess, for this Purpose; or when each Subject contributes something out of his own Estate, and, if Occasion requires, gives also his personal Help and Assistance; or when Customs are set upon Commodities imported and exported, (of which the first chiefly affects the Subjects, and the other Foreigners;) or, lastly, when some moderate Tax is laid on those Commodities which are spent.
VIII.Publick Doctrines. L. N. N. l. 7. c. 4. §8.To conclude: Since the Actions of each Person are governed by his own particular Opinion, and that most People are apt to pass such a Judgment upon Things as they have been accustomed unto, and as they commonly see other People judge; so that very few are capable of discerning what is just and honest; upon this Account therefore it is expedient for any Civil Society, that such Kind of Doctrines should be publickly taught, as are agreeable to the right End and Design of such Societies, and that the Minds of the Inhabitants should be seasoned betimes with these Principles. * It does therefore belong to the supreme Magistrate to constitute and appoint fitting Persons to inform and instruct them publickly in such Doctrines.
IX.All these Parts concentered.Now these several Parts of Government are naturally so connected, that to have a regular Form suitable to any civil Society, all these Parts thereof ought radically to center in One.40 For if any Part be wanting, the Government is defective, and uncapable of procuring its End. But if these several Parts be divided, so that some of them be radically here, and others there, hence of Necessity will follow an irregular and incoherent State of Things.
Of the several Forms of Government41
I.Diverse Forms. L. N. N. l. 7. c. 5.The Supreme Power consider’d either as it resides in a Single Man, or in a Select Council or Assembly of Men, or of All in General, produces diverse Forms of Government.
II.Regular and Irregular.Now the Forms of Government are either Regular or Irregular. Of the first Sort are those where the supreme Power is so united in one particular Subject, that the same being firm and intire, it carries on, by one supreme Will, the whole Business of Government. Where this is not found, the Form of Government must of Necessity be Irregular.
III.Three Regular Forms. L. N. N. l. 7. c. 5. §2.There are Three Regular Forms of Government:42 The First is, When the supreme Authority is in One Man; and that is call’d a Monarchy. The Second, When the same is lodged in a select Number of Men; and that is an Aristocracy. The Third, When it is in a Council or Assembly of Free-holders and Principal Citizens; and that is a Democracy. In the First, he who bears the supreme Rule, is stil’d, A Monarch; in the Second, the Nobles; and in the Third, The People.
IV.Forms compar’d. L. N. N. l. 7. c. 5. §9.In all these Forms, the Power is indeed the same. But in one Respect Monarchy has a considerable Advantage above the rest; because in order to deliberate and determine, that is, actually to exercise the Government, there is no Necessity of appointing and fixing certain Times and Places; for he may deliberate and determine in any Place, and at any Time; so that a Monarch is always in a Readiness to perform the necessary Actions of Government. But that the Nobles and the People, who are not as one natural Person, may be able so to do, it is necessary that they meet at certain Times and Places, there to debate and resolve upon all publick Business. For the Will and Pleasure of a Council, or of the People, which results from the Majority of Votes concentring, can no otherwise be discover’d.
V.A distemper’d State L. N. N. l. 7. c. 5. §10.But, as it happens in other Matters, so in Governments also it falls out, That the same may be sometimes well, and at other times scurvily and foolishly managed. Whence it comes to pass, that some States are reputed Sound, and others Distemper’d. Yet we are not, on Account of these Imperfections, to multiply the several Species or Forms of Government, imagining that these several Defects make different Sorts of Governments; for these Vices or Defects, though different in themselves, do not, however, either change the Nature of the Authority it self, or the proper Subject in which it resides. Now these Defects or Vices in Government, do sometimes arise from the Persons who administer the Government; and sometimes they arise from the Badness of the Constitution it self. Whence the First are styl’d, Imperfections of the Men, and the Latter, Imperfections of the State.
VI.Monarchy L. N. N. l. 7. c. 5. §10.The Imperfections of the Men in a Monarchy are, when he who possesses the Throne, is not well skilled in the Arts of Ruling, and takes none, or but a very slight Care for the publick Good, prostituting the same to be torn in pieces and sacrificed to the Ambition or Avarice of evil Ministers; when the same Person becomes terrible by his Cruelty and Rage; when also he delights, without any real Necessity, to expose the Publick to Danger; when he squanders away, by his Luxury and profuse Extravagance, those Supplies which were given for the Support of the Publick; when he heaps up Treasure unreasonably extorted from his Subjects; when he is Insolent, Haughty, or Unjust; or guilty of any other scandalous Vice.
VII.Aristocracy.The Imperfections of the Men in an Aristocracy are, When by Bribery and base Tricks, Ill Men and Fools get into the Council, and Persons much more deserving than they, are excluded: When the Nobles are divided into several Factions: When they endeavour to make the common People their Slaves, and to convert the publick Stock to their private Advantage.
VIII.Men in a Democracy.The Imperfections of the Men in a Democracy are, when silly and troublesome Persons stickle for their Opinions with great Heat and Obstinacy; when those Excellencies,43 which are rather beneficial than hurtful to the Common-wealth, are depress’d and kept under; when, thro’ Inconstancy, Laws are rashly establish’d, and as rashly annull’d, and what but just now was very pleasing, is immediately, without any Reason, rejected; and when base Fellows are promoted in the Government.
IX.Men in any Government.The Imperfections of the Men, which may promiscuously happen in any Form of Government, are, When those who are intrusted with the publick Care, perform their Duty either amiss, or slightly; and when the Subjects, who ought to make Obedience their Glory, grow restiff and ungovernable.
X.Faults in a Constitution.But the Imperfections of any Constitution, are, When the Laws thereof are not accommodated to the Temper and Genius of the People or Country; or, When the Subjects make use of them for fomenting intestine Disturbances, or for giving unjust Provocations to their Neighbours; or, When the said Laws render the Subjects incapable of discharging those Duties that are necessary for the Preservation of the Publick; for Instance, When thro’ their Defect the People must of Necessity be dissolv’d in Sloth, or rendred unfit for the Injoyment of Peace and Plenty; or when the fundamental Constitutions are order’d after such a Manner, that the Affairs of the Publick cannot be dispatched but too slowly, and with Difficulty.
XI.How called. L. N. N. l. 7. c. 5. §11.To these distemper’d Constitutions, Men have given certain Names; as a corrupt Monarchy, is call’d Tyranny; a corrupt Aristocracy, is styl’d An Oligarchy, or a Rump-Government; and a corrupt Popular State, is call’d An Anarchy, or a Rabble-Government. Altho’ it often happens, that many by these Nick-names do not so much express the Distemper of such a Government, as their own natural Aversion for the present Governours and Constitution.
For, oftentimes, he who is dissatisfied with his King, or a monarchical Government, is wont to call, even a Good and Lawful Prince, a Tyrant and Usurper, especially if he be strict in putting the Laws in Execution. So he who is vex’d because he is left out of the Senate, not thinking himself Inferiour to any of the other Counsellors, out of Contempt and Envy, he calls them, A Pack of assuming Fellows, who tho’ in no Respect they excell any of the Rest, yet domineer and lord it over their Equals, nay, over better Men than themselves.
Lastly, Those Men who are of a haughty Temper, and who hate a Popular Equality, seeing that all People in a Democracy, have an equal Right to give their Suffrages in Publick Affairs, tho’ in every Place the common People makes the greatest Number, they condemn that as an Ochlocracy, or Government by the Rabble, where there is no Preference given to Persons of Merit, as they, forsooth, esteem themselves to be.
XII.An Irregular State. L. N. N. l. 7. c. 5. §12.An Irregular Constitution 44 is, Where that perfect Union is wanting, in which the very Essence of a Government45 consists: And that not through any Fault or Male-administration46 of the Government, but because this Form has been receiv’d as good and legitimate by publick Law or Custom. But since there may be infinite Varieties of Errors in this Case, it is impossible to lay down distinct and certain Species of Irregular Governments. But the Nature thereof may be easily understood by one or two Examples; for Instance, If in a State the Nobles and the People are each vested with a supreme and unaccountable Power; * Or if in any Nation the Nobles are grown so great, that they are no otherwise under the King, then as unequal Confederates.
XIII.Union of several Communities. L. N. N. l. 7. c. 5. §17.We call those Unions, when several Constituted Societies by some special Tie are so conjoin’d, that their Force and Strength may be look’d upon in Effect as the united Force and Strength of one civil Society. Now these Unions may arise two several Ways; the one by a Common Sovereign, the Other by League or Confederacy.
XIV.Union by a common Sovereign.Such a Union happens, by means of a common Sovereign, when diverse separate Kingdoms, either by Agreement, or by Marriage, or hereditary Succession, or Victory, come to be subject to the same King; yet so that they do not close into one Realm, but each are still govern’d by the same common Sovereign, according to their own fundamental Laws.
XV.Union by Confederacy. L. N. N. l. 7. c. 5. §18.Another Sort of Union may happen, when several neighbouring States or Governments are so connected by a perpetual League and Confederacy, that they cannot exercise some Parts of the supreme Power, which chiefly concern their Defence and Security against Strangers, but by a general Consent of them All: Each Society, nevertheless, as to other Matters, reserving to it self its own peculiar Liberty and independency.
The Qualifications of Civil Government47
I.Supreme Authority L. N. N. l. 7. c. 6.It is always one Prerogative of the Government by which any Community is directed, in every Form of Commonwealth whatsoever, to be invested with the supreme Authority:* Whereby it has the Regulating of all Things according to its own Judgment and Discretion, and acts without Dependence upon any other Person † as Superiour, that can pretend to annul or countermand its Orders.
II.Unaccountable. L. N. N. l. 7. c. 6. §2.For the same Reason, a Government so constituted remains unaccountable to all the World; there being no Authority above it to punish it, or to examine whether its Proceedings are right or no.
III.Above the Laws. L. N. N. l. 7. c. 6. §3.And a third Qualification of like Nature with the former, is, That inasmuch as all civil Laws, of human Authority, derive both their Beginning and their Continuance from the Favour of the Government; it is impossible they should directly oblige the very Power that makes them; because the same Power would in Consequence be superiour to it self. Yet it is a happy Prospect, and a singular Advantage to the Laws, when a Prince conforms himself, of his own Pleasure, as Occasion serves, to practise the same Things that he commands his Subjects.
IV.Obedience due to it. L. N. N. l. 7. c. 8.There is also a peculiar Veneration to be paid to the supreme Government under which we live; not only in obeying it in its just Commands, wherein it is a Crime to disobey, but in induring its Severities with the like Patience as the Rigour of some Parents is submitted to by dutiful Children. Wherefore, when a Prince proceeds to offer the most heinous Injuries imaginable to his People, let them rather undergo it, or every one seek his Safety by Flight, than draw their Swords upon the Father of their Country.
V.An absolute Monarchy. L. N. N. l. 7. c. 6. §7.We find, in Monarchies and Aristocracies especially, that the Government is sometime Absolute and sometime Limited. An Absolute Monarch is one, who having no prescrib’d Form of Laws and Statutes perpetually to go by, in the Method of his Administration, proceeds intirely according to his own Will and Pleasure, as the Condition of Affairs and the publick Good in his Judgment seem to require.
VI.A limited Monarchy L. N. N. l. 7. c. 6. §9.But because a single Person may be subject to be mistaken in his Judgment, as well as to be seduced into evil Courses in the Injoyment of so vast a Liberty; it is thought convenient by some States, * to circumscribe the Exercise of this Power within the Limits of certain Laws, which are proposed to the Prince at his Succession to be the future Rule of his Government. And particularly when any extraordinary Concern arises, involving in it the Interest of the whole Kingdom, for which there can be no Provision extant in the Constitution foregoing; They then oblige him to ingage in nothing without the previous Advice and Consent of the People, or their Representatives in Parliament; the better to prevent the Danger of his swerving from the Interest of the Kingdom.48
VII.Right and Manner of holding. L. N. N. l. 7. c. 6. §14.We see likewise a Difference in the Right and Manner of holding some Kingdoms, from what it is in others. For those Princes especially who have acquired Dominions by Conquest, and made a People their own by Force of Arms, can divide, alienate, and transfer their Regalities49 at Pleasure in the manner of a Patrimonial Estate. Others that are advanced by the Voice of the People, tho’ they live in full Possession of the Government during their Reigns, yet have no Pretensions to such a Power. But as they attain’d to the Succession, so they leave it to be determin’d, either by the ancient Custom, or the fundamental Laws of the Kingdom: * For which Reason they are compared by some to Usufructuaries, or Life-Renters.
