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50th Anniversary Conference on Freedom and Power

The 50th Anniversary of Liberty Fund (1960-2010)

Liberty Fund, Inc. was founded 50 years ago in 1960 by the successful Indiana businessman and lawyer Pierre F. Goodrich (1894-1973). As part of the celebrations organized for this anniversary year we plan to restage a number of the earliest conferences which were held under the auspices of the Fund. Whenever we have the majority of the readings available online we have created a corresponding Reading List.

For more information about Liberty Fund’s 50th Anniversary see this page.

For more information about Pierre F.Goodrich and Liberty Fund see:

• a Timeline on the Life and Work of Pierre F. Goodrich
• the biography of the Goodrich family by Dane Starbuck, with a chapter on Liberty Fund.

50th Anniversary Conference on Freedom and Power

“I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable presumption that they did no wrong. If there is any presumption it is the other way against holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or the certainty of corruption by authority.” [Acton to Bishop Creighton, 1887]

This set of readings is based upon the first ever Liberty Fund Colloquium on “Freedom and Power” (which is also available as a Reading List here). We have changed some of the readings in the light of later colloquia on similar topics. The six sessions will discuss the following topics:

• Session 1: Power and Corruption among the Ancients (The Bible, Tacitus, Edward Gibbon)
• Session 2: Power, Corruption and the Origins of Government (John Locke)
• Session 3: Power, Corruption and Law (Trenchard and Gordon, Blackstone)
• Session 4: Power, Corruption, and the Early Republic (Jefferson, Madison, the Federal Farmer)
• Session 5: Power, Corruption and Liberty in History (Acton)
• Session 6: Power, Order and Liberty in the Present (Sartori, Roepke, Jouvenal) - these readings are not available online.

For additional information about the authors and their works:

• Tacitus
• Edward Gibbon
• John Locke
• John Trenchard and Thomas Gordon
• William Blackstone
• Thomas Jefferson
• James Madison
• Richard Henry Lee (Federal Farmer)
• Lord Acton

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  1: 1a: Power & Corruption among the Ancients - I Samuel 8

  Old Testament (Various Authors), The Parallel Bible. The Holy Bible containing the Old and New Testaments translated out of the Original Tongues: being the Authorised Version arranged in parallel columns with the Revised Version (Oxford University Press, 1885). The First Book of Samuel. Chapter: 8

  Accessed from oll.libertyfund.org/title/2021/140725 on 2009-10-19

  The text is in the public domain.

  ---

  8

  1 And it came to pass, when Samuel was old, that he made his sons judges over Israel.

  2 Now the name of his firstborn was Joel; and the name of his second, Abiah: they were judges in Beer-sheba.

  3 And his sons walked not in his ways, but turned aside after lucre, and * took bribes, and perverted judgment.

  4 Then all the elders of Israel gathered themselves together, and came to Samuel unto Ramah,

  5 And said unto him, Behold, thou art old, and thy sons walk not in thy ways: now * make us a king to judge us like all the nations.

  6 ¶ But the thing † displeased Samuel, when they said, Give us a king to judge us. And Samuel prayed unto the Lord.

  7 And the Lord said unto Samuel, Hearken unto the voice of the people in all that they say unto thee: for they have not rejected thee, but they have rejected me, that I should not reign over them.

  8 According to all the works which they have done since the day that I brought them up out of Egypt even unto this day, wherewith they have forsaken me, and served other gods, so do they also unto thee.

  9 Now therefore ∥ hearken unto their voice: ∥ howbeit yet protest solemnly unto them, and shew them the manner of the king that shall reign over them.

  10 ¶ And Samuel told all the words of the Lord unto the people that asked of him a king.

  11 And he said, This will be the manner of the king that shall reign over you: He will take your sons, and appoint them for himself, for his chariots, and to be his horsemen; and some shall run before his chariots.

  12 And he will appoint him captains over thousands, and captains over fifties; and will set them to ear his ground, and to reap his harvest, and to make his instruments of war, and instruments of his chariots.

  13 And he will take your daughters to be confectionaries, and to be cooks, and to be bakers.

  14 And he will take your fields, and your vineyards, and your oliveyards, even the best of them, and give them to his servants.

  15 And he will take the tenth of your seed, and of your vineyards, and give to his † officers, and to his servants.

  16 And he will take your menservants, and your maidservants, and your goodliest young men, and your asses, and put them to his work.

  17 He will take the tenth of your sheep: and ye shall be his servants.

  18 And ye shall cry out in that day because of your king which ye shall have chosen you; and the Lord will not hear you in that day.

  19 ¶ Nevertheless the people refused to obey the voice of Samuel; and they said, Nay; but we will have a king over us;

  20 That we also may be like all the nations; and that our king may judge us, and go out before us, and fight our battles.

  21 And Samuel heard all the words of the people, and he rehearsed them in the ears of the Lord.

  22 And the Lord said to Samuel, Hearken unto their voice, and make them a king. And Samuel said unto the men of Israel, Go ye every man unto his city.

  [* ]Deut. 16. 19.

  [* ]Hos. 13. 10. Acts 13. 21.

  [† ]Heb. was evil in the eyes of Samuel.

  [∥ ]Or, obey.

  [∥ ]Or, notwithstanding, when thou hast solemnly protested against them, then thou shalt shew, &c.

  [† ]Heb. eunuchs.

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  2: 1b: Power & Corruption among the Ancients - II Samuel 11

  Old Testament (Various Authors), The Parallel Bible. The Holy Bible containing the Old and New Testaments translated out of the Original Tongues: being the Authorised Version arranged in parallel columns with the Revised Version (Oxford University Press, 1885). The Second Book of Samuel. Chapter: 11

  Accessed from oll.libertyfund.org/title/2022/140760 on 2009-10-19

  The text is in the public domain.

  ---

  11

  1 And it came to pass, ‡† after the year was expired, at the time when kings go forth to battle, that * David sent Joab, and his servants with him, and all Israel; and they destroyed the children of Ammon, and besieged Rabbah. But David tarried still at Jerusalem.

  2 ¶ And it came to pass in an eveningtide, that David arose from off his bed, and walked upon the roof of the king’s house: and from the roof he saw a woman washing herself; and the woman was very beautiful to look upon.

  3 And David sent and enquired after the woman. And one said, Is not this Bath-sheba, the daughter of Eliam, the wife of Uriah the Hittite?

  4 And David sent messengers, and took her; and she came in unto him, and he lay with her; ∥ for she was * purified from her uncleanness: and she returned unto her house.

  5 And the woman conceived, and sent and told David, and said, I am with child.

  6 ¶ And David sent to Joab, saying, Send me Uriah the Hittite. And Joab sent Uriah to David.

  7 And when Uriah was come unto him, David demanded of him† how Joab did, and how the people did, and how the war prospered.

  8 And David said to Uriah, Go down to thy house, and wash thy feet. And Uriah departed out of the king’s house, and there † followed him a mess of meat from the king.

  9 But Uriah slept at the door of the king’s house with all the servants of his lord, and went not down to his house.

  10 And when they had told David, saying, Uriah went not down unto his house, David said unto Uriah, Camest thou not from thy journey? why then didst thou not go down unto thine house?

  11 And Uriah said unto David, The ark, and Israel, and Judah, abide in tents; and my lord Joab, and the servants of my lord, are encamped in the open fields; shall I then go into mine house, to eat and to drink, and to lie with my wife? as thou livest, and as thy soul liveth, I will not do this thing.

  12 And David said to Uriah, Tarry here to day also, and to morrow I will let thee depart. So Uriah abode in Jerusalem that day, and the morrow.

  13 And when David had called him, he did eat and drink before him; and he made him drunk: and at even he went out to lie on his bed with the servants of his lord, but went not down to his house.

  14 ¶ And it came to pass in the morning, that David wrote a letter to Joab, and sent it by the hand of Uriah.

  15 And he wrote in the letter, saying, Set ye Uriah in the forefront of the † hottest battle, and retire ye † from him, that he may be smitten, and die.

  16 And it came to pass, when Joab observed the city, that he assigned Uriah unto a place where he knew that valiant men were.

  17 And the men of the city went out, and fought with Joab: and there fell some of the people of the servants of David; and Uriah the Hittite died also.

  18 ¶ Then Joab sent and told David all the things concerning the war;

  19 And charged the messenger, saying, When thou hast made an end of telling the matters of the war unto the king,

  20 And if so be that the king’s wrath arise, and he say unto thee, Wherefore approached ye so nigh unto the city when ye did fight? knew ye not that they would shoot from the wall?

  21 Who smote * Abimelech the son of Jerubbesheth? did not a woman cast a piece of a millstone upon him from the wall, that he died in Thebez? why went ye nigh the wall? then say thou, Thy servant Uriah the Hittite is dead also.

  22 ¶ So the messenger went, and came and shewed David all that Joab had sent him for.

  23 And the messenger said unto David, Surely the men prevailed against us, and came out unto us into the field, and we were upon them even unto the entering of the gate.

  24 And the shooters shot from off the wall upon thy servants; and some of the king’s servants be dead, and thy servant Uriah the Hittite is dead also.

  25 Then David said unto the messenger, Thus shalt thou say unto Joab, Let not this thing † displease thee, for the sword devoureth † one as well as another: make thy battle more strong against the city, and overthrow it: and encourage thou him.

  26 ¶ And when the wife of Uriah heard that Uriah her husband was dead, she mourned for her husband.

  27 And when the mourning was past, David sent and fetched her to his house, and she became his wife, and bare him a son. But the thing that David had done † displeased the Lord.

  [‡ ][1611 that † after]

  [† ]Heb. at the return of the year.

  [* ]1 Chr. 20. 1.

  [∥ ]Or, and when she had purified herself, &c. she returned.

  [* ]Lev. 15. 19. & 18. 19.

  [† ]Heb. of the peace of, &c.

  [† ]Heb. went out after him.

  [† ]Heb. strong.

  [† ]Heb. from after him.

  [* ]Judg. 9. 53.

  [† ]Heb. be evil in thine eyes.

  [† ]Heb. so and such.

  [† ]Heb. was evil in the eyes of.

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  3: 1c: Power & Corruption among the Ancients - II Samuel 12

  Old Testament (Various Authors), The Parallel Bible. The Holy Bible containing the Old and New Testaments translated out of the Original Tongues: being the Authorised Version arranged in parallel columns with the Revised Version (Oxford University Press, 1885). The Second Book of Samuel. Chapter: 12

  Accessed from oll.libertyfund.org/title/2022/140761 on 2009-10-19

  The text is in the public domain.

  ---

  12

  1 And the Lord sent Nathan unto David. And he came unto him, and said unto him, There were two men in one city; the one rich, and the other poor.

  2 The rich man had exceeding many flocks and herds:

  3 But the poor man had nothing, save one little ewe lamb, which he had bought and nourished up: and it grew up together with him, and with his children; it did eat of his own † meat, and drank of his own cup, and lay in his bosom, and was unto him as a daughter.

  4 And there came a traveller unto the rich man, and he spared to take of his own flock and of his own herd, to dress for the wayfaring man that was come unto him; but took the poor man’s lamb, and dressed it for the man that was come to him.

  5 And David’s anger was greatly kindled against the man; and he said to Nathan, As the Lord liveth, the man that hath done this thing∥ shall surely die:

  6 And he shall restore the lamb * fourfold, because he did this thing, and because he had no pity.

  7 ¶ And Nathan said to David, Thou art the man. Thus saith the Lord God of Israel, I * anointed thee king over Israel, and I delivered thee out of the hand of Saul;

  8 And I gave thee thy master’s house, and thy master’s wives into thy bosom, and gave thee the house of Israel and of Judah; and if that had been too little, I would moreover have given unto thee such and such things.

  9 Wherefore hast thou despised the commandment of the Lord, to do evil in his sight? thou hast killed Uriah the Hittite with the sword, and hast taken his wife to be thy wife, and hast slain him with the sword of the children of Ammon.

  10 Now therefore the sword shall never depart from thine house; because thou hast despised me, and hast taken the wife of Uriah the Hittite to be thy wife.

  11 Thus saith the Lord, Behold, I will raise up evil against thee out of thine own house, and I will * take thy wives before thine eyes, and give them unto thy neighbour, and he shall lie with thy wives in the sight of this sun.

  12 For thou didst it secretly: but I will do this thing before all Israel, and before the sun.

  13 And David said unto Nathan, I have sinned against the Lord. And Nathan said unto David, * The Lord also hath put away thy sin; thou shalt not die.

  14 Howbeit, because by this deed thou hast given great occasion to the enemies of the Lord to blaspheme, the child also that is born unto thee shall surely die.

  15 ¶ And Nathan departed unto his house. And the Lord struck the child that Uriah’s wife bare unto David, and it was very sick.

  16 David therefore besought God for the child; and David † fasted, and went in, and lay all night upon the earth.

  17 And the elders of his house arose, and went to him, to raise him up from the earth: but he would not, neither did he eat bread with them.

  18 And it came to pass on the seventh day, that the child died. And the servants of David feared to tell him that the child was dead: for they said, Behold, while the child was yet alive, we spake unto him, and he would not hearken unto our voice: how will he then † vex himself, if we tell him that the child is dead?

  19 But when David saw that his servants whispered, David perceived that the child was dead: therefore David said unto his servants, Is the child dead? And they said, He is dead.

  20 Then David arose from the earth, and washed, and anointed himself, and changed his apparel, and came into the house of the Lord, and worshipped: then he came to his own house; and when he required, they set bread before him, and he did eat.

  21 Then said his servants unto him, What thing is this that thou hast done? thou didst fast and weep for the child, while it was alive; but when the child was dead, thou didst rise and eat bread.

  22 And he said, While the child was yet alive, I fasted and wept: for I said, Who can tell whetherGod will be gracious to me, that the child may live?

  23 But now he is dead, wherefore should I fast? can I bring him back again? I shall go to him, but he shall not return to me.

  24 ¶ And David comforted Bath-sheba his wife, and went in unto her, and lay with her: and * she bare a son, and * he called his name Solomon: and the Lord loved him.

  25 And he sent by the hand of Nathan the prophet; and he called his name ∥ Jedidiah, because of the Lord.

  26 ¶ And Joab fought against Rabbah of the children of Ammon, and took the royal city.

  27 And Joab sent messengers to David, and said, I have fought against Rabbah, and have taken the city of waters.

  28 Now therefore gather the rest of the people together, and encamp against the city, and take it: lest I take the city, and † it be called after my name.

  29 And David gathered all the people together, and went to Rabbah, and fought against it, and took it.

  30* And he took their king’s crown from off his head, the weight whereof was a talent of gold with the precious stones: and it was set on David’s head. And he brought forth the spoil of the city † in great abundance.

  31 And he brought forth the people that were therein, and put them under saws, and under harrows of iron, and under axes of iron, and made them pass through the brickkiln: and thus did he unto all the cities of the children of Ammon. So David and all the people returned unto Jerusalem.

  [† ]Heb. morsel.

  [∥ ]Or, is worthy to die.

  [* ]Ex. 22. 1.

  [* ]1 Sam. 16. 13.

  [* ]Deut. 28. 30. ch. 16. 22.

  [* ]Ecclus. 47. 11.

  [† ]Heb. fasted a fast.

  [† ]Heb. do hurt.

  [* ]Matt. 1. 6.

  [* ]1 Chr. 22. 9.

  [∥ ]That is, Beloved of the Lord.

  [† ]Heb. my name be called upon it.

  [* ]1 Chr. 20. 2.

  [† ]Heb. very great.

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  4: 1d: Power & Corruption among the Ancients - I Kings 21

  Old Testament (Various Authors), The Parallel Bible. The Holy Bible containing the Old and New Testaments translated out of the Original Tongues: being the Authorised Version arranged in parallel columns with the Revised Version (Oxford University Press, 1885). The First Book of Kings. Chapter: 21

  Accessed from oll.libertyfund.org/title/2020/140714 on 2009-10-19

  The text is in the public domain.

  ---

  21

  1 And it came to pass after these things, that Naboth the Jezreelite had a vineyard, which was in Jezreel, hard by the palace of Ahab king of Samaria.

  2 And Ahab spake unto Naboth, saying, Give me thy vineyard, that I may have it for a garden of herbs, because it is near unto my house: and I will give thee for it a better vineyard than it; or, if it † seem good to thee, I will give thee the worth of it in money.

  3 And Naboth said to Ahab, The Lord forbid it me, that I should give the inheritance of my fathers unto thee.

  4 And Ahab came into his house heavy and displeased because of the word which Naboth the Jezreelite had spoken to him: for he had said, I will not give thee the inheritance of my fathers. And he laid him down upon his bed, and turned away his face, and would eat no bread.

  5 ¶ But Jezebel his wife came to him, and said unto him, Why is thy spirit so sad, that thou eatest no bread?

  6 And he said unto her, Because I spake unto Naboth the Jezreelite, and said unto him, Give me thy vineyard for money; or else, if it please thee, I will give thee another vineyard for it: and he answered, I will not give thee my vineyard.

  7 And Jezebel his wife said unto him, Dost thou now govern the kingdom of Israel? arise, and eat bread, and let thine heart be merry: I will give thee the vineyard of Naboth the Jezreelite.

  8 So she wrote letters in Ahab’s name, and sealed them with his seal, and sent the letters unto the elders and to the nobles that were in his city, dwelling with Naboth.

  9 And she wrote in the letters, saying, Proclaim a fast, and set Naboth † on high among the people:

  10 And set two men, sons of Behal, before him, to bear witness against him, saying, Thou didst blaspheme God and the king. And then carry him out, and stone him, that he may die.

  11 And the men of his city, even the elders and the nobles who were the inhabitants in his city, did as Jezebel had sent unto them, and as it was written in the letters which she had sent unto them.

  12 They proclaimed a fast, and set Naboth on high among the people.

  13 And there came in two men, children of Belial, and sat before him: and the men of Belial witnessed against him, even against Naboth, in the presence of the people, saying, Naboth did blaspheme God and the king. Then they carried him forth out of the city, and stoned him with stones, that he died.

  14 Then they sent to Jezebel, saying, Naboth is stoned, and is dead.

  15 ¶ And it came to pass, when Jezebel heard that Naboth was stoned, and was dead, that Jezebel said to Ahab, Arise, take possession of the vineyard of Naboth the Jezreelite, which he refused to give thee for money: for Naboth is not alive, but dead.

  16 And it came to pass, when Ahab heard that Naboth was dead, that Ahab rose up to go down to the vineyard of Naboth the Jezreelite, to take possession of it.

  17 ¶ And the word of the Lord came to Elijah the Tishbite, saying,

  18 Arise, go down to meet Ahab king of Israel, which is in Samaria: behold, he is in the vineyard of Naboth, whither he is gone down to possess it.

  19 And thou shalt speak unto him, saying, Thus saith the Lord, Hast thou killed, and also taken possession? And thou shalt speak unto him, saying, Thus saith the Lord, In the place where dogs licked the blood of Naboth shall dogs lick thy blood, even thine.

  20 And Ahab said to Elijah, Hast thou found me, O mine enemy? And he answered, I have found thee: because thou hast sold thyself to work evil in the sight of the Lord.

  21 Behold, * I will bring evil upon thee, and will take away thy posterity, and will cut off from Ahab * him that pisseth against the wall, and * him that is shut up and left in Israel,

  22 And will make thine house like the house of * Jeroboam the son of Nebat, and like the house of * Baasha the son of Ahijah, for the provocation wherewith thou hast provoked me to anger, and made Israel to sin.

  23 And * of Jezebel also spake the Lord, saying, The dogs shall eat Jezebel by the ∥ wall of Jezreel.

  24 Him that dieth of Ahab in the city the dogs shall eat; and him that dieth in the field shall the fowls of the air eat.

  25 ¶ But there was none like unto Ahab, which did sell himself to work wickedness in the sight of the Lord, whom Jezebel his wife ∥ stirred up.

  26 And he did very abominably in following idols, according to all things as did the Amorites, whom the Lord cast out before the children of Israel.

  27 And it came to pass, when Ahab heard those words, that he rent his clothes, and put sackcloth upon his flesh, and fasted, and lay in sackcloth, and went softly.

  28 And the word of the Lord came to Elijah the Tishbite, saying,

  29 Seest thou how Ahab humbleth himself before me? because he humbleth himself before me, I will not bring the evil in his days: but in his son’s days will I bring the evil upon his house.

  [† ]Heb. be good in thine eyes.

  [† ]Heb. in the top of the people.

  [* ]ch. 14. 10. 2 Kings 9. 8.

  [* ]1 Sam. 25. 22.

  [* ]ch. 14. 10.

  [* ]ch. 15. 29.

  [* ]ch. 16. 3.

  [* ]2 Kings 9. 36.

  [∥ ]Or, ditch.

  [∥ ]Or, incited.

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  5: 1e: Power & Corruption among the Ancients - Tacitus Annals Book I

  Publius Cornelius Tacitus, The Works of Tacitus. In Four Volumes. To which are prefixed, Political Discourses upon that Author by Thomas Gordon. The Second Edition, corrected. (London: T. Woodward and J. Peele, 1737). Vol. 1. Chapter: BOOK I.

  Accessed from oll.libertyfund.org/title/784/79108 on 2009-10-19

  The text is in the public domain.

  ---

  BOOK I.

  The SUMMARY.

  ENumeration of the several changes in the Government of Rome. The State of Rome under Augustus; his politicks, death and character; with the arts and dissimulation of Tiberius. Revolt of the Legions in Pannonia, and in Germany; the Conduct of Germanicus upon that occasion, and also against the common enemy, with his success and victories. The death and character of Julia, daughter of Augustus: Plays instituted in his honour. Germanicus makes another expedition against the German nations, and subdues them; frees Segestes from the violence of Arminius, and is for his exploits saluted Imperator; continues the war in Germany, recovers and buries the remains of Varus’s Legions. The difficulties which befel Cæcina in his march, with his bravery and success in overcoming them. The Law of violated Majesty, greatly extended and severely executed. An Inundation from the Tiber. Licentiousness of the Theatres, and the insolence of Players, checked by a Decree of Senate. Measures proposed for restraining the overflowing of the Tiber, but opposed by several Communities of Italy. Tiberius seldom changes the Governors of Provinces, and why. His dark and crafty conduct upon the Election of Magistrates at Rome.

  KINGS were the original Magistrates of Rome. Lucius Brutus founded Liberty and the Consulship. Dictators were chosen only in pressing exigencies. Little more than two years prevailed the supreme power of the Decemvirate; and the consular jurisdiction of the military Tribunes, not very many. The domination of Cinna was but short; that of Sylla not long. The authority of Pompey and Crassus was quickly swallowed up in Cæsar; that of Lepidus and Anthony in Augustus. The Common-wealth, then long distressed and exhausted by civil dissensions, fell easily into his hands, and over her he assumed sovereign dominion, softened with the popular title of Prince of the Senate. But the several revolutions in the ancient free state of Rome, and all her happy or disastrous events, are already recorded by Writers of signal renown. Nor, even in the reign of Augustus, were there wanting Authors of distinction and genius to have composed his story, till by the prevailing spirit of flattery and abasement, they were checked. As to the succeeding Princes, Tiberius, Caligula, Claudius and Nero; the dread of their tyranny, whilst they yet reigned, falsified their history; and after their fall, the fresh detestation of their cruelties inflamed their Historians. Hence my own design of recounting briefly certain incidents in the reign of Augustus, chiefly towards his latter end, and of entering afterwards more fully into that of Tiberius and the other three, unbiassed by any resentment, or any affection, the influences of such personal passions being far from me.

  When after the fall of Brutus and Cassius there remained none to fight for the Common-wealth, and her arms were no longer in her own hands; when Sextus Pompeius was utterly defeated in Sicily, Lepidus bereft of his command, Marc Anthony slain; and of all the chiefs of the late Dictator’s party, only Octavius his nephew was left; he put off the invidious name of Triumvir, and stiling himself Consul, pretended that the jurisdiction attached to the Tribuneship was his highest aim, as in it the protection of the populace was his only view. But when once he had secured the Soldiery by liberality and donations, gained the People by store of provisions, and charmed all by the blessings and sweetness of publick peace, he began by politick gradations to exalt himself, and with his own power to consolidate the authority of the Senate, jurisdiction of the Magistrate, and weight and force of the Laws; usurpations, in which he was thwarted by no man; all the most determined Republicans had fallen in battle, or by the late sanguinary Proscriptions; and for the surviving Nobility, they were covered with wealth, and distinguished with publick honours, according to the measure of their debasement, and promptness to bondage. Add, that all who in the loss of publick freedom had gained private fortunes, preferred a servile condition, safe and possessed, to the revival of ancient Liberty with personal peril. Neither were the Provinces averse to the present Revolution; since, under the Government of the People and Senate, they had lived in constant fear and mistrust, from the raging competition amongst our Grandces, as well as from the rapine and exactions of our Magistrates. In vain too had been their appeal to the Laws, which were utterly enfeebled and borne down by violence, by parties; nay, even by subornation and money.

  Moreover, Augustus, to fortify his domination with collateral bulwarks, raised his sister’s son Claudius Marcellus, a perfect youth, to the dignity of Pontiff and that of Edile; preferred Marcus Agrippa to two successive Consulships, a man in truth meanly born, but an accomplished soldier, and the companion of his victories; and (Marcellus, the husband of Julia, soon after dying) chose him for his son-in-law. Even the sons of his wife, Tiberius Nero and Claudius Drusus, he dignified with high military titles and commands; though his house was yet supported by descendants of his own blood. For into the Julian family and name of the Cæsars he had already adopted Lucius and Caius, the sons of Agrippa; and though they were but children, neither of them seventeen years old, vehement had been his ambition to see them declared Princes of the Roman Youth, and even designed to the Consulship; while openly he was protesting against admitting these early honours. Presently upon the decease of Agrippa, were these his children snatched away, either by their own natural, but hasty fate, or by the deadly fraud of their step-mother Livia; Lucius on his journey to command the armies in Spain, Caius in his return from Armenia, ill of a wound. And as Drusus, one of her own sons, had been long since dead, Tiberius remained sole candidate for the succession. Upon this object centered all princely honours; he was by Augustus adopted for his son, assumed Collegue in the Empire, partner in the jurisdiction tribunitial, and presented under all these dignities to the several armies; instances of grandeur which were no longer derived from the secret schemes of his mother, as in times past, while her husband had unexceptionable heirs of his own, but thenceforth bestowed at her open suit. For as Augustus was now very aged, she had obtained over him such absolute sway, that for her pleasure he banished into the Isle of Planasia his only surviving grandson Agrippa Postumus, destitute, in truth, of laudable accomplishments, in his temper untractable, and stupidly conceited of his mighty strength, but branded with no misdemeanour or transgression. The Emperor had withal set Germanicus, the son of Drusus, over eight legions quartered upon the Rhine, and obliged Tiberius to adopt him, though Tiberius had then a son of his own, one of competent years. But it was the study of Augustus, to secure himself and the succession by variety of stays and engraftments. War at that time there was none, except that in Germany, kept on foot rather to abolish the disgrace sustained by Quintilius Varus, there slain with his army, than from any ambition to enlarge the Empire, or for any other valuable advantage. In profound tranquillity were affairs at Rome. To the Magistrates remained their wonted names; of the Romans the younger sort had been born since the battle of Actium, and even most of the old during the civil wars: How few were then living who had seen the ancient free state!

  The frame and œconomy of Rome being thus totally overturned, amongst the Romans were no longer found any traces of their primitive spirit, or attachment to the virtuous institutions of antiquity. But as the equality of the whole was extinguished by the sovereignty of one, all men regarded the orders of the Prince as the only rule of conduct and obedience; nor felt they any anxiety, while Augustus yet retained vigour of life, and upheld the credit of his administration with publick peace, and the imperial fortune of his house. But when he became broken with age and infirmities; when his end was at hand, and thence a new source of hopes and views was presented, some few there were who began to reason idly about the blessings and recovery of Liberty; many dreaded a civil war, others longed for one; while far the greater part were uttering their several apprehensions of their future masters; “that naturally stern and savage was the temper of Agrippa, and by his publick contumely enraged into fury; and neither in age nor experience was he equal to the weight of Empire. Tiberius indeed had arrived at fulness of years, and was a distinguished captain, but possessed the inveterate pride entailed upon the Claudian race; and many indications of a cruel nature escaped him, in spite of all his arts to disguise it; besides that from his early infancy he was trained up in a reigning house, and even in his youth inured to an accumulation of power and honours, consulships and triumphs. Nor during the several years of his abode at Rhodes, where, under the plausible name of retirement, a real banishment was covered, did he exercise other occupation than that of meditating future vengeance, studying the arts of treachery, and practising secret and abominable sensualities. Add to these considerations, that of his mother, a woman inspired with all the tyranny of her sex; that the Romans must be under bondage to a woman, and moreover enthralled by two youths, who would first combine to oppress the State, then falling into dissension, rend it piece-meal.”

  While the Public was engaged in these and the like debates, the illness of Augustus daily increased, and some strongly suspected the pestilent practices of his wife. For there had been, some months before, a rumour abroad, That Augustus, having singled out a few of his most faithful servants, and taken Fabius Maximus for his only companion, had sailed secretly over to the Island of Planasia, there to visit his Grandson Agrippa; that many tears were shed on both sides, many tokens of mutual tenderness shewn, and hopes from thence conceived, that the unhappy youth would be restored to his own place in his Grandfather’s family: That Maximus had disclosed it to Martia, she to Livia; and thence the Emperor knew that the secret was betrayed: That Maximus being soon after dead (dead, as it was doubted, through fear, by his own hands) Martia was observed, in her lamentations and groans at his funeral, to accuse herself as the sad cause of her husband’s destruction. Whatever truth was in all this, Tiberius was scarce entered Illyricum but he was hastily recalled by his mother’s letters. Nor is it fully known whether, at his return to Nola, he found Augustus yet breathing, or already breathless. For Livia had carefully beset the palace, and all the avenues to it, with detachments of the guards; and good news of his recovery were from time to time given out. When she had taken all measures necessary in so great a conjuncture, in one and the same moment was published the departure of Augustus, and the accession of Tiberius.

  The first feat of this new reign was the murder of young Agrippa. The assassin, a bold and determined Centurion, found him destitute of arms, and little apprehending such a destiny, yet was scarce able to dispatch him. Of this transaction Tiberius avoided any mention in the Senate. He would have it pass for done by the commands of Augustus; as if he had transmitted written orders to the Tribune who guarded Agrippa, “to slay him the instant he heard of his Grandfather’s decease.” It is very true, that Augustus had made many and vehement complaints of the young man’s obstinate and unruly demeanour, and even solicited from the Senate a Decree to authorize his banishment; but he had never hardened himself against the sentiments of nature, nor in any instance dipt his hands in his own blood; neither is it credible that he would sacrifice the life of his grandson for the security and establishment of his step-son. More probable it is, that this hasty murder was purely the work of Tiberius and Livia; that the young Prince, hated and dreaded by both, fell thus untimely, to rid the one of his apprehensions and a rival, and to satiate in the other the rancorous spirit of a step-mother. When the Centurion, according to the custom of the army, acquainted Tiberius, “that his commands were executed”; he answered, “he had commanded no such execution, and the Centurion must appear before the Senate, and for it be answerable to them.” This alarmed Sallustius Crispus, who shared in all his secret counsels, and had sent the Centurion the warrant; he dreaded that he should be arraigned for the assassination, and knew it equally perilous either to confess the truth, and charge the Emperor; or falsly to clear the Emperor, and accuse himself. Hence he had recourse to Livia, and warned her, “never to divulge the secrets of the palace, never to expose to publick examination the ministers who advised, nor the soldiers who executed. Tiberius should beware of relaxing the Authority of the Prince, by referring all things to that of the Senate; since it was the indispensable Prerogative of Sovereignty, for all men to be accountable to one.”

  Now at Rome, Consuls, Senators, and Roman Knights, were all rushing with emulation into bondage; the higher the quality of each, the more false and forward the men; all careful so to frame their faces, as to reconcile false joy for the accession of Tiberius, with feigned sadness for the loss of Augustus. Hence they intermingled tears with gladness, wailings with gratulations, and all with servile flattery. Sextus Pompeius and Sextus Apuleius, at that time Consuls, took first the oath of fidelity to Tiberius, then administered it to Seius Strabo and Caius Turranius, the former Captain of the Pretorian Guards, the other Intendant of the public stores. The oath was next given to the Senate, to the People, and to the Soldiery, all by the same Consuls. For Tiberius affected to derive all publick transactions from the legal ministry of the Consuls; as if the ancient Republick still subsisted, and he were yet unresolved about embracing the sovereign rule. He even owned in his Edict for summoning the Senate, that he issued it by virtue of the Tribunitial power, granted him under Augustus. The Edict too was short, and unexceptionably modest. It imported, that “they were to consider of the funeral honours proper to be paid his deceased Father; for himself he would not depart from the corps; and further than this edict implied, he claimed no share in the public administration.” Yet from the moment Augustus was dead, he usurped all the prerogatives of imperial State, gave the word to the Pretorian Cohorts, had soldiers about the palace, guards about his person, went guarded in the Street, guarded to the Senate, and bore all the marks of Majesty. Nay, he writ Letters to the several Armies in the undisguised style of one already their Prince; nor did he ever hesitate or speak with ambiguity about it, but when he spoke to the Senate. The chief cause of his reserve and obscurity there proceeded from his fear of Germanicus. He dreaded that he, who was master of so many Legions of numberless Auxiliaries, and of all the Allies of Rome; he, who was the darling of the people, might wish rather to possess the Empire, than to wait for it. He likewise aimed at false glory, and would rather seem by the Commonwealth chosen and called to the Empire, than to have crept darkly into it by the intrigues of a woman, or by adoption from a superannuated Prince. It was also afterwards found, that, by this abstruseness and counterfeit irresolution, he meant to penetrate into the designs and inclinations of the great men; for his jealous spirit construed all their words, all their looks, into crimes, and stored them up in his heart against a day of vengeance.

  When he first met the Senate, he would bear no other business to be transacted but that about the Funerals of Augustus. His last will was brought in by the Vestal Virgins; in it Tiberius and Livia were appointed his heirs, Livia adopted into the Julian Family, and dignified with the name of Augusta. Into the next and second degree of heirship he adopted his grandchildren and their children; and in the third degree he named the great men of Rome, most of them hated by him; but out of vain-glory he named them, and for future renown. His legacies were not beyond the usual bounds; only he left to the Roman people four hundred thousand great Sesterces a ; to the Populace or common sort, thirty-five thousand b ; to every common Soldier of the Pretorian Guards a thousand small Sesterces c , and to every Soldier of the Roman Legions three hundred d . The funeral Honours were next considered. The chief presented were these; Asinius Gallus proposed, that “the Funeral should pass through the Triumphal gate;” Lucius Arruntius, “that the Titles of all the Laws which he had made, and the names of all the Nations which he had conquered, should be carried before the corps;” Valerius Messala added, “that the Oath of Allegiance to Tiberius should be renewed every Year”; and being asked by Tiberius, “whether at his instigation he had made that motion? I spoke it as my opinion, says Messala; nor will I ever be determined by any but my own, in things which concern the Commonweal; let who will be provoked by my freedom.” Only this new turn was wanting to compleat the prevailing flattery of the time. The Senators then concurred in a loud cry, “that upon their own shoulders they must bear the body to the pile.” But Tiberius declined the offer from an arrogant shew of moderation. Moreover he cautioned the people by an Edict, “not to disturb the funeral functions with a zeal over-passionate, as they had those of Julius Cæsar; nor to insist that the Corps of Augustus should be burnt rather in the Forum, than in the field of Mars, which was the place appointed.” On the funeral day the Soldiers under arms kept guard; a mighty mockery to those who had either seen, or heard their fathers describe, the day when Cæsar the Dictator was slain. Servitude was then new, its sorrows yet fresh and bitter; and liberty unsuccessfully retrieved by a deed, which, while it seemed impious to some, was thought altogether glorious by others, and hence tore Rome into tumults, and the violence of parties. They ridiculed the Grimace of “calling an aid of soldiers to secure a peaceable burial to a Prince, who had grown old in peace and power, and even provided against a relapse into liberty, by a long train of successors.”

  Hence much and various matter of observation concerning Augustus. The superstitious multitude admired the fortuitous events of his fortune; “that the last day of his life, and the first of his reign, was the same; that he died at Nola, in the same village, in the same house, and in the same chamber, where his father Octavius died. They observed to his glory, his many Consulships, equal in number to those of Valerius Corvinus and of Caius Marius, joined together: that he had exercised the power of the Tribuneship seven and thirty years without interruption: that he was one and twenty times proclaimed Imperator; with many other numerous honours repeated to him, or created for him”. Men of deeper discernment entered further into his Life, but differed about it. His admirers said, that “his filial piety to his father Cæsar, and the distractions of the Republic, where the laws no longer governed, had driven him into a civil war; which, whatever be the first cause, can never be begun or carried on by just and gentle means. Indeed, to be revenged on the murderers of his father, he had made many great sacrifices to Anthony; many to Lepidus. But when Lepidus was become sunk and superannuated in sloth; when Anthony was lost headlong in sensuality, there was then no other remedy for the distracted State, rent piece-meal by its chiefs, but the Sovereignty of one. Augustus, however, never had assumed to rule over his Country as King, or Dictator; but settled the Government under the legal name of Prince of the Senate. He had extended the Empire, and set for its bounds the distant Ocean, and rivers far remote; the several parts and forces of the State, the Legions, the Provinces, the Navy, were all properly balanced and connected; the Citizens lived dutifully under the protection of the law, the Allies in terms of respect, and Rome itself was adorned with magnificent structures. Indeed in a few instances, he had exerted the arbitrary violence of power; and in but a few, only to secure the peace of the whole.”

  In answer to all this, it was urged, that “his filial piety, and the unhappy situation of the Republic, were pure pretences; but the ardent lust of reigning, his true and only motive; with this spirit he had solicited into his service, by bribery, a body of veteran soldiers; and, though a private youth, levied an Army. With this spirit he had debauched, and bought the Roman Legions under the Consuls, while he was falsly feigning a coalition with Pompey’s republican party; that soon after, when he had procured from the Senate, or rather usurped the honours and authority of the Pretorship; and when Hirtius and Pansa, the two Consuls, were slain, he seized both their Armies; that it was doubted whether the Consuls fell by the enemy, or whether Pansa was not killed by pouring poison into his wounds, and Hirtius slain by his own soldiers; and whether the young Cæsar was not the contriver of this bloody treason; that by terror he had extorted the Consulship in spite of the Senate; and turned against the Commonwealth the very arms with which the Commonwealth had trusted him for her defence against Anthony. Add to all this his cruel Proscriptions, and the Massacre of so many citizens; his seizing from the public, and distributing to his own creatures, so many lands and possessions; a violation of property not justified even by those who gained by it. But, allowing him to dedicate to the Manes of the Dictator the Lives of Brutus and Cassius (though more to his honour, had it been to have postponed his own personal hate to publick good), did he not betray the young Pompey by an insidious peace, betray Lepidus by a deceitful shew of friendship? Did he not next ensnare Mark Anthony, first by Treaties those of Tarentum and Brundusium; then by a Marriage, that of his sister Octavia? And did not Anthony, at last, pay with his life the penalty of that subdolous alliance? After this, no doubt there was Peace, but a bloody Peace; bloody in the tragical defeat of Lollius, and that of Varus, in Germany; and at Rome, the Varrones, the Egnatii, the Julii, (illustrious names!) were put to death.” Nor was his domestic life spared upon this occasion. “He had arbitrarily robbed Nero of his wife big with child by her husband; and mocked the Gods by consulting the Priests, whether Religion permitted him to marry her before her delivery, or obliged him to stay till after. His minions, Tedius, and Vedius Pollio, had lived in scandalous and excessive luxury; his Wife Livia, who wholly controuled him, had proved a cruel governess to the Commonwealth, and to the Julian house a more cruel step-mother. He had even invaded the incommunicable honours of the Gods, and, setting up for himself Temples like theirs, would, like them, be adored in the image of a Deity, with all the sacred solemnity of Priests and Sacrifices. Nor had he adopted Tiberius for his successor, either out of affection for him, or from concern for the public welfare; but having discovered in him a spirit proud and cruel, he sought future glory from the blackest opposition and comparison.” For, Augustus, when, a few years before, he solicited the Senate to grant to Tiberius another term of the authority of the Tribuneship, though he mentioned him with honour, yet taking notice of his odd humour, behaviour, and manners, dropt some expressions, which, while they seemed to excuse him, exposed and upbraided him.

  As soon as the funeral of Augustus was over, a Temple and divine worship were forthwith decreed him. The Senate then turned their supplications to Tiberius, to fill his vacant place; but received an abstruse answer, touching the greatness of the Empire, and his own distrust of himself. He said, that “nothing but the divine genius of Augustus was equal to the mighty task; for himself, who had been called by him into a participation of his cares, he had learnt by feeling them, what a daring, what a difficult toil was that of Government, and how perpetually subject to the caprices of fortune; that in a State supported by so many illustrious Patriots, they ought not to cast the whole administration upon one; and more easy to be administered were the several offices of the Government by the united pains and sufficiency of many.” A Speech much more specious and sounding than cordial and sincere. Tiberius, even upon subjects which needed no disguises, used words dark and cautious; perhaps from his diffident nature, perhaps from a habit of dissembling. At this juncture indeed, as he laboured wholly to hide his heart, his language was the more carefully wrapt up in equivoques and obscurity. But the Senators, who dreaded nothing so much as to seem to understand him, burst into tears, plaints and vows. With extended arms they supplicated the Gods, invoked the image of Augustus, and embraced the knees of Tiberius. He then commanded the imperial Register to be produced and recited. It contained a summary of the strength and income of the Empire, the number of Romans and auxiliaries in pay, the condition of the navy, of the several Kingdoms paying tribute, and of the various provinces and their revenues, with the state of the public expence, the issues of the exchequer, and all the demands upon the public. This Register was all written by the hand of Augustus; and in it he had subjoined his counsel to posterity, that the present boundaries of the Empire should stand fixed without further enlargement. Whether this counsel was dictated by fear for the public, or by envy towards his successors, is uncertain.

  Now when the Senate was stooping to the vilest importunity and prostrations, Tiberius happened to say, that, “as he was unequal to the weight of the whole government, so if they entrusted him with any particular part, whatever it were, he would undertake it.” Here Asinius Gallus interposed. “I beg to know, Cæsar, says he, what part of the government you desire for your share?” He was astonied with the unexpected question, and, for a short space, mute; but recovering himself, answered, that “it ill became his modesty to chuse or reject any particular branch of the administration, when he desired rather to be excused from the whole.” Gallus, who from his looks inferred deep displeasure, again accosted him, and said, “By this question I did not mean that you should share that power which cannot be separated; but to reason you into a confession, that the Commonwealth is but one body, and can be governed only by one soul.” He added an encomium upon Augustus, and reminded Tiberius himself of his many victories, of the many civil employments which he had long and nobly sustained. Nor even thus could he mollify the wrath of Tiberius, who had long hated him, for that Gallus had married Vipsania, daughter of Marcus Agrippa, formerly wife to Tiberius, who thence suspected that he meant to soar above the rank of a subject, and possessed too the bold and haughty spirit of Asinius Pollio his father.

  Lucius Arruntius incurred his displeasure next, by a speech not much unlike that of Gallus. It is true, that towards him Tiberius bore no old rancour; but Arruntius had mighty opulence, prompt parts, noble accomplishments, with equal popularity and renown; and hence was marked by him with a fell eye of suspicion. For, as Augustus, shortly before his decease, was mentioning those among the great men, who were capable of the supreme power, but would not accept it; or unequal to it, yet wished for it; or such as had both ambition and sufficiency; he had said, that “Marcus Lepidus was qualified, but would reject it; Asinius would be aspiring, but had inferior talents; and that Lucius Arruntius wanted no sufficiency, and, upon a proper occasion, would attempt it.” That he spoke thus of Lepidus and Asinius, is agreed; but, instead of Arruntius, some writers have transmitted the name of Cneius Piso: and every one of these great men, except Lepidus, were afterwards cut off, under the imputation of various crimes, all darkly framed by Tiberius. Quintus Haterius, and Mamercus Scaurus did also incense his distrustful spirit; the first by asking him, “How long, Cæsar, wilt thou suffer the Commonwealth to remain destitute of a head?” Scaurus, because he had said, There was room to hope that the prayers of the Senate would not prove abortive, since he had not interposed the Tribunitial power, and thence obstructed the motion of the Consuls in his behalf.” With Haterius he fell into instant rage. Towards Scaurus his resentment was more deep and implacable, and in profound silence he hid it. Wearied at last with public importunity and clamour, and with particular expostulations, he began to unbend a little; not that he would own his undertaking the Empire, but only avoid the uneasiness of perpetual solicitations and refusals. It is certain, that Haterius, when he went next day to the Palace to implore pardon, and throwing himself at the feet of Tiberius embraced his knees, narrowly escaped being slain by the soldiers; because Tiberius, who was walking, tumbled down, whether by chance, or whether his legs were entangled in the arms of Haterius. Neither was he a jot mollified by the danger which threatened so great a man, who was at length forced to supplicate Augusta for protection; nor could even she obtain it, but after the most laboured entreaties.

  Towards Livia likewise exorbitant was the flattering court of the Senate. Some were for decreeing her the general title of Mother; others the more particular one of Mother of her Country; and almost all proposed, that to the name of Tiberius should be added, The Son of JULIA.Tiberius urged in answer, that “public honours to women ought to be adjudged with a sparing hand; and that with the same measure of moderation he would receive such as were presented to himself.” In truth, from envy and solicitude, lest his own grandeur should sink as that of his mother rose, he would not suffer so much as a Lictor to be decreed her, and even forbad the raising her an Altar upon her late adoption, or paying her any such solemnities. Yet, for Germanicus he asked the Proconsular power; and, to carry him that dignity, honourable deputies were sent, as also to mollify his sorrow for the death of Augustus. If for Drusus he demanded not the same honour, it was because Drusus was present, and already Consul designed. He then named twelve candidates for the Prætorship, the same number settled by Augustus; and, though the Senate requested him to increase it, he bound himself by an oath never to exceed.

  The privilege of creating Magistrates was now first translated from the assemblies of the people to the Senate. For though the Emperor had before conducted all affairs of moment at his pleasure; yet till that day, some were still transacted by the Tribes, and carried by their bent and suffrages. Neither did the regret of the people for the seizure of these their ancient rights, rise higher than some impotent grumbling. The Senate too liked the change, as by it they were released from the charge of buying votes, and from the shame of begging them. And so moderate was Tiberius, that, of the twelve Candidates, he only reserved to himself the recommendation of four, to be accepted without opposition or caballing. At the same time, the Tribunes of the people asked leave to celebrate, at their own expence, certain plays in honour of Augustus, such as were to be called after his name, and inserted in the calendar. But it was decreed, that out of the Exchequer the charge should be defrayed, and the Tribunes should in the Circus wear the triumphal robe; but to be carried in chariots was denied them. The annual celebration of these plays was, for the future, transferred to one of the Prætors, him in particular to whom should fall the jurisdiction of deciding suits between citizens and strangers.

  Thus stood affairs at Rome when a sedition seized the Legions in Pannonia; without any fresh grounds, save that from a change of Princes they meant to assume a warrant for licentiousness and tumult, and from a civil war hoped great earnings and acquisitions. They were three Legions encamped together, all commanded by Junius Blesus, who upon notice of the death of Augustus, and the accession of Tiberius, had granted the soldiers a recess from their wonted duties for some days, as a time either of public mourning or festivity. From being idle they waxed wanton, quarrelsom, and turbulent; greedily listened to mutinous discourses; the most profligate amongst them had most credit with them, and at last they became passionate sor a life of lise and riot, utterly averse to all military discipline and every fatigue of the camp. In the camp was one Percennius; formerly a busy leader in the embroilments of the theatre, and now a common soldier; a fellow of a petulant declaiming tongue, and, by inflaming parties in the playhouse, well qualified to excite and infatuate a crowd. This incendiary practised upon the ignorant and unwary, such as were solicitous what might prove their future usage, now Augustus was dead. He engaged them in nightly confabulations, and, by little and little, incited them to violence and disorders; and, towards the evening, when the soberest and best affected were withdrawn, he assembled the worst and most turbulent. When he had thus ripened them for sedition, and other ready incendiaries were combined with him, he personated the character of a lawful Commander, and thus questioned and harangued them:

  “Why did they obey, like slaves, a few Centurions, and a fewer Tribunes? When would they be bold enough to demand redress of their heavy grievances, unless they snatched the present occasion, while the Emperor was yet new, and his authority wavering, to prevail with him by petition, or by arms to force him? They had already, by the misery of many years, paid dear for their patient sloth, and stupid silence, since, decrepid with age, and maimed with wounds, aster a course of service for thirty or forty years, they were still doomed to carry arms. Nor, even to those who were discharged, was there any end of the misery of warfare; they were still kept tied to the colours, and, under the creditable title of Veterans, endured the same hardships, and underwent the same labours. But suppose any of them escaped so many dangers, and survived so many calamities, where was their reward at last? A long and weary march remained yet to be taken into countries far remote and strange, where, under the name of lands given them to cultivate, they had inhospitable boggs to drain, and the wild wastes of mountains to manure. Severe and ungainful of itself was the occupation of war; ten As’s a day the poor price of their persons and lives; out of this they must buy cloaths, and tents, and arms; out of this bribe the cruel Centurions, for a forbearance of blows, and occasional exemption from hard duty. But stripes from their officers, and wounds from their enemies, hard winters and laborious summers, bloody wars and barren peace, were miseries without end; nor remained there other cure or relief than to refuse to list but upon conditions certain, and fixed by themselves; particularly, that their pay be a Denarius or sixteen As’s a day, sixteen years be the utmost term of serving; when discharged, to be no longer obliged to follow the colours, but to have their reward, in ready money, paid them in the camp where they earned it. Did the Prætorian guards, they who had double pay, they who, after sixteen years service, were paid off and sent home, bear severer difficulties, undergo superior dangers? He did not mean to detract from the merit of their brethren the City guards; their own harder lot however was, to be placed amongst horrid and barbarous nations, nor could they look from their tents, but they saw the foe.”

  The whole crowd received this harangue with shouts of applause; but from various instigations. Some displayed upon their bodies the impressions of stripes, others their hoary heads, many their vestments ragged and curtailed, with backs utterly bare; as did all, their various griefs in the bitterness of reproach. At length to such excessive fury they grew, that they proposed to incorporate the three Legions into one; nor by ought but emulation was the project defeated: for, to his own Legion, every man claimed the prerogative of swallowing and denominating the other two. They took another method, and placed the three Eagles of the Legions, with the Standards of the several Cohorts, all together, without rank or priority; then forthwith digged turf, and were rearing a Tribunal, one high enough to be seen at a distance. In this hurry arrived Blesus, who, falling into sore rebukes, and by force interrupting particulars, called with vehemence to all; “Dip your hands rather in my blood. To murder your General, will be a crime less shameful and heinous, than to revolt from your Prince: for, determined I am, either to preserve the Legions in their faith and obedience, if you kill me not for my intended good office; or my death, if I fall by your hands, shall hasten your remorse.”

  For all this, turfs were accumulated, and the work was already breast-high, when, at last, overcome by his spirit and perseverance, they forbore. Blesus was an able speaker; he told them, “that sedition and mutiny were not the methods of conveying to the Emperor the pretensions of the soldiers; their demands too were new and singular; such as neither the soldiers of old had ever made to the ancient Generals, nor they themselves to the deified Augustus: besides, their claims were ill-timed, when the Prince, just upon his accession, was already embarrassed with the weight and variety of other cares. If however they meant to try to gain in full peace those concessions, which, even after a civil war, the conquerors never claimed; yet why trample upon duty and obedience, why reject the laws of the army, and rules of discipline? And if they meant to petition, why meditate violence? They might at least appoint deputies; and in his presence trust them with their pretensions.” Here they all cried out, “that the son of Blesus, one of their Tribunes, should execute that deputation; and demand, in their name, that, after sixteen years service, they should be discharged. They said, they would give him new orders, when he had succeeded in these.” After the departure of the young officer, a moderate recess ensued. The soldiers however exulted to have carried such a point: the sending the son of their General, as the public advocate for their cause, was to them full proof, that they had gained, by force and terror, that which, by modesty and gentle means, they would never have gained.

  In the mean time those companies, which, before the sedition began, were sent to Nauportum, to mend roads and bridges, and upon other duties, no sooner heard of the uproar in the camp, but they cast off all obedience, tore away the ensigns, and plundered the neighbouring villages. Even Nauportum itself, which for greatness resembled a municipal City, was plundered. The endeavours of the Centurions to restrain this violence, were first returned with mockery and contempt, then with invectives and contumelies, at last with outrage and blows. Their vengeance was chiefly bent against the Camp-Marshal, Aufidienus Rufus: him they dragged from his chariot, and loading him with baggage, drove him before the first ranks. They then insulted him, and asked in scorn, “whether he would gladly bear such enormous burdens; whether endure such immense marches?” Rufus had been long a common soldier, then became a Centurion, and afterwards Camp-Marshal; a severe restorer of primitive strictness and discipline; an indefatigable observer of every military duty, which he exacted from others with the more rigour, as he had himself undergone them with all patience.

  By the arrival of this tumultuous band, the sedition was again awakened to its former outrage, and the Seditious roving abroad without controul, ravaged the county on every side. Blesus, for an example of terror to the rest, commanded those who were most laden with plunder, to be punished with stripes, and cast into prison. For the General was still dutifully obeyed by the Centurions, and by all the soldiers of any merit. But the criminals refused to submit, and even struggled with the guard who were carrying them off: They clasped the knees of the by-standers, implored help from their fellows; now calling upon every individual, and conjuring them by their particular names; then appealed to them in a body, and supplicated the Company, the Cohort, the Legion, to which they belonged; warning and proclaiming, that the same ignominy and chastisement hung over them all. With the same breath they heaped invectives without measure upon their General, and called upon heaven and all the Gods to be their witnesses and avengers; nor left they ought unattempted to raise effectual hatred, compassion, terror, and every species of fury. Hence the whole body rushed to their relief, burst open the prison, unbound and rescued the prisoners. Thus they owned for their brethren, and incorporated with themselves, infamous revolters, and traitors convict and condemned.

  Hence the violence became more raging, and hence more sedition from more leaders. There was particularly one Vibulenus a common soldier, who, exalted on the shoulders of his comrades, before the tribunal of Blesus, thus declaimed in the ears of a multitude already outrageous, and eager to hear what he had to say. “To these innocents, says he, to these miserable sufferers, our fellow soldiers, you have indeed restored breath and liberty; but, who will restore life to my poor brother; who my poor brother to me? He was sent hither by the German armies, with propositions for our common good; and for this, was last night butchered by the same Blesus, who in the murder employed his gladiators, bloody men, whom he purposely entertains and arms for our common execution: where, oh Blesus, hast thou thrown his mangled corps? Even open enemies do not inhumanly deny burial to the slain. When I have satiated my sorrow with a thousand kisses, and a flood of tears, command me also to be murdered, that these our brethren may together bury my poor brother and me, slaughtered both as victims, yet both guiltless of any crime, but that of studying the common interest of the Legions.”

  He inflamed those his complaints and expostulations, with affecting sighs and lamentations, beat his breast, and tore his face. Then, those who carried him, giving way, he throwed himself headlong at the feet of his companions; and thus prostrate and supplicating, in them raised such a spirit of commiseration, and such a storm of vengeance, that one party of them seized and bound the General’s gladiators; another, the rest of his family; while many ran and dispersed themselves to search for the corps: and, had it not been quickly manifest that there was no corps to be found, that the slaves of Blesus had upon the rack cleared themselves, and that Vibulenus never had any brother; they had gone nigh to have sacrificed the General. As it was, they expulsed the Camp-Marshal and Tribunes, and, as they fled, plundered their baggage. They likewise put to death Lucilius the Centurion, whom they had sarcastically named Cede alteram, because when upon the back of a soldier he had broken one wand, he was wont to call for another, then a third. The other Centurions lurked in concealment, all but Julius Clemens, who, for his prompt capacity, was saved in order to manage the negociations of the Soldiers. Even two of the Legions, the eighth and the fifteenth, were ready to turn their swords upon each other; and had, but for the ninth. One Sirpicus, a Centurion, was the subject of the quarrel: him the eighth required to be put to death; the fifteenth protected him; but the ninth interposed with entreaties to both, and with threats to those who would not listen to prayers.

  Tiberius, however close and impenetrable, and ever labouring to smother all melancholy tidings, was yet driven by those from Pannonia, to dispatch his son Drusus thither, accompanied by the principal nobility, and guarded by two Prætorian cohorts; but charged with no precise instructions, only to adapt his measures to the present exigency. The cohorts were strengthened with an extraordinary addition of chosen men, with the greatest part of the Prætorian horse, and main body of the German, then the Emperor’s guards. Ælius Sejanus, lately joined with his father Strabo in the command of the Prætorian bands, was also sent, not only as governor to the young Prince, but, as his credit with the Emperor was known to be mighty, to deal with the revolters by promises and terrors. When Drusus approached, the Legions, for shew of respect, marched out to meet him, not with the usual symptoms and shouts of joy, nor with gay ensigns and arms glittering, but in a dress and accountrements hideous and squalid. In their countenances too, though composed to sadness, were seen greater marks of sullenness and contumacy.

  As soon as he was within the camp, they secured the entrances with guards, and in several quarters of it placed parties upon duty. The rest crouded about the Tribunal of Drusus, who stood beckoning with his hand for silence. Here, as often as they surveyed their own numbers, and met one another’s resentful looks, they uttered their rage in horrible cries: Again, when they beheld Cæsar upon the Tribunal, awe and trembling seized them. Now, there prevailed an hollow and inarticulate murmur; next, a furious clamour; then, suddenly, a dead silence. So that, by a hasty succession of opposite passions, they were at once dismayed and dreadful. When, at last, the uproar was staid, he read his father’s letters, who in them declared, “that he would take an affectionate care of the brave and invincible legions, by whom he had sustained successfully so many wars; and, as soon as his grief was a little abated, deal with the Senate about their demands; in the mean time he had sent them his son, on purpose to make them forthwith all the concessions, which could instantly be made them: the rest were to be reserved for the Senate, the proper distributors of rewards and punishments by a right altogether unalienable.”

  The assembly answered, that to Julius Clemens they had intrusted what to speak in their name: he began with their demands, “to be discharged after sixteen years service, to have the reward which, for past services upon that discharge, they claimed; their pay to be increased to a Roman Denarius; the veterans to be no longer detained under their ensigns.” When Drusus urged, that wholly in the judgment of the Senate and his father these matters rested; he was interrupted by their clamours: “To what purpose came he; since he could neither augment their pay, nor alleviate their grievances? and while every officer was allowed to inflict upon them blows and death, the son of their Emperor wanted power to relieve them by one beneficent action. This was the policy of the late reign, when Tiberius frustrated every request of the soldiers, by referring all to Augustus; now Drusus was come, with the same artifices to delude them. Were they never to have a higher visit than from the children of their Prince? It was, indeed, unaccountable, that to the Senate the Emperor should leave no part in the direction of the army, only the rewarding of the soldiery. Ought not the same Senate to be consulted as often as a battle was to be fought, or a private man to be punished? or, were their recompences to be adjudged by many masters, but their punishments to remain without any restraint or moderator whatsoever?”

  At last, they abandoned the Tribunal, and with menaces and insults fell upon all they met, belonging to Drusus either as guards or friends; meditating thus to provoke a quarrel, and an introduction to blood. Chiefly enraged they were against Cneius Lentulus, as one, for years and warlike renown, superior to any about the person of Drusus, and thence suspected to have hardened the Prince, and been himself the foremost to despise these outrages in the soldiery. Nor was it long after, that, as he was leaving Drusus, and, from the foresight of danger, returning to the winter quarters, they surrounded him, and demanded, “whither he went? to the Emperor or Senate? there also to exercise his enmity to the legions, and oppose their interest?” and instantly assaulted him with stones. He was already covered with wounds and blood, and awaiting certain assassination, when the troops attending Drusus flew to his assistance, and saved him.

  The following night had a formidable aspect, and threatened the speedy eruption of some tragical vengeance, when a phenomenon intervened and asswaged all. The Moon, in the midst of a clear sky, seemed to the soldiers suddenly to sicken; and they who were ignorant of the natural cause, took this for an omen foreboding the issue of their present adventures. To their own labours they compared the eclipse of the planet, and prophesied, “that, if to the distressed Goddess should be restored her wonted brightness and vigour, equally successful would be the issue of these their struggles.” Hence they strove to charm and revive her with sounds, and, by ringing upon brasen metal, and an uproar of trumpets and cornets, made a vehement bellowing. As she appeared brighter or darker, they exulted or lamented: but when gathering clouds had utterly bereft them of her sight, and they believed her now buried in everlasting darkness; then, as minds once throughly dismayed are pliant to superstition, they bewailed “their own eternal sufferings thus portended, and that against their misdeeds the angry deities were contending.” Drusus, who thought it behoved him to improve this disposition of theirs, and to reap the fruits of wisdom from the operations of chance; ordered certain persons to go round, and apply to them from tent to tent. For this purpose, he called and employed the Centurion Julius Clemens, and whoever else were by honest methods acceptable to the multitude. These insinuated themselves every-where, with those who kept watch, or were upon patrol, or guarded the gates, soothing all with hopes, and by terrors rousing them: “How long, said they, shall we hold the son of our Emperor thus besieged? Where will our broils and wild contentions end? Shall we swear allegiance to Percennius and Vibulenus? Will Vibulenus and Percennius support us with pay during our service, and reward us with lands when dismissed? In short, shall two common men dispossess the Neros and the Drusi, and to themselves assume the Empire of the Roman people? Let us be wiser; and as we were the last to revolt, be the first to relent. Such demands as comprize terms for all, are ever slowly accorded: but particulars may, when they please, merit instant favour, and instantly receive it.” These reasonings alarmed them, and filled them with mutual jealousies. Presently the fresh soldiers forsook the Veterans, one Legion separated from another; then by degrees returned the love of duty and obedience. They relinquished the guard of the gates; and the Eagles and other ensigns, which in the beginning of the tumult they had thrown together, were now restored each to its distinct station.

  Drusus, as soon as it was day, summoned an assembly, and though unskilled in speaking, yet with a haughtiness inherent in his blood, rebuked their past, and commended their present behaviour: “With threats and terrors, he said, it was impossible to subdue him; but if he saw them reclaimed to submission, if from them he heard the language of supplicants, he would send to his father to accept with a reconciled spirit the petitions of the Legions.” Hence, at their entreaty, for their deputy to Tiberius, the same Blesus was again dispatched, and with him Lucius Apronius, a Roman Knight, and intimate companion of Drusus, and Justus Catonius, a Centurion of the first order. There followed great debates in the council of Drusus, while some advised “to suspend all proceeding till the return of the deputies, and by a course of courtesy the while to sooth the soldiers; others maintained, that remedies more potent must needs be applied: in a multitude was to be found nothing on this side extremes; always imperious where they are not awed, and to be despised without danger when frightened. To their present terror from superstition was to be added the dread of their General, by his dooming to death the authors of the sedition.” Rather prompt to rigorous counsels was the genius of Drusus. Vibulenus and Percennius were produced, and by his command executed. It is by many recounted, that in his own tent they were secretly dispatched and buried; by others, that their bodies were ignominiously thrown over the entrenchments, for a public spectacle of terror.

  Search was then made for other remarkable incendiaries. Some were caught skulking without the camp, and there by the Centurions or Prætorian soldiers slain. Others were by their several companies delivered up, as a proof of their own fidelity. The consternation of the soldiers was heightened by the precipitate accession of winter, with rains incessant, and so violent, that they were unable to stir from their tents, or maintain common intercourse, nay scarce to preserve their standards, assaulted continually by tempestuous winds and raging floods. Dread besides of the angry Gods still possessed them; “nor was it at random, they thought, that such profane traitors were thus visited with black eclipses, and roaring tempests; neither against these their calamities was there other relief than the relinquishing of a camp by impiety contaminated and accursed, and, after expiation of their guilt, returning to their several garisons.” The eighth legion departed first; then the fifteenth: the ninth, with earnest clamours, pressed for continuing there till the letters from Tiberius arrived; but when deserted by the other two, their courage failed, and by following of their own accord, they prevented the shame of being forced. Drusus seeing order and tranquillity thus restored, without staying for the return of the Deputies, returned himself to Rome.

  Almost at the same time, and from the same causes, the legions in Germany raised an insurrection, with greater numbers, and thence with more fury. Passionate too were their hopes that Germanicus would never brook the rule of another, but yield to the spirit of the legions, who had force sufficient to bring the whole Empire under his sway. Upon the Rhine were two armies; that called the higher, commanded by Caius Silius, Lieutenant-General; the lower, by Aulus Cæcina. The command in chief rested in Germanicus, then busy collecting the tribute in Gaul. The forces however under Silius, with cautious ambiguity, watched the success of the revolt which others began: for the soldiers of the lower army had broken out into open outrages, which began from the fifth legion, and the one and twentieth, who drew after them the first and the twentieth. These were altogether upon the frontiers of the Ubians, passing the campaign in utter idleness, or light duty: so that upon the news that Augustus was dead, the whole swarm of new soldiers lately levied in the city, men accustomed to the effeminacies of Rome, and impatient of every military hardship, began to possess the ignorant minds of the rest with many turbulent expectations, “that now was presented the lucky juncture for Veterans to demand intire dismission; the fresh soldiers, larger pay; and all, some mitigation of their miseries; as also to return due vengeance for the cruelties of the Centurions.” These were not the harangues of a single incendiary, like Percennius amongst the Pannonian legions; nor uttered, as there, in the ears of men, who, while they saw before their eyes armies greater than their own, mutinied with awe and trembling: But here was a sedition of many mouths, filled with many boasts, “that in their hands lay the power and fate of Rome; by their victories the Empire was inlarged, and from them the Cæsars took, as a compliment, the surname of Germanicus.”

  Neither did Cæcina strive to restrain them. A madness so extensive had berest him of all his bravery and firmness. In this precipitate frenzy they rushed at once, with swords drawn, upon the Centurions, the eternal objects of their resentment, and always the first victims to their vengeance. Them they dragged to the earth, and upon each bestowed a terrible portion of sixty blows; a number proportioned to that of Centurions in a legion. Then bruised, mangled, and half expiring, as they were, they cast them all out of the camp, some into the stream of the Rhine. Septimius, who had for refuge fled to the tribunal of Cæcina, and lay clasping his feet, was demanded with such imperious vehemence, that he was forced to be surrendered to destruction. Cassius Cherea (afterwards famous to posterity for killing Caligula) then a young man of undaunted spirit, and one of the Centurions, boldly opened himself a passage with his sword through a crowd of armed foes striving to seize him. After this no further authority remained to the Tribunes, none to the Camp-Marshals. The seditious soldiers were their own officers; set the watch, appointed the guard, and gave all orders proper in the present exigency. Hence those who dived deepest into the spirit of the soldiery, gathered a special indication how powerful and obdurate the present insurrection was like to prove; for in their conduct were no marks of a rabble, where every man’s will guides him, or the instigation of a few controuls the whole. Here, all at once they raged, and all at once kept silence; with so much concert and steadiness, that you would have believed them under the sovereign direction of one.

  To Germanicus the while, then receiving, as I have said, the tribute in Gaul, news were brought of the decease of Augustus, whose grand-daughter Agrippina he had to wife, and by her many children. He was himself the grandson of Livia, by her son Drusus the brother of Tiberius; but ever under heavy anxiety from the secret hate which his uncle and grandmother bore him; hate the more virulent, as its grounds were altogether unrighteous. For, dear and adored was the memory of his father Drusus amongst the Roman people, and from him was firmly expected, that had he succeeded to the Empire, he would have restored public liberty. Hence their zeal for Germanicus, and of him the same hopes conceived; as from his youth he possessed a popular spirit, and marvellous affability, utterly remote from the comportment and address of Tiberius, ever haughty and mysterious. The animosities too between the ladies administered fresh fuel, while, towards Agrippina, Livia was actuated by the despight natural to step-mothers: and over-tempestuous was the indignation of Agrippina; only that her known chastity, and love for her husband, always gave her mind, however vehement, a virtuous turn.

  But Germanicus, the nearer he stood to supreme rule, the more vigour he exerted to secure it to Tiberius; to whom he obliged the Sequanians, a neighbouring people, as also the several Belgic cities, to swear present allegiance; and the moment he learnt the uproar of the legions, posted thither. He found them advanced without the camp to receive him, with eyes cast down, in feigned token of remorse. After he entered the entrenchments, instantly his ears were filled with plaints and grievances, uttered in hideous and mixt clamours. Nay, some catching his hand, as if they meant to kiss it, thrust his fingers into their mouths, to feel their gums destitute of teeth; others shewed their limbs enfeebled, and bodies stooping under old age. As he saw the assembly mixt at random, he commanded them “to range themselves into companies, thence more distinctly to hear his answers; as also to place before them their several Ensigns; that the cohorts at least might be distinguished.” With slowness and reluctance they obeyed him. Then beginning with an encomium upon the “venerable memory of Augustus,” he proceeded to the “many victories and many triumphs of Tiberius, and with peculiar praises celebrated the glorious and immortal deeds, which with these very legions he had accomplished in Germany;” he next boasted the quiet state of things, the consent of all Italy, the loyal faith of both the Gauls; and every quarter of the Roman state exempt from disaffection and disorders.

  Thus far they listened with silence, at least with moderate murmuring; but the moment he touched their sedition, and questioned, “where now was the wonted modesty of soldiers? where the glory of ancient discipline? whither had they chased their Tribunes, whither their Centurions?” to a man, they stripped themselves to the skin, and there exposed the seams of their wounds, and bruises of their chastisements, in the rage of reproach. Then in the undistinguished voice of uproar, they urged, “the exactions for occasional exemptions; their scanty pay; and their rigorous labours;” which they represented in a long detail; “ramparts to be reared; entrenchments digged, trees felled and drawn; forage cut and carried; fuel prepared and fetched;” with every other article of toil required by the exigencies of war, or to prevent idleness in the soldiery. Above all, from the Veterans arose a cry most vehement and furious: they enumerated thirty years or upwards undergone in the service, “and besought, that, to men utterly spent, he would administer respite, nor suffer them to be beholden to death for the last relief from their toils; but discharge them from a warfare so lasting and severe, and grant them the means of a comfortable recess.” Nay, some there were who required of him the money bequeathed them by Augustus; and towards Germanicus uttering zealous vows, with omens of happy fortune, declared their cordial attachment to his cause, if he would himself assume the Empire. Here, as if already stained with their treason, he leaped headlong from the Tribunal; but with swords drawn they opposed his departure, and threatened his life, if he refused to return: yet, with passionate protestations, that “he would rather die than be a traitor,” he snatched his sword from his side, and aiming full at his breast, would have buried it there, had not those who were next him seized his hand, and by force restrained him. A cluster of soldiers in the extremity of the assembly, exhorted him, nay, what is incredible to hear, some particulars advancing nearer, exhorted him, to strike home. In truth, one Calusidius, a common soldier, presented him his naked sword, and added, “it is sharper than your own;” a behaviour which to the rest, outrageous as they were, seemed savage, and of horrid example. Hence, the friends of Germanicus had time to snatch him away to his tent.

  It was here consulted what remedy to apply; for it was advised, that “ministers of sedition were preparing to be dispatched to the other army, to draw them too into a confederacy in the revolt; that the capital of the Ubians was destined to be sacked; and if their hands were once inured to plunder, they would break in, and ravage all Gaul.” This dread was augmented by another: the enemy knew of the sedition in the Roman army, and were ready to invade the Empire, if its barrier the Rhine were left unguarded. Now, to arm the allies and the auxiliaries of Rome, and lead them against the departing Legions, was to rouse a civil war: severity was dangerous; the way of largesses infamous; and alike threatning it was to the State, to grant the turbulent soldiers nothing, or yield them every thing. After revolving every reason and objection, the result was, to feign letters and directions from Tiberius, “that those who had served twenty years should be finally discharged; such as had served sixteen be under the ensign and privilege of Veterans, released from every duty, but that of repulsing the enemy; and the legacy which they demanded, should be paid and doubled.”

  The soldiers, who perceived, that, purely to evade present difficulty, the concessions were forged, insisted to have them forthwith executed; and instantly the Tribunes dispatched the discharge of the Veterans. That of the money was adjourned to their several winter-quarters: but the fifth Legion, and the one and twentieth, refused to stir, till in that very camp they were paid; so that out of the money reserved by himself and his friends for travelling expences, Germanicus was obliged to raise the sum. Cæcina, Lieutenant-General, led the first Legion and twentieth, back to the capital of the Ubians; an infamous march, when the plunder of their General’s coffers was carried amidst the Ensigns and Roman Eagles. Germanicus, the while, proceeding to the army in higher Germany, brought the second, thirteenth and sixteenth Legions to swear allegiance without hesitation: to the fourteenth, who manifested some short suspense, he made, unasked, a tender of their money, and a present discharge.

  But a party of Veterans which belonged to the disorderly Legions, and then in garison among the Chaucians, as they began a sedition there, were somewhat quelled by the instant execution of two of their body; an execution commanded by Mennius, Camp-Marshal, and rather of good example, than done by competent authority. The tumult however swelling again with fresh rage, he fled, but was discovered; so that, finding no safety in lurking, from his own bravery he drew his defence, and declared, “that to himself, who was only their Camp-Marshal, these their outrages were not done, but done to the authority of Germanicus their General, to the Majesty of Tiberius their Emperor.” At the same time, braving and dismaying all that would have stopped him, he fiercely snatched the colours, faced about towards the Rhine, and, pronouncing the doom of traitors and deserters to every man who forsook his ranks, brought them back to their winter-quarters, mutinous, in truth, but not daring to mutiny.

  In the mean time the deputies from the Senate met Germanicus at the altar of the Ubians, whither in his return he was arrived. Two Legions wintered there, the first, and twentieth, with the soldiers lately placed under the standard of Veterans; men already under the distractions of guilt and fear: and now a new terror possessed them, that these Senators were come armed with injunctions to cancel every concession which they had by sedition extorted; and, as it is the custom of the crowd to be ever charging some body with the crimes suggested by their own false alarms, the guilt of this imaginary decree they laid upon Minutius Plancus, a Senator of consular dignity, and at the head of this deputation. In the dead of night, they began to clamour aloud for the purple standard placed in the quarters of Germanicus; and rushing tumultuously to his gate, burst the doors, dragged the Prince out of his bed, and with menaces of present death, compelled him to deliver the standard. Then, as they roved about the camp, they met the Deputies; who having learnt the outrage, were hastening to Germanicus: upon them they poured a deluge of contumelies, and were devoting them to present slaughter; Plancus chiefly, whom the dignity of his character had restrained from flight; nor in this mortal danger had he other refuge than the quarters of the first Legion, where, embracing the Eagle, and other ensigns, he sought sanctuary from the religious veneration ever paid them. But, in spite of religion, had not Calpurnius the Eagle-bearer by force defeated the violent assault, in the Roman camp had been slain an Ambassador of the Roman people, and with his blood the inviolable altars of the Gods had been stained; a barbarity rare even in the camp of an enemy. At last, day returning, when the General, and the soldiers, and their actions could be distinguished, Germanicus entered the camp; and commanding Plancus to be brought, seated him by himself upon the tribunal: he then inveighed against the late “pernicious frenzy, which in it, he said, had fatality, and was rekindled by no despite in the soldiers, but by that of the angry Gods.” He explained the genuine purposes of that Embassy, and lamented with affecting eloquence “the outrage committed upon Plancus, altogether brutal and unprovoked; the foul violence done to the sacred person of an Ambassador, and the mighty disgrace from thence derived upon the Legion.” Yet as the assembly shewed more stupefaction than calmness, he dismissed the Deputies under a guard of auxiliary horse.

  During this affright, Germanicus was by all men censured, “that he retired not to the higher army, whence he had been sure of ready obedience, and even of succour against the revolters. Already he had taken wrong measures more than enough, by discharging some, rewarding all, and other tender counsels. If he despised his own safety; yet why expose his infant-son, why his wife big with child, to the fury of outrageous traitors, wantonly violating all the most sacred rights amongst men? It became him at least to restore his wife and son safe to Tiberius, and to the state.” He was long unresolved; besides Agrippina was averse to leave him, and urged that “she was the grand-daughter of Augustus, and it was below her spirit to shrink in a time of danger.” But, embracing her and their little son, with great tenderness and many tears, he prevailed with her to depart. Thus there marched miserably along a band of helpless women; the wife of a great commander fled like a fugitive, and upon her bosom bore her infant-son; about her a troop of other ladies, dragged from their husbands, and drowned in tears, uttering their heavy lamentations. Nor weaker than theirs was the grief felt by all who remained.

  These groans and tears, and this spectacle of woe, the appearances rather of a city stormed and sacked, than of a Roman camp, that of Germanicus Cæsar, victorious and flourishing, awakened attention and inquiry in the soldiers: leaving their tents, they cried, “Whence these doleful wailings? what so lamentable! so many ladies of illustrious quality, travelling thus forlorn; not a Centurion to attend them; not a soldier to guard them; their General’s wife amongst them, undistinguished by any mark of her princely dignity; destitute of her ordinary train; frightened from the Roman Legions, and repairing, like an exile, for shelter to Treves, there to commit herself to the faith of foreigners.” Hence shame and commiseration seized them, and the remembrance of her illustrious family, with that of her own virtues; the brave Agrippa her father; the mighty Augustus her grandfather; the amiable Drusus her father-in-law, her self celebrated for a fruitful bed, and of signal chastity: add the consideration of her little son, born in the camp, nursed in the arms of the Legions, and by themselves named Caligula, a military name from the boots which of the same fashion with their own, in compliment to them, and to win their affections, he frequently wore. But nothing so effectually subdued them as their own envy towards the inhabitants of Treves. Hence they all besought, all adjured, that she would return to themselves, and with themselves remain. Thus some stopped Agrippina; but the main body returned with their intreaties to Germanicus; who, as he was yet in the transports of grief and anger, addressed himself on this wise to the surrounding crowd:

  “To me neither is my wife or son dearer than my father and the commonwealth. But him doubtless his proper majesty will defend; and the other armies will defend the Roman State. As to my wife and children, whom, for your glory, I could freely sacrifice; I now remove them from your rage, that by my blood alone may be expiated whatever further mischief your fury meditates; and that the murder of the great grandson of Augustus, the murder of the daughter-in-law of Tiberius, may not be added to mine, nor to the blackness of your past guilt. For, during these days of phrensy, what has been too horrid for you to commit? What so sacred that you have not violated? To this audience what name shall I give? Can I call you Soldiers? you who have beset with arms the son of your Emperor, confined him in your trenches, and held him in a siege? Roman citizens can I call you? you who have trampled upon the supreme authority of the Roman Senate? Laws religiously observed by common enemies, you have profaned; violated the sacred privileges and persons of Ambassadors; broken the laws of nations. The deified Julius Cæsar quelled a sedition in his army by a single word; by calling all who refused to follow him, Townsmen. The deified Augustus, when, after the battle of Actium, the Legions lapsed into mutiny, terrified them into submission by the dignity of his presence, and an awful look. These, it is true, are mighty characters, whom I dare not emulate: but, as I inherit their blood, should the armies in Syria and Spain contemn my authority, I should think their behaviour strange and base. Yet you are the first and the twentieth Legions, the former enrolled by Tiberius himself, the other his constant companions in so many battels, his partners in so many victories, and by him enriched with so many bounties! Is this the worthy return you make your Emperor, and late commander? And shall I be the author of such tidings to him, in the midst of congratulations and happy accounts from every province in the Empire, that his own new levies, as well as his own Veterans who long fought under him, these, not appeased by their discharge, and neither of them satiated with the money given them, are both still combined in a furious mutiny? that here, and only here, the Centurions are butchered, the Tribunes driven away, the Ambassadors imprisoned; that with blood the camp is stained; that the rivers flow with blood; and that for me, his son, I hold a precarious life amongst men thus raging and implacable?

  “Why did you the other day, oh unseasonable friends! snatch away my sword, when I would have plunged it into my breast? He who offered me his own sword, acted better, and was more my friend. I would then have fallen happy, as my death would have hid from mine eyes so many horrible crimes, since committed by my own army. You too would have chosen another General, who, though he would have left my death unpunished, yet would have sought vengeance for that of Varus, and the three Legions. For the Gods are too just to permit that the Belgians, however generously they offer their service, shall reap the credit and renown of retrieving the glory of the Roman name, and of reducing in behalf of Rome the German nations her foes. I therefore here invoke thy spirit now with the Gods, oh deified Augustus; and thy image interwoven in the ensigns, and thy memory, oh deceased father, to vindicate these Legions from this foul infamy. They already feel the remorses of shame, and a sense of honour. Let them turn the tide of their civil rage to the destruction of their common enemy. And for you, my fellow soldiers, in whom I now behold other countenances, and minds happily changed; if you mean to restore to the Senate its Ambassadors, to your Emperor your sworn obedience, to me my wife and son; fly the company of incendiaries, separate the sober from the seditious. This will be a faithful sign of remorse, this a firm pledge of fidelity.”

  These words softened them into supplicants: they confessed that all his reproaches were true; they besought him to punish the guilty and malicious, to pardon the weak and misled, and to lead them against the enemy; to recal his wife, to bring back his son, nor to suffer the fosterling of the Legions to be given in hostage to the Gauls. Against the recalling of Agrippina he alledged the advance of winter, and her approaching delivery; but said, that his son should return, and that to themselves he left to execute what remained further to be executed. Instantly, with changed resentments, they ran, and, seizing the most seditious, dragged them in bonds to Caius Cetronius, commander of the first Legion, who judged and punished them in this manner. The Legions, with their swords drawn, surrounded the Tribunal; from thence the prisoner was by a Tribune exposed to their view, and if they proclaimed him guilty, cast headlong down, and executed even by his fellow-soldiers, who rejoiced in the execution, because by it they thought their own guilt to be expiated: nor did Germanicus restrain them, since on themselves remained the cruelty and reproach of the slaughter committed without any order of his. The Veterans followed the same example of vengeance, and were soon after ordered into Rhetia, in appearance to defend that province against the invading Suevians; in reality, to remove them from a camp, still horrible to their sight, as well in the remedy and punishment, as from the memory of their crime. Germanicus next passed a scrutiny upon the conduct and characters of the Centurions: before him they were cited singly; and each gave account of his name, his company, country, the length of his service, exploits in war, and military presents, if he had been distinguished with any. If the Tribunes, or his Legion, bore testimony of his diligence and integrity, he kept his post; upon concurring complaint of his avarice or cruelty, he was degraded.

  Thus were the present commotions appeased; but others as great still subsisted, from the rage and obstinacy of the fifth and twenty-first Legions. They were in winter-quarters sixty miles off, in a place called the Old Camp, and had first began the sedition: nor was there any wickedness so horrid that they had not perpetrated; nay, at this time, neither terrified by the punishment, nor reclaimed by the reformation of their fellow soldiers, they persevered in their fury. Germanicus therefore determined to give them battle, if they persisted in their revolt, and prepared vessels, arms, and troops, to be sent down the Rhine.

  Before the issue of the sedition in Illyricum was known at Rome, tidings of the uproar in the German Legions arrived. Hence the city was filled with much terror, and hence against Tiberius many complaints, “that while with feigned consultations and delays he mocked the Senate and People, once the great bodies of the estate, but now bereft of power and armies, the soldiery were in open rebellion, one too mighty and stubborn to be quelled by two Princes so young in years and authority. He ought at first to have gone himself, and awed them with the majesty of imperial power; as doubtless they would have returned to duty, upon the sight of their Emperor, a Prince of consummate experience, the sovereign disposer of rewards and severity. Did Augustus, even under the pressures of old age and infirmities, take so many journies into Germany? and should Tiberius, in the vigour of his life, when the same, or greater occasions called him thither, sit lazily in the Senate, to watch Senators, and cavil at words? He had fully provided for the domestic servitude of Rome; he ought next to cure the licentiousness of the soldiers, to restrain their turbulent spirits, and reconcile them to a life of peace.”

  But all these reasonings and reproaches moved not Tiberius. He was determined not to depart from the Capital, the centre of power and affairs, nor expose to chance or peril his person and empire. In truth, many and contrary difficulties pressed and perplexed him: “the German army was the stronger; that of Pannonia nearer; the power of both the Gauls supported the former; the latter was at the gates of Italy. Now, to which should he repair first? and would not the last visited be enraged, by being postponed? But by sending one of his sons to each, the equal treatment of both was maintained; as also the majesty of the supreme power, which from distance ever derived most reverence. Besides, the young Princes would be excused, if to their father they referred such demands as were improper for them to grant; and if they disobeyed Germanicus and Drusus, his own authority remained to appease or punish them. But if once they had contemned their Emperor himself, what other resource was behind?” However, as if he had been upon the point of marching, he chose his attendants, provided his equipage, and prepared a fleet: but by various delays and pretences, sometimes that of the winter, sometimes business, he deceived for a time even the wisest men, much longer the common people, and the provinces for a great while.

  Germanicus had already drawn together his army, and was prepared to take vengeance on the seditious: but judging it proper to allow space for trial whether they would follow the lare example, and, consulting their own safety, do justice upon one another; he sent letters to Cæcina, “that he himself approached, with a powerful force; and, if they prevented him not, by executing the guilty, he would put all indifferently to the slaughter.” These letters Cæcina privately read to the principal Officers, and such of the camp as the sedition had not tainted; besought them, “to redeem themselves from death, and all from infamy; urged that in peace alone reason was heard, and merit distinguished; but in the rage of war, the blind steel spared the innocent no more than the guilty.” The Officers having tried those whom they believed for their purpose, and found the majority still to persevere in their duty, settled, in concurrence with the General, the time for falling with the sword upon the most notoriously guilty and turbulent. Upon a particular signal given, they rushed into their tents, and butchered them; void as they were of all apprehension; nor did any but the Centurions and executioners know whence the massacre began, or where it would end.

  This had a different face from all the civil slaughters that ever happened: it was a slaughter not of enemies upon enemies, nor from different and opposite camps, nor in a day of battle; but of comrades upon comrades, in the same tents where they eat together by day, where they slept together by night. From this state of intimacy, they fly into mortal enmity; friends launched their darts at friends: wounds, outcries, and blood were open to view; but the cause remained hid: wild chance governed the rest, and several innocents were slain. For the criminals, when they found against whom all this fury was bent, had also betaken themselves to their arms. Neither did Cæcina, nor any of the Tribunes, intervene to stay the rage: so that the soldiers had full permission of vengeance, with a licentiousness and satiety of killing. Germanicus soon after entered the camp now full of blood and carcasses, and, lamenting with many tears, that “this was not a remedy, but cruelty and desolation,” commanded the bodies to be burnt. The minds of the rest, still tempestuous and bloody, were transported with sudden eagerness to attack the foe; as the best expiation of their tragical fury: nor otherwise, they thought, could the ghosts of their butchered brethren be appeased, than by receiving in their own profane breasts a chastisement of honourable wounds. Germanicus fell in with the ardour of the soldiers, and laying a bridge upon the Rhine, marched over twelve thousand Legionary soldiers, twenty-six cohorts of the allies, and eight regiments of horse; men all untainted in the late sedition.

  The Germans rejoiced, not far off, at this vacation of war, occasioned first by the death of Augustus, and afterwards by intestine tumults in the camp. But the Romans by a hasty march passed through the Cæsian woods, and levelling the barrier formerly begun by Tiberius, pitched their camp upon it. In the front and rear they were defended by a palisade, on each side by a barricade of the trunks of trees felled. From thence, beginning to traverse gloomy forests, they stopped to consult which of two ways they should chuse, the short and frequented, or the longest and least known, and therefore unsuspected by the foe. The longest way was chosen; but in every thing else dispatch was observed: for, by the scouts, intelligence was brought, that the Germans did, that night, celebrate a festival, with great mirth and revelling. Hence Cæcina was commanded to advance with the cohorts without their baggage, and to clear a passage through the forest: at a moderate distance followed the Legions: the clearness of the night facilitated the march; and they arrived at the villages of the Marsians, which they presently invested with guards. The Germans were even yet under the effects of their debauch, scattered here and there, some in bed, some lying by their tables; no watch placed, no apprehension of an enemy. So utterly had their false security banished all order and care; and they were under no dread of war, without enjoying peace, other than the deceitful and lethargic peace of drunkards.

  The Legions were eager for revenge; and Germanicus, to extend their ravage, divided them into four battalions. The country was wasted by fire and sword fifty miles round; nor sex nor age found mercy; places sacred and prophane had the equal lot of destruction, all razed to the ground, and with them the temple of Tanfana, of all others the most celebrated amongst these nations. Nor did all this execution cost the soldiers a wound, while they only slew men half asleep, disarmed, or dispersed. This slaughter roused the Bructerans, the Tubantes, and the Usipetes; and they beset the passes of the forest, through which the army was to return; an event known to Germanicus, and he marched in order of battle: the auxiliary cohorts and part of the horse led the van, followed close by the first Legion; the baggage was in the middle; the twenty-first Legion closed the left wing, and the fifth the right; the twentieth defended the rear; and after them marched the rest of the allies. But the enemy stirred not, till the body of the army was entered the wood: they then began lightly to insult the front and wings; and, at last, with their whole force fell upon the rear. The light cohorts were already disordered by the close German bands, when Germanicus riding up to the twentieth Legion, and exalting his voice; “this was the season, he cried, to obliterate the scandal of sedition: hence they should fall resolutely on, and convert into sudden praise their late shame and offence.” These words inflamed them: at one charge they broke the enemy, drove them out of the wood, and slaughtered them in the plain. In the mean while, the front passed the forest, and fortified the camp. The rest of the march was uninterrupted, and the soldiers, trusting to the merit of their late exploits, and forgetting at once past faults and terrors, were placed in winter-quarters.

  The tydings of these exploits affected Tiberius with gladness and anguish. He rejoiced that the sedition was suppressed; but, that Germanicus had, by discharging the Veterans, by shortening the term of service to the rest, and by largesses to all, gained the hearts of the army, as well as earned high glory in war; proved to the Emperor matter of torture. To the Senate, however, he reported the detail of his feats, and upon his valour bestowed copious praises, but in words too pompous and ornamental to be thought dictated by his heart. It was with more brevity that he commended Drusus, and his address in quelling the sedition of Illyricum, but more cordially withal, and in language altogether sincere; and even to the Pannonian Legions he extended all the concessions made by Germanicus to his own.

  The same year died Julia, for her lewdness long since banished by her father Augustus into the isle of Pandateria, and afterwards to the city of Rhegium upon the streights of Sicily. Whilst Caius and Lucius, her sons by Agrippa, yet lived, she was given in marriage to Tiberius; and despised him, as a man beneath her. Nor any motive so cogent as this had Tiberius for his retirement to Rhodes. When he came to the empire, she was already under the pressures of infamy and exile, and since the death of Agrippa Posthumus, destitute of all hope and support. Yet such multiplied distresses softened not the Emperor, who, by a long train of miseries, and continued want, caused her finally to perish; as he supposed that in the distance of her banishment her tragical death would remain concealed. From the same root was derived his cruelty to Sempronius Gracchus, the descendent of a family eminently noble, himself of a lively wit and prevailing eloquence, but viciously applied. He, while Julia was yet Agrippa’s wife, had debauched her: neither with Agrippa ended their vicious league; but after she was given to Tiberius, he still persisted her adulterer, and towards her husband inspired her with notable aversion and contumacy: The letters too by her written to her father, full of asperity against Tiberius, and labouring his ruin, were thought to have been composed by Gracchus. He was therefore banished to Cercina, and island in the African sea, where, for fourteen years, he suffered exile. The soldiers dispatched to the assassination found him upon a rising by the shore, to himself presaging nothing joyful from their arrival. Of them he only desired a short respite to send his last will in a letter to Alliaria his wife, and then extended his neck to the sword of the assassins; a constancy in death not unworthy the Sempronian name: in his life he had degenerated. Some authors have related, that these soldiers were not sent directly from Rome, but by Lucius Asprenas, Proconsul of Africa, by the policy and command of Tiberius, who in vain hoped to have cast upon Asprenas the imputation of the murder.

  There was likewise this year an admission of new rites, by the establishment of another College of Priests, one sacred to the deity of Augustus; as formerly Titus Tatius, to preserve the religious rites of the Sabines, had founded the fraternity of Titian Priests. To fill the society, one and twenty the most considerable Romans were drawn by lot, and to them were added Tiberius, Drusus, Claudius, and Germanicus. The games in honour of Augustus, began then first to be embroiled by emulation among the players, and by the strife of parties in their behalf. Augustus had countenanced these players, and their art, in complaisance to Mæcenas, who was mad in love with Bathyllus the comedian; nor to such favourite amusements of the populace had he any aversion himself; he rather judged it an acceptable courtesy to mingle with the multitude in these their popular pleasures. Different was the temper of Tiberius, different his politics: to severer manners, however, he durst not yet reduce the people, so many years indulged in licentious gaieties.

  In the consulship of Drusus Cæsar and Caius Norbanus, a triumph was decreed to Germanicus, while the war still subsisted. He was preparing with all diligence to prosecute it the following summer; but began much sooner by a sudden irruption early in the spring into the territories of the Cattians; an anticipation of the campaign, which proceeded from the hopes given him of dissension amongst the enemy, caused by the opposite parties of Arminius and Segestes; two men signally known to the Romans upon different accounts; the last for his firm faith, the first for faith violated. Arminius was the incendiary of Germany; but by Segestes had been given repeated warnings of an intended revolt, particularly during the scstival immediately preceding the insurrection. He had even advised Varus, “to secure him and Arminius, and all the other chiefs; for that the multitude, thus bereft of their leaders, would dare to attempt nothing; and Varus have time to distinguish crimes and such as committed none.” But by his own fate, and the sudden violence of Arminius, Varus fell. Segestes, though by the weight and unanimity of his nation, he was forced into the war, yet remained at constant variance with Arminius: a domestic quarrel too heightened their hate; as Arminius had carried away the daughter of Segestes, already betrothed to another; and the same relations which amongst friends prove bonds of tenderness, were fresh stimulations of wrath to an obnoxious son, and an offended father.

  Upon these encouragements, Germanicus committed to the command of Cæcina four Legions, five thousand auxiliaries, and some bands of Germans, dwellers on this side the Rhine, drawn suddenly together; he led himself as many Legions, with double the number of allies, and erecting a fort in mount Taunus, upon the old foundations of one raised by his father, rushed full march against the Cattians; having behind him left Lucius Apronius, to secure the ways from the fury of inundations. For, as the roads were then dry, and the rivers low, events in that climate exceedingly rare, he had without check expedited his march, but against his return apprehended the violence of rains and floods. Upon the Cattians he fell with such surprize, that all the weak, through sex or age, were instantly taken or slaughtered. Their youth, by swimming over the Adrana, escaped, and attempted to force the Romans from building a bridge to follow them, but by dint of arrows and engines were repulsed; then having in vain tried to gain terms of peace, some submitted to Germanicus; the rest abandoned their villages and dwellings, and dispersed themselves in the woods. Mattium, the Capital of the nation he burnt, ravaged all the open country, and bent his march to the Rhine: nor durst the enemy harass his rear; an usual practice of theirs, when sometimes they fly more through craft than affright. The Cheruscans indeed were addicted to assist the Cattians, but terrified from attempting it by Cæcina, who moved about with his forces from place to place; and, by routing the Marsians who had dared to engage him, restrained all their efforts.

  Soon after arrived deputies from Segestes, praying relief against the combination and violence of his countrymen, by whom he was held besieged; as more powerful amongst them than his was the credit of Arminius, since it was he who had advised the war. This is the genius of Barbarians, to judge that men are to be trusted in proportion as they are fierce, and in public commotions ever to prefer the most resolute. To the other deputies Segestes had added Segimundus his son; but the young man faultered a while, as his own heart accused him; for that, the year when Germany revolted, he who had been by the Romans created Priest of the Altar of the Ubians, rent the sacerdotal Tiara, and fled to the revolters: yet, encouraged by the Roman clemency, he undertook the execution of his father’s orders, was himself graciously received, and then conducted with a guard to the frontiers of Gaul. Germanicus led back his army to the relief of Segestes, and was rewarded with success. He fought the besiegers, and rescued him with a great train of his relations and followers; amongst them too were ladies of illustrious rank, particularly the wife of Arminius, she who was the daughter of Segestes; a lady more of the spirit of her husband than that of her father; a spirit so unsubdued, that from her eyes captivity forced not a tear, nor from her lips a breath in the stile of a supplicant. Not a motion of her hands, nor a look escaped her; but, fast across her breast she held her arms, and upon her heavy womb her eyes were immoveably fixed. There were likewise carried Roman spoils taken at the slaughter of Varus and his army, and then divided as prey amongst many of those who were now prisoners. At the same time, appeared Segestes, of superior stature; and, from a confidence in his good understanding with the Romans, undaunted. In this manner he spoke:

  “This is not the first day, that to the Roman people I have approved my faith and adherence. From the moment I was by the deified Augustus presented with the freedom of the city, I have continued by your interest to chuse my friends, by your interest to denominate my enemies; from no hate of mine to my native country (for odious are traitors even to the party which they embrace) but, because the same measures were equally conducing to the benefit of the Romans and of the Germans; and I was for peace rather than war. For this reason I applied to Varus, the then General, with an accusation against Arminius, who from me had ravished my daughter, and with you violated the faith of leagues. But growing impatient with the slowness and inactivity of Varus, and well apprized how little security was to be hoped from the laws, I pressed him to seize myself, and Arminius, and his accomplices; witness that fatal night, to me I wish it had been the last! More to be lamented than defended are the sad events which followed. I moreover cast Arminius into irons, and was myself cast into irons by his faction; and as soon as to you, Cæsar, I could apply, you see I prefer old engagements to present violence; tranquillity to combustions; with no view of my own to interest or reward, but to banish from me the imputation of perfidiousness. For the German nation too, I would thus become a mediator, if peradventure they will chuse rather to repent than be destroyed: for my son I intreat you, have mercy upon his youth, pardon his error. That my daughter is your prisoner by force, I own: in your own breast it wholly lies, under which character you will treat her, whether as one who has conceived by Arminius, or as one by me begotten.” The answer of Germanicus was gracious: he promised indemnity to his children and kindred, and to himself a safe retreat in one of the old provinces; then returned with his army, and, by the direction of Tiberius, received the title of Imperator. The wife of Arminius brought forth a male child, and the boy was brought up at Ravenna. His unhappy conflicts afterwards with the contumelious insults of fortune, will be remembered in their place.

  The desertion of Segestes being divulged, with his gracious reception from Germanicus, affected his countrymen variously, with hope or anguish, as they were prone or averse to the war. Naturally violent was the spirit of Arminius, and now, by the captivity of his wife, and by the fate of his child doomed to bondage though yet unborn, enraged even to distraction: he flew about amongst the Cheruscans, calling them to arms; to arm against Segestes, to arm against Germanicus: invectives followed his fury: “A blessed father this Segestes, he cried! a mighty General, this Germanicus! invincible warriors these Romans! so many troops have made prisoner of a woman. It is not thus that I conquer: Before me three Legions fell, and three Lieutenant-Generals. Open and honourable is my method of war, nor waged with bigbellied women, but against men and arms; and treason is none of my weapons. Still to be seen are the Roman standards in the German groves, there by me hung up, and devoted to our country Gods. Let Segestes live a slave in a conquered province; let him recover to his Son a foreign Priesthood: With the German nations he can never obliterate his reproach, that through him they have seen, between the Elb and Rhine, rods and axes, and the Roman Toga. To other Nations, who know not the Roman domination, executions and tributes are also unknown; evils which we too have cast off, in spite of that Augustus now dead, and enrolled with the deities, in spite too of Tiberius his chosen successor. Let us not, after this, dread a mutinous army, and a boy without experience, their commander: but, if you love your country, your kindred, your ancient liberty and laws, better than tyrants and new colonies, let Arminius rather lead you to liberty and glory, than the wicked Segestes to the infamy of bondage.”

  By these stimulations, not the Cheruscans only were rouzed, but all the neighbouring nations; and into the confederacy was drawn Inguiomerus, paternal uncle to Arminius, a man long since in high credit with the Romans. Hence a new source of fear to Germanicus, who, to avoid the shock of their whole forces, and to divert the enemy, sent Cæcina with forty Roman cohorts to the river Amisia, through the territories of the Bructerians. Pedo the Prefect led the cavalry by the confines of the Frisians. He himself embarked four Legions on the lake: and upon the bank of the said river the whole body met, foot, horse, and the fleet. The Chaucians, upon offering their assistance, were taken into the service; but the Bructerians, setting fire to their effects and dwellings, were routed by Stertinius, by Germanicus dispatched against them with a band lightly armed. As this party were engaged between slaughter and plunder, he found the Eagle of the nineteenth Legion, lost in the overthrow of Varus. The army marched next to the furthest borders of the Bructerians, and the whole country between the rivers Amisia and Luppia, was laid waste. Not far hence lay the forest of Teutoburgium, and in it the bones of Varus and the Legions, by report still unburied. Hence Germanicus became inspired with a tender passion to pay the last offices to the Legions and their leader: The like tenderness also affected the whole army. They were moved with compassion, some for the fate of their friends, others for that of their relations, here tragically slain: They were struck with the doleful casualties of war, and the sad lot of humanity. Cæcina was sent before to examine the gloomy recesses of the forest, to lay bridges over the pools, and, upon the deceitful marshes, causways. The army entered the doleful solitude, hideous to sight, hideous to memory. First they saw the camp of Varus, wide in circumference; and the three distinct spaces allotted to the different Eagles, shewed the number of the Legions. Further they beheld the ruinous entrenchment, and the ditch nigh choaked up; in it the remains of the army were supposed to have made their last effort, and in it to have found their graves. In the open fields lay their bones all bleached and bare, some separate, some on heaps, just as they had happened to fall, flying for their lives, or resisting unto death. Here were scattered the limbs of horses, there pieces of broken javelins; and the trunks of trees bore the skulls of men. In the adjacent groves were the savage altars; where the Barbarians had made a horrible immolation of the Tribunes and principal Centurions. Those who survived the slaughter, having escaped from captivity and the sword, related the sad particulars to the rest: “Here the commanders of the Legions were slain: There we lost the Eagles: Here Varus had his first wound; there he gave himself another, and perished by his own unhappy hand. In that place too stood the tribunal whence Arminius harangued: In this quarter, for the execution of his captives, he erected so many gibbets; in that such a number of funeral trenches were digged; and with these circumstances of pride and despight he insulted the ensigns and Eagles.”

  Thus the Roman army buried the bones of the three Legions, six years after the slaughter; nor could any one distinguish, whether he gathered the particular remains of a stranger, or those of a kinsman: But all considered the whole as their friends, the whole as their relations, with heightened resentments against the foe, at once sad and revengeful. In this pious office, so acceptable to the dead, Germanicus was a partner in the woe of the living; and upon the common tomb laid the first sod: a proceeding not liked by Tiberius; whether it were that upon every action of Germanicus he put a perverse meaning, or believed that the affecting spectacle of the unburied slain, would sink the spirit of the army, and heighten their terror of the enemy; as also that “a General vested, as Augur, with the intendency of religious rites, became defiled by assisting at the solemnities of the dead.”

  Arminius retiring into desart and pathless places, was pursued by Germanicus; who, as soon as he reached him, commanded the horse to advance, and dislodge the enemy from the post they had possessed. Arminius, having directed his men to keep close together, and draw near to the woods, wheeled suddenly about, and to those whom he had hid in the forest, gave the signal to rush out. The Roman horse, now engaged by a new army, became disordered, and to their relief some cohorts were sent, but likewise broken by the press of those that fled; and great was the consternation so many ways increased. The enemy too were already pushing them into the morass; a place well known to the pursuers, as to the unapprized Romans it had proved pernicious, had not Germanicus drawn out the Legions in order of battle. Hence the enemy became terrified, our men reassured, and both retired with equal loss and advantage. Germanicus presently after returning with the army to the river Amisia, reconducted the Legions, as he had brought them, in the fleet. Part of the horse were ordered to march along the sea-shore to the Rhine. Cæcina, who led his own men, was warned, that though he was to return through known roads, yet he should with all speed pass the causway, called The Long Bridges. It is a narrow track, between vast marshes, and formerly raised by Lucius Domitius. The marshes themselves are of an uncertain soil, here full of mud, there of heavy sticking clay, or traversed with various currents. Round about are woods which rise gently from the plain, and were already filled with soldiers by Arminius, who, by shorter ways, and a running march, had arrived there before our men, who were loaded with arms and baggage. Cæcina, who was perplexed how at once to repair the causway decayed by time, and to repulse the foe, resolved at last to encamp in the place, that whilst some were employed in the work, others might maintain the fight.

  The Barbarians strove violently to break our station, and to fall upon the entrenchers; harassed our men, assaulted the works, changed their attacks, and pushed every-where. With the shouts of the assailants the cries of the workmen were confusedly mixed; and all things equally combined to distress the Romans; the place deep with ouze sinking under those who stood, slippery to such as advanced, their armour heavy, the waters deep, nor in them could they launch their javelins. The Cheruscans, on the contrary, were inured to encounters in the bogs; their persons tall, their spears long, such as could wound at a distance. At last the Legions, already yielding, were by night redeemed from an unequal combat; but night interrupted not the activity of the Germans, become by success indefatigable. Without refreshing themselves with sleep, they diverted all the courses of the springs which rise in the neighbouring mountains, and turned them into the plains; thus the Roman camp was flooded, the work, as far as they had carried it, overturned, and the labour of the poor soldiers renewed and doubled. To Cæcina this year proved the fortieth of his sustaining as officer or soldier the functions of arms; a man in all the vicissitudes of war, prosperous or disastrous, well experienced, and thence undaunted. Weighing therefore with himself all probable events and expedients, he could devise no other than that of restraining the enemy to the woods, till he had sent forward the wounded men and baggage; for from the mountains to the marshes there stretched a plain, fit only to hold a little army. To this purpose the Legions were thus appointed; the fifth had the right wing, and the one and twentieth the left; the first led the van; the twentieth defended the rear.

  A restless night it was to both armies, but in different ways: the Barbarians feasted and caroused; and with songs of triumph, or with horrid and threatning cries, filled all the plain and echoing woods. Amongst the Romans were feeble fires, sad silence, or broken words; they leaned drooping here and there against the pales, or wandered disconsolately about the tents, like men without sleep, but not quite awake. A frightful dream too terrified the General; he thought he heard and saw Quinctilius Varus, rising out of the marsh, all besmeared with blood, stretching forth his hand, and calling upon him; but that he rejected the call, and pushed him away. At break of day, the Legions, posted on the wings, through contumacy or affright, deserted their stations, and took sudden possession of a field beyond the bogs; neither did Arminius fall straight upon them, however open they lay to his assault: but, when he perceived the baggage set fast in mire and ditches; the soldiers about it disorderly and embarassed; the ranks and ensigns in confusion; and, as usual in a time of distress, every one in haste to save himself, but slow to obey his officer; he then commanded his Germans to break in: “Behold, he vehemently cried, behold again Varus and his Legions, subdued by the same fate!” Thus he cried, and at the same time, with a select body, broke quite through our forces; and chiefly against the horse directed his havock: so that the ground becoming slippery, by their blood and the slime of the marsh, their feet flew from them, and they cast their riders; then galloping and stumbling amongst the ranks, they overthrew all they met, and trod to death all they overthrew. The greatest difficulty was, to maintain the Eagles; a storm of darts made it impossible to advance them, and the rotten ground impossible to fix them. Cæcina, while he sustained the fight, had his horse shot, and having fallen, was nigh taken; but the first Legion saved him. Our relief came from the greediness of the enemy, who ceased slaying, to seize the spoil. Hence the Legions had respite to struggle into the fair field, and firm ground: nor was here an end to their miseries; a palisade was to be raised, an entrenchment digged; their instruments too, for throwing up and carrying earth, and their tools for cutting turf, were almost all lost; no tents for the soldiers; no remedies for the wounded; and their food all defiled with mire or blood; as they shared it in sadness amongst them, they lamented that mournful night, they lamented the approaching day, to so many thousand men the last.

  It happened that a horse, which had broke his collar, as he strayed about, became frightened with noise, and ran over some that were in his way: this raised such a consternation in the camp, from a persuasion that the Germans in a body had forced an entrance, that all rushed to the gates, especially to the postern, as the furthest from the foe, and safer for flight. Cæcina, having found the vanity of their dread, but unable to stop them, either by his authority, or by his prayers, or indeed by force, flung himself, at last, cross the gate. This prevailed; their awe and tenderness of their General, restrained them from running over his body; and the Tribunes and Centurions satisfied them the while that it was a false alarm.

  Then, calling them together, and desiring them to hear him with silence, he minded them of their difficulties, and how to conquer them: “that for their lives they must be indebted to their arms, but force was to be tempered with art; they must therefore keep close within their camp, till the enemy, in hopes of taking it by storm, advanced; then make a sudden sally on every side; and by this push they should break through the enemy, and reach the Rhine; but, if they fled, more forests remained to be traversed, deeper marshes to be passed, and the cruelty of a pursuing foe to be sustained.” He laid before them the motives and fruits of victory, public rewards and glory, with every tender domestic consideration, as well as those of military exploits and praise. Of their dangers and sufferings he said nothing. He next distributed horses, first his own, then those of the Tribunes and leaders of the Legions, to the bravest soldiers impartially; that thus mounted they might begin the charge, followed by the foot.

  Amongst the Germans, there was not less agitation, from hopes of victory, greediness of spoil, and the opposite counsels of their leaders. Arminius proposed, “to let the Romans march off, and to beset them in their march, when engaged in bogs and fastnesses.” The advice of Inguiomerus was fiercer, and thence more applauded by the Barbarians: he declared “for forcing the camp; for that the victory would be quick, there would be more captives, and intire plunder.” As soon therefore as it was light, they rushed out upon the camp, cast hurdles into the ditch, attacked and grappled the palisade: Upon it, few soldiers appeared, and these seemed frozen with fear: but as the enemy in swarms were climbing the ramparts, the signal was given to the cohorts; the cornets and trumpets sounded, and instantly, with shouts and impetuosity, they issued out, and begirt the assailants; “Here are no thickets, they scornfully cried; no bogs; but an equal field, and impartial Gods.” The enemy, who imagined few Romans remaining, fewer arms, and an easy conquest, were struck with the sounding trumpets, with the glittering armour; and every object of terror appeared double to them who expected none. They fell like men who, as they are void of moderation in prosperity, are also destitute of conduct in distress. Arminius forsook the fight unhurt; Inguiomerus grievously wounded: their men were slaughtered as long as day and rage lasted. In the evening the Legions returned, in the same want of provisions, and with more wounds: but in victory they found all things, health, vigour, and abundance.