How Government, especially Monarchical, is acquired
I.Consent of the Subject free or forced. L. N. N. l. 7. c. 7.Although the Consent of the Subject is a Thing to be required in Constituting of every lawful Government, yet it is not50 always obtain’d the same way. For as it is sometimes seen, that a Prince ascends the Throne with the voluntary Acclamations of the People; so sometimes he makes himself a King by his Army, and brings a People to consent by military Force.
II.Of Conquest. L. N. N. l. 7. c. 7. §3.Which latter Method of acquiring a Government is called Conquest; it happening, as often as a victorious Prince, having Fortune on his Side and a just Cause, reduces a People by his Arms to such Extremities, as to compel them to receive him for their Sovereign. And the Reason of this Title is derived, not only from the Conqueror’s Clemency in saving the Lives of all those whom, in Strictness of War, he was at Liberty to destroy, and instead thereof laying only a lesser Inconvenience upon them; but likewise from hence, That, when a Prince will choose to go to War with one that he has injured, rather than he will condescend to satisfie him in a just and equal Manner; * He is to be presum’d to cast himself upon the Fortune of War, with this Intention, that he does beforehand tacitly consent to accept of any Conditions whatsoever shall befal him in the Event.
III.Election. L. N. N. l. 7. c. 7. §6.As for the voluntary Consent of the People, a Government is acquired by it, when in an Election the People, either in order to their Settlement, or at any Time after, do nominate such a One, to bear that Office, as they believe is capable of it. Who, upon Presentation of their Pleasure to him, accepting it, and also receiving their Promises of Allegiance, thereby actually enters upon the Possession of the Government.
IV.An Interregnum. L. N. N. l. 7. c. 7. §7.But betwixt this Election of a new Prince and the Death of the former, there uses in Monarchies that are already fix’d and settled, to intervene an Interregnum; which signifies an imperfect Kind of State, where the People keep together merely by Virtue of their Original Compact: Only that this is much strengthned by the common Name and Love of their Country, and the Settlement of most of their Fortunes there; whereby all good Men are obliged to preserve the Peace with one another, and study to restore their fallen Government again as soon as they can. Yet to prevent the Mischiefs which are apt to arise in an Interregnum, it is very convenient the Law should provide Administrators, to manage the publick Affairs during the Vacancy of the Crown.
V.Succession. L. N. N. l. 7. c. 7. §11.Now though, as is said, in some Monarchies, as every King dies, they proceed again to a New Election: yet in others, the Crown is conferr’d upon Conditions to descend to certain Persons successively, (without any intervening Election) for all Time to come. The Right to which Succession may either be determined by the Order of the Prince, or the Order of the People.
VI.Devisable when L. N. N. l. 7. c. 6. §16.When Princes hold their Crowns in the Manner of a Patrimony, they have the Liberty of disposing of the Succession as themselves please. And their declared Order therein, especially if their Kingdoms are of their own Founding or Acquiring, shall carry the same Force with the last Testament of any private Man. They may divide, if they please, their Kingdom amongst all their Children, not so much as excepting the Daughters. * They may, if they think fit, make an Adoptive, or their Natural Son, their Heir, or one that is not in the least a-kin to them.
VII.Succession upon an Intestate.And when such an Absolute Monarch as this dies, without leaving Order for the Succession, it is to be presumed he did not thereby intend the Kingdom should expire with himself; but first, That it should devolve to his Children (before all others) because of the natural Affection of Parents to them: Then, That the same Monarchical Government should continue, which he recommended by his own Example. That the Kingdom be kept undivided, as one Realm; because any Division thereof must give Occasion to great Troubles, both among the Subjects and the Royal Family. That the Elder reign before the Younger, and the Male before the Female in the same Line: † And, lastly, That in Default of Issue, the Crown shall devolve upon the next in Blood.
VIII.Succession in the People. L. N. N. l. 7. c. 7. §11.But in those Monarchies, whose Constitution, from the very Beginning, was founded upon the voluntary Choice of the People, there the Order of Succession must have an Original Dependance upon the Will of the same People. For if, together with the Crown, they did confer upon the Prince the Right of appointing his Successor; whosoever shall be nominated to the Succession by him, will have all the Right to injoy it. If they did not confer it upon the Prince, it is to be understood as reserved to themselves: Who, if they pleased, might make the Crown Hereditary to their Prince’s Family; either prescribing the Order of Succession to be like other ordinary Inheritances, so far as can consist with the Publick Good; or set the same under any peculiar necessary Limitations.
IX.Of Hereditary Kingdoms. L. N. N. l. 7. c. 7. §12.When a People have barely conferr’d upon their King an Hereditary Right, without any thing farther express’d; tho’ ’tis true, it may seem to be intended, that the Crown shall pass to the Heirs in the same common Order of Descent as private Inheritances do; yet the Publick Good requires, That the Sense of such a Publick Act shall be taken under some Restrictions, notwithstanding their not being particularly express’d. As,
X.A Lineal Succession. L. N. N. l. 7. c. 7. §13.Now, because after a long Descent of Princes, there may easily arise Controversies almost inextricable, about the Person of the Royal Family, who approaches nearest in Kindred to the Prince deceased; therefore, for Prevention of such, in many Kingdoms they have introduced a Lineal Succession, of this Nature; That as every one descends from the Father of the Stem Royal,51 they compose, as it were, a perpendicular Line; from whence they succeed to the Crown, according to the Priority of that Line to others: And tho’, perhaps, the nearest of Kin to the Prince last deceased, may stand in a New Line, different from that of His; Yet there is no passing out of the Old Line thither, ’till Death has exhausted the same.
XI.By the Father’s side, or the Mother’s.The Series of Succession most regardable, are those Two, deduced from the several Families of the Father and the Mother; the Relation whereof is distinguish’d in the Civil Law by the Names of Cognation and Agnation. The First, called also the Castilian Law, does not exclude the Women, but only postpones them to Males in the same Line; for it recurs to them in the Case of the other’s Default. But by the Second, which is sometimes styl’d the French or Salick Law, both the Women and all their Issue, even Males, are excluded for ever.
XII.Differences about Succession how to be determined.When, in a Patrimonial Kingdom, there arises a Dispute concerning the Succession, the most adviseable Way to determine it, is, To put it to the Arbitration of some of the Royal Family; And where the Succession originally depended upon the Consent of the People, there their Declaration upon the Matter, will take away the Doubt.
The Duty of Supreme Governours
I.L. N. N. 1. 7. c. 9.If we consider what is the End and Nature of Communities, and what the Parts of Government, it will be easie from thence to pass a Judgment upon the Rules and Precepts, in the Observance of which, consists the Office of a Prince.52
II.Their proper Studies and Conversation. L. N. N. l. 7. c. 9. §2.Before all Things, it is requisite, That he apply himself, with the utmost Diligence, to the Study of whatever may conduce to give him a perfect Comprehension of the Affairs belonging to a Person in his Station: because no Man can manage a Place to his Honour, which he does not rightly understand. He is therefore to be sequestred from those remote and foreign Studies, which make nothing to this Purpose: He must abridge himself in the Use of Pleasures and vain Pastimes, that would divert his Attention from this Mark and End.
And for his more familiar Friends, instead of Parasites and Triflers, or such as are accomplished in nothing but Vanities, (whose Company ought utterly to be rejected;) let him make Choice of Men of Probity and Sense, experienced in Business, and skilful in the Ways of the World; being assured, that ’till he does thoroughly understand, as well the Condition of his own State, as the Disposition of the People under him, he will never be able to apply the general Maxims of State Prudence, to the Cases that will occur in Government, in such a Manner as they ought. More especially, let him study to be excellent in Virtues, that are of the greatest Use and Lustre in the Exercise of his vast Charge;53 and so compose the Manners, and all the Actions of his Life, that they may be answerable to the Height of his Glory.
III.The Publick Good, the Supreme Law. L. N. N. l. 7. c. 9. §3.The most General Rule to be observed by Governours, is this; The Good of the Publick is the Supreme Law of all.54 Because, in conferring the Government upon them, what is there else intended, but to secure the common End for which Societies were constituted in the Beginning? From whence they ought to conclude, That whatsoever is not expedient for the Publick to be done, ought not to be accounted expedient for themselves.
IV.Laws, Discipline, and Religion. L. N. N. l. 7. c. 9. §5.And it being necessary, in order to preserve a People at Peace with one another, that the Wills and Affections of them should be disposed and regulated, according as it is most proper for the publick Good; there ought to be some suitable Laws for the Purpose prescribed by Princes, and also a publick Discipline established with so much Strictness, that so, Custom, as well as Fear of Punishment, may be able to keep Men close to the Practice of their several Duties. * To which End it is convenient to take Care, that the Christian Religion, after the most pure and most uncorrupt Way, be profess’d by the Subjects of every Realm or Community; and that no Tenets be publickly taught in the Schools, that are contrariant to the Designs of Government.
V.The Laws plain and few.It will conduce to the Advancement of the same End, that in the Affairs which are wont to be most frequently negociated between Subject and Subject, the Laws which are prescribed be clear and plain; and no more in Number than will promote the Good of the Republick and its Members. For, considering that Men use to deliberate upon the Things they ought, or ought not to do, more by the Strength of their Natural Reason, than their Understanding in the Laws; whenever the Laws do so abound in Number, as not easily to be retained in Memory; or are so particular in their Matter, as to prohibit Things which are not prohibited by the Light of Reason; it must certainly come to pass, That innocent Persons, who have not had the least ill Intention to transgress the Laws, will be many times unwittingly hamper’d by them, as by Snares, to their unreasonable Prejudice, against the very End of Societies and Government.
VI.And duly executed. L. N. N. l. 7. c. 9. §6.Yet it is in vain for Princes to make Laws, and at the same time suffer the Violation of them to pass with Impunity. They must therefore cause them to be put in Execution, both for every honest Person to injoy his Rights without Vexation, Evasions, or Delays; and also for every Malefactor to receive the Punishment due to the Quality of his Crime, according to the Intention and Malice in the committing it. They are not to extend their Pardons to any without sufficient Reason. For it is an unjust Practice, which tends greatly to irritate the Minds of People against the Government, not to use Equality (all Circumstances considered) towards Persons that are Equal in their Deservings.
VII.Penalties. L. N. N. l. 7. c. 9. §7.And as nothing ought to be Enacted under a Penalty, without the Consideration of some Profit to the Common-wealth, so in the fixing of Penalties proportionably to that End, it is fitting to observe a Moderation; with Care, that the Damage thence arising to the Subject on the one Hand, exceed not the Advantage that redounds to the Common-wealth on the other. In fine, to render Penalties effectual in obtaining the End intended by them, it is clear they should still be magnified to such a Degree, as, by their Severity, to out-weigh the contrary Gain and Pleasure, that is possible to proceed from chusing the Crime.
VIII.Injuries. L. N. N. l. 7. c. 9. §8.Moreover, inasmuch as the Design of People, in incorporating together in a Common-wealth, is their Security from Harms and Violence; it is the Duty of the supreme Magistrate to prohibit any Injury of one Subject to another so much the more severely, because, by their constant Cohabitation in the same Place, they have the fairer Opportunities to do them or to resent them: Remembring, that no Distinctions of Quality or Honour derive the least Pretence to the Greater to insult over the Less at their Pleasure. Neither has any Subject whatsoever the Liberty to seek his Satisfaction for the Injuries, he presumes are done him, in the Way of a private Revenge. For the Design of Government is destroyed by such a Proceeding as this.
IX.Ministers of State and Judges. L. N. N. l. 7. c. 9. §9.And although there is no one Prince, how ingenious soever in Business, that is able in his own Person to manage all the Affairs of a Nation of any considerable Extent, but he must have Ministers to participate with him in his Cares and Counsels; Yet as these Ministers borrow their Authority, in every Thing they do, from Him; so the Praise or Dispraise of their Actions returns finally upon Him also. For which Reason, and because according to the Quality of Ministers, Business is done either well or ill, there lies an Obligation upon a Prince to advance honest and fit Persons to Offices of Trust in the Government, and upon Occasion to examine into the Proceedings of the same; and as he finds them deserving, to reward or punish them accordingly, for an Example to others to understand, that there is no less Fidelity and Diligence to be used in managing the publick Business, than one would practise in any private Affair that relates to himself. So when wicked People are incouraged to put their Inclinations in Practice, upon the Hopes of escaping very easily unpunish’d under Judges that are subject to Corruption; it is a Prince’s Duty to animadvert severely upon such Judges, as Favourers of Vice, against the Safety of the Subject, and Quiet of the Nation.55 And though the Dispatching of the ordinary Affairs may be committed to the Ministers Care; yet a Prince is never to refuse to lend his Ear with Patience, when his Subjects present him with their Complaints and Addresses.
X.Of Taxes and Duties. L. N. N. l. 7. c. 9. §10.For Taxes and the like Duties, to which Subjects are upon no other Account obliged, than as they are necessary to support the publick Charge in Peace and War; it deserves to be the Care of Princes not to extort more, than either the Necessities or signal Advantages of the Nation56 require; and so to alleviate and soften them in the Ways and Means of laying them upon the Subject, that every one may find their Weight as little offensive as it can possibly be; being charged upon Particulars in a fair and equitable Proportion, without favouring of one Person, to deceive or oppress another. And let not the Money that is so rais’d be consumed by Princes in Luxury and Vanities, or thrown away in Gifts and needless Ostentation; but laid out upon the Occasions of the Nation; always foreseeing, that their Expences be made to answer to their Revenue; and in case of any Failure in the latter, so to order Things, that by prudent Frugality and retrenching unnecessary Expences, the Publick may not suffer Damage for want of a sufficient Treasure.
XI.Interest of the Subject to be advanced by Princes. L. N. N. l. 7. c. 9. §11.It is true, Princes have no Obligation upon them to find Maintenance for their Subjects, otherwise than Charity directs them to a particular Care of those, for whom it is impossible to subsist of themselves by Reason of some Calamity undeserved. Yet because the Money, that is necessary for the Conservation of the Publick, must be raised out of the Subjects Estates, in whose Wealth and Happiness the Strength of a Nation does consist; it therefore concerns Princes to use their best Endeavours, that the Fortunes of their Subjects improve and flourish; as particularly, by giving Orders, how the Products of the Earth and Water may be received in the most plentiful Measure; and that Men employ their Industry in improving such Matters as are of their own Growth, and never hire foreign Hands for those Works which they can conveniently perform themselves. That all Mechanick Arts and Merchandise, and in Maritime Places, Navigation be incouraged, as of great Consequence to the Commonwealth. That Idleness be banished from amongst them, and Frugality be restored by Sumptuary Laws, contrived on Purpose to avoid superfluous Expences; especially those, which occasion the transporting of Riches out of the Kingdom. Whereof, if the Prince is pleased to set an Example in his own Person, it is likely to prove of greater Force than all the Laws beside.
XII.Factions and Parties. L. N. N. l. 7. c. 9. §12.Farther, Since the internal Health and Strength of a Nation proceeds in a particular Manner from the Unity that is among the People; 57 and according as this happens to be more and more perfect, the Power of the Government diffuses it self through the whole Body with so much the greater Efficacy: It is for this Reason incumbent upon Princes, to hinder, as well the Growth of publick Factions, as of private Associations of particular Persons by Agreements amongst themselves. As also to see, that neither all, nor any of the Subjects, place a greater Dependance, or rely more for Defence and Succour on any other Person, within or without the Realm, under any Pretence whatsoever, whether Sacred or Civil,58 than on their lawful Sovereign, in whom alone, before others, all their Expectations ought to be reposed.
XIII.Of War and Peace with foreign Nations. L. N. N. l. 7. c. 9. §13.Lastly, Since the Peace of Nations in reference to one another depends upon no very great Certainties; it ought to be the Endeavour of Princes to incourage Valour and Military Studies in their Subjects; having all things, as Fortifications, Arms, Men, and Money (which is the Sinews of Civil Affairs) ready prepared, in case of any Attack from abroad, to repel it: Though not voluntarily to begin one upon another Nation, even after sufficient Cause of War given, unless when invited by a very safe Opportunity, and that the Publick be in a good Condition conveniently to go thro’ with the Undertaking. For the same Reason it is proper to observe and search into the Counsels and Proceedings of Neighbours with all Exactness, and to enter with them into Leagues and Alliances as prudently, as so great a Concern requires.
Of the Special Laws of a Community, relating to the Civil Government59
I.What they are. L. N. N. l. 8. c. 1. §1.IT Now remains, That we take a view of the respective Parts of Supreme Government, together with such Circumstances thereunto belonging, as we find are worthy to be observ’d. In the first Place, there are the Civil Laws, meaning the Acts and Constitutions of the highest Civil Authority for the Time being, ordained to direct the Subject in the Course of his Life, as to what Things he ought to do, and what to omit.
II.Why so called.These are called Civil, upon two Accounts especially: That is, Either in Regard to their Authority, or their Original.60 In the first Sense, all manner of Laws whatsoever, by the Force whereof Causes may be tried and decided in a Court of Civil Judicature, let their Original be what it will, may pass under that Denomination. In the other, we call only those Laws Civil, which derive their Original from the Will of the Supreme Civil Government, the Subjects whereof are all such Matters, concerning which neither the Laws of God or Nature have determined; yet a due Regulation and Settlement of them is found to be very conducive and advantagious to particular Commonwealths.
III.The Law of Nature to be reinforced by them. L. N. N. l. 8. c. 1. §2.As nothing therefore ought to be made the Subject of a Civil Law, but what relates to the Good of the Commonwealth that does ordain it; so it seeming in the highest Degree expedient towards the Regularity and Ease of living in a Community, That in particular the Law of Nature should be diligently observed by all People; it lies upon Supreme Governours to authenticate the said Law with the Force and Efficacy of a Civil Law.61 For since indeed the Wickedness of a great Part of Mankind is arrived to a Degree, which neither the apparent Excellency of the Law of Nature, nor the Fear of God Himself, is sufficient to restrain; the most effectual Method remaining, to preserve the Happiness of living in a Community, is, by the Authority of the Government to inforce the Natural by the Civil Laws, and supply the Disability of the one with the Power of the other.
IV.The Penal Sanction.Now the Force and Power, which is in Civil Laws, consists in this, That to the Mandatory Part of the Statute, concerning Things to be done or omitted, there is annexed a Penal Sanction, assigning the Punishment that is to be inflicted upon a Man by a Court of Justice for omitting what he ought to do, or doing what he ought to omit. Of which Kind of Sanctions, the Laws of Nature being of themselves destitute, the breaking of them does not fall under the Punishment of any Court in this World; but yet it is reserved for the Judgment of the Tribunal of GOD.
V.Of ActionsMore particularly, it is inconsistent with the Nature of living in a Community, for any one by his own Force to exact and extort what himself accounts to be his Due. So that here the Civil Laws come in, to the Assistance of the Natural. For they allow the Creditor the Benefit of an Action, whereby the Debt that is owing to him by Virtue of a Law of Nature, with the Help of the Magistrate, may be demanded and recover’d in a Court of Justice, according to the Course of the Laws of the Nation: Whereas without such Inforcement of the said Laws, you can force nothing from a Debtor against his Will; but must intirely depend upon his Conscience and Honour. The Civil Laws admit of Actions chiefly in the Case of those Obligations that are contracted betwixt Parties by an express Bond or Covenant. For as to other Affairs, where the Obligation arises from some indefinite Duty of the Law of Nature, the Civil Laws make them not subject to an Action at all; on purpose to give occasion to good Men to exercise their Virtue, to their more extraordinary Praise, when it is evident, they do that which is just and honest without Compulsion. Beside that, frequently, the Point in Question may not be of Consequence enough to trouble a Court about it.
VI.The Prosecution of them.And whereas the Law of Nature commands many Things at large, in an indefinite Manner, and leaves the Application of them to every one in his own Breast; the Civil Laws being careful of the Honour and Tranquillity of the Community, prescribe a certain Time, Manner, Place, Persons, and other Circumstances, for the due Prosecution of those Actions, with the Proposal of a Reward upon Occasion, to incourage People to enter upon them. And when any Thing is obscure in the Law of Nature, the Civil Laws explain it. Which Explication the Subjects are obliged to receive, and follow, although their own private Opinions do otherwise lead them to a contrary Sense.62
VII.Form.So that there being thus a Number of Actions, left by the Law of Nature to be consider’d according to the Will and Judgment of each Person, which nevertheless in a Common-wealth ought to be regularly stated for the greater Decency and Quiet of the same; it uses to be the Care of the Civil Laws to reduce all those Actions, with their respective Concerns, to a proper Form; as we see it is in Wills, Contracts, and divers other Cases: from whence it comes, that they limit us (as they do) in the Exercise of several Rights, to the Use whereof the Law of Nature left us much at Liberty.
VIII.The Obedience due to the Civil Laws.For so far as the Civil Laws do not openly contradict the Law of GOD, the Subjects stand obliged to obey them, not merely out of Fear of Punishment, but by an internal Obligation confirm’d by the Precepts of the Law of Nature it self. This being one of them, amongst others, That Subjects ought to obey their lawful Sovereigns.
IX.And to the particular Commands of the Sovereign, L. N. N. l. 8. c. 1. §6.Nay, it is their Duty to obey even the Personal Commands of their Sovereigns, no less than they do the Common Laws of the Kingdom. Only here they must observe, whether the Thing commanded is to be done by them as in their own Names, in the Quality of an Action belonging properly to Subjects to do; or whether it be barely to undertake the Execution of an Affair for the Sovereign, in Consequence of that Authority which he has to command it. * In the latter Case, the Necessity that is imposed upon the Subject excuses him from Sin, tho’ to command the Fact it self is a Sin in the Sovereign. But in the Other, for a Subject, as in his own Name, to do a Thing which is repugnant to the Laws of God and Nature, can never be Lawful. And this is the Reason, why, if a Subject takes up Arms in an unjust War, at the Command of his Sovereign, he sins not: Yet if he condemns the Innocent, or accuses and witnesses against them falsely upon the like Command, he sins. For as he serves in War, he serves in the Name of the Publick; but acting as a Judge, Witness, or Accuser, he does it in his Own.
Of the Power of Life and Death
I.Twofold.The Civil Government, that is supreme in every State, has a Right over the Lives of its Subjects, either indirectly, when it exposes their Lives in Defence of the Publick; or directly, in the Punishment of Crimes.
II.Indirectly.For when the Force of Foreigners in an Invasion (which often happens) is to be repell’d by Force; or, That we cannot without the Use of Violence obtain our Rights of them; it is lawful for the Government, by its supreme Authority, to compel the Subjects to enter into its Service;L. N. N. l. 8. c. 2. not thereby purposely intending their Death, only their Lives are exposed to some Danger of it. On which Occasions, that they may be able to behave themselves with Skill and Bravery, it is fit they should be exercised and prepar’d for the Purpose. Now the Fear of Danger ought not to prevail with any Subject, to render himself uncapable of undergoing the Duties of a Soldier; much less ought it to tempt a Man that is actually in Arms, to desert the Station appointed him; who ought to fight it out to the last Drop of his Blood, unless he knows it to be the Will of his Commander, that he should rather preserve his Life than his Post; or if he be certain that the maintaining of such Post is not of so great Importance, as the Preservation of the Lives ingaged therein.
III.Directly. L. N. N. l. 8. c. 3. §1.The Government claims a Power to take away the Lives of Subjects directly, upon the Occasion of any heinous Crimes committed by them; * whereon it passes Judgment of Death by way of Punishment: As likewise the Goods and Chattels of Criminals are subject to the Censure of the Law. So that here some general Things concerning the Nature of Punishments, come to be discours’d.
IV.Of Punishments L. N. N. l. 8. c. 3. §4.Punishment is an Evil that is suffered, in Retaliation for another that is done. Or, A certain grievous Pain or Pressure, imposed upon a Person by Authority, in the Manner of Force, with Regard to an Offence that has been committed by him. For although the doing of some Things may oftentimes be commanded in the Place of a Punishment, yet it is upon this Consideration, that the Things to be done are troublesome and laborious to the Doer, who will therefore find his Sufferings in the Performance of such Action. A Punishment also signifies its being inflicted against the Wills of People: For it would not otherwise obtain its End; which is, to deter them from Crimes by the Sense of its Severity:63 An Effect it never would produce, if it were only such, as an Offender is willing and pleas’d to undergo. As for other Sufferings, which happen to be undergone in Wars and Engagements; or which one bears innocently, being wrongfully and injuriously done him; the Former not being inflicted by Authority, and the Other not referring to an antecedent Crime, they do neither of them import the proper Sense and Meaning of a Punishment.