  In the mean time, a report had flown, that the Roman forces were routed, and an army of Germans upon full march, to invade Gaul: so that under the terror of this news there were those, whose cowardice would have emboldened them to have demolished the bridge upon the Rhine, had not Agrippina restrained them from that infamous attempt. In truth, such was the undaunted spirit of the woman, that at this time she performed all the duties of a General, relieved the necessitous soldiers, upon the wounded bestowed medicines, and upon others cloaths. Caius Plinius, the writer of the German Wars, relates, that she stood at the end of the bridge, as the Legions returned, and accosted them with thanks and praises; a behaviour which sunk deep into the spirit of Tiberius; “for that all this officiousness of hers, he thought, could not be upright; nor that it was against foreigners only she engaged the army: to the direction of the Generals nothing was now left, when a woman reviewed the companies, attended the Eagles, and to the men distributed largesses, as if before she had shewn but small tokens of ambitious designs, in carrying her child (the son of the General) in a soldier’s coat about the camp, with the title of Cæsar Caligula. Already in greater credit with the army was Agrippina than the leaders of the Legions, in greater than their Generals, and a woman had suppressed sedition, which the authority of the Emperor was not able to restrain.” These jealousies were inflamed, and more were added by Sejanus; one who was well skilled in the temper of Tiberius, and purposely furnished him with sources of hatred, to lie hid in his heart, and be discharged with increase hereafter.

  Germanicus, in order to lighten the ships in which he had embarked his men, and fit their burden to the ebbs and shallows, delivered the second and fourteenth Legions to Publius Vitellius, to lead them by land. Vitellius, at first, had an easy march on dry ground, or ground moderately overflowed by the tide; when suddenly the fury of the north wind swelling the ocean (a constant effect of the equinox) the Legions were surrounded and tossed with the tide, and the land was all on flood; the sea, the shore, the fields, had the same tempestuous face; no distinction of depths from shallows; none of firm from deceitful footing; they were overturned by the billows; swallowed down by the eddies; and horses, baggage, and drowned men encountered each other, and floated together. The several companies were mixed at random by the waves; they waded now breast-high; now up to their chin; and as the ground failed them, they fell, some never more to rise. Their cries and mutual encouragements availed them nothing against the prevailing and inexorable waves; no difference between the coward and the brave, the wise and the foolish; none between circumspection and chance; but all were equally involved in the invincible violence of the flood. Vitellius, at length, struggling into an eminence, drew the Legions thither, where they passed the cold night without fire, and destitute of every convenience; most of them naked, or lamed; not less miserable than men inclosed by an enemy: for even to such remained the consolation of an honourable death; but here was destruction, every way void of glory. The land returned with the day, and they marched to the river Vidrus, whither Germanicus had gone with the fleet. There the two Legions were again embarked, when fame had given them for drowned; nor was their escape believed, till Germanicus and the army were seen to return.

  Stertinius, who in the mean while had been sent before to receive Segimerus, the brother of Segestes (a Prince willing to surrender himself) brought him and his son to the city of the Ubians: both were pardoned; the father freely, the son with more difficulty; because he was said to have insulted the corps of Varus. For the rest, Spain, Italy, and both the Gauls strove with emulation to supply the losses of the army; and offered arms, horses, money, according as each abounded. Germanicus applauded their zeal; but accepted only the horses and arms, for the service of the war: with his own money he relieved the necessities of the soldiers; and to soften also by his kindness the memory of the late havock, he visited the wounded, extolled the exploits of particulars, viewed their wounds; with hopes encouraged some; with a sense of glory animated others; and by affability and tenderness confirmed them all in devotion to himself, and to his fortune in war.

  The ornaments of triumph were this year decreed to Aulus Cæcina, Lucius Apronius, and Caius Silius, for their services under Germanicus. The title of Father of his Country, so often offered by the People to Tiberius, was rejected by him: nor would he permit swearing upon his acts, though the same was voted by the Senate. Against it he urged “the instability of all mortal things; and that the higher he was raised, the more slippery he stood:” but for all this ostentation of a popular spirit, he acquired not the reputation of possessing it. For he had revived the law concerning violated majesty; a law which, in the days of our ancestors, had indeed the same name, but implied different arraignments and crimes, namely those against the State; as when an army was betrayed abroad, when seditions were raised at home; in short, when the public was faithlesly administered, and the majesty of the Roman people was debased. These were actions, and actions were punished, but words were free. Augustus was the first who brought libels under the penalties of this wrested law, incensed as he was by the insolence of Cassius Severus, who had in his writings wantonly defamed men and ladies of illustrious quality. Tiberius too, afterwards, when Pompeius Macer, the Prætor, consulted him, “whether process should be granted upon this law?” answered, “that the laws must be executed.” He also was exasperated by satirical verses written by unknown authors, and dispersed; exposing his cruelty, his pride, and his mind unnaturally alienated from his mother.

  It will be worth while to relate here the pretended crimes charged upon Falanius and Rubrius, two Roman Knights of small fortunes; that hence may be seen from what beginnings, and by how much dark art of Tiberius, this grievous mischief crept in; how it was again restrained a ; how at last it blazed out and consumed all things b . To Falanius was objected by his accusers, that “amongst the adorers of Augustus, who went in fraternities from house to house, he had admitted one Cassius, a mimic and prostitute; and having sold his gardens, had likewise with them sold the statue of Augustus.” The crime imputed to Rubrius was, “that he had sworn falsly by the divinity of Augustus.” When these accusations were known to Tiberius, he wrote to the Consuls, “that Heaven was not therefore decreed to his father, that the worship of him might be a snare to the citizens of Rome; that Cassius the player was wont to assist with others of his profession at the interludes consecrated by his mother to the memory of Augustus: neither did it affect religion, that his effigies, like other images of the Gods, was comprehended in the sale of houses and gardens. As to the false swearing by his name, it was to be deemed the same as if Rubrius had profaned the name of Jupiter; but to the Gods belonged the avenging of injuries done to the Gods.”

  Not long after, Granius Marcellus, Prætor of Bithynia, was charged with high treason by his own Quæstor Cepio Crispinus; Romanus Hispo, the pleader, supporting the charge. This Cepio began a course of life, which, through the miseries of the times and the bold wickedness of men, became afterwards famous. At first, needy and obscure, but of busy spirit, he made court to the cruelty of the Prince by occult informations; and presently, as an open accuser, grew terrible to every distinguished Roman. This procured him credit with one, hatred from all, and made a precedent, to be followed by others, who from poverty became rich; from being contemned, dreadful; and in the destruction which they brought upon others, found at last their own. He accused Marcellus of “malignant words concerning Tiberius;” an inevitable crime! when the accuser, collecting all the most detestable parts of the Prince’s character, alledged them as the expressions of the accused: for, because they were true, they were believed to have been spoken. To this Hispo added, “that the statue of Marcellus was by him placed higher than those of the Cæsars; and that, having cut off the head of Augustus, he had in the room of it set the head of Tiberius.” This enraged him so, that breaking silence, he cried, “he would himself, in this cause, give his vote explicitly, and under the tye of an oath.” By this he meant to force the assent of the rest of the Senate. There remained even then some faint traces of expiring liberty. Hence Cneius Piso asked him; “In what place, Cæsar, will you chuse to give your opinion? If first, I shall have your example to follow: if last, I fear I may ignorantly dissent from you.” The words pierced him, but he bore them, the rather as he was ashamed of his unwary transport; and he suffered the accused to be acquitted of high treason. To try him for the public money, was referred to the proper judges.

  Nor sufficed it Tiberius to assist in the deliberations of the Senate only: he likewise sate in the seats of justice; but always on one side, because he would not dispossess the Prætor of his chair; and by his presence there, many ordinances were established against the intrigues and solicitations of the grandees. But while private justice was thus promoted, public liberty was likewise overthrown. About this time Pius Aurelius the Senator, whose house, yielding to the pressure of the public road and aqueducts, had fallen, complained to the Senate, and prayed relief; a suit opposed by the Prætors who managed the treasury: but he was relieved by Tiberius, who ordered him the price of his house; for he was fond of being liberal upon honest occasions; a virtue which he long retained, even after he had utterly abandoned all other virtues. Upon Propertius Celer, once Prætor, but now desiring leave to resign the dignity of Senator, as a burden to his poverty, he bestowed a thousand great sesterces * , upon ample information that Celer’s necessities were derived from his father. Others, who attempted the same thing, he ordered to lay their condition before the Senate; and from an affectation of severity, was thus austere, even where he acted with uprightness. Hence the rest preferred poverty and silence to begging and relief.

  The same year the Tiber, being swelled with continual rains, overflowed the level parts of the city; and the common destruction of men and houses followed the returning flood. Hence Asinius Gallus moved, “that the Sibylline Books might be consulted.” Tiberius opposed it, equally smothering all inquiries whatsoever, whether into matters human or divine. To Ateius Capito, however, and Lucius Arruntius, was committed the care of restraining the river within its banks. The provinces of Achaia and Macedon, praying relief from their public burdens, were for the present discharged of their proconsular government, and subjected to the Emperor’s Lieutenants. In the entertainment of gladiators at Rome, Drusus presided: it was exhibited in the name of Germanicus, and his own; and at it he manifested too much lust of blood, even of the blood of slaves: a quality terrible to the populace; and hence his father was said to have reproved him. His own absence from these shews, was variously construed; by some ascribed to his impatience of a crowd; by others to his reserved and solitary genius, and his fear of an unequal comparison with Augustus, who was wont to be a chearful spectator there. But, that he thus purposely furnished matter for exposing the cruelty of his son there, and for raising him popular hate, is what I would not believe; though this too was asserted.

  The dissensions of the theatre, begun last year, broke out now more violently, with the flaughter of several, not of the people only, but of the soldiers, with that of a Centurion: nay, a Tribune of a Prætorian Cohort was wounded, whilst they were securing the magistrates from insults, and quelling the licentiousness of the rabble. This riot was canvassed in the Senate, and votes were passing for impowering the Prætors to whip the players. Haterius Agrippa, Tribune of the People, opposed it; and was sharply reprimanded by a speech of Asinius Gallus. Tiberius was silent, and to the Senate allowed these empty apparitions of liberty. The opposition, however, prevailed, in reverence to the authority of Augustus, who, upon a certain occasion, had given his judgment, “that players were exempt from stripes:” nor would Tiberius assume to violate any words of his. To limit the wages of players, and restrain the licentiousness of their partizans, many decrees were made: the most remarkable were, “that no Senator should enter the house of a Pantomime; no Roman Knight attend them abroad; they should shew no where but in the theatre; and the Prætors should have power to punish with exile any insolence in the spectators.”

  The Spaniards were, upon their petition, permitted to build a temple to Augustus, in the colony of Terragon; an example for all the provinces to follow. In answer to the People, who prayed to be relieved from the Centesima, a tax of one in the hundred, established at the end of the civil wars, upon all vendible commodities; Tiberius by an edict declared, “that upon this tax depended the fund for maintaining the army: Nor even thus was the Commonwealth equal to the expence, if the Veterans were dismissed before their twentieth year.” So that the concessions made them during the late sedition, to discharge them finally at the end of sixteen years, as they were made through necessity, were for the future abolished.

  It was next proposed to the Senate, by Arruntius and Ateius, whether, in order to restrain the overflowing of the Tiber, the channels of the several rivers and lakes by which it was swelled, must not be diverted? Upon this question the deputies of several cities and colonies were heard. The Florentines besought, “that the bed of the Clanis might not be turned into their river Arnus; for that the same would prove their utter ruin.” The like plea was urged by the Interamnates; “since the most fruitful plains in Italy would be lost, if, according to the project, the Nar, branched out into rivulets, overflowed them.” Nor were the Reatinians less earnest against, stopping the outlets of the lake Velinus into the Nar; “otherwise, they said, it would break over its banks, and stagnate all the adjacent country: the direction of nature was best in all natural things: it was she that had appointed to rivers their courses and discharges, and set them their limits as well as their sources. Regard too was to be paid to the religion of our Latin allies, who, esteeming the rivers of their country sacred, had to them dedicated priests, and altars, and groves. Nay, the Tiber himself, when bereft of his auxiliary streams, would flow with diminished grandeur.” Now, whether it were that the prayers of the colonies, or the difficulty of the work, or the influence of superstition prevailed; it is certain, the opinion of Piso was followed, that nothing should be altered.

  To Poppeus Sabinus was continued his province of Mœsia; and to it was added that of Achaia and Macedon. This too was part of the politics of Tiberius, to prolong governments, and maintain the same men in the same armies, or civil employments, for the most part, to the end of their lives; with what view, is not agreed. Some think, “that from an impatience of returning cares, he was for making, whatever he once liked, perpetual.” Others, “that from the malignity of his invidious nature, he regretted the preferring of many.” There are some who believe, “that as he had a crafty penetrating spirit, so he had an understanding ever irresolute and perplexed.” So much is certain, that he never courted any eminent virtue, yet hated vice: from the best men he dreaded danger to himself; and disgrace to the public from the worst. This hesitation mastered him so much at last, that he committed foreign governments to some, whom he meant never to suffer to leave Rome.

  Concerning the management of consular elections, either then, or afterwards, under Tiberius, I can affirm scarce any thing: such is the variance about it, not only amongst historians, but even in his own speeches. Sometimes, not naming the candidates, he described them by their family, by their life and manners, and by the number of their campaigns; so as it might be apparent whom he meant. Again, avoiding even to describe them, he exhorted the candidates, not to disturb the election by their intrigues, and promised himself to take care of their interests. But chiefly, he used to declare, “that to him none had signified their pretensions, but such whose names he had delivered to the Consuls; others too were at liberty to offer the like pretensions, if they trusted to the favour of the Senate, or their own merits.” Specious words! but intirely empty, or full of fraud; and, by how much they were covered with the greater guise of liberty, by so much threatning a more hasty and devouring bondage.

  [a ]About a Million of Crowns.

  [b ]About eighty-seven thousand five hundred Crowns.

  [c ]About twenty-five Crowns.

  [d ]About seven Crowns and a half.

  [a ]Under that excellent Prince Titus.

  [b ]Under that terrible tyrant Domitian.

  [* ]About five and twenty thousand Crowns.

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  6: 1f: Power & Corruption among the Ancients - Tacitus Annals Book VI

  Publius Cornelius Tacitus, The Works of Tacitus. In Four Volumes. To which are prefixed, Political Discourses upon that Author by Thomas Gordon. The Second Edition, corrected. (London: T. Woodward and J. Peele, 1737). Vol. 2. Chapter: BOOK VI.

  Accessed from oll.libertyfund.org/title/785/79115 on 2009-10-19

  The text is in the public domain.

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  BOOK VI.

  The SUMMARY.

  THE strange and libidinous revellings of the ancient Emperor in his solitary retreat at Capreæ. Many accusations; that of Marcus Terentius, and his singular defence. L. Piso, his death and fine character. The office of Governor of Rome, how it began, and by whom exercised. Debate concerning the Sybilline books, and the restrictions to be observed in admitting them. A sedition at Rome upon a dearth of bread-corn. Two daughters of Germanicus married, one to L. Cassius, another to Marcus Vinicius. Regulations against usury. Fresh accusations upon the law of Majesty. Numbers executed at once as confederates with Sejanus, and their coarses exposed. Caligula married to Claudia; his character and dissimulation. Tiberius presages the sovereignty of Galba. His dealings with the astrologers: A remarkable story of Thrasullus. The miserable and violent end of Drusus the son of Germanicus, as also of Agrippina. The character and voluntary death of Nerva the great lawyer, with the end of other illustrious men. A Phœnix seen in Ægypt, with traditions concerning that miraculous bird. Fresh accusations and deaths. Deputies from Parthia for a King. Tiberius establishes a King there, then another. Lucius Vitellius sent to settle the East; his various character. Wars between the Parthians and Armenians. Artabanus expulsed from his kingdom, seeks refuge in Scythia. Tiridates settled in his room by the conduct and army of Vitellius. More illustrious Romans accused, with their condemnation and ends. The Clitæans, a people of Cappadocia, their revolt and defeat. Tiridates dethroned, and Artabanus recalled. A terrible conflagration at Rome: The liberality of Tiberius at that conjuncture. He deliberates with himself about a successor. His sickness, death and character.

  CNeius Domitius and Camillus Scribonianus had begun their Consulship, when the Emperor, having crossed the channel between Capreæ and Surrentum, sailed along the shore of Campania, unresolved whether he should proceed to Rome, or counterfeiting a shew of coming, because he had determined not to come. He often approached to the neighbourhood of the City, even visited the Gardens upon the Tiber; but at last resumed his old retirement, the gloomy rocks and solitude of the sea, ashamed of his cruelties, and abominable lusts, in which he rioted so outrageously, that, after the fashion of Royal Tyrants, the children of ingenuous parentage became the objects of his pollution; nor in them was he struck with a lovely face only, or the graces of their persons; but in some their boyish and blushing innocence, in others their nobility and the glory of their ancestors, became the provocatives of his unnatual passion. Then likewise were devised the filthy names, till then unknown, of the Sellarii and Spintriæ, expressing the odious lewdness of the place, and the manifold methods of prostitution practised in it. He moreover entertained professed procurers, to look out and carry off the willing by the allurements of presents, the backward by terror and threats; and when their parents or kindred with-held their children, they had recourse to force, seisure, treated them like captives, and with all licentious rage.

  At Rome, in the beginning of the year, as if the iniquities of Livia had been but just discovered, and not even long since punished, furious orders were passed even against her Statues and memory, as also, “That the effects of Sejanus should be taken from the public treasury, and placed in that of the Emperor:” as if such translation availed the state. Yet such was the motion of the Scipios, the Silani, and the Cassii, who urged it, each almost in the same words, but all with mighty zeal and earnestness; when, on a sudden, Togonius Gallus, while he would be thrusting his own meanness amongst names so greatly illustrious, became the object of derision; for the besought the Prince “to chuse a body of Senators, of whom twenty, drawn by lot and under arms, should wait upon him, and defend his person, as often as he entered the Senate.” He had weakly credited a Letter from the Emperor, requiring “the guard and protection of one of the Consuls, that he might return in safety from Capreæ to Rome.” Tiberius, however, returned thanks to the Senate for such an instance of affection; but, as he was wont to mix pleasantry with things serious, he asked, “How was it to be executed? What Senators were to be chosen? Who to be admitted? Whether always the same, or a continued succession? Whether young Senators, or such as had borne dignities? Whether those who were Magistrates, or those exercising no Magistracy? Moreover, what a becoming figure they would make, grave Senators, men of the gown, under arms at the entrance of the Senate! In truth, he held not his life of such importance, to have it thus protected by arms.” So much in answer to Togonius, without asperity of words; nor did he, farther than this, press them to cancel the motion.

  But Junius Gallio escaped not thus. He had proposed, “That the Prætorian soldiers, having accomplished their term of service, should thence acquire the privilege of sitting in the fourteen rows of the Theatre allotted to the Roman Knights.” Upon him Tiberius fell with violent wrath, and, as if present, demanded, “What business had he with the soldiers? men whose duty bound them to observe only the orders of the Emperor, and from the Emperor alone to receive their rewards. Gallio had, forsooth, discovered a recompence which had escaped the sagacity of the deified Augustus! Or, was it not rather a project started by a mercenary of Sejanus, to raise sedition and discord, to debauch the rude minds of the soldiers with the shew and bait of new honour, to corrupt their discipline, and set them loose from military restrictions?” This reward had the studied flattery of Gallio, who was instantly expelled the Senate, and then Italy: Nay, it became a charge upon him, that his exile would be too easy, having for the place of it chosen Lesbos, an Island noble and delightful; he was therefore haled back to Rome, and confined in the house of a Magistrate. Tiberius, in the same Letter, demanded the doom of Sextus Paconianus, formerly Prætor, to the extreme joy of the Senate, as he was a man bold and mischievous, one armed with snares, and continually diving into the purposes and secrer transactions of all men, and one chosen by Sejanus, for plotting the overthrow of Caligula. When this was now laid open, the general hate and animosities long since conceived against him, broke violently out, and had he not offered to make a discovery, he had been instantly condemned to death.

  As the person he arraigned, proved to be Latinius Latiaris, the accuser and the accused, two men equally detested, administered a most grateful scene. Latiaris, as I have recounted, had been the chief in betraying Titius Sabinus, and was now the first that suffered. During these transactions, Haterius Agrippa encountered the Consuls of the preceding year; “How came they to be silent now, they who had impeached each other of treason then? In truth, common dread, and consciences equally guilty, ought to be reckoned the bonds and articles of their present cessation. But the fathers must not pass unobserved what from themselves they had heard.” It was answered by Regulus, “That there still remained time to procure punishment, and he would do it effectually when the Prince should be present.” Trio pleaded “the usual emulation between collegues, and that what they two had uttered in the heat of dissension, were better blotted out of remembrance.” Agrippa still persisting, Sanquinius Maximus, one of the Consulars, besought the Senate, “That they would not thus heighten the anxieties of the Emperor, by wantonly hunting after matter of fresh asperity; and that, where remedies were wanting, he alone was abundantly sufficient to apply them.” Thus was safety procured to Regulus, and to Trio a delay of his doom. For Haterius; he became the more detested, since, emaciated with debauches and lubricity, and protected by his voluptuous sloth against all peril from the Prince’s cruelty, he meditated, in the midst of cups and harlots, the destruction of illustrious men.

  The next impeached was Cotta Messalinus, the author of every the most bloody counsel, and thence long and intensely hated. The first opportunity was therefore snatched to fall upon him with a combination of crimes, as that he had called Caius Caligula by the feminine name of Caia Caligula, and branded him with constuprations of both kinds; that when he celebated among the priests the birthday of Augusta, he had stiled the entertainment a funeral supper; and that complaining of the great sway of Marcus Lepidus, and of Lucius Arruntius, with whom he had a suit about money, he had added, “They, indeed, will be supported by the Senate, but I by my little Tiberius.” Of all this he stood exposed to conviction by men of the first rank in Rome, who being earnest to attack him, he appealed to Cæsar, from whom soon after a Letter was brought in behalf of Cotta; in it he recounted “the beginning of their friendship,” repeated “his many good services to himself,” and desired “that words perversly construed, and humorous tales told at an entertainment, might not be wrested into crimes.”

  Most remarkable was the beginning of that Letter; for in these words he introduced it; “What to write you, Conscript Fathers, or in what manner to write, or what at all not to write at this instant, if I can determine, may all the Deities, Gods and Goddesses, doom me still to more cruel agonies than those under which I feel myself perishing daily.” So closely did the bloody horror of his cruelties and infamy haunt this man of blood, and became his torturers! Nor was it at random what the wisest of all men was wont to affirm, that if the hearts of Tyrants were displayed, they would be seen full of deadly wounds and gorings, since what the severity of stripes is to the body, the same to the soul is the bitter anguish of cruelty, lust, and execrable pursuits. To Tiberius not his Imperial fortune, not his gloomy and inaccessible solitudes, could ensure tranquillity, nor exempt him from feeling, and even avowing, the rack in his breast, and the avenging furies that pursued him.

  After this it was left to the discretion of the Senate to proceed as they listed against Cæcilianus the Senator, “who had produced against Cotta a charge of many heavy articles;” and it was resolved, “to subject him to the same penalties inflicted upon Aruseius and Sanquinius, the accusers of Lucius Arruntius.” A more signal instance of honour than this had never befallen Cotta, who, noble in truth, but through luxury indigent, and, for the baseness of his crimes, detestable, was, by the dignity of this amends, equalled in character to the most venerable reputation and virtues of Arruntius. Thereafter were arraigned Quintus Servæus, and Minutius Thermus; Servæus formerly Prætor, and once the follower of Germanicus; Minutius, of the Equestrian rank, and though distinguished, yet never elated, with the friendship of Sejanus: hence the greater commiseration upon both. Tiberius, on the contrary, charged them “as the leaders and principals in treason,” and directed Caius Cestius the elder “to declare to the Senate what he had written to him.” Thus Sestius undertook the accusation. This was the most pestilent calamity of those times, when the illustrious chiefs of the Senate degraded themselves to the vile office of the meanest informers, some in the face of the sun, many in the treacherous ways of secrecy, and both without regard to the ties of blood or friendship; no distinction of kinsmen from strangers, none of the familiar from the unacquainted; no means left to discover, whether for recent imputations, or for facts covered in a course of years with oblivion. For words spoken in the Forum, spoken at entertainments, upon what subject soever spoken, the speakers were accused; every one striving to get the start of another, and to arraign his man; some for their own protection, but most, as it were, smitten with the disease of informing, and captivated with a common contagion. Minutius and Servæus were condemned, but to save themselves became evidence; and thus there were drawn into the same mishap Julius Africanus, and Seius Quadratus, the former from Saintes a City of Gaul; from whence was the other I have not discovered. Neither am I unaware that by most Writers the doom and sufferings of many of the accused, are wholly omitted; either that they were weary of the excessive multiplicity, or apprehensive that the tedious recital, which to themselves proved surfeiting and melancholy, would with equal irksomness affect their readers. But to me, many peculiar passages have occurred deserving to be known, however not published by others.

  For, at a juncture when all men else affected to renounce the character of friends to Sejanus, a Roman Knight, his name Marcus Terentius, and then upon his trial on this very account, dared to avow it before the Senate in a speech on this wise: “In my present circumstances, to deny the charge were, perhaps, more expedient than to acknowledge it; but, whatever be the result, I will own, that I was the friend of Sejanus, that I even sought to be his friend, and gloried when I had gained his friendship. I saw him collegue with his father Strabo in the command of the Prætorian Cohorts, and next governing the state and the soldiery at once as a Minister and a General. His kinsmen and friends were covered with public honours, and prevalent with the Prince was every man’s credit in proportion to his intimacy with Sejanus. Those, on the contrary, under his displeasure, were the despairing objects of persecution and wretchedness. Names and instances I bring none; but with myself I will vindicate, and at my own single peril, all those friends of his, who, like myself, were guiltless of his last designs. Sejanus the Vulsinian was not the man whom we courted; no; for the object of our adorations we chose Sejanus a part of the Claudian, a part of the Julian house, into which, by alliance, he was ingrafted; Sejanus thy son-in-law, O Cæsar, thy collegue in the Consulship, and that Sejanus who, under thee, administered the Empire. To us it belongs not to judge who is he whom above all others thou dost exalt, nor for what causes thou hast exalted him. Upon thee the Gods have devolved the supreme disposal of things, and to us remains the glory of obedience. Facts and things obvious we all behold; we perceive who it is upon whom thou dost accumulate wealth and honours, who they are that hold and distribute the supreme terrors and blessings of power; and that all these were the characteristics of Sejanus, no man will deny. But to pry into the profound thoughts of the Prince, and the counsels which he industriously hides, is forbidden and hazardous, nor even with hazard can it be effected. Recal not to mind, Conscript Fathers, the last day of Sejanus; remember him for the space of sixteen years, a time when we adored even such of his retainers as Satrius and Pomponius; and to be then acquainted with his porters and franchized slaves, was esteemed a grand honour. What therefore is the result? Is this defence universal, and does it serve indifferently all the friends of Sejanus? Far from it; let just limits bound it. Let the conspiracy against the State, let the bloody designs upon the Prince, be punished. As to the offices of friendship, as to the instances of benevolence towards Sejanus, the same measure of justice will acquit thee, Cæsar, and us.”

  The magnanimity of the speech, added to the joy, that one was at last found, who reasoned aloud as in their hearts they did all, produced such powerful effect, that his accusers were for this, and other delinquencies, sentenced to banishment or death. Thereafter followed Letters from Tiberius against Sextus Vestilius, formerly Prætor; one whom he had long since, as a man exceeding dear to his brother Drusus, adopted into the class of his friends. The displeasure conceived against him arose from his either having composed an invective against the impurities of Caligula, or from his having been calumniated to have done it, which being believed, he was forbid the Prince’s table, and thence purposed to die. Having with an aged hand tried the steel, and feebly pierced his veins, he bound them up, and, by a Memorial, besought Tiberius; but receiving a merciless answer, opened them again for ever. Next were charged with treason, all in a band, Annius Pollio, Appius Silanus, Mamercus Scaurus, Calvisius Sabinus, and Vinicianus added to his father Pollio; a band of illustrious men, all noble in descent, some distinguished with the first dignities. Horror seized the Fathers; for what Senator was exempt from friendship or alliance with so many men of such signal quality? But one of the evidence, his name Celsus, Tribune of a City-Cohort, acquitted Appius and Calvisius. The trial of Pollio, Vinicianus, and Scaurus, was, by the Emperor postponed, till he could himself attend it in Senate. Upon Scaurus, however, he bestowed some tragical and boding notes of vengeance.

  Nor could even women escape the rage of accusations. With designs to usurp the government, they could not be charged; their tears are therefore made treason, and Vitia, mother to Fusius Geminus, once Consul, was sentenced to execution in her old age, for bewailing the blood of her son. These were the proceedings in Senate; nor was the Emperor employed elsewhere in different strains of cruelty. By him Vescularius Atticus and Julius Marinus, were doomed to death, two of his oldest friends, men who had followed him to Rhodes, and never forsook him at Capreæ. Vesgularius was his secret inter-agent in the plot against Libo; and by the co-operation of Marinus had Sejanus effected the ruin of Curtius Atticus. Hence the more joy followed their fall, to see them overtaken by precedents of their own traiterous contriving. About the same time died Lucius Piso, the Pontiff; and, by a felicity, then rare in so much splendour and elevation, died by the course of nature. The author he never himself was of any servile motion, and ever wise in moderating such motions from others where necessity enforced his assent. That his father had sustained the sublime office of Censor, I have before remembered. He himself lived to fourscore years, and, for his warlike feats in Thrace, had obtained the glory of Triumph. But from hence arose his most distinguished glory, that being created Governor of Rome, a jurisdiction newly instituted, and the more difficult, as not yet settled into public reverence, he tempered it wonderfully, and possessed it long.

  For, of old, to supply the absence of the Kings, and afterwards of the Consuls, that the City might not remain without a ruler, a temporary Magistrate was appointed to administer justice, and watch over exigencies; and it is said that by Romulus was deputed Denter Romulius, Numa Marcius by Tullus Hostilius, and by Tarquin the Proud Spurius Lucretius. The same delegation was made by the Consuls; and there remains still a shadow of the old institution, when, during the Latin Festival, one is authorized to discharge the Consular function. Moreover, Augustus, during the Civil Wars, committed to Cilnius Mæcenas, of the Equestrian Order, the Government of Rome and of all Italy. Afterwards, when sole master of the Empire, and moved by the immense multitude of people, and the slowness of relief from the Laws, he chose a Consular to bridle the licentiousness of the slaves, and to awe such turbulent citizens as are only quiet from the dread of chastisement. Messala Corvinus was the first invested with this authority, and in a few days dismissed, as a man insufficient to discharge it. It was then filled by Taurus Statilius, who, though very ancient, sustained it with signal honour. After him Piso held it for twenty years, with a credit so high and uninterrupted, that he was distinguished with a public funeral, by decree of Senate.

  A motion was thereafter made in Senate by Quinctilianus, Tribune of the people, concerning a Book of the Sybll, which Caninius Gallus, one of the College of fifteen, had prayed “might be received by a decree amongst the rest of that Prophetess.” The Decree passed without opposition, but was followed by Letters from Tiberius. In them, having gently chid the Tribune, “as young, and therefore unskilled in the ancient usages,” he upbraided Gallus, “that he, who was so long practised in the science of sacred ceremonies, should, without taking the opinion of his own College, without the usual reading and deliberation with the other Priests, deal, by surprize, with a thin Senate, to admit a prophetic Book of an uncertain author.” He also advertised them “of the conduct of Augustus, who, to suppress the multitude of fictitious predictions every-where published under the solemn name of the Sybil, had ordained, that within a precise day, they should be carried to the City-Prætor, and made it unlawful to keep them in private hands.” The same had likewise been decreed by our ancestors, when, after the burning of the Capitol in the Social War, the Rhymes of the Sybil (whether there were but one, or more) were every-where sought, in Samos, Ilium, and Erythræ, through Africa too and Sicily, and all the Roman Colonies, with injunctions to the Priests, that, as far as human wit could enable them, they would separate the genuine. Therefore, upon this occasion also, the Book was subjected to the inspection of the Quindecemvirate.

  Under the same Consuls, the dearth of corn had nigh raised a sedition. The populace for many days urged their wants and demands in the public Theatre, with a licentiousness towards the Emperor higher than usual. He was alarmed with this bold spirit, and censured the Magistrates and Senate, “that they had not by the public authority quelled the people.” He recounted “the continued supplies of grain which he had caused to be imported, from what provinces, and in how much greater abundance than those procured by Augustus.” So that for correcting the populace, a decree passed, framed in the strain of ancient severity; nor less vigorous was the edict published by the Consuls. His own silence, which he hoped would be taken by the people as an instance of moderation, was by them imputed to his pride.

  In the end of the year Geminius, Pompeius, and Celsus, all Roman Knights, were for a conspiracy sentenced to the pains of treason. Of these, Geminius had by prodigal expence, and voluptuous living, gained the friendship of Sejanus, but never any participation in his counsels. Julius Celsus the Tribune, as he lay in fetters, stretched his chain over his head, and, by vehement straining against it, broke his neck. But over Rubrius Fabatus a guard was set, as to him it was objected, that, despairing of the Roman State, he meant to fly for refuge to the Parthians. He was, in truth, apprehended in the Streights of Sicily, and when by a Centurion haled back to Rome, he assigned no satisfactory motives for so long a voyage. He remained however unhurt, through oblivion rather than mercy.

  In the Consulship of Servius Galba and Lucius Sylla, Tiberius disposed of his grand-daughters. He had long deliberated upon whom to bestow them; and now the young Ladies were of age, he chose for their husbands Lucius Cassius and Marcus Vinicius. The last was originally from Cagli a Roman colony in Campania, and of an Equestrian family; but his father and grand-father had been Consuls; himself of a gentle temper and polite eloquence. Cassius sprung from a Plebeian stock, but ancient and honourable, was brought up under the strict tuition of his father, and more admired for the easiness than vigour of his spirit. To him the Emperor married Drusilla, and to Vinicius Julia, both daughters of Germanicus, and upon this subject wrote to the Senate, with a brief commendation of the young men. Then accounting for his absence by causes extremely foreign, he proceeded to considerations more weighty, what animosities and hate upon himself he had drawn by his zeal for the Republic; and desired, “that Macro, Captain of his Guards, with some few Tribunes and Centurions, might always accompany him into the Senate.” To this purpose an ordinance passed, copious, and without limitation as to number or condition. Yet so far was Tiberius from coming near the public deliberations there, that he never entered the walls of Rome; even in the feint approaches which he made, he chose chiefly crooked and solitary ways, hesitating, guilty, and flying his country.

  In the mean while, the whole band of accusers broke loose upon those who augmented their wealth by Usury, in contradiction to a Law of Cæsar the Dictator, “for ascertaining the terms of lending money, and holding mortgages in Italy;” a Law become long since obsolete, through the selfish passions of men, sacrificing public good to private gain. Usury was, in truth, an inveterate evil in Rome, and the eternal cause of civil discord and seditions, and therefore restrained, even in ancient times, while the public manners were not yet greatly corrupted. For, first it was ordained by a Law of the twelve Tables, “that no man should take higher Interest than twelve in the hundred;” when before it was exacted at the pleasure of the rich. Afterwards by a regulation of the Tribunes it was reduced to six, and at last was quite abolished. By the people too repeated Statutes were made, for obviating all elusions, which, by whatever frequent expedients repressed, were yet through wonderful devices still springing up afresh. Gracchus the Prætor was therefore now appointed to inquire into the complaints and allegations of the accusers; but, appalled with the multitude of those threatened by the accusation, he had recourse to the Senate. The Fathers also were dismayed, (for of this fault not a soul was guiltless) and sought and obtained impunity from the Prince; and a year and six months were granted for balancing all accounts between debtors and creditors, agreeably to the direction of the Law.

  Hence a great scarcity of money; for, besides that all debts were at once called in, so many delinquents were condemned, that by the sale of their effects, the current coin was swallowed up in the public treasury, or in that of the Emperor. Against this stagnation, the Senate had provided, “that two thirds of the debts should by every creditor be laid out upon lands in Italy.” But the creditors warned in the whole; nor could the debtors without breach of faith divide the payment. So that at first, meetings and intreaties were tried; and at last it was contested before the Prætor. And the project applied as a remedy; namely, that the debtor should sell, and the creditor buy, had a contrary operation: for the usurers hoarded up all their treasure for purchasing of lands, and the plenty of estates to be sold miserably sinking the price, the more men were indebted, the more difficult they found it to sell. Many were utterly stript of their fortunes; and the ruin of their private patrimony drew headlong with it that of their reputation, and all public preferment. The destruction was going on, when the Emperor administered relief, by lending a hundred thousand great sesterces* for three years, without interest, provided each borrower pawned to the people double the value in inheritance. Thus was credit restored, and by degrees private lenders too were found; so that the order of Senate injoining the purchase of lands, was no longer observed; like most other reformations, keen in the beginning, and slighted at last.

  Rome was next re-visited with her former terrors, and Considius Proculus suddenly questioned for treason. While he celebrated his birth-day, void of every apprehension, he was hurried to the Senate, and underwent, in the same instant, the sentence and the pains of death. Sancia too, his sister, was interdicted fire and water, at the accusation of Quintus Pomponius, a man of turbulent temper, who pretended, “that he followed these and the like practices, to ingratiate himself with Tiberius, and thence to obviate the fate which threatened his brother Pomponius Secundus.” Pompeia Macrina was also sentenced to exile; she whose husband Argolicus and his father Laco, two of the prime nobility of Greece, had already fallen by the cruelty of Tiberius. Her father, an illustrious Roman Knight, and her brother formerly Prætor, when they saw their own hastening doom, slew themselves. The crime imputed to them was, “that their great grandfather, Theophanes of Mytelene, had been one of the confidents of Pompey the Great, and that to Theophanes, when dead, the flattering Greeks had paid divine honours.”

  These were followed by Sextus Marius, the most wealthy man of Spain. He was accused of incest with his daughter, and thrown head-long from the Tarpeian rock; but, as an indisputable proof that his abundant riches procured his bane, his mines of gold, though forfeited to the public, were by Tiberius appropriated to himself. His cruelty, at last, being but inflamed by incessant executions and blood, all those kept in prison under accusation of any attachment to Sejanus, were by his command put to the slaughter. Exposed to the sun lay the sad monuments of the mighty butchery, those of every sex and age, the illustrious and the mean; their carcasses ignominiously thrown, apart or on heaps; neither was it permitted to their surviving friends or kindred, to approach them, to bewail them, nor even any longer to behold them. But, round the dead, Guards were placed, who watched faces, and marked the signs of sorrow; and, as the bodies putrified, saw them dragged to the Tyber, where they floated in the stream, or were driven upon the banks, no man daring to burn them, none to touch them. The force of fear had cut off the intercourses of humanity; and in proportion to the growth of tyranny, every symptom of commiseration was banished.

  About the same time, Claudia, daughter to Marcus Silanus, was given in marriage to Caligula, who had accompanied his grand-father to Capreæ, having always hid under a subdolous guise of modesty, his savage and inhuman spirit; even upon the condemnation of his mother, even for the exile of his brothers, not a word escaped him, not a sigh, nor groan. He was so blindly observant of Tiberius, that he studied the bent of his temper, and seemed to possess it, practised his looks, imitated the change and fashion of his dress, and affected his words and manner of expression. Hence the observation of Passienus, the Orator, grew afterwards famous, “that there never lived a better slave, nor a worse master.” Neither would I omit the presage of Tiberius concerning Galba, then Consul. Having sent for him, and sifted him upon several subjects, he at last told him, in Greek, “and thou, Galba, shalt hereafter taste of Empire;” signifying his late and short sovereignty. This he uttered from his skill in Astrology, which at Rhodes he had leisure to learn, and had Thrasullus for his teacher, whose capacity he proved by this following trial.

  As often as he consulted this way concerning any affair, he retired to the roof of the house, attended by one freedman trusted with the secret. This man, strong of body, but destitute of letters, guided along the Astrologer, whose art Tiberius meant to try, over solitary precipices (for upon a rock the house stood) and, as he returned, if any suspicion arose that his predictions were vain, or that the author designed fraud, cast him headlong into the sea, to prevent his making discoveries. Thrasullus being therefore led over the same rocks, and minutely consulted, his answers were full, and struck Tiberius, as approaching Empire and many future revolutions were specifically foretold him. The artist was then questioned, “whether he had calculated his own nativity, and thence presaged what was to befall him that same year, nay, that very day?” Thrasullus surveying the positions of the stars, and calculating their aspects, began at first to hesitate, then to quake, and the more he meditated, being more and more dismayed with wonder and dread, he at last cried out, “that over him just then hung a boding danger and well-nigh fatal.” Forthwith Tiberius embraced him, congratulated “him upon his foresight of perils, and his security from them;” and esteeming his predictions as so many oracles, held him thenceforward in the rank of his most intimate friends.

  For myself, while I listen to these and the like relations, my judgment wavers, whether things human are in their course and rotation determined by Fate and immutable necessity, or left to roll at random. For upon this subject the wisest of the ancients and those addicted to their Sects, are of opposite sentiments. Many are of opinion, “that to the Gods neither the generation of us men, nor our death, and, in truth, neither men nor the actions of men, are of any importance or concernment; and thence such numberless calamities afflict the upright, while pleasure and prosperity surround the wicked.” Others hold the contrary position, and believe “a Fate to preside over events; a Fate however not resulting from wandring stars, but coeval with the first principles of things, and operating by the continued connection of natural causes. Yet their Philosophy leaves out course of life in our own free option; but that, after the choice is made, the chain of consequences is inevitable: neither is that good or evil which passes for such in the estimation of the vulgar; many who seem wounded with adversity are yet happy, numbers that wallow in wealth, are yet most wretched: since the first often bear with magnanimity the blows of fortune, and the latter abuse her bounty in baneful pursuits.” For the rest, it is common to multitudes of men, “to have each their whole future fortunes determined from the moment of their birth; or if some events thwart the prediction, it is through the mistakes of such as pronounce at random, and thence debase the credit of an art, which, both in ages past and our own, hath given signal instances of its certainty.” For, to avoid lengthening this digression, I shall remember in its order, how by the son of this same Thrasullus the Empire was predicted to Nero.

  During the same Consulship was divulged the death of Asinius Gallus: that he perished through famine, was undoubted; but whether of his own accord, or by constraint, was held uncertain. The pleasure of the Emperor being consulted, “whether he would suffer him to be buried,” he was not ashamed to grant such a piece of mock mercy, nor even to blame the anticipations of casualty, which had withdrawn the criminal, before he was publicly convicted; as if during three intermediate years between his accusation and his death, there wanted time for the trial of an ancient Consular, and the father of so many Consulars. Next perished Drusus, condemned by his grand-father to be starved; but by gnawing the weeds upon which he lay, he by that miserable nourishment protracted life the space of nine days. Some Authors relate, that, in case Sejanus had resisted and taken arms, Macro had instructions to draw the young man out of confinement (for he was kept in the palace) and set him at the head of the people. Afterwards, because a report ran, “that the Emperor was about to be reconciled to his daughter-in-law and grand-son,” he chose rather to gratify himself by cruelty, than the public by relenting.

  Tiberius, not satiated with the death of Drusus, even after death pursued him with cruel invectives, and, in a Letter to the Senate, charged him with “a body foul with prostitution, with a spirit breathing destruction to his own family, and rage against the Republic;” and ordered to be recited “the Minutes of his words and actions, which had been long and daily registered.” A proceeding more black with horror could not be devised! That for so many years there should be those expresly appointed who were to note down his looks, his groans, his secret and extorted murmurs; that his grand-father should delight to hear the treacherous detail, to read it, and to the public expose it, would appear a series of fraud, meanness and amazement, beyond all measure of faith, were it not for the Letters of Actius the Centurion, and Didymus the freedman; who in them declare, particularly, the names of the slaves set purposely to abuse and provoke Drusus, with the several parts they acted; how one struck him going out of his chamber, and how another filled him with terrors and dismay. The Centurion too repeated, as matter of glory, his own language to Drusus, full of outrage and barbarity, with the words uttered by him under the agonies of famine; that, at first, feigning disorder of spirit, he ventured, in the stile of a madman, dismal denunciations against Tiberius; but, after all hopes of life had forsaken him, then, in steady and deliberate imprecations, he invoked the direful vengeance of the Gods, “that, as he had slaughtered his son’s wife, slaughtered the son of his brother, and his son’s sons, and with slaughters had filled his whole house; so they would, in justice to the ancestors of the slain, in justice to their posterity, doom him to the dreadful penalties of so many murders.” The Senators, in truth, upon this, raised a mighty dinn, under colour of detesting these imprecations; but it was dread which possessed them, and amazement, that he who had been once so dark in the practice of wickedness, and so subtle in the concealment of his bloody spirit, was arrived at such an utter insensibility of shame, that he could thus remove, as it were, the covert of the walls, and represent his own grandson under the ignominious chastisement of a Centurion, torn by the barbarous stripes of slaves, and imploring in vain the last sustenance of life.

  Before the impressions of this grief were worne away, the death of Agrippina was published. I suppose she had lived thus long upon the hopes which from the execution of Sejanus she had conceived; but, feeling afterwards no relaxation of cruelty, death grew her choice: Unless perhaps she were bereaved of nourishment, and her decease feigned to have been of her own seeking. For, Tiberius raged against her with abominable imputations, reproaching her “with lewdness, as the adulteress of Asinius Gallus, and that upon his death she became weary of life.” But these were none of her crimes. Agrippina, impatient of an equal lot, and eager for rule, had thence sacrificed to masculine ambition all the passions and vices of women. The Emperor added, “that she departed the same day on which Sejanus had suffered as a traitor two years before, and that the same ought to be perpetuated by a public memorial.” Nay, he boasted of his clemency, in “that she had not been strangled, and her body cast into the charnel of malefactors.” For this, as for an instance of mercy, the Senate solemnly thanked him, and decreed, “that on the seventeenth of October, the day of both their deaths, a yearly offering should be consecrated to Jupiter for ever.”

  Not long after, Cocceius Nerva, in full prosperity of fortune, in perfect vigour of body, formed a purpose of dying. As he was the incessant companion of the Prince, and accomplished in the knowledge of all Laws, divine and human, Tiberius having learned his design, was earnest to dissuade him, examined his motives, joined entreaties, and even declared, “how grievous to his own spirit it would prove, how grievous to his reputation, if the nearest of his friends should relinquish life, without any cause for dying.” Nerva rejected his reasoning, and compleated his purpose by abstinence. It was alledged by such as knew his thoughts, that the more he saw into the dreadful source and increase of public miseries, the more, transported with indignation and fear, he resolved to make an honest end, in the bloom of his integrity, before his life and credit were assaulted. Moreover, the fall of Agrippina, by a reverse hardly credible, procured that of Plancina. She was formerly married to Cneius Piso; and, though she exulted publicly for the death of Germanicus, yet, when Piso fell, she was protected by the sollicitations of Augusta, nor less by the known animosity of Agrippina. But, as favour and hate were now withdrawn, justice prevailed; and, being questioned for crimes long since sufficiently manifest, she executed, with her own hand, that vengeance which was rather too slow than too severe.

  While the City yet bewailed so many tragical deaths, it was an accession to the public affliction, that Julia the daughter of Drusus, and lately the wife of Nero, was espoused to Rubellius Blandus, whose grandfather was remembered by many to have been only a Roman Knight from Tibur. At the issue of the year, happened the death of Ælius Lamia, and was celebrated with a public funeral. For his last employment, he was Governor of Rome; having been at length discharged from the mock administration of Syria, which he was never suffered to visit. In his descent he was noble, enjoyed a lively old age, and upon his character was derived fresh glory from the with-holding of his Province from him. As Pomponius Flaccus, Proprætor of Syria, died some time after, there arrived Letters from Tiberius. In them he complained, “That all the Senators of distinguished name, and qualified to command Armies, refused that office; hence he was reduced to the necessity of entreaties, to engage some of the Consulars to undertake the rule of provinces.” He thought fit to forget Arruntius, Governor of Spain, already for ten years detained at Rome. The same year also died Marcus Lepidus, of whose wisdom and moderation I have in the former Books inserted abundant instances. Nor does it require more room here to display his nobility, since his race was that of the Æmilii, a race fertile in good citizens; and even those of the same family who lapsed into corruption, continued still to be distinguished by their illustrious dignities and fortune.

  In the Consulship of Paulus Fabius and Lucius Vitellius, after a long vicissitude of ages, the Phœnix arrived in Ægypt, and furnished the most learned of the natives and Greeks, with matter of large and various observations concerning that miraculous bird. The circumstances in which they agree, with many others, that, however disputed, deserve to be known, claim a recital here. That it is a creature sacred to the Sun, and, in the fashion of its head, and diversity of feathers, distinct from other birds, all, who have described its figure, are agreed; about the length of its life, relations vary. It is by the vulgar tradition fixed at five hundred years: but there are those who extend it to one thousand four hundred and sixty one, and assert that the three former Phœnixes appeared in reigns greatly distant, the first under Sesostris, the next under Amasis; and that one was seen under Ptolemy the third King of Ægypt of the Macedonian race, and flew to the City of Heliopolis, accompanied by a vast host of other birds gazing upon the wonderful stranger. But these are, in truth, the obscure accounts of antiquity: between Ptolemy and Tiberius the interval was shorter, not two hundred and fifty years; hence some have believed that the present was a spurious Phœnix, and derived not its origin from the territories of Arabia, since it observed nothing of the instinct which ancient tradition attributes to the genuine; for that the latter, having compleated his course of years, just before his death builds a nest in his native land, and upon it sheds a generative power, from whence arises a young one, whose first care, when he is grown, is to bury his father; neither does he undertake it unadvisedly, but by collecting and fetching loads of myrrh, tries his strength in great journies; and as soon as he finds himself equal to the burden, and fit for the long flight, he rears upon his back his father’s body, carries it quite to the altar of the Sun, and then flies away. These are uncertain tales, and their uncertainty heightened by fables; but that this bird has been sometimes seen in Ægypt, is not questioned.

  At Rome, as the course of slaughter continued unrelenting, Pomponius Labeo, whom I have remembered to have been Governor of Mœsia, chose, by opening his veins, to let out his own blood; as, by his example, did his wife Paxea hers. Such efficacy had the terror of falling by the executioner, that, to escape him, deaths of this sort were readily undergone. Besides, that they who staid to be sentenced, forfeited their estates with their lives, and were debarred the rites of burial; of such, on the contrary, as anticipated condemnation, the bodies were interred, and their wills remained in force. The motive this, and price of dispatch! Tiberius, however, in a Letter to the Senate, argued, “That it was the usage of our ancestors, when they would renounce friendship, to forbid the person obnoxious their house, and by it shut up all intercourse; a usage repeated by himself towards Labeo. Whereas Labeo, who was charged with male-administration, and other crimes, had now, by leaving upon the Prince the odium of his death, sought a veil to his own guilt, and thence falsly terrified his wife, to whom, however criminal, no punishment was meant.” Mamercus Scaurus was thereafter questioned afresh, a man of signal quality, a noble orator, but profligate liver. In his overthrow, the friendship of Sejanus had no share, but an engine no less potent to destroy, the enmity of Macro, who pursued, but with more subtlety, the same depraved politics. He was furnished with a handle from a Tragedy composed by Scaurus, in which were some lines capable of being pointed against Tiberius. But by the accusers, Servilius and Cornelius, the crimes objected were those of “adultery with Livia, and the mysteries of magic.” Scaurus, as became the magnanimity of the ancient Æmilii, prevented condemnation by the persuasion of Sextia his wife, who animated him to die, and died with him.

  And yet the accusers, when opportunity occurred, were surrendered to vengeance, as were this same Servilius and Cornelius, men become famous by the doom of Scaurus; but for accepting from Varius Ligur a bribe to drop prosecution, they were interdicted fire and water, and exiled into different islands. Abudius Rufo too, once Ædile, whilst he brought a charge against Lentulus Getulicus, under whom he had led a Legion, “That he had espoused his daughter to a son of Sejanus,” was himself condemned and banished Rome. Getulicus was at this time Commander of the Legions in upper Germany, and by them wonderfully beloved, for his unbounded clemency, and discipline void of rigour. Neither was he unacceptable to the neighbouring army, through his interest in Lucius Apronius his father-in-law. Hence he was universally believed to have, by a Letter, represented to the Emperor, “That by no choice of his own had he joined affinity with Sejanus, but in compliance with the counsel of Tiberius, and was as liable as Tiberius to be deceived; nor ought one and the same error to pass unblamed in the Prince only, and upon all others draw down deadly vengeance. For his own faith; it was pure and inviolate, and, if against him no plots were framed, would continue unshaken. A successor he would receive as no other than the herald of death. It remained therefore, that between them two they should, as it were, establish a league, by which the Prince should still enjoy all the rest of the Empire, and he himself always retain his province.” This proceeding, however amazing, derived credit from hence, that he only of all that were allied to Sejanus, remained in safety, and even in high favour. Tiberius, indeed, considered himself under the pressure of public hatred, under the weight of extreme age; and that more by reputation than force his authority was upheld.

  In the Consulship of Caius Sestius and Marcus Servilius, there came to Rome some noble Parthians, unknown to Artabanus their King. He had formerly, through dread of Germanicus, reigned with humanity towards his own people, and kept his faith with the Romans; but, afterwards treated us with arrogance, and his subjects with cruelty. His confidence grew from the successful wars which he had waged against the circumjacent nations, from his contempt of Tiberius, as enfeebled through age and unwarlike, and from a greedy passion to possess Armenia, over which Kingdom, upon the death of Artaxias, he established Arsaces his eldest son. This usurpation was followed by an insult, having sent to reclaim “the treasure left by Vonones in Syria and Cilicia,” as also “the re-establishment of the ancient boundaries between the Persians and Macedonians.” He even threatened, in the fulness of vainglory, “That he would invade all the countries possessed by Cyrus, and since by Alexander.” Of this secret embassy from the Parthians, the most powerful promoter was Sinnaces, of a noble family, and correspondent wealth, and, next to him in authority, Abdus the Eunuch, a character no wise despised amongst the Barbarians, but even entrusted with power. These two, in concert with other Grandees, whom they had engaged in the combination, sent to Rome for Phrahates, son of King Phrahates; because, of all the race of the Arsacides, many being murdered by Artabanus, and the rest too young, none else remained to whom they could commit the State. The deputics represented, “That there needed no more than a name and a leader, no more than a descendent of Arsaces espoused by Cæsar, and beheld upon the banks of the Euphrates.”

  It was what Tiberius wished. He invested Phrahates in the pomp of Royalty, and dispatched him with military state to recover his father’s Monarchy; retaining however his old maxims, still to transact foreign affairs by artifice and counsels only, and warily avoid engaging in war. Artabanus the while haveing learnt the combination, was perplexed between different passions; now fear alarmed and retarded him, then thirst of revenge fired and excited him. By the Barbarians too, dissimulation and delay are reckoned servile measures; but instantly to satiate present passion, was the spirit and part of Royalty. Interest, however, prevailed: thus he invited Abdus to a banquet, and secured him by a lingering poison; Sinnaces he managed by presents and dissimulation, and engaged him in the entanglements of business. Now Phrahates arriving in Syria, and there disusing the Roman dress and œconomy, to which for so many years he had been inured, to resume the customs of the Parthians, proved unequal to the precipitate change, which brought a malady upon him that carried him off. But Tiberius forsook not the enterprize; to Artabanus he substituted Tiridates, a fresh competitor, one of the same blood. For the recovery of Armenia, he chose Mithridates, and reconciled him to his brother Pharasmanes, who inherited the sovereignty of Iberia; and over the East, for executing all his schemes there, he placed Lucius Vitellius. I am not unaware, that in Rome this man bore an evil estimation, and that many instances of depravity are related of him; yet in governing of Provinces he acted with primitive uprightness and virtue. It was after his return from thence, that his dread of Caligula, and then his intimacy with Claudius, transformed him into such an odious slave, that he is reckoned to posterity as a pattern of the vile abasement and shocking deformities of flattery: his last character has swallowed up his first, and the excellencies of his younger years are obliterated by an old age black with flagitious crimes.

  Of the petty Kings, Mithridates was the first in motion, and incited Pharasmanes to promote, both by arms and snares, his efforts against Arsaces; so that instruments of subornation were found, who, with store of gold, urged his servants to murder him. At the same time, the Iberians broke into Armenia with numerous forces, and gained the chief City Artaxata. Upon the first tidings of these disasters, Artabanus dispatched, as the champion of his vengeance, his son Orodes, at the head of the Parthian army, and sent abroad to hire auxiliaries. Pharasmanes, on the other hand, joined the Albanian forces to his own, with additional aids from the Sarmatæans, whose Princes engaged themselves on both sides, according to the manner of the nation, to embark for pay in opposite quarrels. But the Iberians were masters of the passes, and thence poured the Sarmatæans over the Caspian Mountains into Armenia: whereas those that advanced to join the Parthians, were with ease debarred entrance, the enemy having shut up every approach, except one between the sea and the uttermost mountains of Albania; and that one was stopped by the tide, which, by the force of the Etesian winds, is during the summer driven over the fords; but in the winter the south wind rolls back the flood, and exhibits a naked strand.

  While Orodes was thus bereft of his Allies, Pharasmanes, strengthened with succours, provoked him to battle, and, as he declined it, insulted him, rode up to his entrenchments, harassed his forragers, and often begirt, as it were with a siege, the quarters of his camp. This enraged the Parthians, who, scorning the unwonted reproach, surrounded the Prince in crowds, and demanded the combat. Their only forces were in horse; but Pharasmanes was likewise powerful in foot: for, the Iberians and Albanians, as they inhabit the rough forests, are thence more inured to hardness and patience. They say, “that they are sprung from Thessaly, by the means of Jason, who having carried away Medea, and had children by her, returned again to Colchos, upon the death of Æeta, and filled the vacant throne.” And many are the traditions which they retain concerning him and the Oracle of Phryxus, in reverence to which none of them will sacrifice a ram, as upon this animal they believe Phryxus to have been carried thither; whether the same were a ram, or only the sign of a ship. Now both armies being embattled, Orodes animated his men with “the grandeur of the Parthian Empire, the Empire of the East, the lasting glory of the Arsacides; and, on the other side, the ignoble name of the Iberians and their hireling soldiery.” Pharasmanes represented to his, that “they had ever defended themselves from the usurpation of the Parthians, and now sought more than defence, even a Kingdom; hence the higher their aims, the more renown to the victors; but if they fled, the greater reproach, and the same peril.” He bade them to view and compare their own horrid and threatening arms with the bands of Medes blazing with gold, and behold here the bravery of men, there that of plunder.

  With the Sarmatæans, however, the speech of their General is not the only exhortation; it is their way to animate one another. It was now their united cry, “That they must not begin their fight by a discharge of arrows, but break in at once upon the foe, and surprize them by a close engagement.” They did so; and hence began a scene of battle strangely diversified: the Parthians, accustomed with equal dexterity to pursue or fly, scattered their troops, thence seeking scope for their arrows: the Sarmatæans intirely renounced the bow, a weapon which they weild with less vigour and perseverance, and rushed in with their swords and pikes. Sometimes, as in an encounter of horse, were beheld the vicissitudes of charging and flying; again, as in condensed battles of foot, with the shocks of their bodies breast to breast, and with the efforts of their arms, they overthrew and were overthrown. Now the Albanians and Iberians grappled the enemy, dragged them from their horses, and confounded the attacks of the Parthians; who, besides the assaults from the horse, were still more closely galled by the foot. Whilst, during this conflict, the two Generals scoured from place to place, to countenance the brave, or to support the wavering, themselves conspicuous to all, and therefore known to each other, they encountered fiercely, horse to horse, with terrible cries and lances darted, but Pharasmanes with most violence, for he wounded Orodes through the helmet, but, hurried away by the velocity of his horse, could not repeat his blow, and the wounded Prince was rescued by the most resolute of his guards. Fame, however, falsly reported him for slain, and terrifying the Parthians, they yielded the victory.

  Again Artabanus prepared for revenge, and, to make it sure, marched with the whole strength of Parthia; but was again beaten by the Iberians, through their superiour knowledge of the country. Nor even thus would he have retreated, but that Vitellius, by drawing together his Legions, and thence exciting a rumour, as if he were just upon invading Mesopotamia, alarmed him with the terror of war from the Romans. Armenia was therefore abandoned, and the affairs of Artabnus finally ruined; for Vitellius the while, prompted the Parthians “to renounce a King cruel to his subjects in peace, and destructive to their state by his fatal wars.” Sinnaces therefore, whom I have mentioned as already incensed, consults his father Abdageses and others, who had hitherto disguised their disaffection, and finding them now emboldened by so many continued overthrows, draws them to an open revolt. To them flowed in, by little and little, all those who had been rather retained in obedience through fear, than secured by affection; and, having thus found leaders, assumed courage to follow them. So that to Artabanus none now adhered, except some few foreigners, the guards of his person, out-laws and fugitives from their several homes, destitute of all sentiments of honour, and of every worthy affection, equally untouched with public or private disgrace, hirelings by profession, and the retained instruments of villainy and blood. Taking these for his attendants, he hastily fled to regions far remote, and bordering upon Scythia, from thence hoping for succours; for with the Hyrcanians and Carmanians he was joined in alliance. He expected too that the Parthians, a people always favourable to their Princes after expulsion, ever fickle and uneasy under those in possession, might lapse into remorse.

  Artabanus being fled, and the minds of the Parthians inclined to a new King, Vitellius exhorted Tiridates “to lay hold on a Kingdom prepared to receive him;” and, with the bulk of the Legions and auxiliaries, marched to the banks of Euphrates. Whilst they sacrificed to the river, the one after the rites of the Romans, a swine, a ram, and a bull; the other a horse; the inhabitants informed them, “That the Euphrates, without any accession of rain, swelled miraculously, and that the white froth upon the surface wound itself into circles in the fashion of a diadem, as a propitious type of success after passing.” Some explained it with more subtlety, “That the first attempts would be attended with immediate prosperity, but such as was fleeting and transient; for that only upon events portended by signs from the earth and the heavens, was there any sure reliance: rivers were, in their nature, fleeting and unstable; and what omens they suddenly shewed, they, with the same rapidity snatched away.” Over a bridge of boats the army crossed; and the first who arrived in the camp was Ornospades with many thousand horse. He was formerly an exile, and had then, with no contemptible forces, aided Tiberius to finish the war in Dalmatia; a merit which procured him the right of a Roman Citizen: being afterwards recalled, he recovered the friendship of the King, and continued high in his favour; so that he was placed over all those territories which being washed on every side with the celebrated rivers of Euphrates and Tigris, are thence named Mesopotamia. Soon after came Sinnaces with more forces, as also Abdageses, the pillar of the party, with the King’s treasure, and all the decorations of Royalty. Vitellius thought it enough to have countenanced them with a display of the Roman arms, and now admonished Tiridates and the chiefs, him “to remember, that he had for his grand-father Phrahates, and was himself reared by Cæsar; signal honours, and equal incitements to glory:” upon them he pressed “obedience to their King, and reverence towards us; that they would all consult their own reputations, and preserve their plighted faith.” Thence he repassed with his Legions into Syria.

  These transactions, though the work of two campaigns, I have laid together, to relieve my soul from the sad recital of domestic evils. For, Tiberius, though now three years since the execution of Sejanus, was so far from being asswaged by time, supplications, and satiety of blood, means which are wont to soften all other men, that with rage and punishment he still pursued even stale and dubious imputations, as the most heinous and recent crimes. Under this dread Fulcinius Trio, unable to bear the prevailing persecution of his accusers, composed his last will, and in it compiled a long charge of iniquities and dreadful invectives against Macro and the Emperor’s principal freedmen: the Emperor himself he upbraided with “a spirit sunk through age, and his continued absence, as a state of exile.” These invectives, which the heirs of Trio had smothered, were, by Tiberius, ordered to be recited; whether in ostentation that he could bear such liberties, and despised a public rehearsal of his own infamy; or whether from having been long ignorant of the black enormities of Sejanus, he came afterwards to prefer the divulging of whatever was said, however said, concerning himself and his administration; and since truth is ever disguised by flattery, he meant at least to learn it from the mouth of reproach. During the same Consuls, Granius Martianus the Senator, charged with treason by Caius Gracchus, laid violent hands upon himself; and Tatius Gratianus, who had been Prætor, under the same charge, was sentenced to capital banishment.

  The like ends had Trebellienus Rufus and Sextius Paconianus. For, Trebellienus fell by his own hand; and Paconianus for Verses made in prison against the Emperor was there strangled. With these executions Tiberius was acquainted, not now separated from Italy by the sea, nor by messengers dispatched from afar, but in the neighbourhood of Rome; so near to it that he received and answered the Letters from the Consuls the the same day, or only after the interval of a night; as if he were from thence beholding the houses floating in blood, or the busy hands of the executioners opening its sources. In the end of the year expired Poppæus Sabinus, of ordinary descent, but by the friendship of the Emperors he had acquired the Consulship and triumphal honours. He was also entrusted for four and twenty years with the Government of great provinces, for no signal ability of his, but that he had talents equal to business, and not above it.

  The following Consuls were Quintus Plautius and Sextus Papinius. It was marked as no matter of horror or surprize, that Lucius Aruseius and *** underwent this year the pains of death; so familiar were civil miseries grown. But terrifying proved the tragedy of Vibulenus Agrippa, a Roman Knight, who, after his accusers had finished their pleadings, pulling out poison, which under his gown he had concealed, swallowed it in open Senate, and as he fell expiring, was by the Lictors hastily dragged to the dungeon, where, though already dead, his neck was fastened and strained in a rope. Not even Tigranes, who had some time reigned in Armenia, but was now accused, could by the name of a King, escape suffering, in common with citizens, the punishment of death. But Caius Galba a Consular, and the two Blæsi, fell by their own hands, Galba, upon receiving a dismal Letter from Cæsar, which forbid him to meddle with drawing his lot for a Province; the Blæsi, because the Priesthoods which in the prosperity of their family he had assigned them, and again in its calamity withheld, he now bestowed, as vacant dignities, upon others. This they understood as a signal of death, and obeyed it. Æmilia Lepida too, who, as I have related, was married to the young Drusus, she who had pursued her husband’s life, by urging against him incessant crimes, and during the days of her father Lepidus, remained unpunished, though detestable, was after his death attacked by the accusers, for adultery with a slave: nor of this her infamous defilement was any doubt made; renouncing therefore all defence, she put an end to her own life.

  About the same time the Cliteans, a people subject to Archelaus the Cappadocian, aggrieved to be after the Roman manner brought under a rate, and compelled to pay tribute, betook themselves to the ridges of Mount Taurus, and by the nature of the situation defended themselves against the unwarlike forces of the King; till Vitellius, President of Syria, dispatched to their relief his Lieutenant Marcus Trebellius, with four thousand Legionary soldiers and some chosen auxiliaries. Trebellius begirt with entrenchments the two hills upon which the Barbarians were encamped, the lesser named Cadra, the other Davara, and forced them all to surrender: some who attempted to sally, he subdued by the sword; the rest he overcame by thirst. Tiridates, with the approbation of the Parthians, took possession of Nicephorium, Anthemusias, and other cities founded by the Macedonians, and thence called by Greek names, as likewise of Halus and Artemita, Parthian cities; the inhabitants of each contending in joy for the change, as they all detested Artabanus, bred amongst the barbarous Scythians, and himself barbarously cruel, but from Tiridates hoped a humane spirit, civilized by a Roman education.

  Particularly excessive was the flattery practised on this occasion by the citizens of Seleucia; a powerful city surrounded with walls, and not corrupted into the barbarous usages of the Parthians, but still retaining the institutions of Seleucus, its Greek founder. Three hundred citizens, chosen for wealth or wisdom, compose, as it were, a Senate; to the populace too remains their share of power; and when all act with unanimity, they despise the Parthians; but when discord reigns, while each side calls in foreign aid against their competitors, he who is invited prevails against the whole: A consequence which had befallen them in the reign of Artabanus, who delivered the commonalty to the dominion of the Nobles, in pure subservience to the maxims and interest of his own power. For the sovereignty of the People is an establishment of Liberty; but the domination of a few comes nearer to the unchecked lust of simple Monarchy. Upon the coming of Tiridates, they heaped on him all the honours paid to the ancient Kings, with all such as the present age has improved or invented, and to the praises of the new Prince added contumelies against Artabanus, “that only by his father he was akin to the Arsacides, and in every other instance an apostate from their race.” Tiridates committed to the People the government of Seleucia. As he was next consulting about settling a day for solemnizing his inauguration, he received letters from Phrahates and Hiero, who presided over potent Provinces, entreating a short respit; so that he agreed to wait the arrival of men so signally powerful, and proceeded the while to Ctesiphon the seat of the Empire. But as from day to day they delayed coming, the Surena in a great presence, and with their applauses, put the Royal Diadem, according to the ceremony of the country, upon his head.

  And had he strait advanced into the center of the Kingdom and the further Provinces, he had over-awed the suspence of such as halted, and found submission from all Parthia. But, by besieging a fortress, whither Artabanus had conveyed his money and mistresses, he furnished the fickle Parthians with leisure to violate their late association. For, Phrahates and Hiero, with such others as had not joined with the rest in celebrating his coronation, returned to their old allegiance, part through fear, some from envy to Abdageses, who then governed the new King and his whole court. They found Artabanus in Hyrcania, covered with nastiness and misery, and with his bow labouring for food. At first he was terrified, and apprehended treachery. When they assured him of their faith, and that to restore him to sovereignty they were come, he asked, “whence the sudden change?” Hiero, in answer, reproached “Tiridates as a boy, and that the Empire was no longer administered by one of the brave Arsacides; but a lad softened by foreign effeminacy, possessed the empty title, whilst in the family of Abdageses the whole power remained.”

  He discerned, politic as he was, and old in reigning, that, however false in their affections, their hate was unfeigned. Neither tarried he longer than to get together some Scythian succours, and then marched with dispatch, to frustrate the measures of his enemies, and to obviate the defection of his friends. Nor changed he yet his noisome dress, as by it he meant to draw the commiseration of the populace. In his march he lest untried no expedient, no prayers nor wiles, to engage in his interest such as wavered, to confirm such as adhered, and he was already in the neighbourhood of Seleucia, before Tiridates, dismayed at once with the tidings of Artabanus, and with Artabanus in person, could determine whether to make head against him, or protract the war. His counsels were distracted. They who preferred a battle and speedy issue, argued, “that the enemy’s forces were still in disarray and spent with long journeys: nor in truth were they in their hearts sincerely reconciled to obedience; they, who were lately the betrayers and open enemies of that same Prince whom thus, after expulsion, they espoused.” But Abdageses advised “a retreat into Mesopotamia, that there, defended by the interposition of the river, they might have time to arm the Armenians and Elymæans, with other adjacent nations; and, being thus strengthened by confederate troops, and such as the Roman General should send, might try with these advantages the fortune of war.” This advice prevailed, as Abdageses held the highest authority, and Tiridates was fearful of dangers. But their departure had all the appearance and consequences of a rout: for the Arabs beginning the desertion, the rest followed, and retired to their several homes, or to the camp of Artabanus; so that Tiridates with a few crossed over to Syria, where he discharged them all, as well from his service, as from the infamy of being betrayed by them.

  The same year the City suffered the grievous calamity of fire, which burnt down that part of the Circus contiguous to mount Aventine, and the Mount itself; a loss which turned to the glory of the Prince, as he paid in money the value of the houses destroyed. A hundred thousand great sesterces he expended in this bounty, which proved the more grateful to the people, as he was ever sparing in private buildings. In truth, his public works never exceeded two, the Temple of Augustus and the Scene of Pompey’s Theatre; nor, when he had finished both, did he dedicate either, whether obstructed by old age, or despising popularity. For ascertaining the damage of particulars, the four sons-in-law of Tiberius were appointed, Cneius Domitius, Cassius Longinus, Marcus Vinicius, and Rubellius Blandus, assisted by Publius Petronius, nominated by the Consuls. To the Emperor likewise were decreed several honours, variously devised, according to the different drift and genius of such as proposed them. Which of these he meant to accept, or which to reject, the approaching issue of his days has buried in uncertainty. For not long after, Cneius Acerronius and Caius Pontius commenced Consuls, the last Consuls under Tiberius. The power of Macro was already excessive, who, as he had at no time neglected the favour of Caligula, courted it now more and more earnestly every day. After the death of Claudia, whom I have mentioned to have been espoused to the young Prince, he constrained Ennia his own wife to stimulate the affections of Caligula, and to secure him by a promise of marriage. The truth is, Caligula was one that denied nothing that opened his way to sovereignty; for although of a tempestuous genius, he had yet in the school of his grand-father, well acquired all the hollow guises of dissimulation.

  His spirit was known to the Emperor; hence the Emperor was puzzled about bequeathing the Empire: and first as to his grand-sons; the son of Drusus was nearer in blood, and dearer in point of affection, but as yet a child; the son of Germanicus had arrived at the vigour of youth, and the zeal of the people followed him; a motive to his grand-father, only to hate him. He had even debates with himself concerning Claudius, because of solid age, and naturally inclined to honest pursuits; but the defect of his faculties withstood the choice. In case he sought a successor apart from his own family, he dreaded lest the memory of Augustus, lest the name of the Cæsars should come to be scorned and insulted. For, it was not so much any study of his, to gratify the present generation, and secure the Roman State, as to perpetuate to posterity the grandeur of his race. So that his mind still wavering, and his strength decaying, to the decision of fortune he permitted a counsel to which he was now unequal. Yet he dropped certain words whence might be gathered, that he foresaw the events and revolutions which were to come to pass after him; for, he upbraided Macro, by no dark riddle, “that he forsook the setting sun, and courted the rising;” and of Caligula, who upon some occasional discourse ridiculed Sylla, he foretold, “that he would have all Sylla’s vices, and not one of his virtues.” Moreover, as he was, with many tears, embracing the younger of his grandsons, and perceived the countenance of Caligula implacable and provoked; “Thou, said he, wilt slay him, and another shall slay thee.” But, however his illness prevailed, he relinquished nothing of his vile voluptuousness, forcing patience, and feigning health. He was wont too to ridicule the prescriptions of Physicians, and all men who, after the age of thirty, needed to be informed by any one else, what helped or hurted their constitutions.

  At Rome, the while, were sown the sanguinary seeds of executions, to be perpetrated even after Tiberius. Lælius Balbus had charged Acutia, (the wife formerly of Publius Vitellius) with high treason; and, as the Senate were, after her condemnation, decreeing a reward to the accuser, the same was obstructed by the interposition of Junius Otho, Tribune of the people: Hence their mutual hate, which ended in the exile of Otho. Thereafter Albucilla, who had been married to Satrius Secundus, him that revealed the conspiracy of Sejanus, and herself famous for many amours, was impeached of impious rites devised against the Prince. In the charge were involved, as her associates and adulterers, Cneius Domitius, Vibius Marsus, and Lucius Arruntius. The noble descent of Domitius I have above declared: Marsus too was distinguished by the ancient dignities in his house, and himself illustrious for learning. The Minutes, however, transmitted to the Senate, imported, “that in the examination of the witnesses, and torture of the slaves, Macro had presided;” neither came these Minutes accompanied with any letter from the Emperor against the accused. Hence it was suspected, that, while he was ill, and perhaps without his privity, the accusations were in great measure forged by Macro, in consequence of his notorious enmity to Arruntius.

  Domitius therefore, by preparing for his defence, and Marsus, by seeming determined to famish, both protracted their lives. Arruntius chose to die; and to the importunity of his friends, urging him to try delays and evasions, he answered, “that the same measures were not alike honourable to all men; his own life was abundantly long; nor had he wherewithal to reproach himself, save that he had submitted to bear thus far an old age loaded with anxieties, exposed to daily dangers, and the cruel sport of power; long hated as he was by Sejanus, now by Macro, always by some reigning Minister; hated through no fault of his own, but as one irreconcilable to baseness and the iniquities of power. He might, in truth, out-live and avoid the few and last days of Tiberius; but how escape the youth of his heir? If upon Tiberius at such an age, and after such consummate experience, the violent spirit of unbridled dominion had wrought with such efficacy, as intirely to transport and change him; was it likely that Caligula, he who had scarce outgrown his childhood, a youth ignorant of all things, or nurst and principled in the worst, would follow a course more righteous under the guidance of Macro; the same Macro, who, for destroying Sejanus, was employed as the more wicked of the two, and had since by more mischiefs and cruelties torn and afflicted the Commonweal? For himself; he foresaw a servitude yet more vehement, and therefore withdrew at once from the agonies of past and of impending tyranny.” Uttering these words, with the spirit of a prophet, he opened his veins. How wisely Arruntius anticipated death, the following times will terribly demonstrate. For Albucilla; she aimed at her own life, but the blow being impotent, she was by order of Senate dragged to execution in the prison. Against the ministers of her lusts it was decreed, “that Grasidius Sacerdos, formerly Prætor, should be exiled into an island, Pontius Fregellanus be degraded from the Senate; and that upon Lælius Balbus the same penalty should be inflicted:” his punishment particularly proved matter of joy, as he was accounted a man of pestilent eloquence, and prompt to attack the innocent.

  About the same time, Sextus Papinius, of a Consular family, chose on a sudden a frightful end, by a desperate and precipitate fall. The cause was ascribed to his mother, who, after many repulses, had, by various allurements and the stimulations of sensuality, urged him to practices and embarassments from whence only by dying he could devise an issue. She was therefore accused in the Senate; and, though in a prostrate posture she embraced the knees of the Fathers, and pleaded “the tenderness and grief of a mother, with the imbecillity of a woman’s spirit under such an affecting calamity;” with other motives of pity in the same doleful strain, she was banished Rome for ten years, till her younger son were past the age of lubricity.

  As to Tiberius; already his body, already his spirits failed him; but his dissimulation failed him not. He exerted the same vigour of mind, the same energy in his looks and discourse, and even sometimes studied to be gay, by it to hide his declension, however notorious. So that, after much shifting of places, he settled at the Promontory of Misenum, in a villa of which Lucullus was once lord. There it was discovered that his end was at hand, by this device. In his train was a Physician, his name Charicles, signal in his profession, one, in truth, not employed to direct the Prince’s health, but wont however to afford his counsel and skill. Charicles, as if he were departing to attend his own affairs, under the appearance of paying duty and kissing his hands, touched his pulse. But the artifice beguiled not Tiberius, for he instantly ordered the entertainment to be served up, whether incensed, and thence the more smothering his wrath, is uncertain. But, at table he continued beyond his wont, as if he meant that honour only for a farewell to his friend. But for all this, Charicles satisfied Macro, “that the flame of life was expiring, and could not outlast two days.” Hence the whole court was filled with close consultations, and expresses were dispatched to the Generals and Armies. On the sixteenth of March, so deep a swoon seized him, that he was believed to have paid the last debt of mortality; insomuch that Caligula, in the midst of a great throng, paying their congratulations, was already appearing abroad, to assume the first offices of Sovereignty, when sudden notice came, “that Tiberius had recovered his sight and voice, and, to strengthen his fainting spirits, had called for some refreshment.” Hence dread seized all, and the whole concourse about Caligula dispersed, every man assuming false sorrow, or feigning ignorance. He himself was struck speechless, and thus fallen from the highest hopes, waited for present death. Macro continued undismayed, and, ordering the apartment to be cleared, caused the feeble old man to be smothered with a weight of coverings. Thus expired Tiberius in the seventy-eighth year of his age.

  He was the son of Nero, and on both sides a branch of the Claudian house, though his mother had been ingrafted by adoptions into the Livian, and next into the Julian stock. From his first infancy, his life was checquered by various turns and perils. For, then he followed, like an exile, his proscribed father; and when taken in quality of a step-son into the family of Augustus, he long struggled there with many potent rivals, during the lives of Marcellus and Agrippa, next of the young Cæsars, Caius and Lucius. His brother Drusus too eclipsed him, and possessed more eminently the hearts of the Roman people. But above all, his marriage with Julia most egregiously threatened and distressed him, whether he bore the prostitutions of his wife, or relinquished the daughter of Augustus. Upon his return thereafter from Rhodes, he occupied for twelve years the Prince’s family, now bereft of heirs, and nigh three and twenty ruled the Roman State. His manners also varied with the several junctures of his fortune: he was well esteemed while yet a private man, and, in discharging public dignities under Augustus, of signal reputation; covert and subdolous in feigning virtue so long as Germanicus and Drusus survived; a mixed character of good and evil during the days of his mother; detestably cruel, but secret in his lewdness, while he loved or feared Sejanus. At last he abandoned himself, at once, to the rage of tyranny and the sway of his lusts: for, he had then conquered all the checks of shame and fear, and thenceforth followed only the bent of his own abominable spirit.

  [* ]About two Millions, and five hundred thousand Crowns.

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  7: 1g: Power & Corruption among the Ancients - Gibbon Chapter 3

  Edward Gibbon, The History of the Decline and Fall of the Roman Empire, ed. J.B. Bury with an Introduction by W.E.H. Lecky (New York: Fred de Fau and Co., 1906), in 12 vols. Vol. 1. Chapter: CHAPTER III

  Accessed from oll.libertyfund.org/title/1365/50991 on 2009-10-19

  The text is in the public domain.

  ---

  CHAPTER III

  Of the Constitution of the Roman Empire, in the Age of the Antonines

  The obvious definition of a monarchy seems to be that of a state, in which a single person, by whatsoever name he may be distinguished, is entrusted with the execution of the laws, the management of the revenue, and the command of the army. But unless public liberty is protected by intrepid and vigilant guardians, the authority of so formidable a magistrate will soon degenerate into despotism. The influence of the clergy, in an age of superstition, might be usefully employed to assert the rights of mankind; but so intimate is the connection between the throne and the altar, that the banner of the church has very seldom been seen on the side of the people. A martial nobility and stubborn commons, possessed of arms, tenacious of property, and collected into constitutional assemblies, form the only balance capable of preserving a free constitution against enterprises of an aspiring prince.

  Every barrier of the Roman constitution had been levelled by the vast ambition of the dictator; every fence had been extirpated by the cruel hand of the triumvir. After the victory of Actium, the fate of the Roman world depended on the will of Octavianus, surnamed Cæsar by his uncle’s adoption, and afterwards Augustus, by the flattery of the senate.1 The conqueror was at the head of forty-four veteran legions,2 conscious of their own strength and of the weakness of the constitution, habituated during twenty years’ civil war to every act of blood and violence, and passionately devoted to the house of Cæsar, from whence alone they had received and expected the most lavish rewards. The provinces, long oppressed by the ministers of the republic, sighed for the government of a single person, who would be the master, not the accomplice, of those petty tyrants. The people of Rome, viewing with a secret pleasure the humiliation of the aristocracy, demanded only bread and public shows, and were supplied with both by the liberal hand of Augustus. The rich and polite Italians, who had almost universally embraced the philosophy of Epicurus, enjoyed the present blessings of ease and tranquillity, and suffered not the pleasing dream to be interrupted by the memory of their old tumultuous freedom. With its power, the senate had lost its dignity; many of the most noble families were extinct. The republicans of spirit and ability had perished in the field of battle, or in the proscription. The door of the assembly had been designedly left open for a mixed multitude of more than a thousand persons, who reflected disgrace upon their rank, instead of deriving honour from it.3

  The reformation of the senate was one of the first steps in which Augustus laid aside the tyrant and professed himself the father of his country. He was elected censor; and, in concert with his faithful Agrippa, he examined the list of the senators, expelled a few members,4 whose vices or whose obstinacy required a public example, persuaded near two hundred to prevent the shame of an expulsion by a voluntary retreat, raised the qualification of a senator to about ten thousand pounds, created a sufficient number of patrician families, and accepted for himself the honourable title of Prince of the Senate, which had always been bestowed by the censors on the citizen the most eminent for his honours and services.5 But, whilst he thus restored the dignity, he destroyed the independence of the senate. The principles of a free constitution are irrecoverably lost, when the legislative power is nominated by the executive.

  Before an assembly thus modelled and prepared, Augustus pronounced a studied oration, which displayed his patriotism, and disguised his ambition. “He lamented, yet excused, his past conduct. Filial piety had required at his hands the revenge of his father’s murder; the humanity of his own nature had sometimes given way to the stern laws of necessity, and to a forced connection with two unworthy colleagues: as long as Antony lived, the republic forbade him to abandon her to a degenerate Roman and a barbarian queen. He was now at liberty to satisfy his duty and his inclination. He solemnly restored the senate and people to all their ancient rights; and wished only to mingle with the crowd of his fellow-citizens, and to share the blessings which he had obtained for his country.”6

  It would require the pen of Tacitus (if Tacitus had assisted at this assembly) to describe the various emotions of the senate; those that were suppressed, and those that were effected. It was dangerous to trust the sincerity of Augustus; to seem to distrust it was still more dangerous. The respective advantages of monarchy and a republic have often divided speculative inquirers; the present greatness of the Roman state, the corruption of manners, and the licence of the soldiers, supplied new arguments to the advocates of monarchy; and these general views of government were again warped by the hopes and fears of each individual. Amidst this confusion of sentiments, the answer of the senate was unanimous and decisive. They refused to accept the resignation of Augustus; they conjured him not to desert the republic which he had saved. After a decent resistance the crafty tyrant submitted to the orders of the senate; and consented to receive the government of the provinces, and the general command of the Roman armies, under the well-known names of Proconsul and Imperator.7 But he would receive them only for ten years. Even before the expiration of that period, he hoped that the wounds of civil discord would be completely healed, and that the republic, restored to its pristine health and vigour, would no longer require the dangerous interposition of so extraordinary a magistrate. The memory of this comedy, repeated several times during the life of Augustus, was preserved to the last ages of the empire by the peculiar pomp with which the perpetual monarchs of Rome always solemnised the tenth years of their reign.8

  Without any violation of the principles of the constitution, the general of the Roman armies might receive and exercise an authority almost despotic over the soldiers, the enemies, and the subjects of the republic. With regard to the soldiers, the jealousy of freedom had, even from the earliest ages of Rome, given way to the hopes of conquest, and a just sense of military discipline. The dictator, or consul, had a right to command the service of the Roman youth, and to punish an obstinate or cowardly disobedience by the most severe and ignominious penalties, by striking the offender out of the list of citizens, by confiscating his property, and by selling his person into slavery.9 The most sacred rights of freedom, confirmed by the Porcian and Sempronian laws, were suspended by the military engagement. In his camp the general exercised an absolute power of life and death; his jurisdiction was not confined by any forms of trial or rules of proceeding, and the execution of the sentence was immediate and without appeal.10 The choice of the enemies of Rome was regularly decided by the legislative authority. The most important resolutions of peace and war were seriously debated in the senate, and solemnly ratified by the people. But when the arms of the legions were carried to a great distance from Italy, the generals assumed the liberty of directing them against whatever people, and in whatever manner, they judged most advantageous for the public service. It was from the success, not from the justice, of their enterprises, that they expected the honours of a triumph. In the use of victory, especially after they were no longer controlled by the commissioners of the senate, they exercised the most unbounded despotism. When Pompey commanded in the East, he rewarded his soldiers and allies, dethroned princes, divided kingdoms, founded colonies, and distributed the treasures of Mithridates. On his return to Rome he obtained, by a single act of the senate and people, the universal ratification of all his proceedings.11 Such was the power over the soldiers, and over the enemies of Rome, which was either granted to, or assumed by, the generals of the republic. They were, at the same time, the governors, or rather monarchs, of the conquered provinces, united the civil with the military character, administered justice as well as the finances, and exercised both the executive and legislative power of the state.

  From what has been already observed in the first chapter of this work, some notion may be formed of the armies and provinces thus entrusted to the ruling hand of Augustus. But, as it was impossible that he could personally command the legions of so many distant frontiers, he was indulged by the senate, as Pompey had already been, in the permission of devolving the execution of his great office on a sufficient number of lieutenants. In rank and authority these officers seemed not inferior to the ancient proconsuls; but their station was dependent and precarious. They received and held their commissions at the will of a superior, to whose auspicious influence the merit of their action was legally attributed.12 They were the representatives of the emperor. The emperor alone was the general of the republic, and his jurisdiction, civil as well as military, extended over all the conquests of Rome. It was some satisfaction, however, to the senate that he always delegated his power to the members of their body. The imperial lieutenants were of consular or prætorian dignity; the legions were commanded by senators, and the prefecture of Egypt was the only important trust committed to a Roman knight.

  Within six days after Augustus had been compelled to accept so very liberal a grant, he resolved to gratify the pride of the senate by an easy sacrifice. He represented to them that they had enlarged his powers, even beyond that degree which might be required by the melancholy condition of the times. They had not permitted him to refuse the laborious command of the armies and the frontiers; but he must insist on being allowed to restore the more peaceful and secure provinces to the mild administration of the civil magistrate. In the division of the provinces Augustus provided for his own power and for the dignity of the republic. The proconsuls of the senate, particularly those of Asia, Greece, and Africa, enjoyed a more honourable character than the lieutenants of the emperor, who commanded in Gaul or Syria. The former were attended by lictors, the latter by soldiers. A law was passed that, wherever the emperor was present, his extraordinary commission should supersede the ordinary jurisdiction of the governor; a custom was introduced, that the new conquests belonged to the imperial portion; and it was soon discovered that the authority of the Prince, the favourite epithet of Augustus, was the same in every part of the empire.

  In return for this imaginary concession, Augustus obtained an important privilege, which rendered him master of Rome and Italy. By a dangerous exception to the ancient maxims, he was authorised to preserve his military command, supported by a numerous body of guards, even in time of peace, and in the heart of the capital.13 His command, indeed, was confined to those citizens who were engaged in the service by the military oath; but such was the propensity of the Romans to servitude, that the oath was voluntarily taken by the magistrates, the senators, and the equestrian order, till the homage of flattery was insensibly converted into an annual and solemn protestation of fidelity.

  Although Augustus considered a military force as the firmest foundation, he wisely rejected it as a very odious instrument, of government. It was more agreeable to his temper, as well as to his policy, to reign under the venerable names of ancient magistracy, and artfully to collect in his own person all the scattered rays of civil jurisdiction. With this view, he permitted the senate to confer upon him, for his life, the powers of the consular14 and tribunitian offices,15 which were, in the same manner, continued to all his successors. The consuls had succeeded to the kings of Rome, and represented the dignity of the state. They superintended the ceremonies of religion, levied and commanded the legions, gave audience to foreign ambassadors, and presided in the assemblies both of the senate and people. The general control of the finances was entrusted to their care; and, though they seldom had leisure to administer justice in person, they were considered as the supreme guardians of law, equity, and the public peace. Such was their ordinary jurisdiction; but, whenever the senate empowered the first magistrate to consult the safety of the commonwealth, he was raised by that degree above the laws, and exercised, in the defence of liberty, a temporary despotism.16 The character of the tribunes was, in every respect, different from that of the consuls. The appearance of the former was modest and humble; but their persons were sacred and inviolable. Their force was suited rather for opposition than for action. They were instituted to defend the oppressed, to pardon offences, to arraign the enemies of the people, and, when they judged it necessary, to stop, by a single word, the whole machine of government. As long as the republic subsisted, the dangerous influence which either the consul or the tribune might derive from their respective jurisdiction was diminished by several important restrictions. Their authority expired with the year in which they were elected; the former office was divided between two, the latter among ten persons; and, as both in their private and public interest they were adverse to each other, their mutual conflicts contributed, for the most part, to strengthen rather than to destroy the balance of the constitution. But when the consular and tribunitian powers were united,17 when they were vested for life in a single person, when the general of the army was, at the same time, the minister of the senate and the representative of the Roman people, it was impossible to resist the exercise, nor was it easy to define the limits, of his imperial prerogative.

  To these accumulated honours the policy of Augustus soon added the splendid as well as important dignities of supreme pontiff, and of censor.18 By the former he acquired the management of the religion, and by the latter a legal inspection over the manners and fortunes, of the Roman people. If so many distinct and independent powers did not exactly unite with each other, the complaisance of the senate was prepared to supply every deficiency by the most ample and extraordinary concessions. The emperors, as the first ministers of the republic, were exempted from the obligation and penalty of many inconvenient laws: they were authorised to convoke the senate, to make several motions in the same day, to recommend candidates for the honours of the state, to enlarge the bounds of the city, to employ the revenue at their discretion, to declare peace and war, to ratify treaties; and by a most comprehensive clause, they were empowered to execute whatsoever they should judge advantageous to the empire, and agreeable to the majesty of things private or public, human or divine.19

  When all the various powers of executive government were committed to the Imperial magistrate, the ordinary magistrates of the commonwealth languished in obscurity, without vigour, and almost without business. The names and forms of the ancient administration were preserved by Augustus with the most anxious care. The usual number of consuls, prætors, and tribunes20 were annually invested with their respective ensigns of office, and continued to discharge some of their least important functions. Those honours still attracted the vain ambition of the Romans; and the emperors themselves, though invested for life with the powers of the consulship,21 frequently aspired to the title of that annual dignity, which they condescended to share with the most illustrious of their fellow-citizens.22 In the election of these magistrates, the people, during the reign of Augustus, were permitted to expose all the inconveniences of a wild democracy. That artful prince, instead of discovering the least symptom of impatience, humbly solicited their suffrages for himself or his friends, and scrupulously practised all the duties of an ordinary candidate.23 But we may venture to ascribe to his councils the first measure of the succeeding reign, by which the elections were transferred to the senate.24 The assemblies of the people were for ever abolished, and the emperors were delivered from a dangerous multitude, who, without restoring liberty, might have disturbed, and perhaps endangered, the established government.

  By declaring themselves the protectors of the people, Marius and Cæsar had subverted the constitution of their country. But as soon as the senate had been humbled and disarmed, such an assembly, consisting of five or six hundred persons, was found a much more tractable and useful instrument of dominion. It was on the dignity of the senate that Augustus and his successors founded their new empire; and they affected, on every occasion, to adopt the language and principles of Patricians. In the administration of their own powers, they frequently consulted the great national council, and seemed to refer to its decision the most important concerns of peace and war. Rome, Italy, and the internal provinces were subject to the immediate jurisdiction of the senate. With regard to civil objects, it was the supreme court of appeal; with regard to criminal matters, a tribunal, constituted for the trial of all offences that were committed by men in any public station, or that affected the peace and majesty of the Roman people. The exercise of the judicial power became the most frequent and serious occupation of the senate; and the important causes that were pleaded before them afforded a last refuge to the spirit of ancient eloquence. As a council of state, and as a court of justice, the senate possessed very considerable prerogatives; but in its legislative capacity, in which it was supposed virtually to represent the people, the rights of sovereignty were acknowledged to reside in that assembly. Every power was derived from their authority, every law was ratified by their sanction. Their regular meetings were held on three stated days in every month, the Calends, the Nones, and the Ides. The debates were conducted with decent freedom; and the emperors themselves, who gloried in the name of senators, sat, voted, and divided with their equals.

  To resume, in a few words, the system of the Imperial government, as it was instituted by Augustus, and maintained by those princes who understood their own interest and that of the people, it may be defined an absolute monarchy disguised by the forms of a commonwealth. The masters of the Roman world surrounded their throne with darkness, concealed their irresistible strength, and humbly professed themselves the accountable ministers of the senate, whose supreme decrees they dictated and obeyed.25

  The face of the court corresponded with the forms of the administration. The emperors, if we except those tyrants whose capricious folly violated every law of nature and decency, disdained that pomp and ceremony which might offend their countrymen, but could add nothing to their real power. In all the offices of life, they affected to confound themselves with their subjects, and maintained with them an equal intercourse of visits and entertainments. Their habit, their palace, their table, were suited only to the rank of an opulent senator. Their family, however numerous or splendid, was composed entirely of their domestic slaves and freedmen.26 Augustus or Trajan would have blushed at employing the meanest of the Romans in those menial offices which, in the household and bedchamber of a limited monarch, are so eagerly solicited by the proudest nobles of Britain.

  The deification of the emperors27 is the only instance in which they departed from their accustomed prudence and modesty. The Asiatic Greeks were the first inventors, the successors of Alexander28 the first objects, of this servile and impious mode of adulation. It was easily transferred from the kings to the governors of Asia; and the Roman magistrates very frequently were adored as provincial deities, with the pomp of altars and temples, of festivals and sacrifices.29 It was natural that the emperors should not refuse what the proconsuls had accepted; and the divine honours which both the one and the other received from the provinces attested rather the despotism than the servitude of Rome. But the conquerors soon imitated the vanquished nations in the arts of flattery; and the imperious spirit of the first Cæsar too easily consented to assume, during his lifetime, a place among the tutelar deities of Rome. The milder temper of his successor declined so dangerous an ambition, which was never afterwards revived, except by the madness of Caligula and Domitian. Augustus permitted indeed some of the provincial cities to erect temples to his honour, on condition that they should associate the worship of Rome with that of the sovereign; he tolerated private superstition, of which he might be the object;30 but he contented himself with being revered by the senate and people in his human character, and wisely left to his successor the care of his public deification. A regular custom was introduced, that, on the decease of every emperor who had neither lived nor died like a tyrant, the senate by a solemn decree should place him in the number of the gods: and the ceremonies of his apotheosis were blended with those of his funeral. This legal, and, as it should seem, injudicious profanation, so abhorrent to our stricter principles, was received with a very faint murmur31 by the easy nature of Polytheism; but it was received as an institution, not of religion, but of policy. We should disgrace the virtues of the Antonines by comparing them with the vices of Hercules or Jupiter. Even the characters of Cæsar or Augustus were far superior to those of the popular deities. But it was the misfortune of the former to live in an enlightened age, and their actions were too faithfully recorded to admit of such a mixture of fable and mystery as the devotion of the vulgar requires. As soon as their divinity was established by law, it sunk into oblivion, without contributing either to their own fame or to the dignity of succeeding princes.

  In the consideration of the Imperial government, we have frequently mentioned the artful founder, under his well-known title of Augustus, which was not however conferred upon him till the edifice was almost completed. The obscure name of Octavianus he derived from a mean family in the little town of Aricia. It was stained with the blood of the proscriptions; and he was desirous, had it been possible, to erase all memory of his former life. The illustrious surname of Cæsar he had assumed, as the adopted son of the dictator; but he had too much good sense either to hope to be confounded, or to wish to be compared, with that extraordinary man. It was proposed in the senate to dignify their minister with a new appellation; and after a very serious discussion, that of Augustus was chosen, among several others, as being the most expressive of the character of peace and sanctity which he uniformly affected.32Augustus was therefore a personal, Cæsar a family distinction. The former should naturally have expired with the prince on whom it was bestowed; and however the latter was diffused by adoption and female alliance, Nero was the last prince who could allege any hereditary claim to the honours of the Julian line. But, at the time of his death, the practice of a century had inseparably connected those appellations with the Imperial dignity, and they have been preserved by a long succession of emperors, — Romans, Greeks, Franks, and Germans, — from the fall of the republic to the present time. A distinction was, however, soon introduced. The sacred title of Augustus was always reserved for the monarch, whilst the name of Cæsar was more freely communicated to his relations; and, from the reign of Hadrian at least, was appropriated to the second person in the state, who was considered as the presumptive heir of the empire.

  The tender respect of Augustus for a free constitution which he had destroyed can only be explained by an attentive consideration of the character of that subtle tyrant. A cool head, an unfeeling heart, and a cowardly disposition, prompted him at the age of nineteen to assume the mask of hypocrisy, which he never afterwards laid aside. With the same hand, and probably with the same temper, he signed the proscription of Cicero and the pardon of Cinna. His virtues, and even his vices, were artificial; and according to the various dictates of his interest, he was at first the enemy, and at last the father, of the Roman world.33 When he framed the artful system of the Imperial authority, his moderation was inspired by his fears. He wished to deceive the people by an image of civil liberty, and the armies by an image of civil government.

  I. The death of Cæsar was ever before his eyes. He had lavished wealth and honours on his adherents; but the most favoured friends of his uncle were in the number of the conspirators. The fidelity of the legions might defend his authority against open rebellion, but their vigilance could not secure his person from the dagger of a determined republican; and the Romans, who revered the memory of Brutus,34 would applaud the imitation of his virtue. Cæsar had provoked his fate as much by the ostentation of his power as by his power itself. The consul or the tribune might have reigned in peace. The title of king had armed the Romans against his life. Augustus was sensible that mankind is governed by names; nor was he deceived in his expectation that the senate and people would submit to slavery, provided they were respectfully assured that they still enjoyed their ancient freedom. A feeble senate and enervated people cheerfully acquiesced in the pleasing illusion, as long as it was supported by the virtue, or by even the prudence, of the successors of Augustus. It was a motive of self-preservation, not a principle of liberty, that animated the conspirators against Caligula, Nero, and Domitian. They attacked the person of the tyrant, without aiming their blow at the authority of the emperor.

  

  Map of the Roman Empire in 180 A.D.

  There appears, indeed, one memorable occasion, in which the senate, after seventy years of patience, made an ineffectual attempt to reassume its long-forgotten rights. When the throne was vacant by the murder of Caligula, the consuls convoked that assembly in the Capitol, condemned the memory of the Cæsars, gave the watchword liberty to the few cohorts who faintly adhered to their standard, and during eight and forty hours acted as the independent chiefs of a free commonwealth. But while they deliberated, the prætorian guards had resolved. The stupid Claudius, brother of Germanicus, was already in their camp, invested with the Imperial purple, and prepared to support his election by arms. The dream of liberty was at an end; and the senate awoke to all the horrors of inevitable servitude. Deserted by the people, and threatened by a military force, that feeble assembly was compelled to ratify the choice of the prætorians, and to embrace the benefit of an amnesty, which Claudius had the prudence to offer, and the generosity to observe.35

  II. The insolence of the armies inspired Augustus with fears of a still more alarming nature. The despair of the citizens could only attempt what the power of the soldiers was, at any time, able to execute. How precarious was his own authority over men whom he had taught to violate every social duty! He had heard their seditious clamours; he dreaded their calmer moments of reflection. One revolution had been purchased by immense rewards; but a second revolution might double those rewards. The troops professed the fondest attachment to the house of Cæsar; but the attachments of the multitude are capricious and inconstant. Augustus summoned to his aid whatever remained in those fierce minds of Roman prejudices; enforced the rigour of discipline by the sanction of law; and, interposing the majesty of the senate between the emperor and the army, boldly claimed their allegiance as the first magistrate of the republic.36

  During a long period of two hundred and twenty years, from the establishment of this artful system to the death of Commodus, the dangers inherent to a military government were, in a great measure, suspended. The soldiers were seldom roused to that fatal sense of their own strength, and of the weakness of the civil authority, which was, before and afterwards, productive of such dreadful calamities. Caligula and Domitian were assassinated in their palace by their own domestics:37 the convulsions which agitated Rome on the death of the former were confined to the walls of the city. But Nero involved the whole empire in his ruin. In the space of eighteen months four princes perished by the sword; and the Roman world was shaken by the fury of the contending armies. Excepting only this short, though violent, eruption of military licence, the two centuries from Augustus to Commodus passed away, unstained with civil blood, and undisturbed by revolutions. The emperor was elected by the authority of the senate and the consent of the soldiers.38 The legions respected their oath of fidelity; and it requires a minute inspection of the Roman annals to discover three inconsiderable rebellions, which were all suppressed in a few months, and without even the hazard of a battle.39

  In elective monarchies, the vacancy of the throne is a moment big with danger and mischief. The Roman emperors, desirous to spare the legions that interval of suspense, and the temptation of an irregular choice, invested their designed successor with so large a share of present power, as should enable him, after their decease, to assume the remainder without suffering the empire to perceive the change of masters. Thus Augustus, after all his fairer prospects had been snatched from him by untimely deaths, rested his last hopes on Tiberius, obtained for his adopted son the censorial and tribunitian powers, and dictated a law, by which the future prince was invested with an authority equal to his own over the provinces and the armies.40 Thus Vespasian subdued the generous mind of his eldest son. Titus was adored by the eastern legions, which, under his command, had recently achieved the conquest of Judea. His power was dreaded, and, as his virtues were clouded by the intemperance of youth, his designs were suspected. Instead of listening to such unworthy suspicions, the prudent monarch associated Titus to the full powers of the Imperial dignity; and the grateful son ever approved himself the humble and faithful minister of so indulgent a father.41

  The good sense of Vespasian engaged him indeed to embrace every measure that might confirm his recent and precarious elevation. The military oath, and the fidelity of the troops, had been consecrated, by the habits of an hundred years, to the name and family of the Cæsars; and, although that family had been continued only by the fictitious rite of adoption, the Romans still revered, in the person of Nero, the grandson of Germanicus, and the lineal successor of Augustus. It was not without reluctance and remorse that the prætorian guards had been persuaded to abandon the cause of the tyrant.42 The rapid downfall of Galba, Otho, and Vitellius taught the armies to consider the emperors as the creatures of their will, and the instruments of their licence. The birth of Vespasian was mean; his grandfather had been a private soldier, his father a petty officer of the revenue,43 his own merit had raised him, in an advanced age, to the empire; but his merit was rather useful than shining, and his virtues were disgraced by a strict and even sordid parsimony. Such a prince consulted his true interest by the association of a son whose more splendid and amiable character might turn the public attention from the obscure origin to the future glories of the Flavian house. Under the mild administration of Titus, the Roman world enjoyed a transient felicity, and his beloved memory served to protect, above fifteen years, the vices of his brother Domitian.

  Nerva had scarcely accepted the purple from the assassins of Domitian before he discovered that his feeble age was unable to stem the torrent of public disorders which had multiplied under the long tyranny of his predecessor. His mild disposition was respected by the good; but the degenerate Romans required a more vigorous character, whose justice should strike terror into the guilty. Though he had several relations, he fixed his choice on a stranger. He adopted Trajan, then about forty years of age, and who commanded a powerful army in the Lower Germany; and immediately, by a decree of the senate, declared him his colleague and successor in the empire.44 It is sincerely to be lamented, that, whilst we are fatigued with the disgustful relation of Nero’s crimes and follies, we are reduced to collect the actions of Trajan from the glimmerings of an abridgment, or the doubtful light of a panegyric. There remains, however, one panegyric far removed beyond the suspicion of flattery. Above two hundred and fifty years after the death of Trajan, the senate, in pouring out the customary acclamations on the accession of a new emperor, wished that he might surpass the felicity of Augustus, and the virtue of Trajan.45

  We may readily believe that the father of his country hesitated whether he ought to entrust the various and doubtful character of his kinsman Hadrian with sovereign power. In his last moments, the arts of the empress Plotina either fixed the irresolution of Trajan, or boldly supposed a fictitious adoption,46 the truth of which could not be safely disputed; and Hadrian was peaceably acknowledged as his lawful successor. Under his reign, as has been already mentioned, the empire flourished in peace and prosperity. He encouraged the arts, reformed the laws, asserted military discipline, and visited all his provinces in person. His vast and active genius was equally suited to the most enlarged views and the minute details of civil policy. But the ruling passions of his soul were curiosity and vanity. As they prevailed, and as they were attracted by different objects, Hadrian was, by turns, an excellent prince, a ridiculous sophist, and a jealous tyrant. The general tenor of his conduct deserved praise for its equity and moderation. Yet, in the first days of his reign, he put to death four consular senators, his personal enemies, and men who had been judged worthy of empire; and the tediousness of a painful illness rendered him, at last, peevish and cruel. The senate doubted whether they should pronounce him a god or a tyrant; and the honours decreed to his memory were granted to the prayers of the pious Antoninus.47

  The caprice of Hadrian influenced his choice of a successor. After revolving in his mind several men of distinguished merit, whom he esteemed and hated, he adopted Ælius Verus, a gay and voluptuous nobleman, recommended by uncommon beauty to the lover of Antinous.48 But whilst Hadrian was delighting himself with his own applause, and the acclamations of the soldiers, whose consent had been secured by an immense donative, the new Cæsar49 was ravished from his embraces by an untimely death. He left only one son. Hadrian commended the boy to the gratitude of the Antonines. He was adopted by Pius; and, on the accession of Marcus, was invested with an equal share of sovereign power. Among the many vices of this younger Verus, he possessed one virtue — a dutiful reverence for his wiser colleague, to whom he willingly abandoned the ruder cares of empire. The philosophic emperor dissembled his follies, lamented his early death, and cast a decent veil over his memory.

  As soon as Hadrian’s passion was either gratified or disappointed, he resolved to deserve the thanks of posterity by placing the most exalted merit on the Roman throne. His discerning eye easily discovered a senator about fifty years of age, blameless in all the offices of life; and a youth of about seventeen, whose riper years opened the fair prospect of every virtue: the elder of these was declared the son and successor of Hadrian, on condition, however, that he himself should immediately adopt the younger. The two Antonines (for it is of them that we are now speaking) governed the Roman world forty-two years with the same invariable spirit of wisdom and virtue. Although Pius had two sons,50 he preferred the welfare of Rome to the interest of his family, gave his daughter Faustina in marriage to young Marcus, obtained from the senate the tribunitian and proconsular powers, and, with a noble disdain, or rather ignorance, of jealousy, associated him to all the labours of government. Marcus, on the other hand, revered the character of his benefactor, loved him as a parent, obeyed him as his sovereign,51 and, after he was no more, regulated his own administration by the example and maxims of his predecessor. Their united reigns are possibly the only period of history in which the happiness of a great people was the sole object of government.

  Titus Antoninus Pius had been justly denominated a second Numa. The same love of religion, justice, and peace was the distinguishing characteristic of both princes. But the situation of the latter opened a much larger field for the exercise of those virtues. Numa could only prevent a few neighbouring villages from plundering each other’s harvests. Antoninus diffused order and tranquillity over the greatest part of the earth. His reign is marked by the rare advantage of furnishing very few materials for history; which is, indeed, little more than the register of the crimes, follies, and misfortunes of mankind. In private life he was an amiable as well as a good man. The native simplicity of his virtue was a stranger to vanity or affectation. He enjoyed with moderation the conveniences of his fortune, and the innocent pleasures of society;52 and the benevolence of his soul displayed itself in a cheerful serenity of temper.

  The virtue of Marcus Aurelius Antoninus was of a severer and more laborious kind.53 It was the well-earned harvest of many a learned conference, of many a patient lecture, and many a midnight lucubration. At the age of twelve years he embraced the rigid system of the Stoics, which taught him to submit his body to his mind, his passions to his reason; to consider virtue as the only good, vice as the only evil, all things external as things indifferent.54 His Meditations, composed in the tumult of a camp, are still extant; and he even condescended to give lessons on philosophy, in a more public manner than was perhaps consistent with the modesty of a sage or the dignity of an emperor.55 But his life was the noblest commentary on the precepts of Zeno. He was severe to himself, indulgent to the imperfection of others, just and beneficent to all mankind. He regretted that Avidius Cassius, who excited a rebellion in Syria, had disappointed him, by a voluntary death, of the pleasure of converting an enemy into a friend; and he justified the sincerity of that sentiment, by moderating the zeal of the senate against the adherents of the traitor.56 War he detested, as the disgrace and calamity of human nature; but when the necessity of a just defence called upon him to take up arms, he readily exposed his person to eight winter campaigns on the frozen banks of the Danube, the severity of which was at last fatal to the weakness of his constitution. His memory was revered by a grateful posterity, and above a century after his death many persons preserved the image of Marcus Antoninus among those of their household gods.57

  

  Triumphal entry of Marcus Aurelius into Roome. From a bas-relief.