V.Inflicted by the Government. L. N. N. l. 8. c. 3. §7.By our Natural Liberty, we enjoy the Privilege to have no other Superiour but G O D over us, * and only to be obnoxious64 to Punishments Divine. But since the Introduction of Government, it is allow’d to be a Branch of the Office of those in whose Hands the Government is intrusted, for the Good of all Communities; that upon the Representation of the unlawful Practices of Subjects before them, they should have Power effectually to coerce, [punish and restrain] the same, that People may live together in Safety.
VI.The Benefit of them.Neither does there seem to be any Thing of Inequality in this; that he who Evil does should Evil suffer. Yet in the Course of Human Punishments, we are not solely to regard the Quality of the Crime, but likewise to have an Eye upon the Benefit of the Punishment: By no means executing it on purpose to feed the Fancy of the Party injur’d, or to give him Pleasure in the Pains and Sufferings of his Adversary: Because such Kind of Pleasure is absolutely inhumane, as well as contrary to the Disposition of a good Fellow-Subject.
VII.The End of them. L. N. N. l. 8. c. 3. §8.The Genuine End of Punishments in a State, is, The Prevention of Wrongs and Injuries; which then have their Effect, when he who does the Injury is amended, or for the future incapacitated to do more, or others taking Example from his Sufferings are deterr’d from like Practices; or, to express it another way, That which a Government designs in the Matter of Punishments, is the Good, either of the Offender, or the Party offended, or generally of All its Subjects.
VIII.Upon the Offender. L. N. N. l. 8. c. 3. §9.First, We consider the Good of the Offender: In whose Mind the Smart of the Punishment serves to work an Alteration towards Amendment, and corrects the Desire of doing the same again. Divers Communities leave such Kind of Punishments as are qualified with this End, to be exercis’d by Masters over the Members of their own Families. But it never was thought good they should proceed so far as to Death, because, he that is dead is past Amendment.
IX.Upon the Party offended. L. N. N. l. 8 c. 3. §11.In the next Place, a Punishment intends the Good of the Party offended: securing him, that he suffer not the like Mischief for the future, either from the same or other Persons. He becomes secure from being again injured in like Manner by the same Person; first, By the Death of the Criminal; or, secondly, If he be allow’d Life, by depriving him of Power to hurt; as, by keeping him in Custody, taking his Arms, or other Instruments of Mischief, from him, securing him in some distant Place, and the like; or, thirdly, By obliging him to learn, at his own Peril, not to incur farther Guilt, or offend any more. But then to secure the Party offended from suffering the like Injury from other Hands, it is necessary that the Offender be punished in a most Open and Publick Manner, whereby the Criminal may become an Example to all others; and that his Punishment be accompanied with such Circumstances of Form and Pomp, as are apt to strike a Dread into as many as behold it.
XII.Nor minute Lapses.It would also be over severe in Laws, to punish the more minute Lapses which may daily happen in the Actions of Men; when, in the Condition of our Natures, the greatest Attention cannot prevent them.
XIII.And other Actions. L. N. N. l. 8. c. 3. §14.There are many Instances of Actions more, of which the Publick Laws dissemble the taking of any Notice, for the sake of the Publick Peace. As sometimes, because a good Act shines with greater Glory, if it seems not to have been undertaken upon Fear of human Punishment; or, perhaps, it is not altogether worth the troubling of Judges and Courts about it; or, it is a Matter extraordinarily difficult to be decided; or it may be some old inveterate Evil, which cannot be removed, without causing a Convulsion in the State.
XIV.Nor the Vices of the Mind.In fine, it is absolutely necessary, That all those Disorders of the Mind should be exempted from Punishment, that are the Effects of the common Corruption of Mankind; such as Ambition, Avarice, Rudeness, Ingratitude, Hypocrisy, Envy, Pride, Anger, private Grudges, and the like. All these of Necessity, must be exempted from the Cognizance of Human Judicatures, so long as they break not out into publick Enormities; seeing they abound to that Degree, that if you should severely pursue them with Punishments, there would be no People left to be the Subjects of Government.
XV.Of Pardon. L. N. N. l. 8. c. 3. §15.Farther, When there have been Crimes committed, which are punishable by the Civil Judicature, it is not always necessary to execute the Sentence of Justice upon them. For in some Cases a Pardon may possibly be extended to Criminals, with a great deal of Reason, (as it never ought to be granted without it;) and amongst other Reasons, these especially may be some: That the Ends, which are intended by Punishments, seem not so necessary to be attended to in the Case in Question: Where a Pardon may produce more Good than the Punishment, and the said Ends be more conveniently obtain’d another way: That the Prisoner can allege those excellent Merits of his own or of his Family towards the Common-wealth, which deserve a singular Reward: That he is famous for some remarkable rare Art or other; or, it is hoped, will wash away the Stain of his Crime by performing some Noble Exploit: That Ignorance had a great Share in the Case, tho’ not altogether such as to render the Criminal blameless: Or, That a particular Reason of the Law ceases in a Fact of the same Nature with his. For these Reasons, and oftentimes for the Number of the Offenders, being very great, Pardons must be granted, rather than the Community shall be exhausted by Punishments.
XVI.The greatness of a Crime L. N. N. l. 8. c. 3. §18.To take an Estimate of the Greatness of any Crime, there is to be consider’d, first, The Object against which it is commited; how Noble and Precious that is: Then, The Effects; what Damage, more or less it has done to the Common-wealth: And next, The Pravity of the Author’s Intention, which is to be collected by several Signs and Circumstances: As, Whether he might not easily have resisted the Occasions that did tempt him to it? and besides the common Reason, Whether there was not a peculiar one for his Forbearance? What Circumstances aggravate the Fact? or, Is he not of a Soul dispos’d to resist the Allurements of a Temptation? Inquiring yet farther, Whether he was not the Principal in the Commission? or, Was he seduced by the Example of others? Did he commit it once, or oftner, or after Admonition spent in vain upon him?
XVII.Measure and Kind of Punishment. L. N. N. l. 8 c. 3. §24.But for the precise Kind and Measure of Punishment, that is fit to be pronounced upon each Crime, it belongs to the Authority of the Government to determine it, with an intire Regard to the Good of the Common-wealth. Whence the same Punishment may, and oftentimes is, impos’d upon two unequal Crimes; understanding the Equality that is commanded to be regarded by Judges, to mean the particular Case of those Criminals, who being guilty of the same Kind of Fact, the one shall not be acquitted, and the other condemned without very sufficient Reason. And although Men ought to shew to one another all the Mercy and Tenderness that may be; yet the Good of the Nation,66 and the Security of its Subjects, require, upon Occasion, when either a Fact appears most pernicious to the Publick, or there is need of a sharp Medicine to obviate the growing Vices of the Age, that the Government should aggravate its Punishments: which deserve at all times to be carried high enough, to be sufficient to controll the Propensity of Men towards the Sins against which those Punishments are levell’d. And let the Government observe, That no greater Punishments be inflicted, than the Law assigns, unless the Fact be aggravated by very heinous Circumstances.
XVIII.The Person of the Offender. L. N. N. l. 8. c. 3. §25.Moreover, Since the same Punishment, not affecting all Persons alike, meets with various Returns to the Design thereof, of restraining in them the Itch of Evil-doing, according to the Disposition of every one that incounters it; therefore both in the Designation of Punishments in general, and in the Application of them to Particulars, it is proper to consider the Person of the Offender, in Conjunction with as many Qualities as concur to augment or diminish the Sense of Punishment; as, Age, Sex, Condition, Riches, Strength, and the like.
XIX.Effects of one Man’s Crime upon another. L. N. N. l. 8. c. 3. §33.Not but that it frequently happens,67 that the Crime of one shall occasion the Inconvenience of many others, even to the Intercepting of a future Blessing from them that they justly expected to receive. So when an Estate is confiscated for a Crime done by the Parents, the innocent Children are plunged into Beggary. And when a Prisoner upon Bail makes his Escape, the Bail is forced to answer the Condition of the Bond, not as a Delinquent, but because it was his voluntary Act to oblige himself to stand to such an Event.
XX.Crimes done by Communities. L. N. N. l. 8. c. 3. §28.From whence it follows, That as no Man in a Court of Civil Judicature, can properly be punish’d for another’s Crime; so in the Commission of a Crime by a Community,68 whoever does not consent to it, shall not be condemn’d for it; nor suffer the Loss of any Thing he does not hold in the Name and Service of the Community, farther than it is usual on these Occasions for the Innocent to feel the Smart of the Common Misfortune. When all those are dead, who did consent or assist towards the said Crime; then the Guilt thereof expires, and the Community returns to its pristine Innocency.
I.Defined. L. N. N. l. 8. c. 4. §1.Reputation in General, is that Value set upon Persons in the World, on some account or other, by which they are compar’d and equaliz’d, preferr’d or postpon’d69 to others.
II.Divided.It is divided into Simple, and Accumulative; and may be consider’d as to both, either in a People living at their Natural Liberty, or united together under a Government.
III.Simple Reputation in a State of Nature. L. N. N. l. 8. c. 4. §2.Simple Reputation amongst a People in their Natural Liberty, consists chiefly in this, That by their Behaviour, they have the Honour to be esteem’d, and treated with, as Good Men, ready to comport themselves in Society with others, according to the Prescription of the Law of Nature.
IV.How preserved. L. N. N. l. 8. c. 4. §3.The Praise whereof remains Entire, so long as no evil and enormous Fact is knowingly and wilfully done by them, with a wicked Purpose, to violate the Laws of Nature towards their Neighbour. Hence every one naturally is to pass for a Good Man, ’till the contrary is prov’d upon him.
V.Diminished, and repaired. L. N. N. l. 8. c. 4. §4.The same is diminish’d by Transgression against the Law of Nature maliciously, in any heinous Matters; which serves also as a Caution for the future, to treat with him that does it, with greater Circumspection; though this Stain may be wash’d off, either by a voluntary Reparation of Damages, or the Testimonies of a serious Repentance.
VI.Lost, and recovered. L. N. N. l. 8. c. 4. §5.But by a Course of Life directly tending to do Mischief, and the seeking of Advantages to themselves, by open and promiscuous Injuries towards others, the Reputation describ’d is totally destroyed. And till Men of this sort repent, and change their Ways, they may lawfully be used as Common Enemies, by every one, that is in any manner liable to come within the Reach of their Outrages: Since it is not impossible, even for those Men, to retrieve their Credit; if after they have repair’d all their Damages and obtain’d their Pardons, they renounce their vicious, and embrace for the time to come, an honest Course of living.
VII.Under Government. L. N. N. l. 8. c. 4. §6.Simple Reputation, with regard to such as live under Civil Government, is that Sort of Esteem, by which a Man is looked on at the lowest, as a common but a sound Member of the State: Or when a Man hath not been declar’d a corrupt Member, according to the Laws and Customs of the State, but is supposed to be a good Subject, and is look’d upon accordingly, and valu’d for such.
VIII.Lost by an ill Condition of Life, L. N. N. l. 8. c. 4. §7.Here therefore the same perishes, either by Reason of the Course of a Man’s Life, or in Consequence of some Crime. The first is the Case of Slaves; whose Condition, tho’ naturally having no Turpitude in it, in many Communities places them, if possible, below Nothing. As likewise that of Panders, Whores, and such like, whose Lives are accompanied with Vice, at least the Scandal of it. For tho’, whilst the Community thinks fit publickly to tolerate them, they participate of the Benefit of the Common Protection; yet they ought however to be excluded the Society of Civil Persons. And we may conclude no less of others, who are employ’d in Works of Nastiness and Contempt, tho’ naturally not including any Vitiousness in them.
IX.And his Crimes.By Crimes Men utterly lose their Reputation, when the Laws set a Brand of Infamy upon them for the same; either by Death, and so their Memory is set under Disgrace for ever; or by Banishment out of the Community, or by Confinement, being consider’d as scandalous and corrupt Members.