  If a man were called to fix the period in the history of the world during which the condition of the human race was most happy and prosperous, he would, without hesitation, name that which elapsed from the death of Domitian to the accession of Commodus. The vast extent of the Roman empire was governed by absolute power, under the guidance of virtue and wisdom. The armies were restrained by the firm but gentle hand of four successive emperors, whose characters and authority commanded involuntary respect. The forms of the civil administration were carefully preserved by Nerva, Trajan, Hadrian, and the Antonines, who delighted in the image of liberty, and were pleased with considering themselves as the accountable ministers of the laws. Such princes deserved the honour of restoring the republic, had the Romans of their days been capable of enjoying a rational freedom.

  The labours of these monarchs were over-paid by the immense reward that inseparably waited on their success; by the honest pride of virtue, and by the exquisite delight of beholding the general happiness of which they were the authors. A just but melancholy reflection embittered, however, the noblest of human enjoyments. They must often have recollected the instability of a happiness which depended on the character of a single man. The fatal moment was perhaps approaching, when some licentious youth, or some jealous tyrant, would abuse, to the destruction, that absolute power which they had exerted for the benefit of their people. The ideal restraints of the senate and the laws might serve to display the virtues, but could never correct the vices, of the emperor. The military force was a blind and irresistible instrument of oppression; and the corruption of Roman manners would always supply flatterers eager to applaud, and ministers prepared to serve, the fear or the avarice, the lust or the cruelty, of their masters.

  These gloomy apprehensions had been already justified by the experience of the Romans. The annals of the emperors exhibit a strong and various picture of human nature, which we should vainly seek among the mixed and doubtful characters of modern history. In the conduct of those monarchs we may trace the utmost lines of vice and virtue; the most exalted perfection and the meanest degeneracy of our own species. The golden age of Trajan and the Antonines had been preceded by an age of iron. It is almost superfluous to enumerate the unworthy successors of Augustus. Their unparalleled vices, and the splendid theatre on which they were acted, have saved them from oblivion. The dark unrelenting Tiberius, the furious Caligula, the stupid Claudius, the profligate and cruel Nero, the beastly Vitellius,58 and the timid inhuman Domitian are condemned to everlasting infamy. During fourscore years (excepting only the short and doubtful respite of Vespasian’s reign),59 Rome groaned beneath an unremitting tyranny, which exterminated the ancient families of the republic, and was fatal to almost every virtue and every talent that arose in that unhappy period.

  Under the reign of these monsters60 the slavery of the Romans was accompanied with two peculiar circumstances, the one occasioned by their former liberty, the other by their extensive conquests, which rendered their condition more wretched than that of the victims of tyranny in any other age or country. From these causes were derived, 1. The exquisite sensibility of the sufferers; and 2. The impossibility of escaping from the hand of the oppressor.

  I. When Persia was governed by the descendants of Sefi, a race of princes whose wanton cruelty often stained their divan, their table, and their bed with the blood of their favourites, there is a saying recorded of a young nobleman, that he never departed from the sultan’s presence without satisfying himself whether his head was still on his shoulders. The experience of every day might almost justify the scepticism of Rustan.61 Yet the fatal sword, suspended above him by a single thread, seems not to have disturbed the slumbers, or interrupted the tranquillity, of the Persian. The monarch’s frown, he well knew, could level him with the dust; but the stroke of lightning or apoplexy might be equally fatal; and it was the part of a wise man to forget the inevitable calamities of human life in the enjoyment of the fleeting hour. He was dignified with the appellation of the king’s slave; had, perhaps, been purchased from obscure parents, in a country which he had never known; and was trained up from his infancy in the severe discipline of the seraglio.62 His name, his wealth, his honours, were the gift of a master, who might, without injustice, resume what he had bestowed. Rustan’s knowledge, if he possessed any, could only serve to confirm his habits by prejudices. His language afforded not words for any form of government, except absolute monarchy. The history of the East informed him that such had ever been the condition of mankind.63 The Koran, and the interpreters of that divine book, inculcated to him that the sultan was the descendant of the prophet, and the vicegerent of heaven; that patience was the first virtue of a Mussulman, and unlimited obedience the great duty of a subject.

  The minds of the Romans were very differently prepared for slavery. Oppressed beneath the weight of their own corruption and of military violence, they for a long while preserved the sentiments, or at least the ideas, of their free-born ancestors. The education of Helvidius and Thrasea, of Tacitus and Pliny, was the same as that of Cato and Cicero. From Grecian philosophy they had imbibed the justest and most liberal notions of the dignity of human nature and the origin of civil society. The history of their own country had taught them to revere a free, a virtuous, and a victorious commonwealth; to abhor the successful crimes of Cæsar and Augustus; and inwardly to despise those tyrants whom they adored with the most abject flattery. As magistrates and senators, they were admitted into the great council which had once dictated laws to the earth, whose name gave still a sanction to the acts of the monarch, and whose authority was so often prostituted to the vilest purposes of tyranny. Tiberius, and those emperors who adopted his maxims, attempted to disguise their murders by the formalities of justice, and perhaps enjoyed a secret pleasure in rendering the senate their accomplice as well as their victim. By this assembly the last of the Romans were condemned for imaginary crimes and real virtues. Their infamous accusers assumed the language of independent patriots, who arraigned a dangerous citizen before the tribunal of his country; and the public service was rewarded by riches and honours.64 The servile judges professed to assert the majesty of the commonwealth, violated in the person of its first magistrate,65 whose clemency they most applauded when they trembled the most at his inexorable and impending cruelty.66 The tyrant beheld their baseness with just contempt, and encountered their secret sentiments of detestation with sincere and avowed hatred for the whole body of the senate.

  II. The division of Europe into a number of independent states, connected, however, with each other, by the general resemblance of religion, language, and manners, is productive of the most beneficial consequences to the liberty of mankind. A modern tyrant, who should find no resistance either in his own breast or in his people, would soon experience a gentle restraint from the example of his equals, the dread of present censure, the advice of his allies, and the apprehension of his enemies. The object of his displeasure, escaping from the narrow limits of his dominions, would easily obtain, in a happier climate, a secure refuge, a new fortune adequate to his merit, the freedom of complaint, and perhaps the means of revenge. But the empire of the Romans filled the world, and, when that empire fell into the hands of a single person, the world became a safe and dreary prison for his enemies. The slave of Imperial despotism, whether he was condemned to drag his gilded chain in Rome and the senate, or to wear out a life of exile on the barren rock of Seriphus, or the frozen banks of the Danube, expected his fate in silent despair.67 To resist was fatal, and it was impossible to fly. On every side he was encompassed with a vast extent of sea and land, which he could never hope to traverse without being discovered, seized, and restored to his irritated master. Beyond the frontiers, his anxious view could discover nothing, except the ocean, inhospitable deserts, hostile tribes of barbarians, of fierce manners and unknown language, or dependent kings, who would gladly purchase the emperor’s protection by the sacrifice of an obnoxious fugitive.68 “Wherever you are,” said Cicero to the exiled Marcellus, “remember that you are equally within the power of the conqueror.”69

  [1 ][His original name was C. Octavius, hence Merivale usually (incorrectly) speaks of him as Octavius. For he ceased to be an Octavius, and became a Julius, by his uncle’s adoption; his full name in 44 was C. Julius Cæsar Octavianus. The title Augustus was conferred Jan. 16, 27 ]

  [2 ]Orosius, vi. 18.

  [3 ]Julius Cæsar introduced soldiers, strangers and half-barbarians, into the senate. (Sueton. in Cæsar. c. 80.) The abuse became still more scandalous after his death.

  [4 ][But Dion, as Milman pointed out, says that he erased no senator’s name from the list; see next note.]

  [5 ]Dion Cassius, l. iii. p. 693 [42], Suetonius in August. c. 35. [But see Appendix 10.]

  [6 ]Dion, l. liii. p. 6983 [3], gives us a prolix and bombastic speech on this great occasion. I have borrowed from Suetonius and Tacitus the general language of Augustus.

  [7 ]Imperator (from which we have derived emperor) signified under the republic no more than general, and was emphatically bestowed by the soldiers, when on the field of battle they proclaimed their victorious leader worthy of that title. When the Roman emperors assumed it in that sense, they placed it after their name, and marked how often they had taken it. [Thus, as an imperial title imperator preceded the emperor’s name, but Imp. iii. after his name meant that he was saluted Imperator by his troops for the third time, on the occasion of his second victory after his accession.]

  [8 ]Dion, l. liii. p. 703, etc. [11, cp. 16].

  [9 ]Liv. Epitom. l. xiv. Valer. Maxim. vi. 3.

  [10 ]See in the viiith book of Livy, the conduct of Manlius Torquatus and Papirius Cursor. They violated the laws of nature and humanity, but they asserted those of military discipline; and the people, who abhorred the action, were obliged to respect the principle.

  [11 ]By the lavish but unconstrained suffrages of the people, Pompey had obtained a military command scarcely inferior to that of Augustus. Among the extraordinary acts of power executed by the former, we may remark the foundation of twenty-nine cities, and the distribution of three or four millions sterling to his troops. The ratification of his acts met with some opposition and delays in the senate. See Plutarch, Appian, Dion Cassius, and the first book of the epistles to Atticus.

  [12 ]Under the commonwealth, a triumph could only be claimed by the general, who was authorised to take the Auspices in the name of the people. By an exact consequence, drawn from this principle of policy and religion, the triumph was reserved to the emperor, and his most successful lieutenants were satisfied with some marks of distinction, which, under the name of triumphal honours, were invented in their favour. [On the provincial governors see Appendix 10.]

  [13 ][The prætorian guards and the fleets (at Ravenna and Misenum) were the two exceptions to the principle that Italy was outside the jurisdiction of the Imperator.]

  [14 ]Cicero (de Legibus, iii. 3) gives the consular office the name of Regia potestas: and Polybius (l. vi. c. 3) observes three powers in the Roman constitution. The monarchical was represented and exercised by the consuls. [But see Appendix 10.]

  [15 ]As the tribunitian power (distinct from the annual office) was first invented for the dictator Cæsar (Dion, l. xliv. p. 384 [5]), we may easily conceive that it was given as a reward for having so nobly asserted, by arms, the sacred rights of the tribunes and people. See his own commentaries, de Bell. Civil. l. i.

  [16 ]Augustus exercised nine annual consulships without interruption. He then most artfully refused that magistracy as well as the dictatorship, absented himself from Rome, and waited till the fatal effects of tumult and faction forced the senate to invest him with a perpetual consulship. Augustus, as well as his successors, affected, however, to conceal so invidious a title. [See Appendix 10, p. 318.]

  [17 ][But observe that the tribunate (as the author afterwards points out) was not discontinued, though, overshadowed by the tribunicia potestas of the emperor, it lost all political significance.]

  [18 ][See Appendix 10.]

  [19 ]See a fragment of a Decree of the Senate, conferring on the Emperor Vespasian all the powers granted to his predecessors, Augustus, Tiberius, and Claudius. This curious and important monument is published in Gruter’s Inscriptions, No. ccxlii. [Corp. Insc. Lat. vi. 930. This document is known as the lex de imperio Vespasiani.]

  [20 ]Two consuls were created on the Calends of January; but in the course of the year others were substituted in their places, till the annual number seems to have amounted to no less than twelve. The prætors were usually sixteen or eighteen (Lipsius in Excurs. D. ad. Tacit. Annal. l. i.). I have not mentioned the Ædiles or Quæstors. Officers of the police or revenue easily adapt themselves to any form of government. In the time of Nero the tribunes legally possessed the right of intercession, though it might be dangerous to exercise it (Tacit. Annal. xvi. 26). In the time of Trajan, it was doubtful whether the tribuneship was an office or a name (Plin. Epist. 123). [But it still existed in the 5th century, being mentioned in the Theodosian Code.]

  [21 ][See above, note 11.]

  [22 ]The tyrants themselves were ambitious of the consulship. The virtuous princes were moderate in the pursuit, and exact in the discharge, of it. Trajan revived the ancient oath, and swore before the consul’s tribunal that he would observe the laws (Plin. Panegyric. c. 64).

  [23 ]Quoties Magistratuum Comitiis interesset, tribus cum candidatis suis circuibat; supplicabatque more solemni. Ferebat et ipse suffragium in tribubus, ut unus e populo. Suetonius in August. c. 56.

  [24 ]Tum primum Comitia e campo ad patres translata sunt. Tacit. Annal. i. 15. The word primum seems to allude to some faint and unsuccessful efforts, which were made towards restoring them to the people. [One formality was still left to the popular assembly — the renuntiatio of the elected candidates. Gibbon’s inference from primum is hardly tenable; but he is right in so far that Augustus had prepared the way for the change of Tiberius.]

  [25 ]Dion Cassius (l. liii. p. 703-714 [12-18]) has given a very loose and partial sketch of the Imperial system. To illustrate and often to correct him, I have mentioned Tacitus, examined Suetonius, and consulted the following moderns: the Abbé de la Bléterie in the Mémoires de l’Académie des Inscriptions, tom. xix. xxi. xxiv. xxv. xxvii. Beaufort, République Romaine, tom. i. p. 255-275. The dissertations of Noodt and Gronovius, de lege Regia: printed at Leyden, in the year 1731. Gravina de Imperio Romano, p. 479-544 of his Opuscula. Maffei, Verona Illustrata, i. p. 245, &c.

  [26 ]A weak prince will always be governed by his domestics. The power of slaves aggravated the shame of the Romans; and the senate paid court to a Pallas or a Narcissus. There is a chance that a modern favourite may be a gentleman.

  [27 ]See a treatise of Van Dale de Consecratione Principum. It would be easier for me to copy, than it has been to verify, the quotations of that learned Dutchman.

  [28 ][And Alexander himself.]

  [29 ]See a dissertation of the Abbé Mongault in the first volume of the Academy of Inscriptions. [For the whole subject see the admirable article of Mr. Purser on Apotheosis, in the new edit. of Smith’s Dictionary of Greek and Roman Antiquities.]

  [30 ]Jurandasque tuum per nomen ponimus aras, says Horace to the emperor himself, and Horace was well acquainted with the court of Augustus.

  [31 ]See Cicero in Philippic, i. 6. Julian in Cæsaribus, Inque Deûm templis jurabit Roma per umbras, is the indignant expression of Lucan; but it is a patriotic rather than a devout indignation.

  [32 ]Dion Cassius, l. liii. p. 710 [16] with the curious Annotations of Reimar. [Augustus, rendered in Greek by Σεβαστός, cast a certain religious halo over the head of the emperor; cp. Dion loc. cit.]

  [33 ]As Octavianus advanced to the banquet of the Cæsars, his colour changed like that of the chameleon; pale at first, then red, afterwards black, he at last assumed the mild livery of Venus and the Graces (Cæsars, p. 309). This image, employed by Julian in his ingenious fiction, is just and elegant; but, when he considers this change of character as real, and ascribes it to the power of philosophy, he does too much honour to philosophy and to Octavianus.

  [34 ]Two centuries after the establishment of monarchy, the emperor Marcus Antoninus recommends the character of Brutus as a perfect model of Roman virtue.

  [35 ]It is much to be regretted that we have lost the part of Tacitus which treated of that transaction. We are forced to content ourselves with the popular rumours of Josephus, and the imperfect hints of Dion and Suetonius.

  [36 ]Augustus restored the ancient severity of discipline. After the civil wars, he dropped the endearing name of Fellow-Soldiers, and called them only Soldiers (Sueton. in August. c. 25). See the use Tiberius made of the senate in the mutiny of the Pannonian legions (Tacit. Annal. i. [25]).

  [37 ][Caligula was slain by officers of the prætorian guards.]

  [38 ]These words seem to have been the constitutional language. See Tacit. Annal. xiii. 4.

  [39 ]The first was Camillus Scribonianus, who took up arms in Dalmatia against Claudius, and was deserted by his own troops in five days; the second, L. Antonius, in Germany, who rebelled against Domitian; and the third, Avidius Cassius, in the reign of M. Antoninus. The two last reigned but a few months and were cut off by their own adherents. We may observe, that both Camillus and Cassius coloured their ambition with the design of restoring the republic, a task, said Cassius, peculiarly reserved for his name and family.

  [40 ]Velleius Paterculus, lii. c. 121. Sueton. in Tiber. c. 20.

  [41 ]Sueton. in Tit. c. 6. Plin. in Præfat. Hist. Natur.

  [42 ]This idea is frequently and strongly inculcated by Tacitus. See Hist. i. 5. 16. ii. 76.

  [43 ]The emperor Vespasian, with his usual good sense, laughed at the Genealogists, who deduced his family from Flavius, the founder of Reate (his native country), and one of the companions of Hercules. Sueton. in Vespasian. i. 12.

  [44 ]Dio. l. lxviii. p. 1121 [3]. Plin. Secund. in Panegyric. [7].

  [45 ]Felicior Augusto, melior Trajano. Eutrop. viii. 5.

  [46 ]Dion (l. lxix. p. 1249 [1]) affirms the whole to have been a fiction, on the authority of his father, who, being governor of the province where Trajan died, had very good opportunities of sifting this mysterious transaction. Yet Dodwell (Prælect. Camden. xvii.) has maintained, that Hadrian was called to the certain hope of the empire during the lifetime of Trajan.

  [47 ]Dion, l. lxx. p. 1171 [1]. Aurel. Victor [13].

  [48 ]The deification of Antinous, his medals, statues, temples, city, oracles, and constellation, are well known, and still dishonour the memory of Hadrian. Yet we may remark, that of the first fifteen emperors Claudius was the only one whose taste in love was entirely correct. For the honours of Antinous, see Spanheim, Commentaires sur les Cæsars de Julien, p. 80.

  [49 ]Hist. August. p. 13 [ii. 1]. Aurelius Victor in Epitom. [9].

  [50 ]Without the help of medals and inscriptions, we should be ignorant of this fact, so honourable to the memory of Pius. [But see Hist. Aug. iii. i. 7. We have their names from coins.]

  [51 ]During the twenty-three years of Pius’s reign, Marcus was only two nights absent from the palace, and even those were at different times. Hist. August. p. 25 [iv. 7].

  [52 ]He was fond of the theatre and not insensible to the charms of the fair sex. Marcus Antoninus, i. 16. Hist. August. p. 20. 21 [iii. 8 and 11]. Julian in Cæsar.

  [53 ]The enemies of Marcus charged him with hypocrisy and with a want of that simplicity which distinguished Pius and even Verus (Hist. Aug. p. 34 [iii. 29]). This suspicion, unjust as it was, may serve to account for the superior applause bestowed upon personal qualifications, in preference to the social virtues. Even Marcus Antoninus has been called a hypocrite; but the wildest scepticism never insinuated that Cæsar might possibly be a coward, or Tully a fool. Wit and valour are qualifications more easily ascertained than humanity or the love of justice.

  [54 ]Tacitus has characterised, in a few words, the principles of the Portico: Doctores sapientiæ secutus est, qui sola bona quæ honesta, mala tantum quæ turpia; potentiam, nobilitatem, cæteraque extra animum, neque bonis neque malis adnumerant. Tacit. Hist. iv. 5.

  [55 ]Before he went on the second expedition against the Germans, he read lectures of philosophy to the Roman people, during three days. He had already done the same in the cities of Greece and Asia. Hist. August. p. 41, in Cassio, c. 3.

  [56 ]Dio. l. lxxi. p. 1190 [23]. Hist. August. in Avid. Cassio [8].

  [57 ]Hist. August. in Marc. Antonin. c. 18.

  [58 ]Vitellius consumed in mere eating at least six millions of our money, in about seven months. It is not easy to express his vices with dignity, or even decency. Tacitus fairly calls him a hog; but it is by substituting for a coarse word a very fine image. “At Vitellius, umbraculis hortorum abditus, ut ignava animalia, quibus si cibum suggeras jacent torpentque, præterita, instantia, futura, pari oblivione dimiserat. Atque illum nemore Aricino desidem et marcentem,” &c. Tacit. Hist. iii. 36, ii. 95. Sueton. in Vitell. c. 13. Dio. Cassius, l. lxv. p. 1062 [3].

  [59 ]The execution of Helvidius Priscus and of the virtuous Eponina disgraced the reign of Vespasian.

  [60 ][But there is another side to this picture, which may be seen by studying Mommsen’s volume on the provinces.]

  [61 ]Voyage de Chardin en Perse, vol. iii. p. 293.

  [62 ]The practice of raising slaves to the great offices of state is still more common among the Turks than among the Persians. The miserable countries of Georgia and Circassia supply rulers to the greatest part of the East.

  [63 ]Chardin says that European travellers have diffused among the Persians some ideas of the freedom and mildness of our governments. They have done them a very ill office.

  [64 ]They alleged the example of Scipio and Cato (Tacit. Annal. iii. 66). Marcellus Eprius and Crispius Vibius had acquired two millions and a half under Nero. Their wealth, which aggravated their crimes, protected them under Vespasian. See Tacit. Hist. iv. 43. Dialog. de Orator. c. 8. For one accusation, Regulus, the just object of Pliny’s satire, received from the senate the consular ornaments, and a present of sixty thousand pounds.

  [65 ]The crime of majesty was formerly a treasonable offence against the Roman people. As tribunes of the people, Augustus and Tiberius applied it to their own persons, and extended it to an infinite latitude.

  [66 ]After the virtuous and unfortunate widow of Germanicus had been put to death, Tiberius received the thanks of the senate for his clemency. She had not been publicly strangled; nor was the body drawn with a hook to the Gemoniæ, where those of common malefactors were exposed. See Tacit. Annal. vi. 25. Sueton. in Tiberio. c. 53.

  [67 ]Seriphus was a small rocky island in the Ægean Sea, the inhabitants of which were despised for their ignorance and obscurity. The place of Ovid’s exile is well known by his just but unmanly lamentations. It should seem that he only received an order to leave Rome in so many days, and to transport himself to Tomi. Guards and gaolers were unnecessary.

  [68 ]Under Tiberius, a Roman knight attempted to fly to the Parthians. He was stopt in the straits of Sicily; but so little danger did there appear in the example, that the most jealous of tyrants disdained to punish it. Tacit. Annal. vi. 14.

  [69 ]Cicero ad Familiares, iv. 7.

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  8: 2. Power and Corruption and the Origins of Government - John Locke

  Read from the Second Treatise of Government chapters I-III, V, VII-VIII, XI, and XIX.

  John Locke, Two Treatises of Government, ed. Thomas Hollis (London: A. Millar et al., 1764). Chapter: OF CIVIL-GOVERNMENT: BOOK II

  Accessed from oll.libertyfund.org/title/222/16239 on 2009-10-19

  The text is in the public domain.

  ---

  OF CIVIL-GOVERNMENT

  BOOK II

  Chap. I.

  §. 1.

  It having been shewn in the foregoing discourse,

  1. That Adam had not, either by natural right of fatherhood, or by positive donation from God, any such authority over his children, or dominion over the world, as is pretended:

  2. That if he had, his heirs, yet, had no right to it:

  3. That if his heirs had, there being no law of nature nor positive law of God that determines which is the right heir in all cases that may arise, the right of succession, and consequently of bearing rule, could not have been certainly determined:

  4. That if even that had been determined, yet the knowledge of which is the eldest line of Adam’s posterity, being so long since utterly lost, that in the races of mankind and families of the world, there remains not to one above another, the least pretence to be the eldest house, and to have the right of inheritance:

  All these premises having, as I think, been clearly made out, it is impossible that the rulers now on earth should make any benefit, or derive any the least shadow of authority from that, which is held to be the fountain of all power, Adam’s private dominion and paternal jurisdiction; so that he that will not give just occasion to think that all government in the world is the product only of force and violence, and that men live together by no other rules but that of beasts, where the strongest carries it, and so lay a foundation for perpetual disorder and mischief, tumult, sedition and rebellion, (things that the followers of that hypothesis so loudly cry out against) must of necessity find out another rise of governwent, another original of political power, and another way of designing and knowing the persons that have it, than what Sir Robert Filmer hath taught us.

  §. 2.

  To this purpose, I think it may not be amiss, to set down what I take to be political power; that the power of a magistrate over a subject may be distinguished from that of a father over his children, a master over his servant, a husband over his wife, and a lord over his slave. All which distinct powers happening sometimes together in the same man, if he be considered under these different relations, it may help us to distinguish these powers one from another, and shew the difference betwixt a ruler of a common-wealth, a father of a family, and a captain of a galley.

  §. 3.

  Political power, then, I take to be a right of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the common-wealth from foreign injury; and all this only for the public good.

  CHAP. II.
  Of the State of Nature.

  §. 4.

  TO understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.

  A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.

  §. 5.

  This equality of men by nature, the judicious Hooker looks upon as so evident in itself, and beyond all question, that he makes it the foundation of that obligation to mutual love amongst men, on which he builds the duties they owe one another, and from whence he derives the great maxims of justice and charity. His words are,

  The like natural inducement hath brought men to know that it is no less their duty, to love others than themselves; for seeing those things which are equal, must needs all have one measure; if I cannot but wish to receive good, even as much at every man’s hands, as any man can wish unto his own soul, how should I look to have any part of my desire herein satisfied, unless myself be careful to satisfy the like desire, which is undoubtedly in other men, being of one and the same nature? To have any thing offered them repugnant to this desire, must needs in all respects grieve them as much as me; so that if I do harm, I must look to suffer, there being no reason that others should shew greater measure of love to me, than they have by me shewed unto them: my desire therefore to be loved of my equals in nature, as much as possible may be, imposeth upon me a natural duty of bearing to them-ward fully the like affection; from which relation of equality between ourselves and them that are as ourselves, what several rules and canons natural reason hath drawn, for direction of life, no man is ignorant. Eccl. Pol. Lib. 1.

  §. 6.

  But though this be a state of liberty, yet it is not a state of licence: though man in that state have an uncontroulable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another’s pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for our’s. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.

  §. 7.

  And that all men may be restrained from invading others rights, and from doing hurt to one another, and the law of nature be observed, which willeth the peace and preservation of all mankind, the execution of the law of nature is, in that state, put into every man’s hands, whereby every one has a right to punish the transgressors of that law to such a degree, as may hinder its violation: for the law of nature would, as all other laws that concern men in this world, be in vain, if there were no body that in the state of nature had a power to execute that law, and thereby preserve the innocent and restrain offenders. And if any one in the state of nature may punish another for any evil he has done, every one may do so: for in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, every one must needs have a right to do.

  §. 8.

  And thus, in the state of nature, one man comes by a power over another; but yet no absolute or arbitrary power, to use a criminal, when he has got him in his hands, according to the passionate heats, or boundless extravagancy of his own will; but only to retribute to him, so far as calm reason and conscience dictate, what is proportionate to his transgression, which is so much as may serve for reparation and restraint: for these two are the only reasons, why one man may lawfully do harm to another, which is that we call punishment. In transgressing the law of nature, the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men, for their mutual security; and so he becomes dangerous to mankind, the tye, which is to secure them from injury and violence, being slighted and broken by him. Which being a trespass against the whole species, and the peace and safety of it, provided for by the law of nature, every man upon this score, by the right he hath to preserve mankind in general, may restrain, or where it is necessary, destroy things noxious to them, and so may bring such evil on any one, who hath transgressed that law, as may make him repent the doing of it, and thereby deter him, and by his example others, from doing the like mischief. And in this case, and upon this ground, every man hath a right to punish the offender, and be executioner of the law of nature.

  §. 9.

  I doubt not but this will seem a very strange doctrine to some men: but before they condemn it, I desire them to resolve me, by what right any prince or state can put to death, or punish an alien, for any crime he commits in their country. It is certain their laws, by virtue of any sanction they receive from the promulgated will of the legislative, reach not a stranger: they speak not to him, nor, if they did, is he bound to hearken to them. The legislative authority, by which they are in force over the subjects of that common-wealth, hath no power over him. Those who have the supreme power of making laws in England, France or Holland, are to an Indian, but like the rest of the world, men without authority: and therefore, if by the law of nature every man hath not a power to punish offences against it, as he soberly judges the case to require, I see not how the magistrates of any community can punish an alien of another country; since, in reference to him, they can have no more power than what every man naturally may have over another.

  §. 10.

  Besides the crime which consists in violating the law, and varying from the right rule of reason, whereby a man so far becomes degenerate, and declares himself to quit the principles of human nature, and to be a noxious creature, there is commonly injury done to some person or other, and some other man receives damage by his transgression: in which case he who hath received any damage, has, besides the right of punishment common to him with other men, a particular right to seek reparation from him that has done it: and any other person, who finds it just, may also join with him that is injured, and assist him in recovering from the offender so much as may make satisfaction for the harm he has suffered.

  §. 11.

  From these two distinct rights, the one of punishing the crime for restraint, and preventing the like offence, which right of punishing is in every body; the other of taking reparation, which belongs only to the injured party, comes it to pass that the magistrate, who by being magistrate hath the common right of punishing put into his hands, can often, where the public good demands not the execution of the law, remit the punishment of criminal offences by his own authority, but yet cannot remit the satisfaction due to any private man for the damage he has received. That, he who has suffered the damage has a right to demand in his own name, and he alone can remit: the damnified person has this power of appropriating to himself the goods or service of the offender, by right of self-preservation, as every man has a power to punish the crime, to prevent its being committed again, by the right he has of preserving all mankind, and doing all reasonable things he can in order to that end: and thus it is, that every man, in the state of nature, has a power to kill a murderer, both to deter others from doing the like injury, which no reparation can compensate, by the example of the punishment that attends it from every body, and also to secure men from the attempts of a criminal, who having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or a tyger, one of those wild savage beasts, with whom men can have no society nor security: and upon this is grounded that great law of nature, Whoso sheddeth man’s blood, by man shall his blood be shed. And Cain was so fully convinced, that every one had a right to destroy such a criminal, that after the murder of his brother, he cries out, Every one that findethme, shall slay me; so plain was it writ in the hearts of all mankind.

  §. 12.

  By the same reason may a man in the state of nature punish the lesser breaches of that law. It will perhaps be demanded, with death? I answer, each transgression may be punished to that degree, and with so much severity, as will suffice to make it an ill bargain to the offender, give him cause to repent, and terrify others from doing the like. Every offence, that can be committed in the state of nature, may in the state of nature be also punished equally, and as far forth as it may, in a common-wealth: for though it would be besides my present purpose, to enter here into the particulars of the law of nature, or its measures of punishment; yet, it is certain there is such a law, and that too, as intelligible and plain to a rational creature, and a studier of that law, as the positive laws of common-wealths; nay, possibly plainer; as much as reason is easier to be understood, than the fancies and intricate contrivances of men, following contrary and hidden interests put into words; for so truly are a great part of the municipal laws of countries, which are only so far right, as they are founded on the law of nature, by which they are to be regulated and interpreted.

  §. 13.

  To this strange doctrine, viz. That in the state of nature every one has the executive power of the law of nature, I doubt not but it will be objected, that it is unreasonable for men to be judges in their own cases, that self-love will make men partial to themselves and their friends: and on the other side, that ill nature, passion and revenge will carry them too far in punishing others; and hence nothing but confusion and disorder will follow, and that therefore God hath certainly appointed government to restrain the partiality and violence of men. I easily grant, that civil government is the proper remedy for the inconveniencies of the state of nature, which must certainly be great, where men may be judges in their own case, since it is easy to be imagined, that he who was so unjust as to do his brother an injury, will scarce be so just as to condemn himself for it: but I shall desire those who make this objection, to remember, that absolute monarchs are but men; and if government is to be the remedy of those evils, which necessarily follow from men’s being judges in their own cases, and the state of nature is therefore not to be endured, I desire to know what kind of government that is, and how much better it is than the state of nature, where one man, commanding a multitude, has the liberty to be judge in his own case, and may do to all his subjects whatever he pleases, without the least liberty to any one to question or controul those who execute his pleasure? and in whatsoever he doth, whether led by reason, mistake or passion, must be submitted to? much better it is in the state of nature, wherein men are not bound to submit to the unjust will of another: and if he that judges, judges amiss in his own, or any other case, he is answerable for it to the rest of mankind.

  §. 14.

  It is often asked as a mighty objection, where are, or ever were there any men in such a state of nature? To which it may suffice as an answer at present, that since all princes and rulers of independent governments all through the world, are in a state of nature, it is plain the world never was, nor ever will be, without numbers of men in that state. I have named all governors of independent communities, whether they are, or are not, in league with others: for it is not every compact that puts an end to the state of nature between men, but only this one of agreeing together mutually to enter into one community, and make one body politic; other promises, and compacts, men may make one with another, and yet still be in the state of nature. The promises and bargains for truck, &c. between the two men in the desert island, mentioned by Garcilasso de la Vega, in his history of Peru; or between a Swiss and an Indian, in the woods of America, are binding to them, though they are perfectly in a state of nature, in reference to one another: for truth and keeping of faith belongs to men, as men, and not as members of society.

  §. 15.

  To those that say, there were never any men in the state of nature, I will not only oppose the authority of the judicious Hooker, Eccl. Pol. lib. i. sect. 10. where he says, The laws which have been hitherto mentioned, i. e. the laws of nature, do bind men absolutely, even as they are men, although they have never any settled fellowship, never any solemn agreement amongst themselves what to do, or not to do: but forasmuch as we are not by ourselves sufficient to furnish ourselves with competent store of things, needful for such a life as our nature doth desire, a life fit for the dignity of man; therefore to supply those defects and imperfections which are in us, as living single and solely by ourselves, we are naturally induced to seek communion and fellowship with others: this was the cause of men’s uniting themselves at first in politic societies. But I moreover affirm, that all men are naturally in that state, and remain so, till by their own consents they make themselves members of some politic society; and I doubt not in the sequel of this discourse, to make it very clear.

  CHAP. III.
  Of the State of War.

  §. 16.

  THE state of war is a state of enmity and destruction: and therefore declaring by word or action, not a passionate and hasty, but a sedate settled design upon another man’s life, puts him in a state of war with him against whom he has declared such an intention, and so has exposed his life to the other’s power to be taken away by him, or any one that joins with him in his defence, and espouses his quarrel; it being reasonable and just, I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the common-law of reason, have no other rule, but that of force and violence, and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy him whenever he falls into their power.

  §. 17.

  And hence it is, that he who attempts to get another man into his absolute power, does thereby put himself into a state of war with him; it being to be understood as a declaration of a design upon his life: for I have reason to conclude, that he who would get me into his power without my consent, would use me as he pleased when he had got me there, and destroy me too when he had a fancy to it; for no body can desire to have me in his absolute power, unless it be to compel me by force to that which is against the right of my freedom, i. e. make me a slave. To be free from such force is the only security of my preservation; and reason bids me look on him, as an enemy to my preservation, who would take away that freedom which is the fence to it; so that he who makes an attempt to enslave me, thereby puts himself into a state of war with me. He that, in the state of nature, would take away the freedom that belongs to any one in that state, must necessarily be supposed to have a design to take away every thing else, that freedom being the foundation of all the rest; as he that, in the state of society, would take away the freedom belonging to those of that society or common-wealth, must be supposed to design to take away from them every thing else, and so be looked on as in a state of war.

  §. 18.

  This makes it lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life, any farther than, by the use of force, so to get him in his power, as to take away his money, or what he pleases, from him; because using force, where he has no right, to get me into his power, let his pretence be what it will, I have no reason to suppose, that he, who would take away my liberty, would not, when he had me in his power, take away every thing else. And therefore it is lawful for me to treat him as one who has put himself into a state of war with me, i. e. kill him if I can; for to that hazard does he justly expose himself, whoever introduces a state of war, and is aggressor in it.

  §. 19.

  And here we have the plain difference between the state of nature and the state of war, which however some men have confounded, are as far distant, as a state of peace, good will, mutual assistance and preservation, and a state of enmity, malice, violence and mutual destruction, are one from another. Men living together according to reason, without a common superior on earth, with authority to judge between them, is properly the state of nature. But force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war: and it is the want of such an appeal gives a man the right of war even against an aggressor, tho’ he be in society and a fellow subject. Thus a thief, whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill, when he sets on me to rob me but of my horse or coat; because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defence, and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable. Want of a common judge with authority, puts all men in a state of nature: force without right, upon a man’s person, makes a state of war, both where there is, and is not, a common judge.

  §. 20.

  But when the actual force is over, the state of war ceases between those that are in society, and are equally on both sides subjected to the fair determination of the law; because then there lies open the remedy of appeal for the past injury, and to prevent future harm: but where no such appeal is, as in the state of nature, for want of positive laws, and judges with authority to appeal to, the state of war once begun, continues, with a right to the innocent party to destroy the other whenever he can, until the aggressor offers peace, and desires reconciliation on such terms as may repair any wrongs he has already done, and secure the innocent for the future; nay, where an appeal to the law, and constituted judges, lies open, but the remedy is denied by a manifest perverting of justice, and a barefaced wresting of the laws to protect or indemnify the violence or injuries of some men, or party of men, there it is hard to imagine any thing but a state of war: for where-ever violence is used, and injury done, though by hands appointed to administer justice, it is still violence and injury, however coloured with the name, pretences, or forms of law, the end whereof being to protect and redress the innocent, by an unbiassed application of it, to all who are under it; where-ever that is not bona fide done, war is made upon the sufferers, who having no appeal on earth to right them, they are left to the only remedy in such cases, an appeal to heaven.

  §. 21.

  To avoid this state of war (wherein there is no appeal but to heaven, and wherein every the least difference is apt to end, where there is no authority to decide between the contenders) is one great reason of men’s putting themselves into society, and quitting the state of nature: for where there is an authority, a power on earth, from which relief can be had by appeal, there the continuance of the state of war is excluded, and the controversy is decided by that power. Had there been any such court, any superior jurisdiction on earth, to determine the right between Jephtha and the Ammonites, they had never come to a state of war: but we see he was forced to appeal to heaven. The Lord the Judge (says he) be judge this day between the children of Israel and the children of Ammon, Judg. xi. 27. and then prosecuting, and relying on his appeal, he leads out his army to battle: and therefore in such controversies, where the question is put, who shall be judge? It cannot be meant, who shall decide the controversy; every one knows what Jephtha here tells us, that the Lord the Judge shall judge. Where there is no judge on earth, the appeal lies to God in heaven. That question then cannot mean, who shall judge, whether another hath put himself in a state of war with me, and whether I may, as Jephtha did, appeal to heaven in it? of that I myself can only be judge in my own conscience, as I will answer it, at the great day, to the supreme judge of all men.

  CHAP. IV.
  Of SLAVERY.

  §. 22.

  THE natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule. The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the common-wealth; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it. Freedom then is not what Sir Robert Filmer tells us, Observations, A. 55. a liberty for every oneto do what he lists, to live as he pleases, and not to be tied by any laws: but freedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature.

  §. 23.

  This freedom from absolute, arbitrary power, is so necessary to, and closely joined with a man’s preservation, that he cannot part with it, but by what forfeits his preservation and life together: for a man, not having the power of his own life, cannot, by compact, or his own consent, enslave himself to any one, nor put himself under the absolute, arbitrary power of another, to take away his life, when he pleases. No body can give more power than he has himself; and he that cannot take away his own life, cannot give another power over it. Indeed, having by his fault forfeited his own life, by some act that deserves death; he, to whom he has forfeited it, may (when he has him in his power) delay to take it, and make use of him to his own service, and he does him no injury by it: for, whenever he finds the hardship of his slavery outweigh the value of his life, it is in his power, by resisting the will of his master, to draw on himself the death he desires.

  §. 24.

  This is the perfect condition of slavery, which is nothing else, but the state of war continued, between a lawful conqueror and a captive: for, if once compact enter between them, and make an agreement for a limited power on the one side, and obedience on the other, the state of war and slavery ceases, as long as the compact endures: for, as has been said, no man can, by agreement, pass over to another that which he hath not in himself, a power over his own life.

  I confess, we find among the Jews, as well as other nations, that men did sell themselves; but, it is plain, this was only to drudgery, not to slavery: for, it is evident, the person sold was not under an absolute, arbitrary, despotical power: for the master could not have power to kill him, at any time, whom, at a certain time, he was obliged to let go free out of his service; and the master of such a servant was so far from having an arbitrary power over his life, that he could not, at pleasure, so much as maim him, but the loss of an eye, or tooth, set him free, Exod. xxi.

  CHAP. V.
  Of PROPERTY.

  §. 25.

  WHether we consider natural reason, which tells us, that men, being once born, have a right to their preservation, and consequently to meat and drink, and such other things as nature affords for their subsistence: or revelation, which gives us an account of those grants God made of the world to Adam, and to Noah, and his sons, it is very clear, that God, as king David says, Psal. CXV. 16. has given the earth to the children of men; given it to mankind in common. But this being supposed, it seems to some a very great difficulty, how any one should ever come to have a property in any thing: I will not content myself to answer, that if it be difficult to make out property, upon a supposition that God gave the world to Adam, and his posterity in common, it is impossible that any man, but one universal monarch, should have any property upon a supposition, that God gave the world to Adam, and his heirs in succession, exclusive of all the rest of his posterity. But I shall endeavour to shew, how men might come to have a property in several parts of that which God gave to mankind in common, and that without any express compact of all the commoners.

  §. 26.

  God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life, and convenience. The earth, and all that is therein, is given to men for the support and comfort of their being. And tho’ all the fruits it naturally produces, and beasts it feeds, belong to mankind in common, as they are produced by the spontaneous hand of nature; and no body has originally a private dominion, exclusive of the rest of mankind, in any of them, as they are thus in their natural state: yet being given for the use of men, there must of necessity be a means to appropriate them some way or other, before they can be of any use, or at all beneficial to any particular man. The fruit, or venison, which nourishes the wild Indian, who knows no inclosure, and is still a tenant in common, must be his, and so his, i. e. a part of him, that another can no longer have any right to it, before it can do him any good for the support of his life.

  §. 27.

  Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.

  §. 28.

  He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. No body can deny but the nourishment is his. I ask then, when did they begin to be his? when he digested? or when he eat? or when he boiled? or when he brought them home? or when he picked them up? and it is plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common: that added something to them more than nature, the common mother of all, had done; and so they became his private right. And will any one say, he had no right to those acorns or apples, he thus appropriated, because he had not the consent of all mankind to make them his? Was it a robbery thus to assume to himself what belonged to all in common? If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him. We see in commons, which remain so by compact, that it is the taking any part of what is common, and removing it out of the state nature leaves it in, which begins the property; without which the common is of no use. And the taking of this or that part, does not depend on the express consent of all the commoners. Thus the grass my horse has bit; the turfs my servant has cut; and the ore I have digged in any place, where I have a right to them in common with others, become my property, without the assignation or consent of any body. The labour that was mine, removing them out of that common state they were in, hath fixed my property in them.

  §. 29.

  By making an explicit consent of every commoner, necessary to any one’s appropriating to himself any part of what is given in common, children or servants could not cut the meat, which their father or master had provided for them in common, without assigning to every one his peculiar part. Though the water running in the fountain be every one’s, yet who can doubt, but that in the pitcher is his only who drew it out? His labour hath taken it out of the hands of nature, where it was common, and belonged equally to all her children, and hath thereby appropriated it to himself.

  §. 30.

  Thus this law of reason makes the deer that Indian’s who hath killed it; it is allowed to be his goods, who hath bestowed his labour upon it, though before it was the common right of every one. And amongst those who are counted the civilized part of mankind, who have made and multiplied positive laws to determine property, this original law of nature, for the beginning of property, in what was before common, still takes place; and by virtue thereof, what fish any one catches in the ocean, that great and still remaining common of mankind; or what ambergrise any one takes up here, is by the labour that removes it out of that common state nature left it in, made his property, who takes that pains about it. And even amongst us, the hare that any one is hunting, is thought his who pursues her during the chase: for being a beast that is still looked upon as common, and no man’s private possession; whoever has employed so much labour about any of that kind, as to find and pursue her, has thereby removed her from the state of nature, wherein she was common, and hath begun a property.

  §. 31.

  It will perhaps be objected to this, that if gathering the acorns, or other fruits of the earth, &c. makes a right to them, then any one may ingross as much as he will. To which I answer, Not so. The same law of nature, that does by this means give us property, does also bound that property too. God has given us all things richly, 1 Tim. vi. 12. is the voice of reason confirmed by inspiration. But how far has he given it us? To enjoy. As much as any one can make use of to any advantage of life before it spoils, so much he may by his labour fix a property in: whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. And thus, considering the plenty of natural provisions there was a long time in the world, and the few spenders; and to how small a part of that provision the industry of one man could extend itself, and ingross it to the prejudice of others; especially keeping within the bounds, set by reason, of what might serve for his use; there could be then little room for quarrels or contentions about property so established.

  §. 32.

  But the chief matter of property being now not the fruits of the earth, and the beasts that subsist on it, but the earth itself; as that which takes in and carries with it all the rest; I think it is plain, that property in that too is acquired as the former. As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He by his labour does, as it were, inclose it from the common. Nor will it invalidate his right, to say every body else has an equal title to it; and therefore he cannot appropriate, he cannot inclose, without the consent of all his fellow-commoners, all mankind. God, when he gave the world in common to all mankind, commanded man also to labour, and the penury of his condition required it of him. God and his reason commanded him to subdue the earth, i. e. improve it for the benefit of life, and therein lay out something upon it that was his own, his labour. He that in obedience to this command of God, subdued, tilled and sowed any part of it, thereby annexed to it something that was his property, which another had no title to, nor could without injury take from him.

  §. 33.

  Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough, and as good left; and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his inclosure for himself: for he that leaves as much as another can make use of, does as good as take nothing at all. No body could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst: and the case of land and water, where there is enough of both, is perfectly the same.

  §. 34.

  God gave the world to men in common; but since he gave it them for their benefit, and the greatest conveniencies of life they were capable to draw from it, it cannot be supposed he meant it should always remain common and uncultivated. He gave it to the use of the industrious and rational, (and labour was to be his title to it;) not to the fancy or covetousness of the quarrelsome and contentious. He that had as good left for his improvement, as was already taken up, needed not complain, ought not to meddle with what was already improved by another’s labour: if he did, it is plain he desired the benefit of another’s pains, which he had no right to, and not the ground which God had given him in common with others to labour on, and whereof there was as good left, as that already possessed, and more than he knew what to do with, or his industry could reach to.

  §. 35.

  It is true, in land that is common in England, or any other country, where there is plenty of people under government, who have money and commerce, no one can inclose or appropriate any part, without the consent of all his fellow-commoners; because this is left common by compact, i. e. by the law of the land, which is not to be violated. And though it be common, in respect of some men, it is not so to all mankind; but is the joint property of this country, or this parish. Besides, the remainder, after such inclosure, would not be as good to the rest of the commoners, as the whole was when they could all make use of the whole; whereas in the beginning and first peopling of the great common of the world, it was quite otherwise. The law man was under, was rather for appropriating. God commanded, and his wants forced him to labour. That was his property which could not be taken from him where-ever he had fixed it. And hence subduing or cultivating the earth, and having dominion, we see are joined together. The one gave title to the other. So that God, by commanding to subdue, gave authority so far to appropriate: and the condition of human life, which requires labour and materials to work on, necessarily introduces private possessions.

  §. 36.

  The measure of property nature has well set by the extent of men’s labour and the conveniencies of life: no man’s labour could subdue, or appropriate all; nor could his enjoyment consume more than a small part; so that it was impossible for any man, this way, to intrench upon the right of another, or acquire to himself a property, to the prejudice of his neighbour, who would still have room for as good, and as large a possession (after the other had taken out his) as before it was appropriated. This measure did confine every man’s possession to a very moderate proportion, and such as he might appropriate to himself, without injury to any body, in the first ages of the world, when men were more in danger to be lost, by wandering from their company, in the then vast wilderness of the earth, than to be straitened for want of room to plant in. And the same measure may be allowed still without prejudice to any body, as full as the world seems: for supposing a man, or family, in the state they were at first peopling of the world by the children of Adam, or Noah; let him plant in some in-land, vacant places of America, we shall find that the possessions he could make himself, upon the measures we have given, would not be very large, nor, even to this day, prejudice the rest of mankind, or give them reason to complain, or think themselves injured by this man’s incroachment, though the race of men have now spread themselves to all the corners of the world, and do infinitely exceed the small number was at the beginning. Nay, the extent of ground is of so little value, without labour, that I have heard it affirmed, that in Spain itself a man may be permitted to plough, sow and reap, without being disturbed, upon land he has no other title to, but only his making use of it. But, on the contrary, the inhabitants think themselves beholden to him, who, by his industry on neglected, and consequently waste land, has increased the stock of corn, which they wanted. But be this as it will, which I lay no stress on; this I dare boldly affirm, that the same rule of propriety, (viz.) that every man should have as much as he could make use of, would hold still in the world, without straitening any body; since there is land enough in the world to suffice double the inhabitants, had not the invention of money, and the tacit agreement of men to put a value on it, introduced (by consent) larger possessions, and a right to them; which, how it has done, I shall by and by shew more at large.

  §. 37.

  This is certain, that in the beginning, before the desire of having more than man needed had altered the intrinsic value of things, which depends only on their usefulness to the life of man; or had agreed, that a little piece of yellow metal, which would keep without wasting or decay, should be worth a great piece of flesh, or a whole heap of corn; though men had a right to appropriate, by their labour, each one to himself, as much of the things of nature, as he could use: yet this could not be much, nor to the prejudice of others, where the same plenty was still left to those who would use the same industry. To which let me add, that he who appropriates land to himself by his labour, does not lessen, but increase the common stock of mankind: for the provisions serving to the support of human life, produced by one acre of inclosed and cultivated land, are (to speak much within compass) ten times more than those which are yielded by an acre of land of an equal richness lying waste in common. And therefore he that incloses land, and has a greater plenty of the conveniencies of life from ten acres, than he could have from an hundred left to nature, may truly be said to give ninety acres to mankind: for his labour now supplies him with provisions out of ten acres, which were but the product of an hundred lying in common. I have here rated the improved land very low, in making its product but as ten to one, when it is much nearer an hundred to one: for I ask, whether in the wild woods and uncultivated waste of America, left to nature, without any improvement, tillage or husbandry, a thousand acres yield the needy and wretched inhabitants as many conveniencies of life, as ten acres of equally fertile land do in Devonshire, where they are well cultivated?

  Before the appropriation of land, he who gathered as much of the wild fruit, killed, caught, or tamed, as many of the beasts, as he could; he that so imployed his pains about any of the spontaneous products of nature, as any way to alter them from the state which nature put them in, by placing any of his labour on them, did thereby acquire a propriety in them: but if they perished, in his possession, without their due use; if the fruits rotted, or the venison putrified, before he could spend it, he offended against the common law of nature, and was liable to be punished; he invaded his neighbour’s share, for he had no right, farther than his use called for any of them, and they might serve to afford him conveniencies of life.

  §. 38.

  The same measures governed the possession of land too: whatsoever he tilled and reaped, laid up and made use of, before it spoiled, that was his peculiar right; whatsoever he enclosed, and could feed, and make use of, the cattle and product was also his. But if either the grass of his inclosure rotted on the ground, or the fruit of his planting perished without gathering, and laying up, this part of the earth, notwithstanding his inclosure, was still to be looked on as waste, and might be the possession of any other. Thus, at the beginning, Cain might take as much ground as he could till, and make it his own land, and yet leave enough to Abel’s sheep to feed on; a few acres would serve for both their possessions. But as families increased, and industry inlarged their stocks, their possessions inlarged with the need of them; but yet it was commonly without any fixed property in the ground they made use of, till they incorporated, settled themselves together, and built cities; and then, by consent, they came in time, to set out the bounds of their distinct territories, and agree on limits between them and their neighbours; and by laws within themselves, settled the properties of those of the same society: for we see, that in that part of the world which was first inhabited, and therefore like to be best peopled, even as low down as Abraham’s time, they wandered with their flocks, and their herds, which was their substance, freely up and down; and this Abraham did, in a country where he was a stranger. Whence it is plain, that at least a great part of the land lay in common; that the inhabitants valued it not, nor claimed property in any more than they made use of. But when there was not room enough in the same place, for their herds to feed together, they by consent, as Abraham and Lot did, Gen. xiii. 5. separated and inlarged their pasture, where it best liked them. And for the same reason Esau went from his father, and his brother, and planted in mount Seir, Gen. xxxvi. 6.

  §. 39.

  And thus, without supposing any private dominion, and property in Adam, over all the world, exclusive of all other men, which can no way be proved, nor any one’s property be made out from it; but supposing the world given, as it was, to the children of men in common, we see how labour could make men distinct titles to several parcels of it, for their private uses; wherein there could be no doubt of right, no room for quarrel.

  §. 40.

  Nor is it so strange, as perhaps before consideration it may appear, that the property of labour should be able to over-balance the community of land: for it is labour indeed that puts the difference of value on every thing; and let any one consider what the difference is between an acre of land planted with tobacco or sugar, sown with wheat or barley, and an acre of the same land lying in common, without any husbandry upon it, and he will find, that the improvement of labour makes the far greater part of the value. I think it will be but a very modest computation to say, that of the products of the earth useful to the life of man nine tenths are the effects of labour: nay, if we will rightly estimate things as they come to our use, and cast up the several expences about them, what in them is purely owing to nature, and what to labour, we shall find, that in most of them ninety-nine hundredths are wholly to be put on the account of labour.

  §. 41.

  There cannot be a clearer demonstration of any thing, than several nations of the Americans are of this, who are rich in land, and poor in all the comforts of life; whom nature having furnished as liberally as any other people, with the materials of plenty, i. e. a fruitful soil, apt to produce in abundance, what might serve for food, raiment, and delight; yet for want of improving it by labour, have not one hundredth part of the conveniencies we enjoy: and a king of a large and fruitful territory there, feeds, lodges, and is clad worse than a day-labourer in England.

  §. 42.

  To make this a little clearer, let us but trace some of the ordinary provisions of life, through their several progresses, before they come to our use, and see how much they receive of their value from human industry. Bread, wine and cloth, are things of daily use, and great plenty; yet notwithstanding, acorns, water and leaves, or skins, must be our bread, drink and cloathing, did not labour furnish us with these more useful commodities: for whatever bread is more worth than acorns, wine than water, and cloth or silk, than leaves, skins or moss, that is wholly owing to labour and industry; the one of these being the food and raiment which unassisted nature furnishes us with; the other, provisions which our industry and pains prepare for us, which how much they exceed the other in value, when any one hath computed, he will then see how much labour makes the far greatest part of the value of things we enjoy in this world: and the ground which produces the materials, is scarce to be reckoned in, as any, or at most, but a very small part of it; so little, that even amongst us, land that is left wholly to nature, that hath no improvement of pasturage, tillage, or planting, is called, as indeed it is, waste; and we shall find the benefit of it amount to little more than nothing.

  This shews how much numbers of men are to be preferred to largeness of dominions; and that the increase of lands, and the right employing of them, is the great art of government: and that prince, who shall be so wise and godlike, as by established laws of liberty to secure protection and encouragement to the honest industry of mankind, against the oppression of power and narrowness of party, will quickly be too hard for his neighbours: but this by the by. To return to the argument in hand,

  §. 43.

  An acre of land, that bears here twenty bushels of wheat, and another in America, which, with the same husbandry, would do the like, are, without doubt, of the same natural intrinsic value: but yet the benefit mankind receives from the one in a year, is worth 5 l. and from the other possibly not worth a penny, if all the profit an Indian received from it were to be valued, and sold here; at least, I may truly say, not one thousandth. It is labour then which puts the greatest part of value upon land, without which it would scarcely be worth any thing: it is to that we owe the greatest part of all its useful products; for all that the straw, bran, bread, of that acre of wheat, is more worth than the product of an acre of as good land, which lies waste, is all the effect of labour: for it is not barely the plough-man’s pains, the reaper’s and thresher’s toil, and the baker’s sweat, is to be counted into the bread we eat; the labour of those who broke the oxen, who digged and wrought the iron and stones, who felled and framed the timber employed about the plough, mill, oven, or any other utensils, which are a vast number, requisite to this corn, from its being seed to be sown to its being made bread, must all be charged on the account of labour, and received as an effect of that: nature and the earth furnished only the almost worthless materials, as in themselves. It would be a strange catalogue of things, that industry provided and made use of, about every loaf of bread, before it came to our use, if we could trace them; iron, wood, leather, bark, timber, stone, bricks, coals, lime, cloth, dying drugs, pitch, tar, masts, ropes, and all the materials made use of in the ship, that brought any of the commodities made use of by any of the workmen, to any part of the work; all which it would be almost impossible, at least too long, to reckon up.

  §. 44.

  From all which it is evident, that though the things of nature are given in common, yet man, by being master of himself, and proprietor of his own person, and the actions or labour of it, had still in himself thegreat foundation of property; and that, which made up the great part of what he applied to the support or comfort of his being, when invention and arts had improved the conveniencies of life, was perfectly his own, and did not belong in common to others.

  §. 45.

  Thus labour, in the beginning, gave a right of property, wherever any one was pleased to employ it upon what was common, which remained a long while the far greater part, and is yet more than mankind makes use of. Men, at first, for the most part, contented themselves with what unassisted nature offered to their necessities: and though afterwards, in some parts of the world, (where the increase of people and stock, with the use of money, had made land scarce, and so of some value) the several communities settled the bounds of their distinct territories, and by laws within themselves regulated the properties of the private men of their society, and so, by compact and agreement, settled the property which labour and industry began; and the leagues that have been made between several states and kingdoms, either expresly or tacitly disowning all claim and right to the land in the others possession, have, by common consent, given up their pretences to their natural common right, which originally they had to those countries, and so have, by positive agreement, settled a property amongst themselves, in distinct parts and parcels of the earth; yet there are still great tracts of ground to be found, which (the inhabitants thereof not having joined with the rest of mankind, in the consent of the use of their common money) lie waste, and are more than the people who dwell on it do, or can make use of, and so still lie in common; tho’ this can scarce happen amongst that part of mankind that have consented to the use of money.

  §. 46.

  The greatest part of things really useful to the life of man, and such as the necessity of subsisting made the first commoners of the world look after, as it doth the Americans now, are generally things of short duration; such as, if they are not consumed by use, will decay and perish of themselves: gold, silver and diamonds, are things that fancy or agreement hath put the value on, more than real use, and the necessary support of life. Now of those good things which nature hath provided in common, every one had a right (as hath been said) to as much as he could use, and property in all that he could effect with his labour; all that his industry could extend to, to alter from the state nature had put it in, was his. He that gathered a hundred bushels of acorns or apples, had thereby a property in them, they were his goods as soon as gathered. He was only to look, that he used them before they spoiled, else he took more than his share, and robbed others. And indeed it was a foolish thing, as well as dishonest, to hoard up more than he could make use of. If he gave away a part to any body else, so that it perished not uselesly in his possession, these he also made use of. And if he also bartered away plums, that would have rotted in a week, for nuts that would last good for his eating a whole year, he did no injury; he wasted not the common stock; destroyed no part of the portion of goods that belonged to others, so long as nothing perished uselesly in his hands. Again, if he would give his nuts for a piece of metal, pleased with its colour; or exchange his sheep for shells, or wool for a sparkling pebble or a diamond, and keep those by him all his life, he invaded not the right of others, he might heap up as much of these durable things as he pleased; the exceeding of the bounds of his just property not lying in the largeness of his possession, but the perishing of any thing uselesly in it.

  §. 47.

  And thus came in the use of money, some lasting thing that men might keep without spoiling, and that by mutual consent men would take in exchange for the truly useful, but perishable supports of life.

  §. 48.

  And as different degrees of industry were apt to give men possessions in different proportions, so this invention of money gave them the opportunity to continue and enlarge them: for supposing an island, separate from all possible commerce with the rest of the world, wherein there were but an hundred families, but there were sheep, horses and cows, with other useful animals, wholsome fruits, and land enough for corn for a hundred thousand times as many, but nothing in the island, either because of its commonness, or perishableness, fit to supply the place of money; what reason could any one have there to enlarge his possessions beyond the use of his family, and a plentiful supply to its consumption, either in what their own industry produced, or they could barter for like perishable, useful commodities, with others? Where there is not some thing, both lasting and scarce, and so valuable to be hoarded up, there men will be apt to enlarge their possessions of land, were it never so rich, never so free for them to take: for I ask, what would a man value ten thousand, or an hundred thousand acres of excellent land, ready cultivated, and well stocked too with cattle, in the middle of the inland parts of America, where he had no hopes of commerce with other parts of the world, to draw money to him by the sale of the product? It would not be worth the inclosing, and we should see him give up again to the wild common of nature, whatever was more than would supply the conveniencies of life to be had there for him and his family.

  §. 49.

  Thus in the beginning all the world was America, and more so than that is now; for no such thing as money was any where known. Find out something that hath the use and value of money amongst his neighbours, you shall see the same man will begin presently to enlarge his possessions.

  §. 50.

  But since gold and silver, being little useful to the life of man in proportion to food, raiment, and carriage, has its value only from the consent of men, whereof labour yet makes, in great part, the measure, it is plain, that men have agreed to a disproportionate and unequal possession of the earth, they having, by a tacit and voluntary consent, found out a way how a man may fairly possess more land than he himself can use the product of, by receiving in exchange for the overplus gold and silver, which may be hoarded up without injury to any one; these metals not spoiling or decaying in the hands of the possessor. This partage of things in an inequality of private possessions, men have made practicable out of the bounds of society, and without compact, only by putting a value on gold and silver, and tacitly agreeing in the use of money: for in governments, the laws regulate the right of property, and the possession of land is determined by positive constitutions.

  §. 51.

  And thus, I think, it is very easy to conceive, without any difficulty, how labour could at first begin a title of property in the common things of nature, and how the spending it upon our uses bounded it. So that there could then be no reason of quarrelling about title, nor any doubt about the largeness of possession it gave. Right and conveniency went together; for as a man had a right to all he could employ his labour upon, so he had no temptation to labour for more than he could make use of. This left no room for controversy about the title, nor for incroachment on the right of others; what portion a man carved to himself, was easily seen; and it was useless, as well as dishonest, to carve himself too much, or take more than he needed.

  CHAP. VI.
  Of Paternal Power.

  §. 52.

  IT may perhaps be censured as an impertinent criticism, in a discourse of this nature, to find fault with words and names, that have obtained in the world: and yet possibly it may not be amiss to offer new ones, when the old are apt to lead men into mistakes, as this of paternal power probably has done, which seems so to place the power of parents over their children wholly in the father, as if the mother had no share in it; whereas, if we consult reason or revelation, we shall find, she hath an equal title. This may give one reason to ask, whether this might not be more properly called parental power? for whatever obligation nature and the right of generation lays on children, it must certainly bind them equal to both the concurrent causes of it. And accordingly we see the positive law of God every where joins them together, without distinction, when it commands the obedience of children, Honour thy father and thy mother, Exod. xx. 12. Whosoever curseth his father or his mother, Lev. xx. 9. Ye shall fear every man his mother and his father, Lev. xix. 3. Children, obey your parents, &c. Eph. vi. 1. is the stile of the Old and New Testament.

  §. 53.

  Had but this one thing been well considered, without looking any deeper into the matter, it might perhaps have kept men from running into those gross mistakes, they have made, about this power of parents; which, however it might, without any great harshness, bear the name of absolute dominion, and regal authority, when under the title of paternal power it seemed appropriated to the father, would yet have sounded but oddly, and in the very name shewn the absurdity, if this supposed absolute power over children had been called parental; and thereby have discovered, that it belonged to the mother too: for it will but very ill serve the turn of those men, who contend so much for the absolute power and authority of the fatherhood, as they call it, that the mother should have any share in it; and it would have but ill supported the monarchy they contend for, when by the very name it appeared, that that fundamental authority, from whence they would derive their government of a single person only, was not placed in one, but two persons jointly. But to let this of names pass.

  §. 54.

  Though I have said above, Chap. II. That all men by nature are equal, I cannot be supposed to understand all sorts of equality: age or virtue may give men a just precedency: excellency of parts and merit may place others above the common level: birth may subject some, and alliance or benefits others, to pay an observance to those to whom nature, gratitude, or other respects, may have made it due: and yet all this consists with the equality, which all men are in, in respect of jurisdiction or dominion one over another; which was the equality I there spoke of, as proper to the business in hand, being that equal right, that every man hath, to his natural freedom, without being subjected to the will or authority of any other man.

  §. 55.

  Children, I confess, are not born in this full state of equality, though they are born to it. Their parents have a sort of rule and jurisdiction over them, when they come into the world, and for some time after; but it is but a temporary one. The bonds of this subjection are like the swaddling clothes they art wrapt up in, and supported by, in the weakness of their infancy: age and reason as they grow up, loosen them, till at length they drop quite off, and leave a man at his own free disposal.

  §. 56.

  Adam was created a perfect man, his body and mind in full possession of their strength and reason, and so was capable, from the first instant of his being to provide for his own support and preservation, and govern his actions according to the dictates of the law of reason which God had implanted in him. From him the world is peopled with his descendants, who are all born infants, weak and helpless, without knowledge or understanding: but to supply the defects of this imperfect state, till the improvement of growth and age hath removed them, Adam and Eve, and after them all parents were, by the law of nature, under an obligation to preserve, nourish, and educate the children they had begotten; not as their own workmanship, but the workmanship of their own maker, the Almighty, to whom they were to be accountable for them.

  §. 57.

  The law, that was to govern Adam, was the same that was to govern all his posterity, the law of reason. But his offspring having another way of entrance into the world, different from him, by a natural birth, that produced them ignorant and without the use of reason, they were not presently under that law; for no body can be under a law, which is not promulgated to him; and this law being promulgated or made known by reason only, he that is not come to the use of his reason, cannot be said to be under this law; and Adam’s children, being not presently as soon as born under this law of reason, were not presently free: for law, in its true notion, is not so much the limitation as the direction of a free and intelligent agent to his proper interest, and prescribes no farther than is for the general good of those under that law: could they be happier without it, the law, as an useless thing, would of itself vanish; and that ill deserves the name of confinement which hedges us in only from bogs and precipices. So that, however it may be mistaken, the end of law is not to abolish or restrain, but to preserve and enlarge freedom: for in all the states of created beings capable of laws, where there is no law, there is no freedom: for liberty is, to be free from restraint and violence from others; which cannot be, where there is no law: but freedom is not, as we are told, a liberty for every man to do what he lists: (for who could be free, when every other man’s humour might domineer over him?) but a liberty to dispose, and order as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.

  §. 58.

  The power, then, that parents have over their children, arises from that duty which is incumbent on them, to take care of their off-spring, during the imperfect state of childhood. To inform the mind, and govern the actions of their yet ignorant non-age, till reason shall take its place, and ease them of that trouble, is what the children want, and the parents are bound to: for God having given man an understanding to direct his actions, has allowed him a freedom of will, and liberty of acting, as properly belonging thereunto, within the bounds of that law he is under. But whilst he is in an estate, wherein he has not understanding of his own to direct his will, he is not to have any will of his own to follow: he that understands for him, must will for him too; he must prescribe to his will, and regulate his actions; but when he comes to the estate that made his father a freeman, the son is a freeman too.

  §. 59.

  This holds in all the laws a man is under, whether natural or civil. Is a man under the law of nature? What made him free of that law? what gave him a free disposing of his property, according to his own will, within the compass of that law? I answer, a state of maturity wherein he might be supposed capable to know that law, that so he might keep his actions within the bounds of it. When he has acquired that state, he is presumed to know how far that law is to be his guide, and how far he may make use of his freedom, and so comes to have it; till then, some body else must guide him, who is presumed to know how far the law allows a liberty. If such a state of reason, such an age of discretion made him free, the same shall make his son free too. Is a man under the law of England? What made him free of that law? that is, to have the liberty to dispose of his actions and possessions according to his own will, within the permission of that law? A capacity of knowing that law; which is supposed by that law, at the age of one and twenty years, and in some cases sooner. If this made the father free, it shall make the son free too. Till then we see the law allows the son to have no will, but he is to be guided by the will of his father or guardian, who is to understand for him. And if the father die, and fail to substitute a deputy in his trust; if he hath not provided a tutor, to govern his son, during his minority, during his want of understanding, the law takes care to do it; some other must govern him, and be a will to him, till he hath attained to a state of freedom, and his understanding be fit to take the government of his will. But after that, the father and son are equally free as much as tutor and pupil after nonage; equally subjects of the same law together, without any dominion left in the father over the life, liberty, or estate of his son, whether they be only in the state and under the law of nature, or under the positive laws of an established government.

  §. 60.

  But if, through defects that may happen out of the ordinary course of nature, any one comes not to such a degree of reason, wherein he might be supposed capable of knowing the law, and so living within the rules of it, he is never capable of being a free man, he is never let loose to the disposure of his own will (because he knows no bounds to it, has not understanding, its proper guide) but is continued under the tuition and government of others, all the time his own understanding is uncapable of that charge. And so lunatics and ideots are never set free from the government of their parents; children, who are not as yet come unto those years whereat they may have; and innocents which are excluded by a natural defect from ever having; thirdly, madmen, which for the present cannot possibly have the use of right reason to guide themselves, have for their guide, the reason that guideth other men which are tutors over them, to seek and procure their good for them, says Hooker, Eccl. Pol. lib. i. sect. 7. All which seems no more than that duty, which God and nature has laid on man, as well as other creatures, to preserve their offspring, till they can be able to shift for themselves, and will scarce amount to an instance or proof of parents regal authority.

  §. 61.

  Thus we are born free, as we are born rational; not that we have actually the exercise of either: age, that brings one, brings with it the other too. And thus we see how natural freedom and subjection to parents may consist together, and are both founded on the same principle. A child is free by his father’s title, by his father’s understanding, which is to govern him till he hath it of his own. The freedom of a man at years of discretion, and the subjection of a child to his parents, whilst yet short of that age, are so consistent, and so distinguishable, that the most blinded contenders for monarchy, by right of fatherhood, cannot miss this difference; the most obstinate cannot but allow their consistency: for were their doctrine all true, were the right heir of Adam now known, and by that title settled a monarch in his throne, invested with all the absolute unlimited power Sir Robert Filmer talks of; if he should die as soon as his heir were born, must not the child, notwithstanding he were never so free, never so much sovereign, be in subjection to his mother and nurse, to tutors and governors, till age and education brought him reason and ability to govern himself and others? The necessities of his life, the health of his body, and the information of his mind, would require him to be directed by the will of others, and not his own; and yet will any one think, that this restraint and subjection were inconsistent with, or spoiled him of that liberty or sovereignty he had a right to, or gave away his empire to those who had the government of his nonage? This government over him only prepared him the better and sooner for it. If any body should ask me, when my son is of age to be free? I shall answer, just when his monarch is of age to govern. But at what time, says the judicious Hooker, Eccl. Pol. l. i. sect. 6. a man may be said to have attained so far forth the use of reason, as sufficeth to make him capable of those laws whereby he is then bound to guide his actions: this is a great deal more easy for sense to discern, than for any one by skill and learning to determine.

  §. 62.

  Common-wealths themselves take notice of, and allow, that there is a time when men are to begin to act like free men, and therefore till that time require not oaths of fealty, or allegiance, or other public owning of, or submission to the government of their countries.

  §. 63.

  The freedom then of man, and liberty of acting according to his own will, is grounded on his having reason, which is able to instruct him in that law he is to govern himself by, and make him know how far he is left to the freedom of his own will. To turn him loose to an unrestrained liberty, before he has reason to guide him, is not the allowing him the privilege of his nature to be free; but to thrust him out amongst brutes, and abandon him to a state as wretched, and as much beneath that of a man, as their’s. This is that which puts the authority into the parents hands to govern the minority of their children. God hath made it their business to employ this care on their off-spring, and hath placed in them suitable inclinations of tenderness and concern to temper this power, to apply it, as his wisdom designed it, to the children’s good, as long as they should need to be under it.

  §. 64.

  But what reason can hence advance this care of the parents due to their off-spring into an absolute arbitrary dominion of the father, whose power reaches no farther, than by such a discipline, as he finds most effectual, to give such strength and health to their bodies, such vigour and rectitude to their minds, as may best fit his children to be most useful to themselves and others; and, if it be necessary to his condition, to make them work, when they are able, for their own subsistence. But in this power the mother too has her share with the father.

  §. 65.

  Nay, this power so little belongs to the father by any peculiar right of nature, but only as he is guardian of his children, that when he quits his care of them, he loses his power over them, which goes along with their nourishment and education, to which it is inseparably annexed; and it belongs as much to the foster-father of an exposed child, as to the natural father of another. So little power does the bare act of begetting give a man over his issue; if all his care ends there, and this be all the title he hath to the name and authority of a father. And what will become of this paternal power in that part of the world, where one woman hath more than one husband at a time? or in those parts of America, where, when the husband and wife part, which happens frequently, the children are all left to the mother, follow her, and are wholly under her care and provision? If the father die whilst the children are young, do they not naturally every where owe the same obedience to their mother, during their minority, as to their father were he alive? and will any one say, that the mother hath a legislative power over her children? that she can make standing rules, which shall be of perpetual obligation, by which they ought to regulate all the concerns of their property, and bound their liberty all the course of their lives? or can she inforce the observation of them with capital punishments? for this is the proper power of the magistrate, of which the father hath not so much as the shadow. His command over his children is but temporary, and reaches not their life or property: it is but a help to the weakness and imperfection of their nonage, a discipline necessary to their education: and though a father may dispose of his own possessions as he pleases, when his children are out of danger of perishing for want, yet his power extends not to the lives or goods, which either their own industry, or another’s bounty has made their’s; nor to their liberty neither, when they are once arrived to the infranchisement of the years of discretion. The father’s empire then ceases, and he can from thence forwards no more dispose of the liberty of his son, than that of any other man: and it must be far from an absolute or perpetual jurisdiction, from which a man may withdraw himself, having licence from divine authority to leave father and mother, and cleave to his wife.

  §. 66.

  But though there be a time when a child comes to be as free from subjection to the will and command of his father, as the father himself is free from subjection to the will of any body else, and they are each under no other restraint, but that which is common to them both, whether it be the law of nature, or municipal law of their country; yet this freedom exempts not a son from that honour which he ought, by the law of God and nature, to pay his parents. God having made the parents instruments in his great design of continuing the race of mankind, and the occasions of life to their children; as he hath laid on them an obligation to nourish, preserve, and bring up their offspring; so he has laid on the children a perpetual obligation of honouring their parents, which containing in it an inward esteem and reverence to be shewn by all outward expressions, ties up the child from any thing that may ever injure or affront, disturb or endanger, the happiness or life of those from whom he received his; and engages him in all actions of defence, relief, assistance and comfort of those, by whose means he entered into being, and has been made capable of any enjoyments of life: from this obligation no state, no freedom can absolve children. But this is very far from giving parents a power of command over their children, or an authority to make laws and disposs as they please of their lives or liberties. It is one thing to owe honour, respect, gratitude and assistance; another to require an absolute obedience and submission. The honour due to parents, a monarch in his throne owes his mother; and yet this lessens not his authority, nor subjects him to her government.

  §. 67.

  The subjection of a minor places in the father a temporary government, which terminates with the minority of the child: and the honour due from a child, places in the parents a perpetual right to respect, reverence, support and compliance too, more or less, as the father’s care, cost, and kindness in his education, has been more or less. This ends not with minority, but holds in all parts and conditions of a man’s life. The want of distinguishing these two powers, viz. that which the father hath in the right of tuition, during minority, and the right of honour all his life, may perhaps have caused a great part of the mistakes about this matter: for to speak properly of them, the first of these is rather the privilege of children, and duty of parents, than any prerogative of paternal power. The nourishment and education of their children is a charge so incumbent on parents for their children’s good, that nothing can absolve them from taking care of it: and though the power of commanding and chastising them go along with it, yet God hath woven into the principles of human nature such a tenderness for their off-spring, that there is little fear that parents should use their power with too much rigour; the excess is seldom on the severe side, the strong byass of nature drawing the other way. And therefore God almighty when he would express his gentle dealing with the Israelites, he tells them, that though he chastened them, he chastened them as a man chastens his son, Deut. viii. 5. i. e. with tenderness and affection, and kept them under no severer discipline than what was absolutely best for them, and had been less kindness to have slackened. This is that power to which children are commanded obedience, that the pains and care of their parents may not be increased, or ill rewarded.

  §. 68.

  On the other side, honour and support, all that which gratitude requires to return for the benefits received by and from them, is the indispensible duty of the child, and the proper privilege of the parents. This is intended for the parents advantage, as the other is for the child’s; though education, the parents duty, seems to have most power, because the ignorance and infirmities of childhood stand in need of restraint and correction; which is a visible exercise of rule, and a kind of dominion. And that duty which is comprehended in the word honour, requires less obedience, though the obligation be stronger on grown, than younger children: for who can think the command, Children obey your parents, requires in a man, that has children of his own, the same submission to his father, as it does in his yet young children to him; and that by this precept he were bound to obey all his father’s commands, if, out of a conceit of authority, he should have the indiscretion to treat him still as a boy?

  §. 69.

  The first part then of paternal power, or rather duty, which is education, belongs so to the father, that it terminates at a certain season; when the business of education is over, it ceases of itself, and is also alienable before: for a man may put the tuition of his son in other hands; and he that has made his son an apprentice to another, has discharged him, during that time, of a great part of his obedience both to himself and to his mother. But all the duty of honour, the other part, remains never the less entire to them; nothing can cancel that: it is so inseparable from them both, that the father’s authority cannot dispossess the mother of this right, nor can any man discharge his son from honouring her that bore him. But both these are very far from a power to make laws, and inforcing them with penalties, that may reach estate, liberty, limbs and life. The power of commanding ends with nonage; and though, after that, honour and respect, support and defence, and whatsoever gratitude can oblige a man to, for the highest benefits he is naturally capable of, be always due from a son to his parents; yet all this puts no scepter into the father’s hand, no sovereign power of commanding. He has no dominion over his son’s property, or actions; nor any right, that his will should prescribe to his son’s in all things; however it may become his son in many things, not very inconvenient to him and his family, to pay a deference to it.

  §. 70.

  A man may owe honour and respect to an ancient, or wise man; desence to his child or friend; relief and support to the distressed; and gratitude to a benefactor, to such a degree, that all he has, all he can do, cannot sufficiently pay it: but all these give no authority, no right to any one, of making laws over him from whom they are owing. And it is plain, all this is due not only to the bare title of father; not only because, as has been said, it is owing to the mother too; but because these obligations to parents, and the degrees of what is required of children, may be varied by the different care and kindness, trouble and expence, which is often employed upon one child more than another.

  §. 71.

  This shews the reason how it comes to pass, that parents in societies, where they themselves are subjects, retain a power over their children, and have as much right to their subjection, as those who are in the state of nature. Which could not possibly be, if all political power were only paternal, and that in truth they were one and the same thing: for then, all paternal power being in the prince, the subject could naturally have none of it. But these two powers, political and paternal, are so perfectly distinct and separate; are built upon so different foundations, and given to so different ends, that every subject that is a father, has as much a paternal power over his children, as the prince has over his: and every prince, that has parents, owes them as much filial duty and obedience, as the meanest of his subjects do to their’s; and can therefore contain not any part or degree of that kind of dominion, which a prince or magistrate has over his subject.

  §. 72.

  Though the obligation on the parents to bring up their children, and the obligation on children to honour their parents, contain all the power on the one hand, and submission on the other, which are proper to this relation, yet there is another power ordinarily in the father, whereby he has a tie on the obedience of his children; which tho’ it be common to him with other men, yet the occasions of shewing it, almost constantly happening to fathers in their private families, and the instances of it elsewhere being rare, and less taken notice of, it passes in the world for a part of paternal jurisdiction. And this is the power men generally have to bestow their estates on those who please them best; the possession of the father being the expectation and inheritance of the children, ordinarily in certain proportions, according to the law and custom of each country; yet it is commonly in the father’s power to bestow it with a more sparing or liberal hand, according as the behaviour of this or that child hath comported with his will and humour.

  §. 73.

  This is no small tie on the obedience of children: and there being always annexed to the enjoyment of land, a submission to the government of the country, of which that land is a part; it has been commonly supposed, that a father could oblige his posterity to that government, of which he himself was a subject, and that his compact held them; whereas, it being only a necessary condition annexed to the land, and the inheritance of an estate which is under that government, reaches only those who will take it on that condition, and so is no natural tie or engagement, but a voluntary submission: for every man’s children being by nature as free as himself, or any of his ancestors ever were, may, whilst they are in that freedom, choose what society they will join themselves to, what common-wealth they will put themselves under. But if they will enjoy the inheritance of their ancestors, they must take it on the same terms their ancestors had it, and submit to all the conditions annexed to such a possession. By this power indeed fathers oblige their children to obedience to themselves, even when they are past minority, and most commonly too subject them to this or that political power: but neither of these by any peculiar right of fatherhood, but by the reward they have in their hands to inforce and recompence such a compliance; and is no more power than what a French man has over an English man, who by the hopes of an estate he will leave him, will certainly have a strong tie on his obedience: and if, when it is left him, he will enjoy it, he must certainly take it upon the conditions annexed to the possession of land in that country where it lies, whether it be France or England.

  §. 74.

  To conclude then, tho’ the father’s power of commanding extends no farther than the minority of his children, and to a degree only fit for the discipline and government of that age; and tho’ that honour and respect, and all that which the Latins called piety, which they indispensibly owe to their parents all their life-time, and in all estates, with all that support and defence is due to them, gives the father no power of governing, i. e. making laws and enacting penalties on his children; though by all this he has no dominion over the property or actions of his son: yet it is obvious to conceive how easy it was, in the first ages of the world, and in places still, where the thinness of people gives families leave to separate into unpossessed quarters, and they have room to remove or plant themselves in yet vacant habitations, for the father of the family to become the prince of* it; he had been a ruler from the beginning of the infancy of his children: and since without some government it would be hard for them to live together, it was likeliest it should, by the express or tacit consent of the children when they were grown up, be in the father, where it seemed without any change barely to continue; when indeed nothing more was required to it, than the permitting the father to exercise alone, in his family, that executive power of the law of nature, which every free man naturally hath, and by that permission resigning up to him a monarchical power, whilst they remained in it. But that this was not by any paternal right, but only by the consent of his children, is evident from hence, that no body doubts, but if a stranger, whom chance or business had brought to his family, had there killed any of his children, or committed any other fact, he might condemn and put him to death, or otherwise have punished him, as well as any of his children; which it was impossible he should do by virtue of any paternal authority over one who was not his child, but by virtue of that executive power of the law of nature, which, as a man, he had a right to: and he alone could punish him in his family, where the respect of his children had laid by the exercise of such a power, to give way to the dignity and authority they were willing should remain in him, above the rest of his family.

  §. 75.

  Thus it was easy, and almost natural for children, by a tacit, and scarce avoidable consent, to make way for the father’s authority and government. They had been accustomed in their childhood to follow his direction, and to refer their little differences to him; and when they were men, who fitter to rule them? Their little properties, and less covetousness, seldom afforded greater controversies; and when any should arise, where could they have a fitter umpire than he, by whose care they had every one been sustained and brought up, and who had a tenderness for them all? It is no wonder that they made no distinction betwixt minority and full age; nor looked after one and twenty, or any other age that might make them the free disposers of themselves and fortunes, when they could have no desire to be out of their pupilage: the government they had been under, during it, continued still to be more their protection than restraint; and they could no where find a greater security to their peace, liberties, and fortunes, than in the rule of a father.

  §. 76.

  Thus the natural fathers of families, by an insensible change, became the politic monarchs of them too: and as they chanced to live long, and leave able and worthy heirs, for several successions, or otherwise; so they laid the foundations of hereditary, or elective kingdoms, under several constitutions and mannors, according as chance, contrivance, or occasions happened to mould them. But if princes have their titles in their fathers right, and it be a sufficient proof of the natural right of fathers to political authority, because they commonly were those in whose hands we find, de facto, the exercise of government: I say, if this argument be good, it will as strongly prove, that all princes, nay princes only, ought to be priests, since it is as certain, that in the beginning, the father of the family was priest, as that he was ruler n his own houshold.

  CHAP. VII.
  Of Political or Civil Society.

  §. 77.

  GOD having made man such a creature, that in his own judgment, it was not good for him to be alone, put him under strong obligations of necessity, convenience, and inclination to drive him into society, as well as fitted him with understanding and language to continue and enjoy it. The first society was between man and wife, which gave beginning to that between parents and children; to which, in time, that between master and servant came to be added: and though all these might, and commonly did meet together, and make up but one family, wherein the master or mistress of it had some sort of rule proper to a family; each of these, or all together, came short of political society, as we shall see, if we consider the different ends, ties, and bounds of each of these.

  §. 78.

  Conjugal society is made by a voluntary compact between man and woman; and tho’ it consist chiefly in such a communion and right in one another’s bodies as is necessary to its chief end, procreation; yet it draws with it mutual support and assistance, and a communion of interests too, as necessary not only to unite their care and affection, but also necessary to their common off-spring, who have a right to be nourished, and maintained by them, till they are able to provide for themselves.

  §. 79.

  For the end of conjunction, between male and female, being not barely procreation, but the continuation of the species; this conjunction betwixt male and female ought to last, even after procreation, so long as is necessary to the nourishment and support of the young ones, who are to be sustained by those that got them, till they are able to shift and provide for themselves. This rule, which the infinite wise maker hath set to the works of his hands, we find the inferior creatures steadily obey. In those viviparous animals which feed on grass, the conjunction between male and female lasts no longer than the very act of copulation; because the teat of the dam being sufficient to nourish the young, till it be able to feed on grass, the male only begets, but concerns not himself for the female or young, to whose sustenance he can contribute nothing. But in beasts of prey the conjunction lasts longer: because the dam not being able well to subsist herself, and nourish her numerous off-spring by her own prey alone, a more laborious, as well as more dangerous way of living, than by feeding on grass, the assistance of the male is necessary to the maintenance of their common family, which cannot subsist till they are able to prey for themselves, but by the joint care of male and female. The same is to be observed in all birds, (except some domestic ones, where plenty of food excuses the cock from feeding, and taking care of the young brood) whose young needing food in the nest, the cock and hen continue mates, till the young are able to use their wing, and provide for themselves.

  §. 80.

  And herein I think lies the chief, if not the only reason, why the male and female in mankind are tied to a longer conjunction than other creatures, viz. because the female is capable of conceiving, and de facto is commonly with child again, and brings forth too a new birth, long before the former is out of a dependency for support on his parents help, and able to shift for himself, and has all the assistance is due to him from his parents: whereby the father, who is bound to take care for those he hath begot, is under an obligation to continue in conjugal society with the same woman longer than other creatures, whose young being able to subsist of themselves, before the time of procreation returns again, the conjugal bond dissolves of itself, and they are at liberty, till Hymen at his usual anniversary season summons them again to chuse new mates. Wherein one cannot but admire the wisdom of the great Creator, who having given to man foresight, and an ability to lay up for the future, as well as to supply the present necessity, hath made it necessary, that society of man and wife should be more lasting, than of male and female amongst other creatures; that so their industry might be encouraged, and their interest better united, to make provision and lay up goods for their common issue, which uncertain mixture, or easy and frequent solutions of conjugal society would mightily disturb.

  §. 81.

  But tho’ these are ties upon mankind, which make the conjugal bonds more firm and lasting in man, than the other species of animals; yet it would give one reason to enquire, why this compact, where procreation and education are secured, and inheritance taken care for, may not be made determinable, either by consent, or at a certain time, or upon certain conditions, as well as any other voluntary compacts, there being no necessity in the nature of the thing, nor to the ends of it, that it should always be for life; I mean, to such as are under no restraint of any positive law, which ordains all such contracts to be perpetual.

  §. 82.

  But the husband and wife, though they have but one common concern, yet having different understandings, will unavoidably sometimes have different wills too; it therefore being necessary that the last determination, i. e. the rule, should be placed somewhere; it naturally falls to the man’s share, as the abler and the stronger. But this reaching but to the things of their common interest and property, leaves the wife in the full and free possession of what by contract is her peculiar right, and gives the husband no more power over her life than she has over his; the power of the husband being so far from that of an absolute monarch, that the wife has in many cases a liberty to separate from him, where natural right, or their contract allows it; whether that contract be made by themselves in the state of nature, or by the customs or laws of the country they live in; and the children upon such separation fall to the father or mother’s lot, as such contract does determine.

  §. 83.

  For all the ends of marriage being to be obtained under politic government, as well as in the state of nature, the civil magistrate doth not abridge the right or power of either naturally necessary to those ends, viz. procreation and mutual support and assistance whilst they are together; but only decides any controversy that may arise between man and wife about them. If it were otherwise, and that absolute sovereignty and power of life and death naturally belonged to the husband, and were necessary to the society between man and wife, there could be no matrimony in any of those countries where the husband is allowed no such absolute authority. But the ends of matrimony requiring no such power in the husband, the condition of conjugal society put it not in him, it being not at all necessary to that state. Conjugal society could subsist and attain its ends without it; nay, community of goods, and the power over them, mutual assistance and maintenance, and other things belonging to conjugal society, might be varied and regulated by that contract which unites man and wife in that society, as far as may consist with procreation and the bringing up of children till they could shift for themselves; nothing being necessary to any society, that is not necessary to the ends for which it is made.

  §. 84.

  The society betwixt parents and children, and the distinct rights and powers belonging respectively to them, I have treated of so largely, in the foregoing chapter, that I shall not here need to say any thing of it. And I think it is plain, that it is far different from a politic society.

  §. 85.

  Master and servant are names as old as history, but given to those of far different condition; for a freeman makes himself a servant to another, by selling him, for a certain time, the service he undertakes to do, in exchange for wages he is to receive: and though this commonly puts him into the family of his master, and under the ordinary discipline thereof; yet it gives the master but a temporary power over him, and no greater than what is contained in the contract between them. But there is another sort of servants, which by a peculiar name we call slaves, who being captives taken in a just war, are by the right of nature subjected to the absolute dominion and arbitrary power of their masters. These men having, as I say, forfeited their lives, and with it their liberties, and lost their estates; and being in the state of slavery, not capable of any property, cannot in that state be considered as any part of civil society; the chief end whereof is the preservation of property.

  §. 86.

  Let us therefore consider a master of a family with all these subordinate relations of wife, children, servants, and slaves, united under the domestic rule of a family; which, what resemblance soever it may have in its order, offices, and number too, with a little common-wealth, yet is very far from it, both in its constitution, power and end: or if it must be thought a monarchy, and the paterfamilias the absolute monarch in it, absolute monarchy will have but a very shattered and short power, when it is plain, by what has been said before, that the master of the family has a very distinct and differently limited power, both as to time and extent, over those several persons that are in it; for excepting the slave (and the family is as much a family, and his power as paterfamilias as great, whether there be any slaves in his family or no) he has no legislative power of life and death over any of them, and none too but what a mistress of a family may have as well as he. And he certainly can have no absolute power over the whole family, who has but a very limited one over every individual in it. But how a family, or any other society of men, differ from that which is properly political society, we shall best see, by considering wherein political society itself consists.

  §. 87.

  Man being born, as has been proved, with a title to perfect freedom, and an uncontrouled enjoyment of all the rights and privileges of the law of nature, equally with any other man, or number of men in the world, hath by nature a power, not only to preserve his property, that is, his life, liberty and estate, against the injuries and attempts of other men; but to judge of, and punish the breaches of that law in others, as he is persuaded the offence deserves, even with death itself, in crimes where the heinousness of the fact, in his opinion, requires it. But because no political society can be, nor subsist, without having in itself the power to preserve the property, and in order thereunto, punish the offences of all those of that society; there, and there only is political society, where every one of the members hath quitted this natural power, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it. And thus all private judgment of every particular member being excluded, the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen between any members of that society concerning any matter of right; and punishes those offences which any member hath committed against the society, with such penalties as the law has established: whereby it is easy to discern, who are, and who are not, in political society together. Those who are united into one body, and have a common established law and judicature to appeal to, with authority to decide controversies between them, and punish offenders, are in civil society one with another: but those who have no such common people, I mean on earth, are still in the state of nature, each being, where there is no other, judge for himself, and executioner; which is, as I have before shewed it, the perfect state of nature.

  §. 88.

  And thus the common-wealth comes by a power to set down what punishment shall belong to the several transgressions which they think worthy of it, committed amongst the members of that society, (which is the power of making laws) as well as it has the power to punish any injury done unto any of its members, by any one that is not of it, (which is the power of war and peace;) and all this for the preservation of the property of all the members of that society, as far as is possible. But though every man who has entered into civil society, and is become a member of any common-wealth, has thereby quitted his power to punish offences, against the law of nature, in prosecution of his own private judgment, yet with the judgment of offences, which he has given up to the legislative in all cases, where he can appeal to the magistrate, he has given a right to the common-wealth to employ his force, for the execution of the judgments of the common-wealth, whenever he shall be called to it; which indeed are his own judgments, they being made by himself, or his representative. And herein we have the original of the legislative and executive power of civil society, which is to judge by standing laws, how far offences are to be punished, when committed within the common-wealth; and also to determine, by occasional judgments founded on the present circumstances of the fact, how far injuries from without are to be vindicated; and in both these to employ all the force of all the members, when there shall be need.

  §. 89.

  Where-ever therefore any number of men are so united into one society, as to quit every one his executive power of the law of nature, and to resign it to the public, there and there only is a political, or civil society. And this is done, where-ever any number of men, in the state of nature, enter into society to make one people, one body politic, under one supreme government; or else when any one joins himself to, and incorporates with any government already made: for hereby he authorizes the society, or which is all one, the legislative thereof, to make laws for him, as the public good of the society shall require; to the execution whereof, his own assistance (as to his own decrees) is due. And this puts men out of a state of nature into that of a common-wealth, by setting up a judge on earth, with authority to determine all the controversies, and redress the injuries that may happen to any member of the common-wealth; which judge is the legislative, or magistrates appointed by it. And where-ever there are any number of men, however associated, that have no such decisive power to appeal to, there they are still in the state of nature.

  §. 90.

  Hence it is evident, that absolute monarchy, which by some men is counted the only government in the world, is indeed inconsistent with civil society, and so can be no form of civil-government at all: for the end of civil society, being to avoid, and remedy those inconveniencies of the state of nature, which necessarily follow from every man’s being judge in his own case, by setting up a known authority, to which every one of that society may appeal upon any injury received, or controversy that may arise, and which every one of the* society ought to obey; where-ever any persons are, who have not such an authority to appeal to, for the decision of any difference between them, there those persons are still in the state of nature; and so is every absolute prince, in respect of those who are under his dominion.

  §. 91.

  For he being supposed to have all, both legislative and executive power in himself alone, there is no judge to be found, no appeal lies open to any one, who may fairly, and indifferently, and with authority decide, and from whose decision relief and redress may be expected of any injury or inconviency, that may be suffered from the prince, or by his order: so that such a man, however intitled, Czar, or Grand Seignior, or how you please, is as much in the state of nature, with all under his dominion, as he is with the rest of mankind: for where-ever any two men are, who have no standing rule, and common judge to appeal to on earth, for the determination of controversies of right betwixt them, there they are still in the stateof*nature, and under all the inconveniencies of it, with only this woful difference to the subject, or rather slave of an absolute prince: that whereas, in the ordinary state of nature, he has a liberty to judge of his right, and according to the best of his power, to maintain it; now, whenever his property is invaded by the will and order of his monarch, he has not only no appeal, as those in society ought to have, but as if he were degraded from the common state of rational creatures, is denied a liberty to judge of, or to defend his right; and so is exposed to all the misery and inconveniencies, that a man can fear from one, who being in the unrestrained state of nature, is yet corrupted with flattery, and armed with power.

  §. 92.

  For he that thinks absolute power purifies men’s blood, and corrects the baseness of human nature, need read but the history of this, or any other age, to be convinced of the contrary. He that would have been insolent and injurious in the woods of America, would not probably be much better in a throne; where perhaps learning and religion shall be found out to justify all that he shall do to his subjects, and the sword presently silence all those that dare question it: for what the protection of absolute monarchy is, what kind of fathers of their countries it makes princes to be, and to what a degree of happiness and security it carries civil society, where this sort of government is grown to perfection, he that will look into the late relation of Ceylon, may easily see.

  §. 93.

  In absolute monarchies indeed, as well as other governments of the world, the subjects have an appeal to the law, and judges to decide any controversies, and restrain any violence that may happen betwixt the subjects themselves, one amongst another. This every one thinks necessary, and believes he deserves to be thought a declared enemy to society and mankind, who should go about to take it away. But whether this be from a true love of mankind and society, and such a charity as we owe all one to another, there is reason to doubt: for this is no more than what every man, who loves his own power, profit, or greatness, may and naturally must do, keep those animals from hurting, or destroying one another, who labour and drudge only for his pleasure and advantage; and so are taken care of, not out of any love the master has for them, but love of himself, and the profit they bring him: for if it be asked, what security, what fence is there, in such a state, against the violence and oppression of this absolute ruler? the very question can scarce be borne. They are ready to tell you, that it deserves death only to ask after safety. Betwixt subject and subject, they will grant, there must be measures, laws and judges, for their mutual peace and security: but as for the ruler, he ought to be absolute, and is above all such circumstances; because he has power to do more hurt and wrong, it is right when he does it. To ask how you may be guarded from harm, or injury, on that side where the strongest hand is to do it, is presently the voice of faction and rebellion: as if when men quitting the state of nature entered into society, they agreed that all of them but one, should be under the restraint of laws, but that he should still retain all the liberty of the state of nature, increased with power, and made licentious by impunity. This is to think, that men are so foolish, that they take care to avoid what mischiefs may be done them by pole-cats, or foxes; but are content, nay, think it safety, to be devoured by lions.

  §. 94.

  But whatever flatterers may talk to amuse people’s understandings, it hinders not men from feeling; and when they perceive, that any man, in what station soever, is out of the bounds of the civil society which they are of, and that they have no appeal on earth against any harm, they may receive from him, they are apt to think themselves in the state of nature, in respect of him whom they find to be so; and to take care, as soon as they can, to have that safety and security in civil society, for which it was first instituted, and for which only they entered into it. And therefore, though perhaps at first, (as shall be shewed more at large hereafter in the following part of this discourse) some one good and excellent man having got a pre-eminency amongst the rest, had this deference paid to his goodness and virtue, as to a kind of natural authority, that the chief rule, with arbitration of their differences, by a tacit consent devolved into his hands, without any other caution, but the assurance they had of his uprightness and wisdom; yet when time, giving authority, and (as some men would persuade us) sacredness of customs, which the negligent, and unforeseeing innocence of the first ages began, had brought in successors of another stamp, the people finding their properties not secure under the government, as then it was, (whereas government has no other end but the preservation of* property) could never be safe nor at rest, nor think themselves in civil society, till the legislature was placed in collective bodies of men, call them senate, parliament, or what you please. By which means every single person became subject, equally with other the meanest men, to those laws, which he himself, as part of the legislative, had established; nor could any one, by his own authority, avoid the force of the law, when once made; nor by any pretence of superiority plead exemption, thereby to license his own, or the miscarriages of any of his dependents. †No man in civil society can be exempted from the laws of it: for if any man may do what he thinks fit, and there be no appeal on earth, for redress or security against any harm he shall do; I ask, whether he be not perfectly still in the state of nature, and so can be no part or member of that civil society; unless any one will say, the state of nature and civil society are one and the same thing, which I have never yet found any one so great a patron of anarchy as to affirm.

  CHAP. VIII.
  Of the Beginning of Political Societies.

  §. 95.

  MEN being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community, for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature. When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.

  §. 96.

  For when any number of men have, by the consent of every individual, made a community, they have thereby made that community one body, with a power to act as one body, which is only by the will and determination of the majority: for that which acts any community, being only the consent of the individuals of it, and it being necessary to that which is one body to move one way; it is necessary the body should move that way whither the greater force carries it, which is the consent of the majority: or else it is impossible it should act or continue one body, one community, which the consent of every individual that united into it, agreed that it should; and so every one is bound by that consent to be concluded by the majority. And therefore we see, that in assemblies, impowered to act by positive laws, where no number is set by that positive law which impowers them, the act of the majority passes for the act of the whole, and of course determines, as having, by the law of nature and reason, the power of the whole.

  §. 97.

  And thus every man, by consenting with others to make one body politic under one government, puts himself under an obligation, to every one of that society, to submit to the determination of the majority, and to be concluded by it; or else this original compact, whereby he with others incorporates into one society, would signify nothing, and be no compact, if he be left free, and under no other ties than he was in before in the state of nature. For what appearance would there be of any compact? what new engagement if he were no farther tied by any decrees of the society, than he himself thought fit, and did actually consent to? This would be still as great a liberty, as he himself had before his compact, or any one else in the state of nature hath, who may submit himself, and consent to any acts of it if he thinks fit.

  §. 98.

  For if the consent of the majority shall not, in reason, be received as the act of the whole, and conclude every individual; nothing but the consent of every individual can make any thing to be the act of the whole: but such a consent is next to impossible ever to be had, if we consider the infirmities of health, and avocations of business, which in a number, though much less than that of a common-wealth, will necessarily keep many away from the public assembly. To which if we add the variety of opinions, and contrariety of interests, which unavoidably happen in all collections of men, the coming into society upon such terms would be only like Cato’s coming into the theatre, only to go out again. Such a constitution as this would make the mighty Leviathan of a shorter duration, than the feeblest creatures, and not let it outlast the day it was born in: which cannot be supposed, till we can think, that rational creatures should desire and constitute societies only to be dissolved: for where the majority cannot conclude the rest, there they cannot act as one body, and consequently will be immediately dissolved again.

  §. 99.

  Whosoever therefore out of a state of nature unite into a community, must be understood to give up all the power, necessary to the ends for which they unite into society, to the majority of the community, unless they expresly agreed in any number greater than the majority. And this is done by barely agreeing to unite into one political society, which is all the compact that is, or needs be, between the individuals, that enter into, or make up a common-wealth. And thus that, which begins and actually constitutes any political society, is nothing but the consent of any number of freemen capable of a majority to unite and incorporate into such a society. And this is that, and that only, which did, or could give beginning to any lawful government in the world.

  §. 100.

  To this I find two objections made.

  First, That there are no instances to be found in story, of a company of men independent, and equal one amongst another, that met together, and in this way began and set up a government.

  Secondly, It is impossible of right, that men should do so, because all men being born under government, they are to submit to that, and are not at liberty to begin a new one.

  §. 101.

  To the first there is this to answer, That it is not at all to be wondered, that history gives us but a very little account of men, that lived together in the state of nature. The inconveniences of that condition, and the love and want of society, no sooner brought any number of them together, but they presently united and incorporated, if they designed to continue together. And if we may not suppose men ever to have been in the state of nature, because we hear not much of them in such a state, we may as well suppose the armies of Salmanasser or Xerxes were never children, because we hear little of them, till they were men, and imbodied in armies. Government is every where antecedent to records, and letters seldom come in amongst a people till a long continuation of civil society has, by other more necessary arts, provided for their safety, ease, and plenty: and then they begin to look after the history of their founders, and search into their original, when they have outlived the memory of it: for it is with common-wealths as with particular persons, they are commonly ignorant of their own births and infancies: and if they know any thing of their original, they are beholden for it, to the accidental records that others have kept of it. And those that we have, of the beginning of any polities in the world, excepting that of the Jews, where God himself immediately interposed, and which favours not at all paternal dominion, are all either plain instances of such a beginning as I have mentioned, or at least have manifest footsteps of it.

  §. 102.

  He must shew a strange inclination to deny evident matter of fact, when it agrees not with his hypothesis, who will not allow, that the beginning of Rome and Venice were by the uniting together of several men free and independent one of another, amongst whom there was no natural superiority or subjection. And if Josephus Acosta’s word may be taken, he tells us, that in many parts of America there was no government at all. There are great and apparent conjectures, says he, that these men, speaking of those of Peru, for a long time had neither kings nor common-wealths, but lived in troops, as they do this day in Florida, the Cheriquanas, those of Brasil, and many other nations, which have no certain kings, but as occasion is offered, in peace or war, they choose their captains as they please, l. i. c. 25. If it be said, that every man there was born subject to his father, or the head of his family; that the subjection due from a child to a father took not away his freedom of uniting into what political society he thought fit, has been already proved. But be that as it will, these men, it is evident, were actually free; and whatever superiority some politicians now would place in any of them, they themselves claimed it not, but by consent were all equal, till by the same consent they set rulers over themselves. So that their politic societies all began from a voluntary union, and the mutual agreement of men freely acting in the choice of their governors, and forms of government.

  §. 103.

  And I hope those who went away from Sparta with Palantus, mentioned by Justin, l. iii. c. 4. will be allowed to have been freemen independent one of another, and to have set up a government over themselves, by their own consent. Thus I have given several examples, out of history, of people free and in the state of nature, that being met together incorporated and began a common-wealth. And if the want of such instances be an argument to prove that government were not, nor could not be so begun, I suppose the contenders for paternal empire were better let it alone, than urge it against natural liberty: for if they can give so many instances, out of history, of governments begun upon paternal right, I think (though at best an argument from what has been, to what should of right be, has no great force) one might, without any great danger, yield them the cause. But if I might advise them in the case, they would do well not to search too much into the original of governments, as they have begun de facto, lest they should find, at the foundation of most of them, something very little favourable to the design they promote, and such a power as they contend for.

  §. 104.

  But to conclude, reason being plain on our side, that men are naturally free, and the examples of history shewing, that the governments of the world, that were begun in peace, had their beginning laid on that foundation, and were made by the consent of the people; there can be little room for doubt, either where the right is, or what has been the opinion, or practice of mankind, about the first erecting of governments.

  §. 105.

  I will not deny, that if we look back as far as history will direct us, towards the original of common-wealths, we shall generally find them under the government and administration of one man. And I am also apt to believe, that where a family was numerous enough to subsist by itself, and continued entire together, without mixing with others, as it often happens, where there is much land, and few people, the government commonly began in the father: for the father having, by the law of nature, the same power with every man else to punish, as he thought fit, any offences against that law, might thereby punish his transgressing children, even when they were men, and out of their pupilage; and they were very likely to submit to his punishment, and all join with him against the offender, in their turns, giving him thereby power to execute his sentence against any transgression, and so in effect make him the law-maker, and governor over all that remained in conjunction with his family. He was fittest to be trusted; paternal affection secured their property and interest under his care; and the custom of obeying him, in their childhood, made it easier to submit to him, rather than to any other. If therefore they must have one to rule them, as government is hardly to be avoided amongst men that live together; who so likely to be the man as he that was their common father; unless negligence, cruelty, or any other defect of mind or body made him unfit for it? But when either the father died, and left his next heir, for want of age, wisdom, courage, or any other qualities, less fit for rule; or where several families met, and consented to continue together; there, it is not to be doubted, but they used their natural freedom, to set up him, whom they judged the ablest, and most likely, to rule well over them. Conformable hereunto we find the people of America, who (living out of the reach of the conquering swords, and spreading domination of the two great empires of Peru and Mexico) enjoyed their own natural freedom, though, cæteris paribus, they commonly prefer the heir of their deceased king; yet if they find him any way weak, or uncapable, they pass him by, and set up the stoutest and bravest man for their ruler.

  §. 106.

  Thus, though looking back as far as records give us any account of peopling the world, and the history of nations, we commonly find the government to be in one hand; yet it destroys not that which I affirm, viz. that the beginning of politic society depends upon the consent of the individuals, to join into, and make one society; who, when they are thus incorporated, might set up what form of government they thought fit. But this having given occasion to men to mistake, and think, that by nature government was monarchical, and belonged to the father, it may not be amiss here to consider, why people in the beginning generally pitched upon this form, which though perhaps the father’s pre-eminency might, in the first institution of some common-wealths, give a rise to, and place in the beginning, the power in one hand; yet it is plain that the reason, that continued the form of government in a single person, was not any regard, or respect to paternal authority; since all petty monarchies, that is, almost all monarchies, near their original, have been commonly, at least upon occasion, elective.

  §. 107.

  First then, in the beginning of things, the father’s government of the childhood of those sprung from him, having accustomed them to the rule of one man, and taught them that where it was exercised with care and skill, with affection and love to those under it, it was sufficient to procure and preserve to men all the political happiness they sought for in society. It was no wonder that they should pitch upon, and naturally run into that form of government, which from their infancy they had been all accustomed to; and which, by experience, they had found both easy and safe. To which, if we add, that monarchy being simple, and most obvious to men, whom neither experience had instructed in forms of government, nor the ambition or insolence of empire had taught to beware of the encroachments of prerogative, or the inconveniencies of absolute power, which monarchy in succession was apt to lay claim to, and bring upon them; it was not at all strange, that they should not much trouble themselves to think of methods of restraining any exorbitances of those to whom they had given the authority over them, and of balancing the power of government, by placing several parts of it in different hands. They had neither felt the oppression of tyrannical dominion, nor did the fashion of the age, nor their possessions, or way of living, (which afforded little matter for covetousness or ambition) give them any reason to apprehend or provide against it; and therefore it is no wonder they put themselves into such a frame of government, as was not only, as I said, most obvious and simple, but also best suited to their present state and condition; which stood more in need of defence against foreign invasions and injuries, than of multiplicity of laws. The equality of a simple poor way of living, confining their desires within the narrow bounds of each man’s small property, made few controversies, and so no need of many laws to decide them, or variety of officers to superintend the process, or look after the execution of justice, where there were but few trespasses, and few offenders. Since then those, who liked one another so well as to join into society, cannot but be supposed to have some acquaintance and friendship together, and some trust one in another; they could not but have greater apprehensions of others, than of one another: and therefore their first care and thought cannot but be supposed to be, how to secure themselves against foreign force. It was natural for them to put themselves under a frame of government which might best serve to that end, and chuse the wisest and bravest man to conduct them in their wars, and lead them out against their enemies, and in this chiefly be their ruler.

  §. 108.

  Thus we see, that the kings of the Indians in America, which is still a pattern of the first ages in Asia and Europe, whilst the inhabitants were too few for the country, and want of people and money gave men no temptation to enlarge their possessions of land, or contest for wider extent of ground, are little more than generals of their armies; and though they command absolutely in war, yet at home and in time of peace they exercise very little dominion, and have but a very moderate sovereignty, the resolutions of peace and war being ordinarily either in the people, or in a council. Tho’ the war itself, which admits not of plurality of governors, naturally devolves the command into the king’s sole authority.

  §. 109.