X.Otherwise Indelible. L. N. N. l. 8. c. 4. §9.Otherwise it is very clear, that the Natural Honour of no Man can be taken from him solely by the Will of the Government. For how can it be understood, that the Government should have a Power collated on it, which conduces in no Degree to the Benefit of the Common-wealth? So neither does it seem, as if a real Infamy can be contracted by executing the Commands of the Government, barely in the Quality of a Minister, or Officer.
XI.Accumulative Reputation. L. N. N. l. 8. c. 4. §11.Accumulative Reputation we call that, by which Persons, reciprocally equal as to their Natural Dignity, come to be preferr’d to one another according to those Accomplishments, which use to move the Minds of People to pay them Honour: For Honour is properly, the Signification of our Judgment concerning the Excellency of another Person.
XII.Twofold.This Sort of Reputation may be consider’d, either as amongst those who continue in the Liberty of a State of Nature, or amongst the Members of the same Common-wealth. We will examine, what the Foundations of it are, and how they produce in People, both a Capacity to expect the being Honoured by others; and an actual Right, strictly so called, to demand it of them as their Due.
XIII.The Grounds of it. L. N. N. l. 8. c. 4. §12.The Foundations of an Accumulative Reputation, are in General reckoned to be all Manner of Endowments, either really containing, or such as are supposed to contain, some great Excellency and Perfection, which has plainly a Tendency in its Effects to answer the Ends of the Laws of Nature or Societies. Such are Acuteness and Readiness of Wit, a Capacity to understand several Arts and Sciences, a sound Judgment in Business, a steddy Spirit, immoveable by outward Occurrences, and equally superiour to Flatteries and Terrours: Eloquence, Beauty, Riches; but, more especially the Performing of good and brave Actions.
XIV.The Distinction of a Capacity and a Right to it. L. N. N. l. 8. c. 4. §14.All these Things together, produce a Capacity to receive Honour, not a Right. So that if any Person should decline the Payment of his Veneration to them, he may deserve to be taken Notice of for his Incivility, but not for an Injury. For a perfect Right to be honoured by others, that bear the Ensigns thereof, proceeds either from an Authority over them; or from some mutual Agreement; or from a Law that is made and approved by one Common Lord and Master.
XV.Amongst Princes and States. L. N. N. l. 8. c. 4. §20.Amongst Princes and independent States, they usually alledge, for Honour and Precedence, the Antiquity of their Kingdoms and Families, the Extent and Richness of their Territories, their Power Abroad and at Home, and the Splendour of their Styles. Yet neither will all these Pretences beget a perfect Right in any Prince or State to have the Precedence of others, unless the same has been first obtained by Concession or Treaty.
XVI.Amongst Subjects. L. N. N. l. 8. c. 4. §24.Amongst Subjects, the Degree of Honour is determined by the Prince, who wisely therein regards the Excellency of each Person, and his Ability to advance the publick Good. And whatever Honour a Subject receives in this Nature, as he may justly claim it against his Fellow-Subject, so he ought no less to satisfie himself in the quiet Enjoyment of it.
Of the Power of Governours over the Goods of their Subjects
I.Threefold. L. N. N. l. 8. c. 5. §1.As it wholly lies at the Pleasure of supreme Governours, to appoint with what Restriction they will allow their Subjects to have Power over the Goods which themselves derive upon them; so also over the Goods of the Subjects own acquiring by their proper Industry or otherwise, the said Governours claim a threefold Kind of Right, resulting from the Nature, and as being necessary to the End, of Communities.70
II.By Laws. L. N. N. l. 8. c. 5. §3.Their First, consists in this; That it belongs to them to prescribe Laws to the Subjects, about the Measure and Quality of their Possessions; and which way to transfer the same from Hand to Hand, with other Particulars of the like Nature; and how to apply them in the Use to the best Advantage of the whole Body.
III.By Taxes and Customs. L. N. N. l. 8. c. 5. §4.By the Second, they claim to appropriate to themselves, out of the Goods of the Subjects, a Portion by the Name of Tribute and Customs. And it is but reasonable, that since the Lives and Fortunes of all the Members are defended by the Community, the necessary Charges thereof should be defrayed by a general Contribution. For he must be very impudent indeed, who will enjoy the Protection and Priviledges of a Place, and yet contribute nothing in Goods or Service towards its Preservation. Only herein there will be great Occasion for Governours to accommodate themselves with Prudence to the querulous Temper of common People; and let them endeavour to levy the Money the most insensibly that they can: Observing first an Equality towards all, and then to lay the Taxes rather upon the smaller Commodities of various Kinds, than upon the Chief in a more uniform Way.
IV.By Seisure for publick Use extraordinary. L. N. N. l. 8. c. 5. §7.The Third, is a *Right of Extraordinary Dominion, consisting in this; That upon an urgent Necessity of State, the Goods of any Subject, of which the present Occasion has need, may be taken and applied to publick Uses, tho’ far exceeding the Proportion, that the Party is bound to contribute towards the Expences of the Common-wealth, For which Reason, as much (if it be possible) ought to be refunded to him again, either out of the publick Stock, or by the Contribution of the Rest of the Subjects.
V.Publick Revenues unalienable. L. N. N. l. 8. c. 5. §9.Beside these three Pretensions over the private, in divers Communities there are some particularly call’d, the publick Estate; which carry also the Name of the Kingdom’s, or the Prince’s Patrimony, according as they are distributed into the Treasury or the Privy Purse. The Latter serves for the Maintenance of the Prince and his Family; who has a Property in it during Life, and may dispose of the Profits thence arising at his Pleasure: But the Use of the Other is appropriated for the publick Occasions of the Kingdom; the Prince officiating therein as Administrator only, and standing obliged to apply all to the Purposes to which they are designed. And neither of the two Patrimonies can be alienated by the Prince without the People’s Consent.
VI.Neither Royal Power nor Allegiance, alienable. L. N. N. l. 8. c. 5. §10.Much less can a whole Kingdom (that is not held patrimonially) or any Part of it, be alienated without their Consent to it: And in the latter Case particularly the Consent of that Part that is to be alienated. As on the other Hand no Subject against the Will of his Community, can possibly disingage himself from the Bonds of his Duty and Allegiance to it; unless the Force of foreign Enemies reduces him to such a Condition, that he has no other Way to be safe.
Of War and Peace
I.Necessity of War sometimes. L. N. N. l. 8. c. 6. §2.Altho’ nothing is more agreeable to the Laws of Nature, than the mutual Peace of Men with one another, preserved by the voluntary Application of each Person to his Duty; living together in a State of Peace, being a peculiar Distinction of Men from Brutes; yet it is sometimes both Lawful and Necessary to go to War, when by means of another’s Injustice, we cannot, without the Use of Force, preserve what is our own, nor injoy those Rights which are properly ours. But here common Prudence and Humanity do admonish us * to forbear our Arms there, where the Prosecution of the Injuries we resent, is likely to return more Hurt upon us and ours, than it can do Good.
II.Just Causes of War. L. N. N. l. 8. c. 6. §4.The just Causes upon which a War may be undertaken, come all to these: The Preservation of our selves, and what we have, against an unjust Invasion; and this Sort of War is called *Defensive. The Maintenance and Recovery of our Rights from those that refuse to pay them: The Reparation of Injuries done to us, and Caution against them for the future. And this Sort of War is called Offensive.
III.Amicable Composition.Not that upon a Prince’s taking himself to be injur’d, he is presently to have Recourse to Arms, especially if any Thing about the Right or Fact in Controversie remains yet under Dispute. † But first let him try to compose the Matter in an amicable Way, by Treaties, by Appeal to Arbitrators, or by submitting the Matter in Question to the Decision of a Lot; ‡ and these Methods are the rather to be chosen by that Party who claims from another, because Possession, with any Shew of Right, is wont to meet with the most favourable Constructions.
IV.Unjust Causes of War. L. N. N. l. 8. c. 6. §5.The unjust Causes of War, are either those which openly to all the World are such; as, Ambition and Covetousness, and what may be reduced thereto: Or § those that admit of a faint and imperfect Colour to be pretended in their Excuse. Of this Kind there is Variety: As, The Fear of a Neighbour’s growing Wealth and Power; Conveniency of a Possession, to which yet no Right can be made out; Desire of a better Habitation; The Denial of common Favours; The Folly of the Possessor; The Desire of extinguishing another’s Title, lawfully acquired, because it may be prejudicial to us; ‖ and many more.
V.Of Deceit in War. L. N. N. l. 8. c. 6 §6.And tho’ the most proper Way of Acting in War, is by that of Force and Terrour, yet it is altogether as lawful to attack an Enemy by Stratagems and Wiles, provided that the Faith and Trust which you give him is inviolably observed. ¶ It is lawful to deceive him by Stories and feigned Narrations, not by Promises and Covenants.
VI.Violence: L. N. N. l. 8. c. 6 §7.But concerning the Violence which may be used against him, and what belongs to him; we must distinguish betwixt what it is possible for him to suffer without Injustice, and what we may easily inflict without the Breach of Humanity. Whoever declares himself my Enemy, as he makes Profession by that very Act of enterprizing upon me the greatest Mischiefs in the World; so at the same Time he fully indulges me the Leave to imploy the utmost of my Power, without Mercy, against himself. * Yet Humanity commands me, as far as the Fury of War will permit, that I do my Enemy no more Harm, than the Defence or Vindication of my Right requires, with Care to my Security for the Time to come.71
VII.Solemn and less solemn War. L. N. N. l. 8. c. 6. §9.We commonly divide War into Solemn and less Solemn. To a Solemn War it is required, That it be made on both Sides by the Authority of the Sovereign Governours; and preceeded by a publick Declaration. The other either is not publickly denounced, or, perhaps, is begun amongst private Persons. † To which latter Head belong also Civil Wars.
VIII.Power of making War. L. N. N. l. 8. c. 6. §10.As the Power of making War, in all Nations lies in the same Hands, that are intrusted with the Government; ‡ so it is a Matter above the Authority of a subordinate Magistrate to ingage in, without a Delegation from thence, tho’ he could suppose with Reason, that were they consulted upon the Matter, they would be pleased with it.
Indeed all Military Governours of fortified Places and Provinces, having Forces under them to command upon the Defence thereof, may understand it to be injoyn’d them by the very Design of their Imployments, to repel an Invader, from the Parts committed to their Trust, by all the Ways they can. But they are not rashly to carry the War into an Enemy’s Country.
IX.Wars occasioned by protecting of Refugees. L. N. N. l. 8. c. 6. §12.In a State of Natural Liberty, a Person is assaulted by Force only for the Injuries that are done by himself. But in a Community, a War often happens upon the Governour or the whole Body, when neither of them has committed any Thing. To make this appear just, it is necessary, the Act of a Third Party must by some way or other pass upon them. Now Governours do partake of the Offences, not only of their proper Subjects, but of others that occasionally flee to them; if either the Offences are done by their Permission, or that they receive and protect the Offender. The Sufferance of an Offence becomes then blameable, when at the same Time that one knows of the doing it, he has a Power to hinder it. Things openly and frequently done by the Subjects, are supposed to be known to their Governours; in whom it is always presumed there is a Power also to prohibit, unless a manifest Proof appears of its Defect. Yet to make it an Occasion of War, to give Admittance and Protection to a Criminal, who flies to us for the Sake only of escaping his Punishment, is what must proceed rather by Virtue of a particular Agreement betwixt Allies and Neighbours, than from any common Obligation; unless the Fugitive, being in our Dominions, contrives Hostilities against the Common-wealth he deserts.
X.Reprisals. L. N. N. l. 8. c. 6. §13.Another received Custom betwixt Nations, is, That the Goods and Estate of every Subject may be answerable to make good the Debts of that State of which they are originally Members; as also for all that Wrong which that State may offer to Foreigners, or that Justice it may refuse to shew them, insomuch, that the Foreign Nation, whose Subjects have been thus injur’d by this State, may retaliate the Wrong upon the Effects or Persons of such Subjects of this State, as may be found among them. And these Sorts of Executions are usually called Reprisals,* and commonly prove the Forerunners of War. Those States who are the Aggressors, and give just Cause for such Reprisals, ought to refund and make Reparation to their Subjects upon whom they have thus brought Loss and Damage, by making them liable to have such Reprisals made upon them.