  And thus in Israel itself, the chief business of their judges, and first kings, seems to have been to be captains in war, and leaders of their armies; which (besides what is signified by going out and in before the people, which was, to march forth to war, and home again in the heads of their forces) appears plainly in the story of Jephtha. The Ammonites making war upon Israel, the Gileadites in fear send to Jephtha, a bastard of their family whom they had cast off, and article with him, if he will assist them against the Ammonites, to make him their ruler; which they do in these words, And the people made him head and captain over them, Judg. xi. 11. which was, as it seems, all one as to be judge. And he judged Israel, Judg. xii. 7. that is, was their captain-general six years. So when Jotham upbraids the Shechemites with the obligation they had to Gideon, who had been their judge and ruler, he tells them, He fought for you, and adventured his life far, and delivered you out of the hands of Midian, Judg. ix. 17. Nothing mentioned of him, but what he did as a general: and indeed that is all is found in his history, or in any of the rest of the judges. And Abimelech particularly is called king, though at most he was but their general. And when, being weary of the ill conduct of Samuel’s sons, the children of Israel desired a king, like all the nations to judge them, and to go out before them, and to fight their battles, 1 Sam. viii. 20. God granting their desire, says to Samuel, I will send thee a man, and thou shalt anoint him to be captain over my people Israel, that he may save my people out of the hands of the Philistines, ix. 16. As if the only business of a king had been to lead out their armies, and fight in their defence; and accordingly at his inauguration pouring a vial of oil upon him, declares to Saul, that the Lord had anointed him to be captain over his inheritance, x. 1. And therefore those, who after Saul’s being solemnly chosen and saluted king by the tribes at Mispah, were unwilling to have him their king, made no other objection but this, How shall this man save us? v. 27. as if they should have said, this man is unfit to be our king, not having skill and conduct enough in war, to be able to defend us. And when God resolved to transfer the government to David, it is in these words, But now thy kingdom shall not continue: the Lord hath sought him a man after his own heart, and the Lord hath commanded him to be captain over his people, xiii. 14. As if the whole kingly authority were nothing else but to be their general: and therefore the tribes who had stuck to Saul’s family, and opposed David’s reign, when they came to Hebron with terms of submission to him, they tell him, amongst other arguments they had to submit to him as to their king, that he was in effect their king in Saul’s time, and therefore they had no reason but to receive him as their king now. Also (say they) in time past, when Saul was king over us, thou wast he that leddest out and broughtest in Israel, and the Lord said unto thee, Thou shalt feed my people Israel, and thou shalt be a captain over Israel.

  §. 110.

  Thus, whether a family by degrees grew up into a common-wealth, and the fatherly authority being continued on to the elder son, every one in his turn growing up under it, tacitly submitted to it, and the easiness and equality of it not offending any one, every one acquiesced, till time seemed to have confirmed it, and settled a right of succession by prescription: or whether several families, or the descendants of several families, whom chance, neighbourhood, or business brought together, uniting into society, the need of a general, whose conduct might defend them against their enemies in war, and the great confidence the innocence and sincerity of that poor but virtuous age, (such as are almost all those which begin governments, that ever come to last in the world) gave men one of another, made the first beginners of common-wealths generally put the rule into one man’s hand, without any other express limitation or restraint, but what the nature of the thing, and the end of government required: which ever of those it was that at first put the rule into the hands of a single person, certain it is no body was intrusted with it but for the public good and safety, and to those ends, in the infancies of common-wealths, those who had it commonly used it. And unless they had done so, young societies could not have subsisted; without such nursing fathers tender and careful of the public weal, all governments would have sunk under the weakness and infirmities of their infancy, and the prince and the people had soon perished together.

  §. 111.

  But though the golden age (before vain ambition, and amor sceleratus habendi, evil concupiscence, had corrupted men’s minds into a mistake of true power and honour) had more virtue, and consequently better governors, as well as less vicious subjects; and there was then no stretching prerogative on the one side, to oppress the people; nor consequently on the other, any dispute aboutprivilege, to lessen or restrain the power of the magistrate, and so no contest betwixt rulers and people about governors or government: yet, when ambition and luxury in future ages* would retain and increase the power, without doing the business for which it was given; and aided by slattery, taught princes to have distinct and separate interests from their people, men found it necessary to examine more carefully the original and rights of government; and to find out ways to restrain the exorbitances, and prevent the abuses of that power, which they having intrusted in another’s hands only for their own good, they found was made use of to hurt them.

  §. 112.

  Thus we may see how probable it is, that people that were naturally free, and by their own consent either submitted to the government of their father, or united together out of different families to make a government, should generally put the rule into one man’s hands, and chuse to be under the conduct of a single person, without so much as by express conditions limiting or regulating his power, which they thought safe enough in his honesty and prudence; though they never dreamed of monarchy being Jure Divino, which we never heard of among mankind, till it was revealed to us by the divinity of this last age; nor ever allowed paternal power to have a right to dominion, or to be the foundation of all government. And thus much may suffice to shew, that as far as we have any light from history, we have reason to conclude, that all peaceful beginnings of government have been laid in the consent of the people. I say peaceful, because I shall have occasion in another place to speak of conquest, which some esteem a way of beginning of governments.

  The other objection I find urged against the beginning of polities, in the way I have mentioned, is this, viz.

  §. 113.

  That all men being born under government, some or other, it is impossible any of them should ever be free, and at liberty to unite together, and begin a new one, or ever be able to erect a lawful government.

  If this argument be good; I ask, how came so many lawful monarchies into the world? for if any body, upon this supposition, can shew me any one man in any age of the world free to begin a lawful monarchy, I will be bound to shew him ten other freemen at liberty, at the same time to unite and begin a new government under a regal, or any other form; it being demonstration, that if any one, born under the dominion of another, may be so free as to have a right to command others in a new and distinct empire, every one that is born under the dominion of another may be so free too, and may become a ruler, or subject, of a distinct separate government. And so by this their own principle, either all men, however born, are free, or else there is but one lawful prince, one lawful government in the world. And then they have nothing to do, but barely to shew us which that is; which when they have done, I doubt not but all mankind will easily agree to pay obedience to him.

  §. 114.

  Though it be a sufficient answer to their objection, to shew that it involves them in the same difficulties that it doth those they use it against; yet I shall endeavour to discover the weakness of this argument a little farther.

  All men, say they, are born under government, and therefore they cannot be at liberty to begin a new one. Every one is born a subject to his father, or his prince, and is therefore under the perpetual tie of subjection and allegiance. It is plain mankind never owned nor considered any such natural subjection that they were born in, to one or to the other that tied them, without their own consents, to a subjection to them and their heirs.

  §. 115.

  For there are no examples so frequent in history, both sacred and profane, as those of men withdrawing themselves, and their obedience, from the jurisdiction they were born under, and the family or community they were bred up in, and setting up new governments in other places; from whence sprang all that number of petty commonwealths in the beginning of ages, and which always multiplied, as long as there was room enough, till the stronger, or more fortunate, swallowed the weaker; and those great ones again breaking to pieces, dissolved into lesser dominions. All which are so many testimonies against paternal sovereignty, and plainly prove, that it was not the natural right of the father descending to his heirs, that made governments in the beginning, since it was impossible, upon that ground, there should have been so many little kingdoms; all must have been but only one universal monarchy, if men had not been at liberty to separate themselves from their families, and the government, be it what it will, that was set up in it, and go and make distinct common-wealths and other governments, as they thought fit.

  §. 116.

  This has been the practice of the world from its first beginning to this day; nor is it now any more hindrance to the freedom of mankind, that they are born under constituted and ancient polities, that have established laws, and set forms of government, than if they were born in the woods, amongst the unconfined inhabitants, that run loose in them: for those, who would persuade us, that by being born under any government, we are naturally subjects to it, and have no more any title or pretence to the freedom of the state of nature, have no other reason (bating that of paternal power, which we have already answered) to produce for it, but only, because our fathers or progenitors passed away their natural liberty, and thereby bound up themselves and their posterity to a perpetual subjection to the government, which they themselves submitted to. It is true, that whatever engagements or promises any one has made for himself, he is under the obligation of them, but cannot, by any compact whatsoever, bind his children or posterity: for his son, when a man, being altogether as free as the father, any act of the father can no more give away the liberty of the son, than it can of any body else: he may indeed annex such conditions to the land, he enjoyed as a subject of any common-wealth, as may oblige his son to be of that community, if he will enjoy those possessions which were his father’s; because that estate being his father’s property, he may dispose, or settle it, as he pleases.

  §. 117.

  And this has generally given the occasion to mistake in this matter; because common-wealths not permitting any part of their dominions to be dismembered, nor to be enjoyed by any but those of their community, the son cannot ordinarily enjoy the possessions of his father, but under the same terms his father did, by becoming a member of the society; whereby he puts himself presently under the government he finds there established, as much as any other subject of that common-wealth. And thus the consent of freemen, born under government, which only makes them members of it, being given separately in their turns, as each comes to be of age, and not in a multitude together; people take no notice of it, and thinking it not done at all, or not necessary, conclude they are naturally subjects as they are men.

  §. 118.

  But, it is plain, governments themselves understand it otherwise; they claim no power over the son, because of that they had over the father; nor look on children as being their subjects, by their fathers being so. If a subject of England have a child, by an English woman in France, whose subject is he? Not the king of England’s; for he must have leave to be admitted to the privileges of it: nor the king of France’s; for how then has his father a liberty to bring him away, and breed him as he pleases? and who ever was judged as a traytor or deserter, if he left, or warred against a country, for being barely born in it of parents that were aliens there? It is plain then, by the practice of governments themselves, as well as by the law of right reason, that a child is born a subject of no country or government. He is under his father’s tuition and authority, till he comes to age of discretion; and then he is a freeman, at liberty what government he will put himself under, what body politic he will unite himself to: for if an Englishman’s son, born in France, be at liberty, and may do so, it is evident there is no tie upon him by his father’s being a subject of this kingdom; nor is he bound up by any compact of his ancestors. And why then hath not his son, by the same reason, the same liberty, though he be born any where else? Since the power that a father hath naturally over his children, is the same, where-ever they be born, and the ties of natural obligations, are not bounded by the positive limits of kingdoms and common-wealths.

  §. 119.

  Every man being, as has been shewed, naturally free, and nothing being able to put him into subjection to any earthly power, but only his own consent; it is to be considered, what shall be understood to be a sufficient declaration of a man’s consent, to make him subject to the laws of any government. There is a common distinction of an express and a tacit consent, which will concern our present case. No body doubts but an express consent, of any man entering into any society, makes him a perfect member of that society, a subject of that government. The difficulty is, what ought to be looked upon as a tacit consent, and how far it binds, i. e. how far any one shall be looked on to have consented, and thereby submitted to any government, where he has made no expressions of it at all. And to this I say, that every man, that hath any possessions, or enjoyment, of any part of the dominions of any government, doth thereby give his tacit consent, and is as far forth obliged to obedience to the laws of that government, during such enjoyment, as any one under it; whether this his possession be of land, to him and his heirs for ever, or a lodging only for a week; or whether it be barely travelling freely on the highway; and in effect, it reaches as far as the very being of any one within the territories of that government.

  §. 120.

  To understand this the better, it is fit to consider, that every man, when he at first incorporates himself into any common-wealth, he, by his uniting himself thereunto, annexed also, and submits to the community, those possessions, which he has, or shall acquire, that do not already belong to any other government: for it would be a direct contradiction, for any one to enter into society with others for the securing and regulating of property; and yet to suppose his land, whose property is to be regulated by the laws of the society, should be exempt from the jurisdiction of that government, to which he himself, the proprietor of the land, is a subject. By the same act therefore, whereby any one unites his person, which was before free, to any common-wealth; by the same he unites his possessions, which were before free, to it also; and they become, both of them, person and possession, subject to the government and dominion of that common-wealth, as long as it hath a being. Whoever therefore, from thenceforth, by inheritance, purchase, permission, or otherways, enjoys any part of the land, so annexed to, and under the government of that common-wealth, must take it with the condition it is under; that is, of submitting to the government of the common-wealth, under whose jurisdiction it is, as far forth as any subject of it.

  §. 121.

  But since the government has a direct jurisdiction only over the land, and reaches the possessor of it, (before he has actually incorporated himself in the society) only as he dwells upon, and enjoys that; the obligation any one is under, by virtue of such enjoyment, to submit to the government, begins and ends with the enjoyment; so that whenever the owner, who has given nothing but such a tacit consent to the government, will, by donation, sale, or otherwise, quit the said possession, he is at liberty to go and incorporate himself into any other common-wealth; or to agree with others to begin a new one, in vacuis locis, in any part of the world, they can find free and unpossessed: whereas he, that has once, by actual agreement, and any express declaration, given his consent to be of any common-wealth, is, perpetually and indispensibly obliged to be, and remain unalterably a subject to it, and can never be again in the liberty of the state of nature; unless, by any calamity, the government he was under comes to be dissolved; or else by some public act cuts him off from being any longer a member of it.

  §. 122.

  But submitting to the laws of any country, living quietly, and enjoying privileges and protection under them, makes not a man a member of that society: this is only a local protection and homage due to and from all those, who, not being in a state of war, come within the territories belonging to any government, to all parts whereof the force of its laws extends. But this no more makes a man a member of that society, a perpetual subject of that common-wealth, than it would make a man a subject to another, in whose family he found it convenient to abide for some time; though, whilst he continued in it, he were obliged to comply with the laws, and submit to the government he found there. And thus we see, that foreigners, by living all their lives under another government, and enjoying the privileges and protection of it, though they are bound, even in conscience, to submit to its administration, as far forth as any denison; yet do not thereby come to be subjects or members of that common-wealth. Nothing can make any man so, but his actually entering into it by positive engagement, and express promise and compact. This is that, which I think, concerning the beginning of political societies, and that consent which makes any one a member of any common-wealth.

  CHAP. IX.
  Of the Ends of Political Society and Government.

  §. 123.

  IF man in the state of nature be so free, as has been said; if he be absolute lord of his own person and possessions, equal to the greatest, and subject to no body, why will he part with his freedom? why will he give up this empire, and subject himself to the dominion and controul of any other power? To which it is obvious to answer, that though in the state of nature he hath such a right, yet the enjoyment of it is very uncertain, and constantly exposed to the invasion of others: for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very unsecure. This makes him willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property.

  §. 124.

  The great and chief end, therefore, of men’s uniting into common-wealths, and putting themselves under government, is the preservation of their property. To which in the state of nature there are many things wanting.

  First, There wants an established, settled, known law, received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them: for though the law of nature be plain and intelligible to all rational creatures; yet men being biassed by their interest, as well as ignorant for want of study of it, are not apt to allow of it as a law binding to them in the application of it to their particular cases.

  §. 125.

  Secondly, In the state of nature there wants a known and indifferent judge, with authority to determine all differences according to the established law: for every one in that state being both judge and executioner of the law of nature, men being partial to themselves, passion and revenge is very apt to carry them too far, and with too much heat, in their own cases; as well as negligence, and unconcernedness, to make them too remiss in other men’s.

  §. 126.

  Thirdly, In the state of nature there often wants power to back and support the sentence when right, and to give it due execution. They who by any injustice offended, will seldom fail, where they are able, by force to make good their injustice; such resistance many times makes the punishment dangerous, and frequently destructive, to those who attempt it.

  §. 127.

  Thus mankind, notwithstanding all the privileges of the state of nature, being but in an ill condition, while they remain in it, are quickly driven into society. Hence it comes to pass, that we seldom find any number of men live any time together in this state. The inconveniencies that they are therein exposed to, by the irregular and uncertain exercise of the power every man has of punishing the transgressions of others, make them take sanctuary under the established laws of government, and therein seek the preservation of their property. It is this makes them so willingly give up every one his single power of punishing, to be exercised by such alone, as shall be appointed to it amongst them; and by such rules as the community, or those authorized by them to that purpose, shall agree on. And in this we have the original right and rise of both the legislative and executive power, as well as of the governments and societies themselves.

  §. 128.

  For in the state of nature, to omit the liberty he has of innocent delights, a man has two powers.

  The first is to do whatsoever he thinks fit for the preservation of himself, and others within the permission of the law of nature: by which law, common to them all, he and all the rest of mankind are one community, make up one society, distinct from all other creatures. And were it not for the corruption and vitiousness of degenerate men, there would be no need of any other; no necessity that men should separate from this great and natural community, and by positive agreements combine into smaller and divided associations.

  The other power a man has in the state of nature, is the power to punish the crimes committed against that law. Both these he gives up, when he joins in a private, if I may so call it, or particular politic society, and incorporates into any common-wealth, separate from the rest of mankind.

  §. 129.

  The first power, viz. of doing whatsoever be thought for the preservation of himself, and the rest of mankind, he gives up to be regulated by laws made by the society, so far forth as the preservation of himself, and the rest of that society shall require; which laws of the society in many things confine the liberty he had by the law of nature.

  §. 130.

  Secondly, The power of punishing he wholly gives up, and engages his natural force, (which he might before employ in the execution of the law of nature, by his own single authority, as he thought fit) to assist the executive power of the society, as the law thereof shall require: for being now in a new state, wherein he is to enjoy many conveniencies, from the labour, assistance, and society of others in the same community, as well as protection from its whole strength; he is to part also with as much of his natural liberty, in providing for himself, as the good, prosperity, and safety of the society shall require; which is not only necessary, but just, since the other members of the society do the like.

  §. 131.

  But though men, when they enter into society, give up the equality, liberty, and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require; yet it being only with an intention in every one the better to preserve himself, his liberty and property; (for no rational creature can be supposed to change his condition with an intention to be worse) the power of the society, or legislative constituted by them, can never be supposed to extend farther, than the common good; but is obliged to secure every one’s property, by providing against those three defects above mentioned, that made the state of nature so unsafe and uneasy. And so whoever has the legislative or supreme power of any common-wealth, is bound to govern by established standing laws, promulgated and known to the people, and not by extemporary decrees; by indifferent and upright judges, who are to decide controversies by those laws; and to employ the force of the community at home, only in the execution of such laws, or abroad to prevent or redress foreign injuries, and secure the community from inroads and invasion. And all this to be directed to no other end, but the peace, safety, and public good of the people.

  CHAP. X.
  Of the Forms of a Common-wealth.

  §. 132.

  THE majority having, as has been shewed, upon men’s first uniting into society, the whole power of the community naturally in them, may employ all that power in making laws for the community from time to time, and executing those laws by officers of their own appointing; and then the form of the government is a perfect democracy: or else may put the power of making laws into the hands of a few select men, and their heirs or successors; and then it is an oligarchy: or else into the hands of one man, and then it is a monarchy: if to him and his heirs, it is an hereditary monarchy: if to him only for life, but upon his death the power only of nominating a successor to return to them; an elective monarchy. And so accordingly of these the community may make compounded and mixed forms of government, as they think good. And if the legislative power be at first given by the majority to one or more persons only for their lives, or any limited time, and then the supreme power to revert to them again; when it is so reverted, the community may dispose of it again anew into what hands they please, and so constitute a new form of government: for the form of government depending upon the placing the supreme power, which is the legislative, it being impossible to conceive that an inferior power should prescribe to a superior, or any but the supreme make laws, according as the power of making laws is placed, such is the form of the common-wealth.

  §. 133.

  By common-wealth, I must be understood all along to mean, not a democracy, or any form of government, but any independent community, which the Latines signified by the word civitas, to which the word which best answers in our language, is common-wealth, and most properly expresses such a society of men, which community or city in English does not; for there may be subordinate communities in a government; and city amongst us has a quite different notion from common-wealth: and therefore, to avoid ambiguity, I crave leave to use the word common-wealth in that sense, in which I find it used by king James the first; and I take it to be its genuine signification; which if any body dislike, I consent with him to change it for a better.

  CHAP. XI.
  Of the Extent of the Legislative Power.

  §. 134.

  THE great end of men’s entering into society, being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society; the first and fundamental positive law of all common-wealths is the establishing of the legislative power; as the first and fundamental naturallaw, which is to govern even the legislative itself, is the preservation of the society, and (as far as will consist with the public good) of every person in it. This legislative is not only the supreme power of the common-wealth, but sacred and unalterable in the hands where the community have once placed it; nor can any edict of any body else, in what form soever conceived, or by what power soever backed, have the force and obligation of a law, which has not its sanction from that legislative which the public has chosen and appointed: for without this the law could not have that, which is absolutely necessary to its being a law,*the consent of the society, over whom no body can have a power to make laws, but by their own consent, and by authority received from them; and therefore all the obedience, which by the most solemn ties any one can be obliged to pay, ultimately terminates in this supreme power, and is directed by those laws which it enacts: nor can any oaths to any foreign power whatsoever, or any domestic subordinate power, discharge any member of the society from his obedience to the legislative, acting pursuant to their trust; nor oblige him to any obedience contrary to the laws so enacted, or farther than they do allow; it being ridiculous to imagine one can be tied ultimately to obey any power in the society, which is not the supreme.

  §. 135.

  Though the legislative, whether placed in one or more, whether it be always in being, or only by intervals, though it be the supreme power in every common-wealth; yet,

  First, It is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person, or assembly, which is legislator; it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community: for no body can transfer to another more power than he has in himself; and no body has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. A man, as has been proved, cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the common-wealth, and by it to the legislative power, so that the legislative can have no more than this. Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power, that hath no other end but preservation, and therefore can never* have a right to destroy, enslave, or designedly to impoverish the subjects. The obligations of the law of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to inforce their observation. Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men’s actions, must, as well as their own and other men’s actions, be conformable to the law of nature, i. e. to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction can be good, or valid against it.

  §. 136.

  Secondly,* The legislative, or supreme authority, cannot assume to its self a power to rule by extemporary arbitrary decrees, but is bound to dispense justice, and decide the rights of the subject by promulgated standing laws, and known authorized judges: for the law of nature being unwritten, and so no where to be found but in the minds of men, they who through passion or interest shall miscite, or misapply it, cannot so easily be convinced of their mistake where there is no established judge: and so it serves not, as it ought, to determine the rights, and fence the properties of those that live under it, especially where every one is judge, interpreter, and executioner of it too, and that in his own case: and he that has right on his side, having ordinarily but his own single strength, hath not force enough to defend himself from injuries, or to punish delinquents. To avoid these inconveniencies, which disorder men’s properties in the state of nature, men unite into societies, that they may have the united strength of the whole society to secure and defend their properties, and may have standing rules to bound it, by which every one may know what is his. To this end it is that men give up all their natural power to the society which they enter into, and the community put the legislative power into such hands as they think fit, with this trust, that they shall be governed by declared laws, or else their peace, quiet, and property will still be at the same uncertainty, as it was in the state of nature.

  §. 137.

  Absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government, which men would not quit the freedom of the state of nature for, and tie themselves up under, were it not to preserve their lives, liberties and fortunes, and by stated rules of right and property to secure their peace and quiet. It cannot be supposed that they should intend, had they a power so to do, to give to any one, or more, an absolute arbitrary power over their persons and estates, and put a force into the magistrate’s hand to execute his unlimited will arbitrarily upon them. This were to put themselves into a worse condition than the state of nature, wherein they had a liberty to defend their right against the injuries of others, and were upon equal terms of force to maintain it, whether invaded by a single man, or many in combination. Whereas by supposing they have given up themselves to the absolute arbitrary power and will of a legislator, they have disarmed themselves, and armed him, to make a prey of them when he pleases; he being in a much worse condition, who is exposed to the arbitrary power of one man, who has the command of 100,000, than he that is exposed to the arbitrary power of 100,000 single men; no body being secure, that his will, who has such a command, is better than that of other men, though his force be 100,000 times stronger. And therefore, whatever form the commonwealth is under, the ruling power ought to govern by declared and received laws, and nor by extemporary dictates and undetermined resolutions: for then mankind will be in a far worse condition than in the state of nature, if they shall have armed one, or a few men with the joint power of a multitude, to force them to obey at pleasure the exorbitant and unlimited decrees of their sudden thoughts, or unrestrained, and till that moment unknown wills, without having any measures set down which may guide and justify their actions: for all the power the government has, being only for the good of the society, as it ought not to be arbitrary and at pleasure, so it ought to be exercised by established and promulgated laws; that both the people may know their duty, and be safe and secure within the limits of the law; and the rulers too kept within their bounds, and not be tempted, by the power they have in their hands, to employ it to such purposes, and by such measures, as they would not have known, and own not willingly.

  §. 138.

  Thirdly, The supreme power cannot take from any man any part of his property without his own consent: for the preservation of property being the end of government, and that for which men enter into society, it necessarily supposes and requires, that the people should have property, without which they must be supposed to lose that, by entering into society, which was the end for which they entered into it; too gross an absurdity for any man to own. Men therefore in society having property, they have such a right to the goods, which by the law of the community are their’s, that no body hath a right to take their substance or any part of it from them, without their own consent: without this they have no property at all; for I have truly no property in that, which another can by right take from me, when he pleases, against my consent. Hence it is a mistake to think, that the supreme or legislative power of any common-wealth, can do what it will, and dispose of the estates of the subject arbitrarily, or take any part of them at pleasure. This is not much to be feared in governments where the legislative consists, wholly or in part, in assemblies which are variable, whose members, upon the dissolution of the assembly, are subjects under the common laws of their country, equally with the rest. But in governments, where the legislative is in one lasting assembly always in being, or in one man, as in absolute monarchies, there is danger still, that they will think themselves to have a distinct interest from the rest of the community; and so will be apt to increase their own riches and power, by taking what they think fit from the people: for a man’s property is not at all secure, tho’ there be good and equitable laws to set the bounds of it between him and his fellow subjects, if he who commands those subjects have power to take from any private man, what part he pleases of his property, and use and dispose of it as he thinks good.

  §. 139.

  But government, into whatsoever hands it is put, being, as I have before shewed, intrusted with this condition, and for thisend, that men might have and secure their properties; the prince, or senate, however it may have power to make laws, for the regulating of property between the subjects one amongst another, yet can never have a power to take to themselves the whole, or any part of the subjects property, without their own consent: for this would be in effect to leave them no property at all. And to let us see, that even absolute power, where it is necessary, is not arbitrary by being absolute, but is still limited by that reason, and confined to those ends, which required it in some cases to be absolute, we need look no farther than the common practice of martial discipline: for the preservation of the army, and in it of the whole common-wealth, requires an absolute obedience to the command of every superior officer, and it is justly death to disobey or dispute the most dangerous or unreasonable of them; but yet we see, that neither the serjeant, that could command a soldier to march up to the mouth of a cannon, or stand in a breach, where he is almost sure to perish, can command that soldier to give him one penny of his money; nor the general, that can condemn him to death for deserting his post, or for not obeying the most desperate orders, can yet, with all his absolute power of life and death, dispose of one farthing of that soldier’s estate, or seize one jot of his goods; whom yet he can command any thing, and hang for the least disobedience; because such a blind obedience is necessary to that end, for which the commander has his power, viz. the preservation of the rest; but the disposing of his goods has nothing to do with it.

  §. 140.

  It is true, governments cannot be supported without great charge, and it is fit every one who enjoys his share of the protection, should pay out of his estate his proportion for the maintenance of it. But still it must be with his own consent, i. e. the consent of the majority, giving it either by themselves, or their representatives chosen by them: for if any one shall claim a power to lay and levy taxes on the people, by his own authority, and without such consent of the people, he thereby invades the fundamental law of property, and subverts the end of government: for what property have I in that, which another may by right take, when he pleases, to himself?

  §. 141.

  Fourthly, The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others. The people alone can appoint the form of the common-wealth, which is by constituting the legislative, and appointing in whose hands that shall be. And when the people have said, We will submit to rules, and be governed by laws made by such men, and in such forms, no body else can say other men shall make laws for them; nor can the people be bound by any laws, but such as are enacted by those whom they have chosen, and authorized to make laws for them. The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands.

  §. 142.

  These are the bounds which the trust, that is put in them by the society, and the law of God and nature, have set to the legislative power of every common-wealth, in all forms of government.

  First, They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at court, and the country man at plough.

  Secondly, These laws also ought to be designed for no other end ultimately, but the good of the people.

  Thirdly, They must not raise taxes on the property of the people, without the consent of the people, given by themselves, or their deputies. And this properly concerns only such governments where the legislative is always in being, or at least where the people have not reserved any part of the legislative to deputies, to be from time to time chosen by themselves.

  Fourthly, The legislative neither must nor can transfer the power of making laws to any body else, or place it any where, but where the people have.

  CHAP. XII.
  Of the Legislative, Executive, and Federative Power of the Common-wealth.

  §. 143.

  THE legislative power is that, which has a right to direct how the force of the common-wealth shall be employed for preserving the community and the members of it. But because those laws which are constantly to be executed, and whose force is always to continue, may be made in a little time; therefore there is no need, that the legislative should be always in being, not having always business to do. And because it may be too great a temptation to human frailty, apt to grasp at power, for the same persons, who have the power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making, and execution, to their own private advantage, and thereby come to have a distinct interest from the rest of the community, contrary to the end of society and government: therefore in well-ordered common-wealths, where the good of the whole is so considered, as it ought, the legislative power is put into the hands of divers persons, who duly assembled, have by themselves, or jointly with others, a power to make laws, which when they have done, being separated again, they are themselves subject to the laws they have made; which is a new and near tie upon them, to take care, that they make them for the public good.

  §. 144.

  But because the laws, that are at once, and in a short time made, have a constant and lasting force, and need a perpetual execution, or an attendance thereunto; therefore it is necessary there should be a power always in being, which should see to the execution of the laws that are made, and remain in force. And thus the legislative and executive power come often to be separated.

  §. 145.

  There is another power in every common-wealth, which one may call natural, because it is that which answers to the power every man naturally had before he entered into society: for though in a common-wealth the members of it are distinct persons still in reference to one another, and as such are governed by the laws of the society; yet in reference to the rest of mankind, they make one body, which is, as every member of it before was, still in the state of nature with the rest of mankind. Hence it is, that the controversies that happen between any man of the society with those that are out of it, are managed by the public; and an injury done to a member of their body, engages the whole in the reparation of it. So that under this consideration, the whole community is one body in the state of nature, in respect of all other states or persons out of its community.

  §. 146.

  This therefore contains the power of war and peace, leagues and alliances, and all the transactions, with all persons and communities without the common-wealth, and may be called federative, if any one pleases. So the thing be understood, I am indifferent as to the name.

  §. 147.

  These two powers, executive and federative, though they be really distinct in themselves, yet one comprehending the execution of the municipal laws of the society within its self, upon all that are parts of it; the other the management of the security and interest of the public without, with all those that it may receive benefit or damage from, yet they are always almost united. And though this federative power in the well or ill management of it be of great moment to the common-wealth, yet it is much less capable to be directed by antecedent, standing, positive laws, than the executive; and so must necessarily be left to the prudence and wisdom of those, whose hands it is in, to be managed for the public good: for the laws that concern subjects one amongst another, being to direct their actions, may well enough precede them. But what is to be done in reference to foreigners, depending much upon their actions, and the variation of designs and interests, must be left in great part to the prudence of those, who have this power committed to them, to be managed by the best of their skill, for the advantage of the common-wealth.

  §. 148.

  Though, as I said, the executive and federative power of every community be really distinct in themselves, yet they are hardly to be separated, and placed at the same time, in the hands of distinct persons: for both of them requiring the force of the society for their exercise, it is almost impracticable to place the force of the common-wealth in distinct, and not subordinate hands; or that the executive and federative power should be placed in persons, that might act separately, whereby the force of the public would be under different commands: which would be apt some time or other to cause disorder and ruin.

  CHAP. XIII.
  Of the Subordination of the Powers of the Common-wealth.

  §. 149.

  THough in a constituted common-wealth, standing upon its own basis, and acting according to its own nature, that is, acting for the preservation of the community, there can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate, yet the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them: for all power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security. And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators, whenever they shall be so foolish, or so wicked, as to lay and carry on designs against the liberties and properties of the subject: for no man or society of men, having a power to deliver up their preservation, or consequently the means of it, to the absolute will and arbitrary dominion of another; when ever any one shall go about to bring them into such a slavish condition, they will always have a right to preserve, what they have not a power to part with; and to rid themselves of those, who invade this fundamental, sacred, and unalterable law of self-preservation, for which they entered into society. And thus the community may be said in this respect to be always the supreme power, but not as considered under any form of government, because this power of the people can never take place till the government be dissolved.

  §. 150.

  In all cases, whilst the government subsists, the legislative is the supreme power: for what can give laws to another, must needs be superior to him; and since the legislative is no otherwise legislative of the society, but by the right it has to make laws for all the parts, and for every member of the society, prescribing rules to their actions, and giving power of execution, where they are transgressed, the legislative must needs be the supreme, and all other powers, in any members or parts of the society, derived from and subordinate to it.

  §. 151.

  In some common-wealths, where the legislative is not always in being, and the executive is vested in a single person, who has also a share in the legislative; there that single person in a very tolerable sense may also be called supreme: not that he has in himself all the supreme power, which is that of law-making; but because he has in him the supreme execution, from whom all inferior magistrates derive all their several subordinate powers, or at least the greatest part of them: having also no legislative superior to him, there being no law to be made without his consent, which cannot be expected should ever subject him to the other part of the legislative, be is properly enough in this sense supreme. But yet it is to be observed, that tho’ oaths of allegiance and fealty are taken to him, it is not to him as supreme legislator, but as supreme executor of the law, made by a joint power of him with others; allegiance being nothing but an obedience according to law, which when he violates, he has no right to obedience, nor can claim it otherwise than as the public person vested with the power of the law, and so is to be considered as the image, phantom, or representative of the common-wealth, acted by the will of the society, declared in its laws; and thus he has no will, no power, but that of the law. But when he quits this representation, this public will, and acts by his own private will, he degrades himself, and is but a single private person without power, and without will, that has any right to obedience; the members owing no obedience but to the public will of the society.

  §. 152.

  The executive power, placed any where but in a person that has also a share in the legislative, is visibly subordinate and accountable to it, and may be at pleasure changed and displaced; so that it is not the supreme executive power, that is exempt from subordination, but the supreme executive power vested in one, who having a share in the legislative, has no distinct superior legislative to be subordinate and accountable to, farther than he himself shall join and consent; so that he is no more subordinate than he himself shall think fit, which one may certainly conclude will be but very little. Of other ministerial and subordinate powers in a common-wealth, we need not speak, they being so multiplied with infinite variety, in the different customs and constitutions of distinct common-wealths, that it is impossible to give a particular account of them all. Only thus much, which is necessary to our present purpose, we may take notice of concerning them, that they have no manner of authority, any of them, beyond what is by positive grant and commission delegated to them, and are all of them accountable to some other power in the common-wealth.

  §. 153.

  It is not necessary, no, nor so much as convenient, that the legislative should be always in being; but absolutely necessary that the executive power should, because there is not always need of new laws to be made, but always need of execution of the laws that are made. When the legislative hath put the execution of the laws, they make, into other hands, they have a power still to resume it out of those hands, when they find cause, and to punish for any mal-administration against the laws. The same holds also in regard of the federative power, that and the executive being both ministerial and subordinate to the legislative, which, as has been shewed, in a constituted common-wealth is the supreme. The legislative also in this case being supposed to consist of several persons, (for if it be a single person, it cannot but be always in being, and so will, as supreme, naturally have the supreme executive power, together with the legislative) may assemble, and exercise their legislature, at the times that either their original constitution, or their own adjournment, appoints, or when they please; if neither of these hath appointed any time, or there be no other way prescribed to convoke them: for the supreme power being placed in them by the people, it is always in them, and they may exercise it when they please, unless by their original constitution they are limited to certain seasons, or by an act of their supreme power they have adjourned to a certain time; and when that time comes, they have a right to assemble and act again.

  §. 154.

  If the legislative, or any part of it, be made up of representatives chosen for that time by the people, which afterwards return into the ordinary state of subjects, and have no share in the legislature but upon a new choice, this power of chusing must also be exercised by the people, either at certain appointed seasons, or else when they are summoned to it; and in this latter case, the power of convoking the legislative is ordinarily placed in the executive, and has one of these two limitations in respect of time: that either the original constitution requires their assembling and acting at certain intervals, and then the executive power does nothing but ministerially issue directions for their electing and assembling, according to due forms; or else it is left to his prudence to call them by new elections, when the occasions or exigencies of the public require the amendment of old, or making of new laws, or the redress or prevention of any inconveniencies, that lie on, or threaten the people.

  §. 155.

  It may be demanded here, What if the executive power, being possessed of the force of the common-wealth, shall make use of that force to hinder the meeting and acting of the legislative, when the original constitution, or the public exigencies require it? I say, using force upon the people without authority, and contrary to the trust put in him that does so, is a state of war with the people, who have a right to reinstate their legislative in the exercise of their power: for having erected a legislative, with an intent they should exercise the power of making laws, either at certain set times, or when there is need of it, when they are hindered by any force from what is so necessary to the society, and wherein the safety and preservation of the people consists, the people have a right to remove it by force. In all states and conditions, the true remedy of force without authority, is to oppose force to it. The use of force without authority, always puts him that uses it into a state of war, as the aggressor, and renders him liable to be treated accordingly.

  §. 156.

  The power of assembling and dismissing the legislative, placed in the executive, gives not the executive a superiority over it, but is a fiduciary trust placed in him, for the safety of the people, in a case where the uncertainty and variableness of human affairs could not bear a steady fixed rule: for it not being possible, that the first framers of the government should, by any foresight, be so much masters of future events, as to be able to prefix so just periods of return and duration to the assemblies of the legislative, in all times to come, that might exactly answer all the exigencies of the common-wealth; the best remedy could be found for this defect, was to trust this to the prudence of one who was always to be present, and whose business it was to watch over the public good. Constant frequent meetings of the legislative, and long continuations of their assemblies, without necessary occasion, could not but be burdensome to the people, and must necessarily in time produce more dangerous inconveniencies, and yet the quick turn of affairs might be sometimes such as to need their present help: any delay of their convening might endanger the public; and sometimes too their business might be so great, that the limited time of their sitting might be too short for their work, and rob the public of that benefit which could be had only from their mature deliberation. What then could be done in this case to prevent the community from being exposed some time or other to eminent hazard, on one side or the other, by fixed intervals and periods, set to the meeting and acting of the legislative, but to intrust it to the prudence of some, who being present, and acquainted with the state of public affairs, might make use of this prerogative for the public good? and where else could this be so well placed as in his hands, who was intrusted with the execution of the laws for the same end? Thus supposing the regulation of times for the assembling and sitting of the legislative, not settled by the original constitution, it naturally fell into the hands of the executive, not as an arbitrary power depending on his good pleasure, but with this trust always to have it exercised only for the public weal, as the occurrences of times and change of affairs might require. Whether settled periods of their convening, or a liberty left to the prince for convoking the legislative, or perhaps a mixture of both, hath the least inconvenience attending it, it is not my business here to inquire, but only to shew, that though the executive power may have the prerogative of convoking and dissolving such conventions of the legislative, yet it is not thereby superior to it.

  §. 157.

  Things of this world are in so constant a flux, that nothing remains long in the same state. Thus people, riches, trade, power, change their stations, flourishing mighty cities come to ruin, and prove in times neglected desolate corners, whilst other unfrequented places grow into populous countries, filled with wealth and inhabitants. But things not always changing equally, and private interest often keeping up customs and privileges, when the reasons of them are ceased, it often comes to pass, that in governments, where part of the legislative consists of representatives chosen by the people, that in tract of time this representation becomes very unequal and disproportionate to the reasons it was at first established upon. To what gross absurdities the following of custom, when reason has left it, may lead, we may be satisfied, when we see the bare name of a town, of which there remains not so much as the ruins, where scarce so much housing as a sheepcote, or more inhabitants than a shepherd is to be found, sends as many representatives to the grand assembly of law-makers, as a whole county numerous in people, and powerful in riches. This strangers stand amazed at, and every one must confess needs a remedy; tho’ most think it hard to find one, because the constitution of the legislative being the original and supreme act of the society, antecedent to all positive laws in it, and depending wholly on the people, no inferior power can alter it. And therefore the people, when the legislative is once constituted, having, in such a government as we have been speaking of, no power to act as long as the government stands; this inconvenience is thought incapable of a remedy.

  §. 158.

  Salus populi suprema lex, is certainly so just and fundamental a rule, that he, who sincerely follows it, cannot dangerously err. If therefore the executive, who has the power of convoking the legislative, observing rather the true proportion, than fashion of representation, regulates, not by old custom, but true reason, the number of members, in all places that have a right to be distinctly represented, which no part of the people however incorporated can pretend to, but in proportion to the assistance which it affords to the public, it cannot be judged to have set up a new legislative, but to have restored the old and true one, and to have rectified the disorders which succession of time had insensibly, as well as inevitably introduced: For it being the interest as well as intention of the people, to have a fair and equal representative; whoever brings it nearest to that, is an undoubted friend to, and establisher of the government, and cannot miss the consent and approbation of the community; prerogative being nothing but a power, in the hands of the prince, to provide for the public good, in such cases, which depending upon unforeseen and uncertain occurrences, certain and unalterable laws could not safely direct; whatsoever shall be done manifestly for the good of the people, and the establishing the government upon its true foundations, is, and always will be, just prerogative. The power of erecting new corporations, and therewith new representatives, carries with it a supposition, that in time the measures of representation might vary, and those places have a just right to be represented which before had none; and by the same reason, those cease to have a right, and be too inconsiderable for such a privilege, which before had it. ’Tis not a change from the present state, which perhaps corruption or decay has introduced, that makes an inroad upon the government, but the tendency of it to injure or oppress the people, and to set up one part or party, with a distinction from, and an unequal subjection of the rest. Whatsoever cannot but be acknowledged to be of advantage to the society, and people in general, upon just and lasting measures, will always, when done, justify itself; and whenever the people shall chuse their representatives upon just and undeniably equal measures, suitable to the original frame of the government, it cannot be doubted to be the will and act of the society, whoever permitted or caused them so to do.

  CHAP. XIV.
  Of PREROGATIVE.

  §. 159.

  WHERE the legislative and executive power are in distinct hands, (as they are in all moderated monarchies, and well-framed governments) there the good of the society requires, that several things should be left to the discretion of him that has the executive power: for the legislators not being able to foresee, and provide by laws, for all that may be useful to the community, the executor of the laws, having the power in his hands, has by the common law of nature a right to make use of it for the good of the society, in many cases, where the municipal law has given no direction, till the legislative can conveniently be assembled to provide for it. Many things there are, which the law can by no means provide for; and those must necessarily be left to the discretion of him that has the executive power in his hands, to be ordered by him as the public good and advantage shall require: nay, it is fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of nature and government, viz. That as much as may be, all the members of the society are to be preserved: for since many accidents may happen, wherein a strict and rigid observation of the laws may do harm; (as not to pull down an innocent man’s house to stop the fire, when the next to it is burning) and a man may come somtimes within the reach of the law, which makes no distinction of persons, by an action that may deserve reward and pardon; ’tis fit the ruler should have a power, in many cases, to mitigate the severity of the law, and pardon some offenders: for the end of government being the preservation of all, as much as may be, even the guilty are to be spared, where it can prove no prejudice to the innocent.

  §. 160.

  This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative: for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public, or to make such laws as will do no harm, if they are executed with an inflexible rigour, on all occasions, and upon all persons that may come in their way; therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe.

  §. 161.

  This power, whilst employed for the benefit of the community, and suitably to the trust and ends of the government, is undoubted prerogative, and never is questioned: for the people are very seldom or never scrupulous or nice in the point; they are far from examining prerogative, whilst it is in any tolerable degree employed for the use it was meant, that is, for the good of the people, and not manifestly against it: but if there comes to be a question between the executive power and the people, about a thing claimed as a prerogative; the tendency of the exercise of such prerogative to the good or hurt of the people, will easily decide that question.

  §. 162.

  It is easy to conceive, that in the infancy of governments, when commonwealths differed little from families in number of people, they differed from them too but little in number of laws: and the governors, being as the fathers of them, watching over them for their good, the government was almost all prerogative. A few established laws served the turn, and the discretion and care of the ruler supplied the rest. But when mistake or flattery prevailed with weak princes to make use of this power for private ends of their own, and not for the public good, the people were fain by express laws to get prerogative determined in those points wherein they found disadvantage from it: and thus declared limitations of prerogative were by the people found necessary in cases which they and their ancestors had left, in the utmost latitude, to the wisdom of those princes who made no other but a right use of it, that is, for the good of their people.

  §. 163.

  And therefore they have a very wrong notion of government, who say, that the people have incroached upon the prerogative, when they have got any part of it to be defined by positive laws: for in so doing they have not pulled from the prince any thing that of right belonged to him, but only declared, that that power which they indefinitely left in his or his ancestors hands, to be exercised for their good, was not a thing which they intended him when he used it otherwise: for the end of government being the good of the community, whatsoever alterations are made in it, tending to that end, cannot be an incroachment upon any body, since no body in government can have a right tending to any other end: and those only are incroachments which prejudice or hinder the public good. Those who say otherwise, speak as if the prince had a distinct and separate interest from the good of the community, and was not made for it; the root and source from which spring almost all those evils and disorders which happen in kingly governments. And indeed, if that be so, the people under his government are not a society of rational creatures, entered into a community for their mutual good; they are not such as have set rulers over themselves, to guard, and promote that good; but are to be looked on as an herd of inferior creatures under the dominion of a master, who keeps them and works them for his own pleasure or profit. If men were so void of reason, and brutish, as to enter into society upon such terms, prerogative might indeed be, what some men would have it, an arbitrary power to do things hurtful to the people.

  §. 164.

  But since a rational creature cannot be supposed, when free, to put himself into subjection to another, for his own harm; (though, where he finds a good and wise ruler, he may not perhaps think it either necessary or useful to set precise bounds to his power in all things) prerogative can be nothing but the people’s permitting their rulers to do several things, of their own free choice, where the law was silent, and sometimes too against the direct letter of the law, for the public good; and their acquiescing in it when so done: for as a good prince, who is mindful of the trust put into his hands, and careful of the good of his people, cannot have too much prerogative, that is, power to do good; so a weak and ill prince, who would claim that power which his predecessors exercised without the direction of the law, as a prerogative belonging to him by right of his office, which he may exercise at his pleasure, to make or promote an interest distinct from that of the public, gives the people an occasion to claim their right, and limit that power, which, whilst it was exercised for their good, they were content should be tacitly allowed.

  §. 165.

  And therefore he that will look into the history of England, will find, that prerogative was always largest in the hands of our wisest and best princes; because the people, observing the whole tendency of their actions to be the public good, contested not what was done without law to that end: or, if any human frailty or mistake (for princes are but men, made as others) appeared in some small declinations from that end; yet ’twas visible, the main of their conduct tended to nothing but the care of the public. The people therefore, finding reason to be satisfied with these princes, whenever they acted without, or contrary to the letter of the law, acquiesced in what they did, and, without the least complaint, let them inlarge their prerogative as they pleased, judging rightly, that they did nothing herein to the prejudice of their laws, since they acted conformable to the foundation and end of all laws, the public good.

  §. 166.

  Such god-like princes indeed had some title to arbitrary power by that argument, that would prove absolute monarchy the best government, as that which God himself governs the universe by; because such kings partake of his wisdom and goodness. Upon this is founded that saying, That the reigns of good princes have been always most dangerous to the liberties of their people: for when their successors, managing the government with different thoughts, would draw the actions of those good rulers into precedent, and make them the standard of their prerogative, as if what had been done only for the good of the people was a right in them to do, for the harm of the people, if they so pleased; it has often occasioned contest, and sometimes public disorders, before the people could recover their original right, and get that to be declared not to be prerogative, which truly was never so; since it is impossible that any body in the society should ever have a right to do the people harm; though it be very possible, and reasonable, that the people should not go about to set any bounds to the prerogative of those kings, or rulers, who themselves transgressed not the bounds of the public good: for prerogative is nothing but the power of doing public good without a rule.

  §. 167.

  The power of calling parliaments in England, as to precise time, place, and duration, is certainly a prerogative of the king, but still with this trust, that it shall be made use of for the good of the nation, as the exigencies of the times, and variety of occasions, shall require: for it being impossible to foresee which should always be the fittest place for them to assemble in, and what the best season; the choice of these was left with the executive power, as might be most subservient to the public good, and best suit the ends of parliaments.

  §. 168.

  The old question will be asked in this matter of prerogative, But who shall be judge when this power is made a right use of? I answer: between an executive power in being, with such a prerogative, and a legislative that depends upon his will for their convening, there can be no judge on earth; as there can be none between the legislative and the people, should either the executive, or the legislative, when they have got the power in their hands, design, or go about to enslave or destroy them. The people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to heaven: for the rulers, in such attempts, exercising a power the people never put into their hands, (who can never be supposed to consent that any body should rule over them for their harm) do that which they have not a right to do. And where the body of the people, or any single man, is deprived of their right, or is under the exercise of a power without right, and have no appeal on earth, then they have a liberty to appeal to heaven, whenever they judge the cause of sufficient moment. And therefore, though the people cannot be judge, so as to have, by the constitution of that society, any superior power, to determine and give effective sentence in the case; yet they have, by a law antecedent and paramount to all positive laws of men, reserved that ultimate determination to themselves which belongs to all mankind, where there lies no appeal on earth, viz. to judge, whether they have just cause to make their appeal to heaven. And this judgment they cannot part with, it being out of a man’s power so to submit himself to another, as to give him a liberty to destroy him; God and nature never allowing a man so to abandon himself, as to neglect his own preservation: and since he cannot take away his own life, neither can he give another power to take it. Nor let any one think, this lays a perpetual foundation for disorder; for this operates not, till the inconveniency is so great, that the majority feel it, and are weary of it, and find a necessity to have it amended. But this the executive power, or wise princes, never need come in the danger of: and it is the thing, of all others, they have most need to avoid, as of all others the most perilous.

  CHAP. XV.
  Of Paternal, Political, and Despotical Power, considered together.

  §. 169.

  THOUGH I have had occasion to speak of these separately before, yet the great mistakes of late about government, having, as I suppose, arisen from confounding these distinct powers one with another, it may not, perhaps, be amiss to consider them here together.

  §. 170.

  First, then, Paternal or parental power is nothing but that which parents have over their children, to govern them for the children’s good, till they come to the use of reason, or a state of knowledge, wherein they may be supposed capable to understand that rule, whether it be the law of nature, or the municipal law of their country, they are to govern themselves by: capable, I say, to know it, as well as several others, who live as freemen under that law. The affection and tenderness which God hath planted in the breast of parents towards their children, makes it evident, that this is not intended to be a severe arbitrary government, but only for the help, instruction, and preservation of their offspring. But happen it as it will, there is, as I have proved, no reason why it should be thought to extend to life and death, at any time, over their children, more than over any body else; neither can there be any pretence why this parental power should keep the child, when grown to a man, in subjection to the will of his parents, any farther than having received life and education from his parents, obliges him to respect, honour, gratitude, assistance and support, all his life, to both father and mother. And thus, ’tis true, the paternal is a natural government, but not at all extending itself to the ends and jurisdictions of that which is political. The power of the father doth not reach at all to the property of the child, which is only in his own disposing.

  §. 171.

  Secondly, Political power is that power, which every man having in the state of nature, has given up into the hands of the society, and therein to the governors, whom the society hath set over itself, with this express or tacit trust, that it shall be employed for their good, and the preservation of their property: now this power, which every man has in the state of nature, and which he parts with to the society in all such cases where the society can secure him, is to use such means, for the preserving of his own property, as he thinks good, and nature allows him; and to punish the breach of the law of nature in others, so as (according to the best of his reason) may most conduce to the preservation of himself, and the rest of mankind. So that the end and measure of this power, when in every man’s hands in the state of nature, being the preservation of all of his society, that is, all mankind in general, it can have no other end or measure, when in the hands of the magistrate, but to preserve the members of that society in their lives, liberties, and possessions; and so cannot be an absolute, arbitrary power over their lives and fortunes, which are as much as possible to be preserved; but a power to make laws, and annex such penalties to them, as may tend to the preservation of the whole, by cutting off those parts, and those only, which are so corrupt, that they threaten the sound and healthy, without which no severity is lawful. And this power has its original only from compact and agreement, and the mutual consent of those who make up the community.

  §. 172.

  Thirdly, Despotical power is an absolute, arbitrary power one man has over another, to take away his life, whenever he pleases. This is a power, which neither nature gives, for it has made no such distinction between one man and another; nor compact can convey: for man not having such an arbitrary power over his own life, cannot give another man such a power over it; but it is the effect only of forfeiture, which the aggressor makes of his own life, when he puts himself into the state of war with another: for having quitted reason, which God hath given to be the rule betwixt man and man, and the common bond whereby human kind is united into one fellowship and society; and having renounced the way of peace which that teaches, and made use of the force of war, to compass his unjust ends upon another, where he has no right; and so revolting from his own kind to that of beasts, by making force, which is their’s, to be his rule of right, he renders himself liable to be destroyed by the injured person, and the rest of mankind, that will join with him in the execution of justice, as any other wild beast, or noxious brute, with whom mankind can have neither society nor security* . And thus captives, taken in a just and lawful war, and such only, are subject to a despotical power, which, as it arises not from compact, so neither is it capable of any, but is the state of war continued: for what compact can be made with a man that is not master of his own life? what condition can he perform? and if he be once allowed to be master of his own life, the despotical, arbitrary power of his master ceases. He that is master of himself, and his own life, has a right too to the means of preserving it; so that as soon ascompact enters, slavery ceases, and he so far quits his absolute power, and puts an end to the state of war, who enters into conditions with his captive.

  §. 173.

  Nature gives the first of these, viz. paternal power to parents for the benefit of their children during their minority, to supply their want of ability, and understanding how to manage their property. (By property I must be understood here, as in other places, to mean that property which men have in their persons as well as goods.) Voluntary agreement gives the second, viz. political power to governors for the benefit of their subjects, to secure them in the possession and use of their properties. And forfeiture gives the third despotical power to lords for their own benefit, over those who are stripped of all property.

  §. 174.

  He, that shall consider the distinct rise and extent, and the different ends of these several powers, will plainly see, that paternal power comes as far short of that of the magistrate, as despotical exceeds it; and that absolute dominion, however placed, is so far from being one kind of civil society, that it is as inconsistent with it, as slavery is with property. Paternal power is only where minority makes the child incapable to manage his property; political, where men have property in their own disposal; and despotical, over such as have no property at all.

  CHAP. XVI.
  Of CONQUEST.

  §. 175.

  THough governments can originally have no other rise than that before mentioned, nor polities be founded on any thing but the consent of the people; yet such have been the disorders ambition has filled the world with, that in the noise of war, which makes so great a part of the history of mankind, this consent is little taken notice of: and therefore many have mistaken the force of arms for the consent of the people, and reckon conquest as one of the originals of government. But conquest is as far from setting up any government, as demolishing an house is from building a new one in the place. Indeed, it often makes way for a new frame of a common-wealth, by destroying the former; but, without the consent of the people, can never erect a new one.

  §. 176.

  That the aggressor, who puts himself into the state of war with another, and unjustly invades another man’s right, can, by such an unjust war, never come to have a right over the conquered, will be easily agreed by all men, who will not think, that robbers and pyrates have a right of empire over whomsoever they have force enough to master; or that men are bound by promises, which unlawful force extorts from them. Should a robber break into my house, and with a dagger at my throat make me seal deeds to convey my estate to him, would this give him any title? Just such a title, by his sword, has an unjust conqueror, who forces me into submission. The injury and the crime is equal, whether committed by the wearer of a crown, or some petty villain. The title of the offender, and the number of his followers, make no difference in the offence, unless it be to aggravate it. The only difference is, great robbers punish little ones, to keep them in their obedience; but the great ones are rewarded with laurels and triumphs, because they are too big for the weak hands of justice in this world, and have the power in their own possession, which should punish offenders. What is my remedy against a robber, that so broke into my house? Appeal to the law for justice. But perhaps justice is denied, or I am crippled and cannot stir, robbed and have not the means to do it. If God has taken away all means of seeking remedy, there is nothing left but patience. But my son, when able, may seek the relief of the law, which I am denied: he or his son may renew his appeal, till he recover his right. But the conquered, or their children, have no court, no arbitrator on earth to appeal to. Then they may appeal, as Jephtha did, to heaven, and repeat their appeal till they have recovered the native right of their ancestors, which was, to have such a legislative over them, as the majority should approve, and freely acquiesce in. If it be objected, This would cause endless trouble; I answer, no more than justice does, where she lies open to all that appeal to her. He that troubles his neighbour without a cause, is punished for it by the justice of the court he appeals to: and he that appeals to heaven must be sure he has right on his side; and a right too that is worth the trouble and cost of the appeal, as he will answer at a tribunal that cannot be deceived, and will be sure to retribute to every one according to the mischiefs he hath created to his fellow subjects; that is, any part of mankind: from whence it is plain, that he that conquers in an unjust war can thereby have no title to the subjection and obedience of the conquered.