XI.Of Wars in the Defence of others. L. N. N. l. 8. c. 6. §14.A War may be made by a Person, not only for himself, but for another. In order to do this with Honesty, it is requisite, that He for whom the War is undertaken, shall have a just Cause; and his Friend, a probable Reason, why he will become an Enemy to that other for his sake. Amongst those, in whose Behalf it is not only lawful, but our Duty to make War, there is, in the first Place, our Natural Subjects, as well severally, as the universal Body of them; provided, that the War will not evidently involve the State in greater Mischiefs still. Next, there are the Allies, with whom we have engaged to associate our Arms by Treaty: Yet, therein not only giving the Precedence to our own Subjects, if they should chance to stand in need of Assistance at the same Juncture; but presupposing also, that the Allies have a just Cause, and begin the War with Prudence. * After our Allies, our Friends deserve to be assisted by us, even without our Obligation to do it by a special Promise. And where there is no other Reason, the common Relation alone of Men to Men, may be sufficient, when the Party imploring our Aid is unjustly oppressed, to engage our Endeavours, as far as with Convenience we are able, to promote his Defence.
XII.The Liberty of killing, &c. in War. L. N. N. l. 8. c. 6. §18.The Liberty that is in War, of killing, plundering, and laying all Things waste, extends it self to so very large a Compass, that tho’ a Man carries his Rage beyond the uttermost Bounds of Humanity, yet in the Opinion of Nations, he is not to be accounted infamous, or one that ought to be avoided by Persons of Worth. † Excepting, that amongst the more Civilized World, they look upon some particular Methods, of doing Hurt to Enemies, to be base; as poisoning Fountains, or corrupting of Soldiers or Subjects to kill their Masters, &c.
XIII.Of things taken in War. L. N. N. l. 8. c. 6. §20.Moveable Things are understood to be Taken in War then, when they are carried out of the Reach of the Enemy who before possessed them. * And Things immoveable, when we have them within our Custody so, that we can beat the Enemy away from thence. Yet the Right of the former Possessor to retake the same, is never utterly extinguished, till he renounces all his Pretensions to them by a subsequent Agreement. For without this, it will be always lawful, by Force, to retrieve again what by Force is lost. The Soldiers fight by the Authority of the Publick; and whatever they obtain from the Enemy, they get it not for themselves, but properly for the Community they serve. Only it is customary in most Places, to leave to them by Connivance the Moveables, especially those of small Value, that they take, in the Place of a Reward, or perhaps instead of their Pay, and for an Incouragement to them to be free of their Blood. When Things immoveable that have been lost to, are retaken from the Enemy, they return into the Possession of the former Owners: † And Moveables ought to do the same; but that amongst most People they are delivered over and foregone as a Prey to the Army.
XIV.Conquest. L. N. N. l. 8. c. 6. §24.Empire72 also or Government comes to be acquired by War, not only over the particular or single Persons conquered, but intire States.‡ To render this lawful, and binding upon the Consciences of the Subjects, it is necessary, That on the one Side the Subjects swear Fidelity to the Conqueror; and on the other, that the Conqueror cast off the State and Disposition of an Enemy towards them.
XV.Truce L. N. N. l. 8. c. 7. §3.The Proceedings of War are suspended by a Truce; which is an Agreement (the State and Occasion of the War remaining still the same as before,) to abstain on both Sides from all Acts of Hostility for some Time appointed. When that is past, if there be no Peace concluded in the Interim, they resume their Hostilities again, without the Formality of a new Declaration.
XVI.Treaties of Truce.Now Truces are either such as they consent to during the Continuance of the Expedition, whilst both Sides keep their Forces on foot; or those, on which they quite disband their Forces, and lay aside all Military Preparations. The first are seldom taken but for a small Time. The others they may and usually do take for a Continuance so long, as to carry the Face of a Peace; and sometimes also the very Name, with the Addition of some Term of Years, only to distinguish it from a perfect Peace indeed, which regularly is Eternal, and extinguishes the Causes of the War for ever. * Those that they call tacit Truces, oblige to nothing. For as on both Sides they lie quiet for their Pleasure, so, whenever they think fit, they may break out into Acts of Hostility.
XVII.Treaties of Peace. L. N. N. l. 8. c. 8.But when a Peace is mutually ratified by each Sovereign Governour, upon Articles and Conditions agreed betwixt themselves, which they ingage to observe and put in Execution faithfully by a Time prescribed; then a War is perfectly ended. † In Confirmation whereof, it is usual, not only for both Parties to take their Oaths and interchange Hostages; but for some others oftentimes, especially amongst the Assistants at the Treaty, to undertake the Guaranty of the same, with Promises of Aid to him who ever is first injured by the other, in Contravention to the Articles of the Peace that is made.
I.Alliances twofold. L. N. N. l. 8. c. 9. §1.Alliances73 interchangeably passed betwixt Sovereign Governours, are of good Use both in Times of War and Peace. * They may be divided, in Respect of their Subject, either into such as reinforce the Duty already incumbent on us from the Law of Nature; or such as superadd something to the Precepts of the Law; at least, they determine their Obligation to such or such particular Actions, which before seemed indefinite.
II.Treaties of Peace. L. N. N. l. 8. c. 9. §2.By the first Sort are meant Treaties of Peace, wherein nothing more is agreed upon than the simple Exercise of Humanity towards one another, or a Forbearance of Mischief and Violence. Or, perhaps, they may establish a general Sort of Friendship betwixt them, not mentioning Particulars; or fix the Rules of Hospitality and Commerce, according to the Directions of the Law of Nature.
III.Equal Leagues. L. N. N. l. 8. c. 9. §3.The others of the latter Sort, are called Leagues, and are either Equal or Unequal. Equal Leagues are so far composed of the same Conditions on both Sides, that they not only promise what is Equal absolutely, or at least in Proportion to the Abilities of the Person; but they stipulate in such a Manner too, that neither Party is to the other obnoxious,74 or in a worse Condition.
IV.Unequal. L. N. N. l. 8. c. 9. §4.Unequal Leagues are those, wherein Conditions are agreed upon that are unequal, and render one Side worse than the other. † This Inequality may be either on the Part of the Superiour, or else of the Inferiour Confederate. For if the Superiour Confederate ingages to send the other Succours, unconditionally, not accepting of any Terms from him, or ingages to send a greater Proportion of them than He, the Inequality lies upon the Superiour. But if the League requires of the inferiour Confederate the Performance of more Things towards the Superiour, than the Superiour performs towards him, the Inequality there no less evidently lies on the Side of the Inferiour.
V.Conditions put upon Inferiours. L. N. N. l. 8. c. 9. §5.Amongst the Conditions required of an inferiour Ally, some contain a Diminution of his Sovereign Power, restraining him from the Exercise thereof in certain Cases without the Superiour’s Consent. Others impose no such Prejudice upon his Sovereignty, but oblige him to the Performance of those we call transitory Duties, which once done, are ended altogether. As, to discharge the Pay of the other’s Army; to restore the Expences of the War; to give a certain Sum of Money; to demolish his Fortifications, deliver Hostages, surrender his Ships, Arms, &c. And yet neither do some perpetual Duties diminish the Sovereignty of a Prince. As, to have the same Friends and Enemies with another, tho’ the other be not reciprocally ingaged to have the same with him: To be obliged to erect no Fortifications here, nor to sail there, &c. To be bound to pay some certain friendly Reverence to the other’s Majesty, and to conform with Modesty to his Pleasure.
VI.The Subject of Leagues.Both these Sorts of Leagues, as well Equal as the Unequal, are wont to be contracted upon various Reasons, whereof such especially produce Effects of the strongest and most binding Complexion, as tend to the Conjunction of many Nations in a League that is to last for ever. But the Common Subject of the Leagues most in Use, is, either the Preservation of Commerce, or the Furnishing of Succours in a War, Offensive or Defensive.
VII.Real and personal Leagues. L. N. N. l. 8. c. 9. §6.There is another famous Division of Leagues into Real, and Personal. The Latter express such a near Regard to the Person of the Prince they are contracted with, that whenever he dies, they expire also. Real Leagues are those, which not being entred into in Consideration so much of any particular Prince or Governour, as of the Kingdom or Common-wealth, continue in full Force, even after the Death of the first Contracters of them.
VIII.Sponsions.75 L. N. N. l. 8. c. 9. §12.The next in Nature to Leagues, are the Agreements of a Publick Minister, made upon the Subject of the Affairs of the Prince his Master, without Orders for the same; which are usually called Overtures. The Conditions whereof impose no Obligation upon the Prince, till he shall please afterwards to ratifie them by his own Authority. And therefore, if, after the Minister has agreed upon the Compact absolutely, he cannot obtain his Prince’s Confirmation of it; it lies upon himself to consider, what Satisfaction he ought to render to those, who, depending upon his Credit, have been deceived by him with insignificant Ingagements.
The Duty of Subjects
I.Twofold. L. N. N. l. 7. c. 8. §10.The Duty of Subjects is either General, arising from the Common Obligation which they owe to the Government as Subjects: Or Special, upon the Account of some particular Office and Imployment, that the Government imposes upon them.
II.General.Their General Duty respects the Demeanour of themselves severally, towards their Governours, the Common-wealth,76 and one another in particular.
III.Towards their Governours.To their Governours they owe Honour, Fidelity, and Obedience. Beside that, they ought to entertain good and honourable Thoughts of them and their Actions, and speak accordingly; to acquiesce with Patience and Content under the present State of Things, not suffering their Desires to wander after Innovations; not adhering to any Persons, or admiring and honouring them, more than they do the Magistrates that are set over them.
IV.The Common-wealth;In Reference to the Common-wealth, their Duty is, to prefer the Happiness and Safety of it to the dearest Things they have in the World: To offer their Lives, Estates and Fortunes with Chearfulness towards its Preservation, and to study to promote its Glory and Welfare by all the Powers of their Industry and Wit.
V.One another.Towards one another, their Behaviour ought to be friendly and peaceable, as serviceable, and as affable as they can make it; not to give Occasion of Trouble by Moroseness and Obstinacy, nor envying the Happiness of any, or interrupting their lawful and honest Injoyments.
VI.Their special Duties.And as for their peculiar Duties, as Officers, whether they influence the whole Body of the Nation, or are employed only about a certain Part of it, there is this one general Precept to be observed for all; That no Person affect or take upon him any Imployment, of which he knows himself, by the Sense of his Disabilities (whether Want of Strength, Skill, Courage, &c.) to be unworthy and uncapable.
VII.The Duty of Privy-Counsellors.Particularly, let those who assist at the Publick Counsels, turn their Eyes round upon all Parts of the Common-wealth; and whatever Things they discover to be of Use, thereupon ingenuously and faithfully, without Partiality or corrupt Intentions, lay open their Observations. Let them not take their own Wealth and Grandure, but always the publick Good, for the End of their Counsels; nor flatter their Princes in their Humours to please them only. Let them abstain from Factions and unlawful Meetings or Associations; dissemble not any thing that they ought to speak, nor betray what they ought to conceal. Let them approve themselves impenetrable to the Corruptions of Foreigners; and not postpone the publick Business to their private Concerns and Pleasures.
VIII.The Clergy.Let the Clergy, who are appointed publickly to administer in the Sacred Offices of Religion, perform their Work with Gravity and Attention; teaching the Worship of God, in Doctrines that are most true, and shewing themselves eminent Examples of what they preach to others; that the Dignity of their Function, and the Weight of their Doctrine, may suffer no Diminution by the Scandal of their ill led Lives.
IX.Publick Readers.Let such who are publickly imployed to instruct the Minds of the People in the Knowledge of Arts and Sciences, teach nothing that is false and pernicious; delivering their Truths so, that the Auditors may assent to them, not out of a Custom of hearing, but for the solid Reasons that attend them: And avoiding all Questions which incline to imbroil Civil Society; let them assure themselves, that whatever human Science or Knowledge returns no Good to us, either as Men or Subjects, the same deserves their Censure as impertinent Vanity.
X.Lawyers.Let those Magistrates, whose Office it is to distribute Justice, be easie of Access to all, and ready to protect the Common People against the Oppressions of the more mighty; administring Justice both to Rich and Poor, Inferiour and Superiour, with a perfect Equality. Let them not multiply Disputes unnecessarily; abstain from Corruption; be diligent in trying of Causes, and careful to lay aside all Affections that may obstruct Sincerity in Judgment; not fearing the Person of any Man while they are doing their Duty.
XI.Officers of the Army.Let the Officers of War diligently Exercise their Men on all Occasions, and harden them for the enduring the Fatigues of a Military Life, and inviolably preserve good Discipline among them. Let them not rashly expose them to the Danger of the Enemy, nor defraud them of any of their Pay or Provisions; but procure it for them with all the Readiness they are able, and keep them in the Love of their Country, without ever seducing them to serve against it.
XII.Soldiers.On the other Hand, let the Soldiers be content with their Pay, without plundering, or harrassing the Inhabitants. Let them perform their Duty couragiously and generously, in the Defence of their Country; neither running upon Danger with Rashness, nor avoiding it with Fear: Let ’em exercise their Courage upon the Enemy, not their Comrades: And maintain their several Posts like Men, preferring an Honourable Death before a Dishonourable Flight and Life.
XIII.Ambassadors and Envoys.Let the Ministers of the Common-wealth in foreign Parts, be cautious, and circumspect; quick to discern Solidities from Vanity, and Truths from Fables; in the highest Degree, Tenacious of Secrets, and obstinately averse to all Corruptions, out of their Care of the Good of the Common-wealth.
XIV.Officers of the publick Revenues.Let the Officers for Collecting and Disposing of the Publick Revenue have a Care of using needless Severities, and of increasing the Subjects Burthen for their own Gain, or through their troublesome and petulant Humours. Let them misapply nothing of the publick Stock; and satisfie the Persons who have Money to be paid out of it, without Delays unnecessary.
XV.The Continuance of the Duties aforesaid. L. N. N. l. 8. c. 11.All these Particular Duties of Subjects, continue during the Time of Employment: And when that ceases, the other expire also. But their General Duties are in Force, so long as ever Men continue to be Subjects; that is, ’till by either the express or tacit Consent of the Nation, they depart thence, to fix the Seat of their Fortunes elsewhere; that they are banished and deprived of the Rights of Subjects for their Crimes; or, being overcome in Battle, they are forced to yield to the Disposal of the Conqueror.
two discourses and a commentary by jean barbeyrac
[1.]Tooke’s rendering of this crucial paragraph differs significantly from Pufendorf’s original. Pufendorf wrote not of duties attaching to a particular state ordained for man by providence, but of those arising from the diverse statuses (ex diverso statu) man occupies in social life. This definitively Pufendorfian viewpoint results from his doctrine that civil duties attach not to a human essence, or telos, but to statuses instituted by man. Silverthorne’s rendering is broadly accurate: “We must next inquire into the duties which fall to man to perform as a result of the different states in which we find him existing in social life. 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. Each state also has its own distinctive laws [jura]” (Man & Citizen, p. 115). Only Silverthorne’s choice of “laws” for jura is questionable. Here perhaps Tooke’s “Rights and Offices” better captures the spirit of Pufendorf’s formulation.
[*] See Book I. Chap. III. §3. and the References made to it. [Barbeyrac’s marginal note (a), p. 236.]
[2.]At this point, following Barbeyrac, the English editors have deleted Pufendorf’s characterization of the life of man imagined in the absence of the mutual assistance and industry through which he compensates for his natural weakness (imbecillitas). In Tooke’s original edition the deleted passage runs “especially considering the present circumstances under which we at this time find Human Nature: Which would certainly be much more miserable than that of a Beast, if we think with our selves, with what weakness man enters this World, so that he must immediately perish, except he be sustained by others, and how rude a Life he must lead, if he could procure nothing for himself, but by means of his own single Strength and Skill. But ’tis plain, that we owe it all to the aid of other persons, that we are able to pass through so many Infirmities from our Infancy to Manhood; that we enjoy infinite number of Conveniences; that we improve our Minds and Bodies to such a degree as to be useful to our selves and our Neighbour.” Barbeyrac had ideological misgivings about the bleakness of Pufendorf’s picture of the state of nature, believing that it gives too great a role to the civil state in securing man’s happiness, hence too much power to the civil sovereign.
[3.]In the early modern (Latin) sense of “subject to the authority of another.”
[4.]“The State of Man in a Community” is Tooke’s addition. Pufendorf’s sentence ends at “Civil State.”
[5.]Ovid’s myth of Cadmus, in which men spring from the ground where the dragon’s teeth have been scattered.
[6.]In other words, even today states exist in a state of nature with regard to other states; for the civil condition, with its entire array of duties and rights, is internal to the particular state.
[7.]That is, “states” (civitates). Barbeyrac’s formulation, according to which men gradually bring themselves under Gouvernement Civil (p. 239), is an improvisation on the theme.
[8.]Barbeyrac deleted the following evocation of man’s miserable condition in the state of nature (to the end of the paragraph), his second such deletion. (See note 2, p. 167.) Further, to reinforce his unauthorized intervention, he added a footnote to Pufendorf’s ensuing praise of the civil state, accusing him of exaggerating its virtues. In declining to follow Barbeyrac on this occasion, the English editors perhaps display a degree of detachment from his more intense ideological engagement with Pufendorf’s text.
[9.]In Pufendorf’s original text and in Tooke’s original translation, this important section, on the limited degree to which natural law binds man in the state of nature, was the final one in the chapter (sec. XI). In it, Pufendorf signals his relation to Hobbes’s famous account of the state of nature as the “war of all against all.” Against Hobbes, Pufendorf argues that even in the state of nature men should be bound by the natural law of sociability. In denying that men can in fact live by this law in the absence of civil authority, however, Pufendorf comes close to the Hobbesian viewpoint. If others are natural friends, they are unreliable ones, and in peace we should be prepared for war. In reversing the order of Pufendorf’s final two sections, Barbeyrac prevents this being Pufendorf’s final word on the natural condition.
[*] See Grotius de Jure Belli & Pacis, lib. 2. cap. 23. §6, &c.
[*] Grotius de Jure Belli & Pacis, l. 2. c. 5. §9. &c.
[10.]I.e., the capacity to procreate.
[11.]I.e., the woman must promise to be sexually faithful.
[*] See Element. jurisprud. universal. l. 11. §7. Apol. §29. Eris Scandica. P. 48. & seq. p. 109.
[12.]The reference to “Subjects of such a Community” is Tooke’s innovation. Pufendorf refers only to those subject to the “civil laws” (leges civiles), which he is here treating as supplementary to the natural laws dictating monogamous perpetual unions. We recall that by civil laws Pufendorf means the positive laws of a particular state—here, the laws prescribing the form of marriage ceremonies—which should accord with the end of natural law (social peace) but are not the same.
[*] Grotius de Jure Belli & Pacis, l. 2. c. 5. §1, &c.
[14.]Again, in Pufendorf this is “state” (civitas) and in Barbeyrac Sociétez Civiles.
[15.]Tooke’s “Members of a Community” evades the political force of Pufendorf’s original “who have submitted to the state” (qui in civitatem subierunt).
[16.]Again, Pufendorf’s term is “states” (civitates).
[*] Grotius de Jure Belli & Pacis. lib. 2. cap. 5. §27, &c.
[*] Grotius de Jure Belli & Pacis, lib. 3. cap. 14. §1, &c.
[18.]Originally: On the Impulsive Cause Constituting the State (civitas).
[19.]The infelicity of Tooke’s use of “community” for “state” becomes a particular problem from here on, as Pufendorf begins to contrast “primitive” communities (societas)—family, household, clan—with the state (civitas), whose appearance marks man’s transition from the natural to the civil condition.
[20.]Here begins Pufendorf’s important criticism of Aristotle’s conception of man as the political animal (zoon politikon). In treating man as a “rational and social animal” whose virtues can only be realized in the polis, Aristotle and his scholastic followers naturalize the state. For Pufendorf, however, the state is an artificial arrangement for preventing man’s mutual predation, which means that it is civil discipline rather than natural virtue that makes the good citizen.
[21.]Section IV following.
[22.]Section V below. Note Tooke’s interpolation of the republican formula “good Patriots.” This blunts the edge of Pufendorf’s original “good citizen” (bonus civis), which he used as a polemical redescription of Aristotle’s “Political Creatures” (animal politicum).
[23.]Section VI below.
[24.]Originally “citizen” (civis).
[25.]“True Patriot” is again Tooke’s innovation, intended to add some republican warmth to Pufendorf, who writes not of patriots and community but of citizens disciplined by the state.
[26.]I.e., is liable or subject.
[27.]Pufendorf uses “state” (civitas) throughout.
[28.]This is a central expression of Pufendorf’s secularization of political philosophy. By rejecting the Aristotelian conception of the state as nature’s vehicle for realizing human virtues, and by viewing it instead as a device for providing man with security against man, Pufendorf detaches the state from all transcendent moral and religious goals.
[29.]Once again we take note of the fact that, despite wishing them to be viewed as divine commands, Pufendorf denies natural laws all effective sanctions, until the advent of the state.
[30.]The condition of achieving collective security is thus that men give up their individual right to determine the best means of achieving security, which henceforth belongs to the sovereign or government of the state.
[31.]In other words, the individual or assembly that exercises sovereignty is regarded as “representing” the will of all only in the very limited sense that anything decided by the sovereign power pertaining to security will be deemed the will of all.
[32.]Tooke’s reluctance to transmit Pufendorf’s view of the state as the supreme and autonomous political entity is clear when we compare this sentence with Silverthorne’s accurate rendering: “Only when they have achieved a union of wills and forces is a multitude of men brought to life as a corporate body stronger than any other body, namely a state [civitas]” (Man & Citizen, p. 136).
[33.]“Constitution” is Tooke’s Whiggish innovation. In Pufendorf’s account, sovereignty is formed prior to the decree determining the form of government. This decree may take the form of a constitution—by including certain basic laws limiting the sovereign’s exercise of power—but it need not.
[34.]Originally: to become “fellow citizens” (concives).
[35.]Originally: is to remain outside the future “state” (civitas).
[36.]In viewing agency or personhood as an instituted office—rather than as flowing from a moral nature or essence—Pufendorf is able to treat the state as an independent “moral person,” bearing rights and duties irreducible to those of natural man.
[37.]This qualification is central to Pufendorf’s construction of the limits of sovereignty and the state. Given that the sovereign is a persona instituted for the sole purpose of maintaining security and social peace—“those Affairs which only relate to Government”—the state has no rights or powers in areas lying outside this domain; for example, in the areas of family life and religion, unless particular incidents should threaten social peace.
[38.]Here Tooke uses “Government” to translate Pufendorf’s phrase “sovereign power” (summum imperium), which Barbeyrac renders as Souveraineté. Given the centrality of the concept to Pufendorf’s construction of political authority, the fact that Tooke uses sovereignty (in its political sense) only twice in his entire translation is a good indication of the lexical and ideological changes made to Pufendorf’s absolutist vocabulary.
[*] That is to say, In such Matters as are neither commanded nor forbidden by any Divine Law, whether it be Natural or Revealed. See Law of Nature and Nations. Book VIII. Chap. I. §2, &c. [In this note (II.1, p. 284) Barbeyrac seeks to restrict the sovereign’s legislative power to matters left indifferent by divine law, natural and positive (adiaphora). Yet it is clear that Pufendorf intends that this power be broader, including in particular the right to determine which natural laws will be enacted as positive civil laws and which will be left as “imperfect” (moral) duties. It should also be noted that Pufendorf writes not of the sovereign’s right to determine the lawful in “any Public Society,” but only in the state (quid in civitate pro licito).]
[39.]I.e., on his behalf.
[*] Apolog. §6. Eris Scandica. P. 7, &c. See also the References at Lib. I. c. 4. §9.
[40.]Pufendorf’s doctrine of the regular state—in which all the rights and powers of sovereignty are held by a single authority—was directed against the conception of multiple authorities in the Aristotelian doctrine of the “mixed republic,” and against the reality of the German Empire, where lesser powers and estates claimed to exercise sovereignty rights on their own behalf. Pufendorf’s conception of the regular state was a blueprint for the sovereign territorial state.
[41.]Here Tooke uses “Government” to translate Pufendorf’s respublica. While accurate enough in itself, this leads to a degree of confusion in the present context, because of Tooke’s propensity to also use “government” to translate Pufendorf’s “state,” or civitas. The problem is that in this chapter Pufendorf draws a crucial distinction between state (civitas) and form of government (respublica), identifying the former with the principle of sovereignty—that is, the principle of a supreme unified political authority—and the latter with the three governmental forms (monarchical, aristocratic, democratic) in which sovereignty can be exercised.
[42.]One of the most distinctive features of Pufendorf’s construction of sovereignty and the state is that it is neutral between the three standard forms of government: monarchy, aristocracy, and democracy. In tying the legitimacy of sovereignty to the achievement of security and social peace—rather than to the representation of a prior moral will (God’s or the people’s)—Pufendorf can accept the legitimacy of all three forms of government, to the extent that each succeeds in exercising supreme political power in the interests of security.
[43.]Men of great talent.
[44.]Originally: respublica or “public administration” (government).
[45.]Originally: “state” or civitas.
[*] See L.= N.= N. l. 7. c. 5. §14, &c. Dissert. Accademic. de Rep. irregulari. p. 301. & in Append. ibid. p. §29. Eris Scandica. p. 176, 187.
[47.]Originally: “On the characteristics of civil authority” (De affectionibus imperii civilis). The central attributes of the sovereign authority are that it is supreme, unaccountable, above the law, and venerable.
[*] Grotius de Jure Belli & Pacis, lib. 1. cap. 3. §6, &c.
[†] This Restriction must be carefully observ’d; for tho’ in a limited Monarchy, the Sovereign can’t enact a Law without the Advice and Consent of his People represented in Parliament, yet notwithstanding, this Authority of the People is not equal, much less superiour, to that of the Prince: The Author’s Account of the Nature of supreme Authority is imperfect; it ought to have comprehended distinctly what is equally agreeable to a limited and to an Absolute Sovereignty. [Barbeyrac’s note (I.1, p. 298). In fact, Pufendorf discusses the distinction between absolute and limited sovereignty in sections V and VI. It is indeed difficult to see how a sovereign bound by basic (parliamentary) laws may be considered “supreme,” unless of course monarch and parliament are considered jointly to be the sovereign authority, or unless the monarch is given the sole capacity to judge when he is acting in accordance with these laws.]
[*] Grotius de Jure Belli & Pacis, l. 1. c. 3. §14. &c.
[48.]It remains ambiguous here whether Pufendorf regards the king or “the king in parliament” as sovereign. Note that “Representatives in Parliament” is Tooke’s Anglicization of Pufendorf’s “deputies in assembly” (deputatis in comitia convocatis).
[*] Grotius de Jure Belli & Pacis, l. 1. c. 3. §11. & l. 2. c. 7. §12.
[50.]The editors of the 1716/35 edition omitted the negative.
[*] Grotius de Jure Belli & Pacis, lib. 3. cap. 8.
[*] Grotius de Jure Belli & Pacis, Lib. 2. Cap. 7. §12, &c.
[†] Grotius de Jure Belli & Pacis, l. 2. c. 7. §12, &c.
[51.]The royal stock or lineage.
[52.]Pufendorf’s formulation is sharper and more “statist” than Tooke’s Whiggish rendering, as we can gather by comparing Silverthorne’s accurate translation of this sentence: “A clear account of the precepts that govern the office of the sovereign may be drawn from the nature and end of states and from consideration of the functions of sovereignty.” (Man & Citizen, p. 151)
[53.]Here Tooke fails to capture the meaning of Pufendorf’s original formulation, which is that rulers should cultivate the virtues required by large-scale administration (administratione maxime).
[54.]The original Latin formula—salus populi suprema lex est (the welfare of the people is the supreme law)—derives from classical Greek political thought. Pufendorf gives this traditional doctrine a new use by restricting the people’s welfare to their political security, setting aside all higher moral conceptions of the public good.
[*] See Dissertationes Academicae de Concord. Polit. cum Religione Christiana, Lib. II. Pag. 449. And also De Habitu Religionis Christianae ad Vitam Civilem: Especially Chapters 7, 47, 49. [The editors have added this footnote to two of Pufendorf’s larger discussions of the role of religion in civil life. At the center of these works lies Pufendorf’s insistence that because they serve different ends—security and salvation—the state and the church must not be combined to form a state church or a church state.]
[55.]Tooke’s use of “nation” corresponds to nothing in Pufendorf’s original passage, which speaks only of the “security of the citizens” (securitas civium). Tooke’s “nation” belongs with his earlier use of “true Patriot” as a republican euphemism for Pufendorf’s “good citizen.” The notion of the nation as the spiritual homeland of true patriots is fundamentally at odds with Pufendorf’s conception of the state as a territory governed by a sovereign authority in accordance with the end of security.
[56.]Having hit upon “nation” late in his translation, Tooke now proceeds to use it as one of the regular alternatives to Pufendorf’s “state” (civitas) and “government” (respublica). Tooke’s language thus becomes capable of insinuating a gap between the interests of the nation and those of the state or prince, in keeping with Whig politics but quite at odds with Pufendorf’s language and logic.
[57.]Tooke’s substitution of “nation” for Pufendorf’s “state” (civitas) and the “unity of the people” for Pufendorf’s “union of citizens” (unione civium) is indicative of the emergence of a political language quite incapable of carrying Pufendorf’s key distinctions between sovereignty and (form of ) government, state and society.
[58.]This warning principally concerned Catholic citizens, whose duties to a transterritorial religious and political power Pufendorf regarded as incompatible with their loyalty to the territorial state and its secular sovereign.
[59.]Tooke’s chapter heading is a circumlocution for Pufendorf’s “On the civil laws in particular” (De legibus civilibus in specie). Tooke has difficulty in rendering Pufendorf’s “civil law” in part because of the English identification of this with (continental) juscivile, and in part because the notion of laws deriving from the civil sovereign is foreign to the English tradition of “judge-made” common law.
[61.]For Pufendorf, the civil law thus agrees with the natural law in two distinct but related ways. First, there is a broad agreement between the two because the end of the natural law, sociable existence, is achieved most fully in the state governed by the laws of a civil sovereign. Second, there is the agreement arising from the fact that the stability and tranquillity of the state are enhanced if its citizens act in accordance with the natural law (of sociability). This means that natural laws pertaining to social peace can be enacted and enforced as civil law, thereby, in effect, closing the gap between natural and positive law. Pufendorf thus neutralizes the scholastic and religious uses of natural law as a moral weapon against the civil state: first, by identifying the end of natural law with the end of the civil state (security), and, second, by subordinating natural law to positive civil law. For Barbeyrac’s different view, see his two discourses in the appendix.
[62.]This restriction of political dissent to the domain of private opinion results from two central Pufendorfian doctrines: first, from the fact that, in order to achieve unity of political will, individuals have agreed that the government’s decisions will be deemed to be those of all, even if they are not; second, because only the civil sovereign (the government) has the right to translate the natural law into civil laws.
[*] This Distinction will by no means hold good; for if the Thing commanded by the Sovereign, be manifestly Criminal, Unjust, and Unrighteous, let it be commanded in what Way and Method it will, and inforced with the greatest Threats possible, it ought not to be comply’d with. See L. N. N. Lib. 1. Cap. 1. §24. [This shows the degree to which Pufendorf’s construction of the citizen’s civil duties separates these from the moral duties of the man and the Christian. Only the sovereign may determine whether his commands are in accord with the natural law, hence only the sovereign is responsible if they are not. Barbeyrac’s footnote IX.1, p. 322, presumes to the contrary that ultimate responsibility rests in the conscience of each individual.]
[*] Grotius de Jure Belli & Pacis, l. 2. c. 20, & 21.
[63.]Pufendorf advances a secular conception of punishment in which severity is tied to the state’s interest in social peace and hence to the deterrent effect of the punishment, rather than to the notion of exacting retribution for a breach of the moral order. This modern conception of punishment makes sense only in a desacralized political order where security has replaced religious morality as the objective of law and government.
[*] The Author here reasons on a false Hypothesis. He pretends, as is plain from what is here laid down, That no one can inflict any Punishment on another, unless he be his Superiour. Now in the State of Nature all are equal; and then all Natural Laws would be useless and insignificant, if a Power, in such Case, were no where lodged to punish those who violate them, either with Respect to any private Person, or to Mankind in general; the Preservation of which is the End of these Laws, to the Observation of which all Men stand under a common Obligation. In this independent State, every one has a Right to put these Laws in Execution, and to punish the Person who violates them. See L. N. N. Lib. 8. Chap. 3. §4. [In this note (V.1, p. 325) Barbeyrac rejects Pufendorf’s treatment of punishment as a right belonging solely to the civil state and its sovereign; for this is a further sign of Pufendorf’s tendency to collapse natural law into positive civil law. Conversely, by arguing that men possess the natural right to punish each other for breaches of the natural law in the state of nature, Barbeyrac maintains the theological view of punishment as retribution for breaches of the moral order—a view that permits individuals to punish a “tyrannical” sovereign.]
[64.]Liable or subject to.
[66.]Originally: “the safety of the state” (salus civitatis).
[67.]Following Barbeyrac, the editors have reversed the order of Pufendorf’s final two sections.
[68.]Tooke’s all-purpose use of community is again potentially misleading. Here Pufendorf is concerned not with the political community or state (civitas) but with the private corporation (universitas) and the degree of liability of its members.
[69.]Meaning “subordinated to.”
[70.]Originally: sovereigns have three kinds of right over the property of citizens, in accordance with the nature and purpose of the state.
[*] Grotius de Jure B. & P. L. 1. c. 1. §6. L. 2. c. 14. §7. L. 3. c. 19. §7. Junct. l. 3. c. 1. §15.
[*] Grotius de Jure Belli & Pacis, l. 1. c. 2.
[*] Grotius de Jure Belli & Pacis, l. 2. c. 1, &c. to l. 2. c. 23.
[†] Grotius de Jure Belli & Pacis, lib. 2. cap. 23, 24.
[‡] Grotius de Jure Belli & Pacis, lib. 2. c. 23. §12.
[§] Grotius, l. 2. c. 24. §4.
[‖] Grotius, l. 2. c. 1. §17. Cap. 22. §5.
[¶] Grotius de Jure Belli & Pacis, l. 3. c. 1. §6, &c.
[*] Grotius, l. 3. c. 4. §2. Cap. 11, 12, &c.
[71.]In conceiving of the enemy only as someone who threatens the rights of the territorial sovereign, hence as someone who need be harmed only to the extent that it is necessary to defend these rights, Pufendorf is reflecting the secularized conception of the enemy that arose following the Thirty Years’ War and the Peace of Westphalia (1648). The enemy was no longer a criminal or heretic on whom one waged war of annihilation, but a “just enemy” on whom one waged limited war in order to protect purely secular territorial rights.
[†] Grotius de Jure Belli & Pacis, l. 1. c. 3. §4.
[‡] Grotius, &c. l. 1. c. 3. §1.
[*] Grotius de Jure Belli & Pacis, l. 3. c. 2. §4.
[*] Grotius de Jure Belli & Pacis, l. 2. c. 25.
[†] Grotius de Jure Belli & Pacis, l. 3. c. 1, &c. c. 4. §15, &c.
[*] Grotius, l. 3. c. 6.
[†] Grotius de Jure Belli & Pacis, l. 3. c. 9. §13.
[72.]I.e., imperium or rule.
[‡] Grotius de Jure Belli & Pacis, l. 3. c. 7. &c. 15.
[*] Grotius de Jure Belli & Pacis, l. 3. c. 21. §1. &c.
[†] Grotius, l. 3. c. 20. §2, &c.
[73.]Pufendorf’s Latin term is foedera, which covers both treaties and alliances.
[*] Grotius de Jure Belli & Pacis, l. 2. c. 15.
[74.]Neither party is subordinate to the other.
[†] Grotius de Jure Belli & Pacis, l. 1. c. 3. §21.
[76.]In this chapter Tooke uses “commonwealth” rather than “community” to translate Pufendorf’s civitas.
In Pufendorf’s original text, as in Tooke’s first edition, this was section X. The English editors have followed Barbeyrac in their reordering of this and the following two sections, locating Pufendorf’s original section VIII (on the piety due to parents) as the present section IX, and Pufendorf’s original section IX (on education) as the present section X.
Unauthorized negotiations undertaken by lower officials.