  §. 177.

  But supposing victory favours the right side, let us consider a conqueror in a lawful war, and see what power he gets, and over whom.

  First, It is plain he gets no power by his conquest over those that conquered with him. They that fought on his side cannot suffer by the conquest, but must at least be as much freemen as they were before. And most commonly they serve upon terms, and on condition to share with their leader, and enjoy a part of the spoil, and other advantages that attend the conquering sword; or at least have a part of the subdued country bestowed upon them. And the conquering people are not, I hope, to be slaves by conquest, and wear their laurels only to shew they are sacrifices to their leaders triumph. They that found absolute monarchy upon the title of the sword, make their heroes, who are the founders of such monarchies, arrant Draw-can-sirs, and forget they had any officers and soldiers that fought on their side in the battles they won, or assisted them in the subduing, or shared in possessing, the countries they mastered. We are told by some, that the English monarchy is founded in the Norman conquest, and that our princes have thereby a title to absolute dominion: which if it were true, (as by the history it appears otherwise) and that William had a right to make war on this island; yet his dominion by conquest could reach no farther than to the Saxons and Britons, that were then inhabitants of this country. The Normans that came with him, and helped to conquer, and all descended from them, are freemen, and no subjects by conquest; let that give what dominion it will. And if I, or any body else, shall claim freedom, as derived from them, it will be very hard to prove the contrary: and it is plain, the law, that has made no distinction between the one and the other, intends not there should be any difference in their freedom or privileges.

  §. 178.

  But supposing, which seldom happens, that the conquerors and conquered never incorporate into one people, under the same laws and freedom; let us see next what power a lawful conqueror has over the subdued: and that I say is purely despotical. He has an absolute power over the lives of those who by an unjust war have forfeited them; but not over the lives or fortunes of those who engaged not in the war, nor over the possessions even of those who were actually engaged in it.

  §. 179.

  Secondly, I say then the conqueror gets no power but only over those who have actually assisted, concurred, or consented to that unjust force that is used against him: for the people having given to their governors no power to do an unjust thing, such as is to make an unjust war, (for they never had such a power in themselves) they ought not to be charged as guilty of the violence and unjustice that is committed in an unjust war, any farther than they actually abet it; no more than they are to be thought guilty of any violence or oppression their governors should use upon the people themselves, or any part of their fellow subjects, they having impowered them no more to the one than to the other. Conquerors, it is true, seldom trouble themselves to make the distinction, but they willingly permit the confusion of war to sweep all together: but yet this alters not the right; for the conquerors power over the lives of the conquered, being only because they have used force to do, or maintain an injustice, he can have that power only over those who have concurred in that force; all the rest are innocent; and he has no more title over the people of that country, who have done him no injury, and so have made no forfeiture of their lives, than he has over any other, who, without any injuries or provocations, have lived upon fair terms with him.

  §. 180.

  Thirdly, The power a conqueror gets over those he overcomes in a just war, is perfectly despotical: he has an absolute power over the lives of those, who, by putting themselves in a state of war, have forfeited them; but he has not thereby a right and title to their possessions. This I doubt not, but at first sight will seem a strange doctrine, it being so quite contrary to the practice of the world; there being nothing more familiar in speaking of the dominion of countries, than to say such an one conquered it; as if conquest, without any more ado, conveyed a right of possession. But when we consider, that the practice of the strong and powerful, how universal soever it may be, is seldom the rule of right, however it be one part of the subjection of the conquered, not to argue against the conditions cut out to them by the conquering sword.

  §. 181.

  Though in all war there be usually a complication of force and damage, and the aggressor seldom fails to harm the estate, when he uses force against the persons of those he makes war upon; yet it is the use of force only that puts a man into the state of war: for whether by force he begins the injury, or else having quietly, and by fraud, done the injury, he refuses to make reparation, and by force maintains it, (which is the same thing, as at first to have done it by force) it is the unjust use of force that makes the war: for he that breaks open my house, and violently turns me out of doors; or having peaceably got in, by force keeps me out, does in effect the same thing; supposing we are in such a state, that we have no common judge on earth, whom I may appeal to, and to whom we are both obliged to submit: for of such I am now speaking. It is the unjust use of force then, that puts a man into the state of war with another; and thereby he that is guilty of it makes a forfeiture of his life: for quitting reason, which is the rule given between man and man, and using force, the way of beasts, he becomes liable to be destroyed by him he uses force against, as any savage ravenous beast, that is dangerous to his being.

  §. 182.

  But because the miscarriages of the father are no faults of the children, and they may be rational and peaceable, notwithstanding the brutishness and injustice of the father; the father, by his miscarriages and violence, can forfeit but his own life, but involves not his children in his guilt or destruction. His goods, which nature, that willeth the preservation of all mankind as much as is possible, hath made to belong to the children to keep them from perishing, do still continue to belong to his children: for supposing them not to have joined in the war, either thro’ infancy, absence, or choice, they have done nothing to forfeit them: nor has the conqueror any right to take them away, by the bare title of having subdued him that by force attempted his destruction; though perhaps he may have some right to them, to repair the damages he has sustained by the war, and the defence of his own right; which how far it reaches to the possessions of the conquered, we shall see by and by. So that he that by conquest has a right over a man’s person to destroy him if he pleases, has not thereby a right over his estate to possess and enjoy it: for it is the brutal force the aggressor has used, that gives his adversary a right to take away his life, and destroy him if he pleases, as a noxious creature; but it is damage sustained that alone gives him title to another man’s goods: for though I may kill a thief that sets on me in the high-way, yet I may not (which seems less) take away his money, and let him go: this would be robbery on my side. His force, and the state of war he put himself in, made him forfeit his life, but gave me no title to his goods. The right then of conquest extends only to the lives of those who joined in the war, not to their estates, but only in order to make reparation for the damages received, and the charges of the war, and that too with reservation of the right of the innocent wife and children.

  §. 183.

  Let the conqueror have as much justice on his side, as could be supposed, he has no right to seize more than the vanquished could forfeit: his life is at the victor’s mercy; and his service and goods he may appropriate, to make himself reparation; but he cannot take the goods of his wife and children; they too had a title to the goods he enjoyed, and their shares in the estate he possessed: for example, I in the state of nature (and all common-wealths are in the state of nature one with another) have injured another man, and refusing to give satisfaction, it comes to a state of war, wherein my defending by force what I had gotten unjustly, makes me the aggressor. I am conquered: my life, it is true, as forfeit, is at mercy, but not my wife’s and children’s. They made not the war, nor assisted in it. I could not forfeit their lives; they were not mine to forfeit. My wife had a share in my estate; that neither could I forfeit. And my children also, being born of me, had a right to be maintained out of my labour or substance. Here then is the case: the conqueror has a title to reparation for damages received, and the children have a title to their father’s estate for their subsistence: for as to the wife’s share, whether her own labour, or compact, gave her a title to it, it is plain, her husband could not forfeit what was her’s. What must be done in the case? I answer; the fundamental law of nature being, that all, as much as may be, should be preserved, it follows, that if there be not enough fully to satisfy both, viz. for the conqueror’s losses, and children’s maintenance, he that hath, and to spare, must remit something of his full satisfaction, and give way to the pressing and preferable title of those who are in danger to perish without it.

  §. 184.

  But supposing the charge and damages of the war are to be made up to the conqueror, to the utmost farthing; and that the children of the vanquished, spoiled of all their father’s goods, are to be left to starve and perish; yet the satisfying of what shall, on this score, be due to the conqueror, will scarce give him a title to any country be shall conquer: for the damages of war can scarce amount to the value of any considerable tract of land, in any part of the world, where all the land is possessed, and none lies waste. And if I have not taken away the conqueror’s land, which, being vanquished, it is impossible I should; scarce any other spoil I have done him can amount to the value of mine, supposing it equally cultivated, and of an extent any way coming near what I had over-run of his. The destruction of a year’s product or two (for it seldom reaches four or five) is the utmost spoil that usually can be done: for as to money, and such riches and treasure taken away, these are none of nature’s goods, they have but a fantastical imaginary value: nature has put no such upon them: they are of no more account by her standard, than the wampompeke of the Americans to an European prince, or the silver money of Europe would have been formerly to an American. And five years product is not worth the perpetual inheritance of land, where all is possessed, and none remains waste, to be taken up by him that is disseized: which will be easily granted, if one do but take away the imaginary value of money, the disproportion being more than between five and five hundred; though, at the same time, half a year’s product is more worth than the inheritance, where there being more land than the inhabitants possess and make use of, any one has liberty to make use of the waste: but there conquerors take little care to possess themselves of the lands of the vanquished. No damage therefore, that men in the state of nature (as all princes and governments are in reference to one another) suffer from one another, can give a conqueror power to dispossess the posterity of the vanquished, and turn them out of that inheritance, which ought to be the possession of them and their descendants to all generations. The conqueror indeed will be apt to think himself master: and it is the very condition of the subdued not to be able to dispute their right. But if that be all, it gives no other title than what bare force gives to the stronger over the weaker: and, by this reason, he that is strongest will have a right to whatever he pleases to seize on.

  §. 185.

  Over those then that joined with him in the war, and over those of the subdued country that opposed him not, and the posterity even of those that did, the conqueror, even in a just war, hath, by his conquest, no right of dominion: they are free from any subjection to him, and if their former government be dissolved, they are at liberty to begin and erect another to themselves.

  §. 186.

  The conqueror, it is true, usually, by the force he has over them, compels them, with a sword at their breasts, to stoop to his conditions, and submit to such a government as he pleases to afford them; but the enquiry is, what right he has to do so? If it be said, they submit by their own consent, then this allows their own consent to be necessary to give the conqueror a title to rule over them. It remains only to be considered, whether promises extorted by force, without right, can be thought consent, and how far they bind. To which I shall say, they bind not at all; because whatsoever another gets from me by force, I still retain the right of, and he is obliged presently to restore. He that forces my horse from me, ought presently to restore him, and I have still a right to retake him. By the same reason, he that forced a promise from me, ought presently to restore it, i. e. quit me of the obligation of it; or I may resume it myself, i. e. chuse whether I will perform it: for the law of nature laying an obligation on me only by the rules the prescribes, cannot oblige me by the violation of her rules: such is the extorting any thing from me by force. Nor does it at all alter the case to say, I gave my promise, no more than it excuses the force, and passes the right, when I put my hand in my pocket, and deliver my purse myself to a thief, who demands it with a pistol at my breast.

  §. 187.

  From all which it follows, that the government of a conqueror, imposed by force on the subdued, against whom he had no right of war, or who joined not in the war against him, where he had right, has no obligation upon them.

  §. 188.

  But let us suppose, that all the men of that community, being all members of the same body politic, may be taken to have joined in that unjust war wherein they are subdued, and so their lives are at the mercy of the conqueror.

  §. 189.

  I say, this concerns not their children who are in their minority: for since a father hath not, in himself, a power over the life or liberty of his child, no act of his can possibly forfeit it. So that the children, whatever may have happened to the fathers, are freemen, and the absolute power of the conqueror reaches no farther than the persons of the men that were subdued by him, and dies with them: and should he govern them as slaves, subjected to his absolute arbitrary power, he has no such right of dominion over their children. He can have no power over them but by their own consent, whatever he may drive them to say or do; and he has no lawfull authority, whilst force, and not choice, compels them to submission.

  §. 190.

  Every man is born with a double right: first, a right of freedom to his person, which no other man has a power over, but the free disposal of it lies in himself. Secondly, a right, before any other man, to inherit with his brethren his father’s goods.

  §. 191.

  By the first of these, a man is naturally free from subjection to any government, tho’ he be born in a place under its jurisdiction; but if he disclaim the lawful government of the country he was born in, he must also quit the right that belonged to him by the laws of it, and the possessions there descending to him from his ancestors, if it were a government made by their consent.

  §. 192.

  By the second, the inhabitants of any country, who are descended, and derive a title to their estates from those who are subdued, and had a government forced upon them against their free consents, retain a right to the possession of their ancestors, though they consent not freely to the government, whose hard conditions were by force imposed on the possessors of that country: for the first conqueror never having had a title to the land of that country, the people who are the descendants of, or claim under those who were forced to submit to the yoke of a government by constraint, have always a right to shake it off, and free themselves from the usurpation or tyranny which the sword hath brought in upon them, till their rulers put them under such a frame of government as they willingly and of choice consent to. Who doubts but the Grecian christians, descendants of the ancient possessors of that country, may justly cast off the Turkish yoke, which they have so long groaned under, whenever they have an opportunity to do it? For no government can have a right to obedience from a people who have not freely consented to it; which they can never be supposed to do, till either they are put in a full state of liberty to chuse their government and governors, or at least till they have such standing laws, to which they have by themselves or their representatives given their free consent, and also till they are allowed their due property, which is so to be proprietors of what they have, that no body can take away any part of it without their own consent, without which, men under any government are not in the state of freemen, but are direct slaves under the force of war.

  §. 193.

  But granting that the conqueror in a just war has a right to the estates, as well as power over the persons, of the conquered; which, it is plain, he hath not: nothing of absolute power will follow from hence, in the continuance of the government; because the descendants of these being all freemen, if he grants them estates and possessions to inhabit his country, (without which it would be worth nothing) whatsoever he grants them, they have, so far as it is granted, property in. The nature whereof is, that without a man’s own consent it cannot be taken from him.

  §. 194.

  Their persons are free by a native right, and their properties, be they more or less, are their own, and at their own dispose, and not at his; or else it is no property. Supposing the conqueror gives to one man a thousand acres, to him and his heirs for ever, to another he lets a thousand acres for his life, under the rent of 50l. or 500l. per ann. has not the one of these a right to his thousand acres for ever, and the other, during his life, paying the said rent? and hath not the tenant for life a property in all that he gets over and above his rent, by his labour and industry during the said term, supposing it be double the rent? Can any one say, the king, or conqueror, after his grant, may by his power of conqueror take away all, or part of the land from the heirs of one, or from the other during his life, he paying the rent? or can he take away from either the goods or money they have got upon the said land, at his pleasure? If he can, then all free and voluntary contracts cease, and are void in the world; there needs nothing to dissolve them at any time, but power enough: and all the grants and promises of men in power are but mockery and collusion: for can there be any thing more ridiculous than to say, I give you and your’s this for ever, and that in the surest and most solemn way of conveyance can be devised; and yet it is to be understood, that I have right, if I please, to take it away from you again to morrow?

  §. 195.

  I will not dispute now whether princes are exempt from the laws of their country; but this I am sure, they owe subjection to the laws of God and nature, No body, no power, can exempt them from the obligations of that eternal law. Those are so great, and so strong, in the case of promises, that omnipotency itself can be tied by them. Grants, promises, and oaths, are bonds that hold the Almighty: whatever some flatterers say to princes of the world, who all together, with all their people joined to them, are, in comparison of the great God, but as a drop of the bucket, or a dust on the balance, inconsiderable, nothing!

  §. 196.

  The short of the case in conquest is this: the conqueror, if he have a just cause, has a despotical right over the persons of all, that actually aided, and concurred in the war against him, and a right to make up his damage and cost out of their labour and estates, so he injure not the right of any other. Over the rest of the people, if there were any that consented not to the war, and over the children of the captives themselves, or the possessions of either, he has no power; and so can have, by virtue of conquest, no lawful title himself to dominion over them, or derive it to his posterity; but is an aggressor, if he attempts upon their properties, and thereby puts himself in a state of war against them, and has no better a right of principality, he, nor any of his successors, than Hingar, or Hubba, the Danes, had here in England; or Spartacus, had he conquered Italy, would have had; which is to have their yoke cast off, as soon as God shall give those under their subjection courage and opportunity to do it. Thus, notwithstanding whatever title the kings of Assyria had over Judah, by the sword, God assisted Hezekiah to throw off the dominion of that conquering empire. And the lord was with Hezekiah, and he prospered; wherefore he went forth, and he rebelled against the king of Assyria, and served him not, 2 Kings xviii. 7. Whence it is plain, that shaking off a power, which force, and not right, hath set over any one, though it hath the name of rebellion, yet is no offence before God, but is that which he allows and countenances, though even promises and covenants, when obtained by force, have intervened: for it is very probable, to any one that reads the story of Ahaz and Hezekiah attentively, that the Assyrians subdued Ahaz, and deposed him, and made Hezekiah king in his father’s lifetime; and that Hezekiah by agreement had done him homage, and paid him tribute all this time.

  CHAP. XVII.
  Of USURPATION.

  §. 197.

  AS conquest may be called a foreign usurpation, so usurpation is a kind of domestic conquest, with this difference, that an usurper can never have right on his side, it being no usurpation, but where one is got into the possession of what another has right to. This, so far as it is usurpation, is a change only of persons, but not of the forms and rules of the government: for if the usurper extend his power beyond what of right belonged to the lawful princes, or governors of the commonwealth, it is tyranny added to usurpation.

  §. 198.

  In all lawful governments, the designation of the persons, who are to bear rule, is as natural and necessary a part as the form of the government itself, and is that which had its establishment originally from the people; the anarchy being much alike, to have no form of government at all; or to agree, that it shall be monarchical, but to appoint no way to design the person that shall have the power, and be the monarch. Hence all commonwealths, with the form of government established, have rules also of appointing those who are to have any share in the public authority, and settled methods of conveying the right to them: for the anarchy is much alike, to have no form of government at all; or to agree that it shall be monarchical, but to appoint no way to know or design the person that shall have the power, and be the monarch. Whoever gets into the exercise of any part of the power, by other ways than what the laws of the community have prescribed, hath no right to be obeyed, though the form of the commonwealth be still preserved; since he is not the person the laws have appointed, and consequently not the person the people have consented to. Nor can such an usurper, or any deriving from him, ever have a title, till the people are both at liberty to consent, and have actually consented to allow, and confirm in him the power he hath till then usurped.

  CHAP. XVIII.
  Of TYRANNY.

  §. 199.

  AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to. And this is making use of the power any one has in his hands, not for the good of those who are under it, but for his own private separate advantage. When the governor, however intitled, makes not the law, but his will, the rule; and his commands and actions are not directed to the preservation of the properties of his people, but the satisfaction of his own ambition, revenge, covetousness, or any other irregular passion.

  §. 200.

  If one can doubt this to be truth, or reason, because it comes from the obscure hand of a subject, I hope the authority of a king will make it pass with him. King James the first, in his speech to the parliament, 1603, tells them thus, I will ever prefer the weal of the public, and of the whole commonwealth, in making of good laws and constitutions, to any particular and private ends of mine; thinking ever the wealth and weal of the commonwealth to be my greatest weal and worldly felicity; a point wherein a lawful king doth directly differ from a tyrant: for I do acknowledge, that the special and greatest point of difference that is between a rightful king and an usurping tyrant, is this, that whereas the proud and ambitious tyrant doth think his kingdom and people are only ordained for satisfaction of his desires and unreasonable appetites, the righteous and just king doth by the contrary acknowledge himself to be ordained for the procuring of the wealth and property of his people. And again, in his speech to the parliament, 1609, he hath these words, The king binds himself by a double oath, to the observation of the fundamental laws of his kingdom; tacitly, as by being a king, and so bound to protect aswell the people, as the laws of his kingdom; and expresly, by his oath at his coronation; so as every just king, in a settled kingdom, is bound to observe that paction made to his people, by his laws, in framing his government agreeable thereunto, according to that paction which God made with Noah after the deluge. Hereafter, seed-time and harvest, and cold and heat, and summer and winter, and day and night, shall not cease while the earth remaineth. And therefore a king governing in a settled kingdom, leaves to be a king, and degenerates into a tyrant, as soon as he leaves off to rule according to his laws. And a little after, Therefore all kings that are not tyrants, or perjured, will be glad to bound themselves within the limits of their laws; and they that persuade them the contrary, are vipers, and pests both against them and the commonwealth. Thus that learned king, who well understood the notion of things, makes the difference betwixt a king and a tyrant to consist only in this, that one makes the laws the bounds of his power, and the good of the public, the end of his government; the other makes all give way to his own will and appetite.

  §. 201.

  It is a mistake, to think this fault is proper only to monarchies; other forms of government are liable to it, as well as that: for wherever the power, that is put in any hands for the government of the people, and the preservation of their properties, is applied to other ends, and made use of to impoverish, harass, or subdue them to the arbitrary and irregular commands of those that have it; there it presently becomes tyranny, whether those that thus use it are one or many. Thus we read of the thirty tyrants at Athens, as well as one at Syracuse; and the intolerable dominion of the Decemviri at Rome was nothing better.

  §. 202.

  Where-ever law ends, tyranny begins, if the law be transgressed to another’s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the right of another. This is acknowledged in subordinate magistrates. He that hath authority to seize my person in the street, may be opposed as a thief and a robber, if he endeavours to break into my house to execute a writ, notwithstanding that I know he has such a warrant, and such a legal authority, as will impower him to arrest me abroad. And why this should not hold in the highest, as well as in the most inferior magistrate, I would gladly be informed. Is it reasonable, that the eldest brother, because he has the greatest part of his father’s estate, should thereby have a right to take away any of his younger brothers portions? or that a rich man, who possessed a whole country, should from thence have a right to seize, when he pleased, the cottage and garden of his poor neighbour? The being rightfully possessed of great power and riches, exceedingly beyond the greatest part of the sons of Adam, is so far from being an excuse, much less a reason, for rapine and oppression, which the endamaging another without authority is, that it is a great aggravation of it: for the exceeding the bounds of authority is no more a right in a great, than in a petty officer; no more justifiable in a king than a constable; but is so much the worse in him, in that he has more trust put in him, has already a much greater share than the rest of his brethren, and is supposed, from the advantages of his education, employment, and counsellors, to be more knowing in the measures of right and wrong.

  §. 203.

  May the commands then of a prince be opposed? may he be resisted as often as any one shall find himself aggrieved, and but imagine he has not right done him? This will unhinge and overturn all polities, and, instead of government and order, leave nothing but anarchy and confusion.

  §. 204.

  To this I answer, that force is to be opposed to nothing, but to unjust and unlawful force; whoever makes any opposition in any other case, draws on himself a just condemnation both from God and man; and so no such danger or confusion will follow, as is often suggested: for,

  §. 205.

  First, As, in some countries, the person of the prince by the law is sacred; and so, whatever he commands or does, his person is still free from all question or violence, not liable to force, or any judicial censure or condemnation. But yet opposition may be made to the illegal acts of any inferior officer, or other commissioned by him; unless he will, by actually putting himself into a state of war with his people, dissolve the government, and leave them to that defence which belongs to every one in the state of nature: for of such things who can tell what the end will be? and a neighbour kingdom has shewed the world an odd example. In all other cases the sacredness of the person exempts him from all inconveniencies, whereby he is secure, whilst the government stands, from all violence and harm whatsoever; than which there cannot be a wiser constitution: for the harm he can do in his own person not being likely to happen often, nor to extend itself far; nor being able by his single strength to subvert the laws, nor oppress the body of the people, should any prince have so much weakness, and ill nature as to be willing to do it, the inconveniency of some particular mischiefs, that may happen sometimes, when a heady prince comes to the throne, are well recompensed by the peace of the public, and security of the government, in the person of the chief magistrate, thus set out of the reach of danger: it being safer for the body, that some few private men should be sometimes in danger to suffer, than that the head of the republic should be easily, and upon slight occasions, exposed.

  §. 206.

  Secondly, But this privilege, belonging only to the king’s person, hinders not, but they may be questioned, opposed, and resisted, who use unjust force, though they pretend a commission from him, which the law authorizes not; as is plain in the case of him that has the king’s writ to arrest a man, which is a full commission from the king; and yet he that has it cannot break open a man’s house to do it, nor execute this command of the king upon certain days, nor in certain places, though this commission have no such exception in it; but they are the limitations of the law, which if any one transgress, the king’s commission excuses him not: for the king’s authority being given him only by the law, he cannot impower any one to act against the law, or justify him, by his commission, in so doing; the commission, or command of any magistrate, where he has no authority, being as void and insignificant, as that of any private man; the difference between the one and the other, being that the magistrate has some authority so far, and to such ends, and the private man has none at all: for it is not the commission, but the authority, that gives the right of acting; and against the laws there can be no authority. But, notwithstanding such resistance, the king’s person and authority are still both secured, and so no danger to governor or government.

  §. 207.

  Thirdly, Supposing a government wherein the person of the chief magistrate is not thus sacred; yet this doctrine of the lawfulness of resisting all unlawful exercises of his power, will not upon every slight occasion indanger him, or imbroil the government: for where the injured party may be relieved, and his damages repaired by appeal to the law, there can be no pretence for force, which is only to be used where a man is intercepted from appealing to the law: for nothing is to be accounted hostile force, but where it leaves not the remedy of such an appeal; and it is such force alone, that puts him that uses it into a state of war, and makes it lawful to resist him. A man with a sword in his hand demands my purse in the high-way, when perhaps I have not twelve pence in my pocket: this man I may lawfully kill. To another I deliver 100 l. to hold only whilst I alight, which he refuses to restore me, when I am got up again, but draws his sword to defend the possession of it by force, if I endeavour to retake it. The mischief this man does me is a hundred, or possibly a thousand times more than the other perhaps intended me (whom I killed before he really did me any); and yet I might lawfully kill the one, and cannot so much as hurt the other lawfully. The reason whereof is plain; because the one using force, which threatened my life, I could not have time to appeal to the law to secure it: and when it was gone, it was too late to appeal. The law could not restore life to my dead carcass: the loss was irreparable; which to prevent, the law of nature gave me a right to destroy him, who had put himself into a state of war with me, and threatened my destruction. But in the other case, my life not being in danger, I may have the benefit of appealing to the law, and have reparation for my 100 l. that way.

  §. 208.

  Fourthly, But if the unlawful acts done by the magistrate be maintained (by the power he has got), and the remedy which is due by law, be by the same power obstructed; yet the right of resisting, even in such manifest acts of tyranny, will not suddenly, or on slight occasions, disturb the government: for if it reach no farther than some private men’s cases, though they have a right to defend themselves, and to recover by force what by unlawful force is taken from them; yet the right to do so will not easily engage them in a contest, wherein they are sure to perish; it being as impossible for one, or a few oppressed men to disturb the government, where the body of the people do not think themselves concerned in it, as for a raving mad-man, or heady mal-content to overturn a well-settled state; the people being as little apt to follow the one, as the other.

  §. 209.

  But if either these illegal acts have extended to the majority of the people; or if the mischief and oppression has lighted only on some few, but in such cases, as the precedent, and consequences seem to threaten all; and they are persuaded in their consciences, that their laws, and with them their estates, liberties, and lives are in danger, and perhaps their religion too; how they will be hindered from resisting illegal force, used against them, I cannot tell. This is an inconvenience, I confess, that attends all governments whatsoever, when the governors have brought it to this pass, to be generally suspected of their people; the most dangerous state which they can possibly put themselves in; wherein they are the less to be pitied, because it is so easy to be avoided; it being as impossible for a governor, if he really means the good of his people, and the preservation of them, and their laws together, not to make them see and feel it, as it is for the father of a family, not to let his children see he loves, and takes care of them.

  §. 210.

  But if all the world shall observe pretences of one kind, and actions of another; arts used to elude the law, and the trust of prerogative (which is an arbitrary power in some things left in the prince’s hand to do good, not harm to the people) employed contrary to the end for which it was given: if the people shall find the ministers and subordinate magistrates chosen suitable to such ends, and favoured, or laid by, proportionably as they promote or oppose them: if they see several experiments made of arbitrary power, and that religion underhand favoured, (tho’ publicly proclaimed against) which is readiest to introduce it; and the operators in it supported, as much as may be; and when that cannot be done, yet approved still, and liked the better: if a long train of actions shew the councils all tending that way; how can a man any more hinder himself from being persuaded in his own mind, which way things are going; or from casting about how to save himself, than he could from believing the captain of the ship he was in, was carrying him, and the rest of the company, to Algiers, when he found him always steering that course, though cross winds, leaks in his ship, and want of men and provisions did often force him to turn his course another way for some time, which he steadily returned to again, as soon as the wind, weather, and other circumstances would let him?

  CHAP. XIX.
  Of the Dissolution of Government.

  §. 211.

  HE that will with any clearness speak of the dissolution of government, ought in the first place to distinguish between the dissolution of the society and the dissolution of the government. That which makes the community, and brings men out of the loose state of nature, into one politic society, is the agreement which every one has with the rest to incorporate, and act as one body, and so be one distinct common-wealth. The usual, and almost only way whereby this union is dissolved, is the inroad of foreign force making a conquest upon them: for in that case, (not being able to maintain and support themselves, as one intire and independent body) the union belonging to that body which consisted therein, must necessarily cease, and so every one return to the state he was in before, with a liberty to shift for himself, and provide for his own safety, as he thinks fit, in some other society. Whenever the society is dissolved, it is certain the government of that society cannot remain. Thus conquerors swords often cut up governments by the roots, and mangle societies to pieces, separating the subdued or scattered multitude from the protection of, and dependence on, that society which ought to have preserved them from violence. The world is too well instructed in, and too forward to allow of, this way of dissolving of governments, to need any more to be said of it; and there wants not much argument to prove, that where the society is dissolved, the government cannot remain; that being as impossible, as for the frame of an house to subsist when the materials of it are scattered and dissipated by a whirl-wind, or jumbled into a confused heap by an earthquake.

  §. 212.

  Besides this over-turning from without, governments are dissolved from within,

  First, When the legislative is altered. Civil society being a state of peace, amongst those who are of it, from whom the state of war is excluded by the umpirage, which they have provided in their legislative, for the ending all differences that may arise amongst any of them, it is in their legislative, that the members of a common-wealth are united, and combined together into one coherent living body. This is the soul that gives form, life, and unity, to the common-wealth: from hence the several members have their mutual influence, sympathy, and connexion: and therefore, when the legislative is broken, or dissolved, dissolution and death follows: for the essence and union of the society consisting in having one will, the legislative, when once established by the majority, has the declaring, and as it were keeping of that will. The constitution of the legislative is the first and fundamental act of society, whereby provision is made for the continuation of their union, under the direction of persons, and bonds of laws, made by persons authorized thereunto, by the consent and appointment of the people, without which no one man, or number of men, amongst them, can have authority of making laws that shall be binding to the rest. When any one, or more, shall take upon them to make laws, whom the people have not appointed so to do, they make laws without authority, which the people are not therefore bound to obey; by which means they come again to be out of subjection, and may constitute to themselves a new legislative, as they think best, being in full liberty to resist the force of those, who without authority would impose any thing upon them. Every one is at the disposure of his own will, when those who had, by the delegation of the society, the declaring of the public will, are excluded from it, and others usurp the place, who have no such authority or delegation.

  §. 213.

  This being usually brought about by such in the common-wealth who misuse the power they have; it is hard to consider it aright, and know at whose door to lay it, without knowing the form of government in which it happens. Let us suppose then the legislative placed in the concurrence of three distinct persons.

  1. A single hereditary person, having the constant, supreme, executive power, and with it the power of convoking and dissolving the other two within certain periods of time.

  2. An assembly of hereditary nobility.

  3. An assembly of representatives chosen, pro tempore, by the people. Such a form of government supposed, it is evident,

  §. 214.

  First, That when such a single person, or prince, sets up his own arbitrary will in place of the laws, which are the will of the society, declared by the legislative, then the legislative is changed: for that being in effect the legislative, whose rules and laws are put in execution, and required to be obeyed; when other laws are set up, and other rules pretended, and inforced, than what the legislative, constituted by the society, have enacted, it is plain that the legislative is changed. Whoever introduces new laws, not being thereunto authorized by the fundamental appointment of the society, or subverts the old, disowns and overturns the power by which they were made, and so sets up a new legislative.

  §. 215.

  Secondly, When the prince hinders the legislative from assembling in its due time, or from acting freely, pursuant to those ends for which it was constituted, the legislative is altered: for it is not a certain number of men, no, nor their meeting, unless they have also freedom of debating, and leisure of perfecting, what is for the good of the society, wherein the legislative consists: when these are taken away or altered, so as to deprive the society of the due exercise of their power, the legislative is truly altered; for it is not names that constitute governments, but the use and exercise of those powers that were intended to accompany them; so that he, who takes away the freedom, or hinders the acting of the legislative in its due seasons, in effect takes away the legislative, and puts an end to the government.

  §. 216.

  Thirdly, When, by the arbitrary power of the prince, the electors, or ways of election, are altered, without the consent, and contrary to the common interest of the people, there also the legislative is altered: for, if others than those whom the society hath authorized thereunto, do chuse, or in another way than what the society hath prescribed, those chosen are not the legislative appointed by the people.

  §. 217.

  Fourthly, The delivery also of the people into the subjection of a foreign power, either by the prince, or by the legislative, is certainly a change of the legislative, and so a dissolution of the government: for the end why people entered into society being to be preserved one intire, free, independent society, to be governed by its own laws; this is lost, whenever they are given up into the power of another.

  §. 218.

  Why, in such a constitution as this, the dissolution of the government in these cases is to be imputed to the prince, is evident; because he, having the force, treasure and offices of the state to employ, and often persuading himself, or being flattered by others, that as supreme magistrate he is uncapable of controul; he alone is in a condition to make great advances toward such changes, under pretence of lawful authority, and has it in his hands to terrify or suppress opposers, as factious, seditious, and enemies to the government: whereas no other part of the legislative, or people, is capable by themselves to attempt any alteration of the legislative, without open and visible rebellion, apt enough to be taken notice of, which, when it prevails, produces effects very little different from foreign conquest. Besides, the prince in such a form of government, having the power of dissolving the other parts of the legislative, and thereby rendering them private persons, they can never in opposition to him, or without his concurrence, alter the legislative by a law, his consent being necessary to give any of their decrees that sanction. But yet, so far as the other parts of the legislative any way contribute to any attempt upon the government, and do either promote, or not, what lies in them, hinder such designs, they are guilty, and partake in this, which is certainly the greatest crime men can be guilty of one towards another.

  §. 219.

  There is one way more whereby such a government may be dissolved, and that is, when he who has the supreme executive power, neglects and abandons that charge, so that the laws already made can no longer be put in execution. This is demonstratively to reduce all to anarchy, and so effectually to dissolve the government: for laws not being made for themselves, but to be, by their execution, the bonds of the society, to keep every part of the body politic in its due place and function; when that totally ceases, the government visibly ceases, and the people become a confused multitude, without order or connexion. Where there is no longer the administration of justice, for the securing of men’s rights, nor any remaining power within the community to direct the force, or provide for the necessities of the public, there certainly is no government left. Where the laws cannot be executed, it is all one as if there were no laws; and a government without laws is, I suppose, a mystery in politics, unconceivable to human capacity, and inconsistent with human society.

  §. 220.

  In these and the like cases, when the government is dissolved, the people are at liberty to provide for themselves, by erecting a new legislative, differing from the other, by the change of persons, or form, or both, as they shall find it most for their safety and good: for the society can never, by the fault of another, lose the native and original right it has to preserve itself, which can only be done by a settled legislative, and a fair and impartial execution of the laws made by it. But the state of mankind is not so miserable that they are not capable of using this remedy, till it be too late to look for any. To tell people they may provide for themselves, by erecting a new legislative, when by oppression, artifice, or being delivered over to a foreign power, their old one is gone, is only to tell them, they may expect relief when it is too late, and the evil is past cure. This is in effect no more than to bid them first be slaves, and then to take care of their liberty; and when their chains are on, tell them, they may act like freemen. This, if barely so, is rather mockery than relief; and men can never be secure from tyranny, if there be no means to escape it till they are perfectly under it: and therefore it is, that they have not only a right to get out of it, but to prevent it.

  §. 221.

  There is therefore, secondly, another way whereby governments are dissolved, and that is, when the legislative, or the prince, either of them, act contrary to their trust.

  First, The legislative acts against the trust reposed in them, when they endeavour to invade the property of the subject, and to make themselves, or any part of the community, masters, or arbitrary disposers of the lives, liberties, or fortunes of the people.

  §. 222.

  The reason why men enter into society, is the preservation of their property; and the end why they chuse and authorize a legislative, is, that there may be laws made, and rules set, as guards and fences to the properties of all the members of the society, to limit the power, and moderate the dominion, of every part and member of the society: for since it can never be supposed to be the will of the society, that the legislative should have a power to destroy that which every one designs to secure, by entering into society, and for which the people submitted themselves to legislators of their own making; whenever the legislators endeavour to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge, which God hath provided for all men, against force and violence. Whensoever therefore the legislative shall transgress this fundamental rule of society; and either by ambition, fear, folly or corruption, endeavour to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties, and estates of the people; by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty, and, by the establishment of a new legislative, (such as they shall think fit) provide for their own safety and security, which is the end for which they are in society. What I have said here, concerning the legislative in general, holds true also concerning the supreme executor, who having a double trust put in him, both to have a part in the legislative, and the supreme execution of the law, acts against both, when he goes about to set up his own arbitrary will as the law of the society. He acts also contrary to his trust, when he either employs the force, treasure, and offices of the society, to corrupt the representatives, and gain them to his purposes; or openly pre-engages the electors, and prescribes to their choice, such, whom he has, by sollicitations, threats, promises, or otherwise, won to his designs; and employs them to bring in such, who have promised before-hand what to vote, and what to enact. Thus to regulate candidates and electors, and new-model the ways of election, what is it but to cut up the government by the roots, and poison the very fountain of public security? for the people having reserved to themselves the choice of their representatives, as the fence to their properties, could do it for no other end, but that they might always be freely chosen, and so chosen, freely act, and advise, as the necessity of the common-wealth, and the public good should, upon examination, and mature debate, be judged to require. This, those who give their votes before they hear the debate, and have weighed the reasons on all sides, are not capable of doing. To prepare such an assembly as this, and endeavour to set up the declared abettors of his own will, for the true representatives of the people, and the law-makers of the society, is certainly as great a breach of trust, and as perfect a declaration of a design to subvert the government, as is possible to be met with. To which, if one shall add rewards and punishments visibly employed to the same end, and all the arts of perverted law made use of, to take off and destroy all that stand in the way of such a design, and will not comply and consent to betray the liberties of their country, it will be past doubt what is doing. What power they ought to have in the society, who thus employ it contrary to the trust went along with it in its first institution, is easy to determine; and one cannot but see, that he, who has once attempted any such thing as this, cannot any longer be trusted.

  §. 223.

  To this perhaps it will be said, that the people being ignorant, and always discontented, to lay the foundation of government in the unsteady opinion and uncertain humour of the people, is to expose it to certain ruin; and no government will be able long to subsist, if the people may set up a new legislative, whenever they take offence at the old one. To this I answer, Quite the contrary. People are not so easily got out of their old forms, as some are apt to suggest. They are hardly to be prevailed with to amend the acknowledged faults in the frame they have been accustomed to. And if there be any original defects, or adventitious ones introduced by time, or corruption; it is not an easy thing to get them changed, even when all the world sees there is an opportunity for it. This slowness and aversion in the people to quite their old constitutions, has, in the many revolutions which have been seen in this kingdom, in this and former ages, still kept us to, or, after some interval of fruitless attempts, still brought us back again to our old legislative of king, lords and commons: and whatever provocations have made the crown be taken from some of our princes heads, they never carried the people so far as to place it in another line.

  §. 224.

  But it will be said, this hypothesis lays a ferment for frequent rebellion. To which I answer,

  First, No more than any other hypothesis: for when the people are made miserable, and find themselves exposed to the ill usage of arbitrarypower, cry up their governors, as much as you will, for sons of Jupiter; let them be sacred and divine, descended, or authorized from heaven; give them out for whom or what you please, the same will happen. The people generally ill treated, and contrary to right, will be ready upon any occasion to ease themselves of a burden that sits heavy upon them. They will wish, and seek for the opportunity, which in the change, weakness and accidents of human affairs, seldom delays long to offer itself. He must have lived but a little while in the world, who has not seen examples of this in his time; and he must have read very little, who cannot produce examples of it in all sorts of governments in the world.

  §. 225.

  Secondly, I answer, such revolutions happen not upon every little mismanagement in public affairs. Great mistakes in the ruling part, many wrong and inconvenient laws, and all the slips of human frailty, will be born by the people without mutiny or murmur. But if a long train of abuses, prevarications and artifices, all tending the same way, make the design visible to the people, and they cannot but feel what they lie under, and see whither they are going; it is not to be wondered, that they should then rouze themselves, and endeavour to put the rule into such hands which may secure to them the ends for which government was at first erected; and without which, ancient names, and specious forms, are so far from being better, that they are much worse, than the state of nature, or pure anarchy; the inconveniencies being all as great and as near, but the remedy farther off and more difficult.

  §. 226.

  Thirdly, I answer, that this doctrine of a power in the people of providing for their safety a-new, by a new legislative, when their legislators have acted contrary to their trust, by invading their property, is the best fence against rebellion, and the probablest means to hinder it: for rebellion being an opposition, not to persons, but authority, which is founded only in the constitutions and laws of the government; those, whoever they be, who by force break through, and by force justify their violation of them, are truly and properly rebels: for when men, by entering into society and civil-government, have excluded force, and introduced laws for the preservation of property, peace, and unity amongst themselves, those who set up force again in opposition to the laws, do rebellare, that is, bring back again the state of war, and are properly rebels: which they who are in power, (by the pretence they have to authority, the temptation of force they have in their hands, and the flattery of those about them) being likeliest to do; the properest way to prevent the evil, is to shew them the danger and injustice of it, who are under the greatest temptation to run into it.

  §. 227.

  In both the fore-mentioned cases, when either the legislative is changed, or the legislators act contrary to the end for which they were constituted; those who are guilty are guilty of rebeliion: for if any one by force takes away the established legislative of any society, and the laws by them made, pursuant to their trust, he thereby takes away the umpirage, which every one had consented to, for a peaceable decision of all their controversies, and a bar to the state of war amongst them. They, who remove, or change the legislative, take away this decisive power, which no body can have, but by the appointment and consent of the people; and so destroying the authority which the people did, and no body else can set up, and introducing a power which the people hath not authorized, they actually introduce a state of war, which is that of force without authority: and thus, by removing the legislative established by the society, (in whose decisions the people acquiesced and united, as to that of their own will) they untie the knot, and expose the people a-new to the state of war. And if those, who by force take away the legislative, are rebels, the legislators themselves, as has been shewn, can be no less esteemed so; when they, who were set up for the protection, and preservation of the people, their liberties and properties, shall by force invade and endeavour to take them away; and so they putting themselves into a state of war with those who made them the protectors and guardians of their peace, are properly, and with the greatest aggravation, rebellantes, rebels.

  §. 228.

  But if they, who say it lays a foundation for rebellion, mean that it may occasion civil wars, or intestine broils, to tell the people they are absolved from obedience when illegal attempts are made upon their liberties or properties, and may oppose the unlawful violence of those who were their magistrates, when they invade their properties contrary to the trust put in them; and that therefore this doctrine is not to be allowed, being so destructive to the peace of the world: they may as well say, upon the same ground, that honest men may not oppose robbers or pirates, because this may occasion disorder or bloodshed. If any mischief come in such cases, it is not to be charged upon him who defends his own right, but on him that invades his neighbours. If the innocent honest man must quietly quit all he has, for peace sake, to him who will lay violent hands upon it, I desire it may be considered, what a kind of peace there will be in the world, which consists only in violence and rapine; and which is to be maintained only for the benefit of robbers and oppressors. Who would not think it an admirable peace betwixt the mighty and the mean, when the lamb, without resistance, yielded his throat to be torn by the imperious wolf? Polyphemus’s den gives us a perfect pattern of such a peace, and such a government, wherein Ulysses and his companions had nothing to do, but quietly to suffer themselves to be devoured. And no doubt Ulysses, who was a prudent man, preached up passive obedience, and exhorted them to a quiet submission, by representing to them of what concernment peace was to mankind; and by shewing the inconveniences might happen, if they should offer to resist Polyphemus, who had now the power over them.

  §. 229.

  The end of government is the good of mankind; and which is best for mankind, that the people should be always exposed to the boundless will of tyranny, or that the rulers should be sometimes liable to be opposed, when they grow exorbitant in the use of their power, and employ it for the destruction, and not the preservation of the properties of their people?

  §. 230.

  Nor let any one say, that mischief can arise from hence, as often as it shall please a busy head, or turbulent spirit, to desire the alteration of the government. It is true, such men may stir, whenever they please; but it will be only to their own just ruin and perdition: for till the mischief be grown general, and the ill designs of the rulers become visible, or their attempts sensible to the greater part, the people, who are more disposed to suffer than right themselves by resistance, are not apt to stir. The examples of particular injustice, or oppression of here and there an unfortunate man, moves them not. But if they universally have a persuasion, grounded upon manifest evidence, that designs are carrying on against their liberties, and the general course and tendency of things cannot but give them strong suspicions of the evil intention of their governors, who is to be blamed for it? Who can help it, if they, who might avoid it, bring themselves into this suspicion? Are the people to be blamed, if they have the sense of rational creatures, and can think of things no otherwise than as they find and feel them? And is it not rather their fault, who put things into such a posture, that they would not have them thought to be as they are? I grant, that the pride, ambition, and turbulency of private men have sometimes caused great disorders in common-wealths, and factions have been fatal to states and kingdoms. But whether the mischief hath oftener begun in the peoples wantonness, and a desire to cast off the lawful authority of their rulers, or in the rulers insolence, and endeavours to get and exercise an arbitrary power over their people; whether oppression, or disobedience, gave the first rise to the disorder, I leave it to impartial history to determine. This I am sure, whoever, either ruler or subject, by force goes about to invade the rights of either prince or people, and lays the foundation for overturning the constitution and frame of any just government, is highly guilty of the greatest crime, I think, a man is capable of, being to answer for all those mischiefs of blood, rapine, and desolation, which the breaking to pieces of governments bring on a country. And he who does it, is justly to be esteemed the common enemy and pest of mankind, and is to be treated accordingly.

  §. 231.

  That subjects or foreigners, attempting by force on the properties of any people, may be resisted with force, is agreed on all hands. But that magistrates, doing the same thing, may be resisted, hath of late been denied: as if those who had the greatest privileges and advantages by the law, had thereby a power to break those laws, by which alone they were set in a better place than their brethren: whereas their offence is thereby the greater, both as being ungrateful for the greater share they have by the law, and breaking also that trust, which is put into their hands by their brethren.

  §. 232.

  Whosoever uses force without right, as every one does in society, who does it without law, puts himself into a state of war with those against whom he so uses it; and in that state all former ties are cancelled, all other rights cease, and every one has a right to defend himself, and to resist the aggressor. This is so evident, that Barclay himself, that great assertor of the power and sacredness of kings, is forced to confess, That it is lawful for the people, in some cases, to resist their king; and that too in a chapter, wherein he pretends to shew, that the divine law shuts up the people from all manner of rebellion. Whereby it is evident, even by his own doctrine, that, since they may in some cases resist, all resisting of princes is not rebellion. His words are these. Quod siquis dicat, Ergone populus tyrannicæ crudelitati & furori jugulum semper præbehit? Ergone multitudo civitates suas fame, ferro, & flammâ vastari, seque, conjuges, & liberos fortunæ ludibrio & tyranni libidini exponi, inque omnia vitæ pericula omnesque miserias & molestias á rege deduci patientur? Num illis quod omni animantium generi est á naturâ tributum, denegari debet, ut sc. vim vi repellant, seseq; ab injuriâ tueantur? Huic breviter responsum sit, Populo universo negari defensionem, quæ juris naturalis est, neque ultionem quæ præter naturam est adversus regem concedi debere. Quapropter si rex non in singulares tantum personas aliquot privatum odium exerceat, sed corpus etiam reipublicæ, cujus ipse caput est, i. e. totum populum, vel insignem aliquam ejus partem immani & intolerandâ seu tyrannide divexet; populo, quidem hoc casu resistendi ac tuendi se ab injuriâ potestas competit, sed tuendise tantum, non enim in principem invadendi: & restituendæ injuriæ illatæ, non recedendi à debitâ reverentiâ propter acceptam injuriam. Præsentem denique impetum propulsandi non vim præteritam ulciscenti jus habet. Horum enim alterum à naturâ est, ut vitam scilicet corpusque tueamur. Alterum vero contra naturam, ut inferior de superiori supplicium sumat. Quod itaque populus malum, antequam factum sit, impedire potest, ne fiat, id postquam factum est, in regem authorem sceleris vindicare non potest: populus igitur hoc ampliùs quam privatus quispiam habet: quod huic, vel ipsis adversariis judicibus, excepto Buchanano, nullum nisi in patientia remedium superest. Cùm ille si intolerabilis tyrannus est (modicum enim ferre omnino debet) resistere cum reverentiâ possit, Barclay contra Monarchom. l. iii. c. 8.

  In English thus.

  §. 233.

  But if any one should ask, Must the people then always lay themselves open to the cruelty and rage of tyranny? Must they see their cities pillaged, and laid in ashes, their wives and children exposed to the tyrant’s lust and fury, and themselves and families reduced by their king to ruin, and all the miseries of want and oppression, and yet sit still? Must men alone be debarred the common privilege of opposing force with force, which nature allows so freely to all other creatures for their preservation from injury? I answer: Self-defence is a part of the law of nature; nor can it be denied the community, even against the king himself: but to revenge themselves upon him, must by no means be allowed them: it being not agreeable to that law. Wherefore if the king shall shew an hatred, not only to some particular persons, but sets himself against the body of the common-wealth, whereof he is the head, and shall, with intolerable ill usage, cruelly tyrannize over the whole, or a considerable part of the people, in this case the people have a right to resist and defend themselves from injury: but it must be with this caution, that they only defend themselves, but do not attack their prince: they may repair the damages received, but must not for any provocation exceed the bounds of due reverence and respect. They may repulse the present attempt, but must not revenge past violences: for it is natural for us to defend life and limb, but that an inferior should punish a superior, is against nature. The mischief which is designed them, the people may prevent before it be done; but when it is done, they must not revenge it on the king, though author of the villany. This therefore is the privilege of the people in general, above what any private person hath; that particular men are allowed by our adversaries themselves (Buchanan only excepted) to have no other remedy but patience; but the body of the people may with respect resist intolerable tyranny; for when it is but moderate, they ought to endure it.

  §. 234.

  Thus far that great advocate of monarchical power allows of resistance.

  §. 235.

  It is true, he has annexed two limitations to it, to no purpose:

  First, He says, it must be with reverence.

  Secondly, It must be without retribution, or punishment; and the reason he gives is, because an inferior cannot punish a superior.

  First, How to resist force without striking again, or how to strike with reverence, will need some skill to make intelligible. He that shall oppose an assault only with a shield to receive the blows, or in any more respectful posture, without a sword in his hand, to abate the confidence and force of the assailant, will quickly be at an end of his resistance, and will find such a defence serve only to draw on himself the worse usage. This is as ridiculous a way of resisting, as Juvenal thought it of fighting; ubi tu pulsas, ego vapulo tantum. And the success of the combat will be unavoidably the same he there describes it:

  • —Libertas pauperis hæc est:
  • Pulsatus rogat, & pugnis concisus, adorat,
  • Ut liceat paucis cum dentibus inde reverti.

  This will always be the event of such an imaginary resistance, where men may not strike again. He therefore who may resist, must be allowed to strike. And then let our author, or any body else, join a knock on the head, or a cut on the face, with as much reverence and respect as he thinks fit. He that can reconcile blows and reverence, may, for aught I know, desire for his pains, a civil, respectful cudgeling where-ever he can meet with it.

  Secondly, As to his second, An inferior cannot punish a superior; that is true, generally speaking, whilst he is his superior. But to resist force with force, being the state of war that levels the parties, cancels all former relation of reverence, respect, and superiority: and then the odds that remains, is, that he, who opposes the unjust aggressor, has this superiority over him, that he has a right, when he prevails, to punish the offender, both for the breach of the peace, and all the evils that followed upon it. Barclay therefore, in another place, more coherently to himself, denies it to be lawful to resist a king in any case. But he there assigns two cases, whereby a king may un-king himself. His words are,

  Quid ergo, nulline casus incidere possunt quibus populo sese erigere atque in regem impotentius dominantem arma capere & invadere jure suo suâque authoritate liceat? Nulli certe quamdiu rex manet. Semper enim ex divinis id obstat, Regem honorificato; & qui potestati resistit, Dei ordinationi resistit: non aliàs igitur in eum populo potestas est quam si id committat propter quod ipso jure rex esse desinat. Tunc enim se ipse principatu exuit atque in privatis constituit liber: hoc modo populus & superior efficitur, reverso ad eum sc. jure illo quod ante regem inauguratum in interregno habuit. At sunt paucorum generum commissa ejusmodi quæ hunc effectum pariunt. At ego cum plurima animo perlustrem, duo tantum invenio, duos, inquam, casus quibus rex ipso facto ex rege non regem se facit & omni honore & dignitate regali atque in subditos potestate destituit; quorum etiam meminit Winzerus. Horum unus est, Si regnum disperdat, quemadmodum de Nerone fertur, quod is nempe senatum populumque Romanum, atque adeo urbem ipsam ferro flammaque vastare, ac novas sibi sedes quærere decrevisset. Et de Caligula, quod palam denunciarit se neque civem neque principem senatui amplius fore, inque animo habuerit interempto utriusque ordinis electissimo quoque Alexandriam commigrare, ac ut populum uno ictu interimeret, unam ei cervicem optavit. Talia cum rex aliquis meditatur & molitur serio, omnem regnandi curam & animum ilico abjicit, ac proinde imperium in subditos amittit, ut dominus servi pro derelicto habiti dominium.

  §. 236.

  Alter casus est, Si rex in alicujus clientelam se contulit; ac regnum quod liberum à majoribus & populo traditum accepit, alienæ ditioni mancipavit. Nam tunc quamvis forte non eâ mente id agit populo plane ut incommodet: tamen quia quod præcipuum est regiæ dignitatis amisit, ut summus scilicet in regno secundum Deum sit, & solo Deo inferior, atque populum etiam totum ignorantem vel invitum, cujus libertatem sartam & tectam conservare debuit, in alterius gentis ditionem & potestatem dedidit; hâc velut quadam regni ab alienatione effecit, ut nec quod ipse in regno imperium habuit retineat, nec in eum cui collatum voluit, juris quicquam transferat; atque ita eo facto liberum jam & suæ potestatis populum relinquit, cujus rei exemplum unum annales Scotici suppeditant. Barclay contra Monarchom. l. iii. c. 16.

  Which in English runs thus.

  §. 237.

  What then, can there no case happen wherein the people may of right, and by their own authority, help themselves, take arms, and set upon their king, imperiously domineering over them? None at all, whilst he remains a king. Honour the king, and he that resists the power, resists the ordinance of God; are divine oracles that will never permit it. The people therefore can never come by a power over him, unless he does something that makes him cease to be a king: for then he divests himself of his crown and dignity, and returns to the state of a private man, and the people become free and superior, the power which they had in the interregnum, before they crowned him king, devolving to them again. But there are but few miscarriages which bring the matter to this state. After considering it well on all sides, I can find but two. Two cases there are, I say, whereby a king, ipso facto, becomes no king, and loses all power and regal authority over his people; which are also taken notice of by Winzerus.

  The first is, If he endeavour to overturn the government, that is, if he have a purpose and design to ruin the kingdom and common-wealth, as it is recorded of Nero, that he resolved to cut off the senate and people of Rome, lay the city waste with fire and sword, and then remove to some other place. And of Caligula, that he openly declared, that he would be no longer a head to the people or senate, and that he had it in his thoughts to cut off the worthiest men of both ranks, and then retire to Alexandria: and he wisht that the people had but one neck, that he might dispatch them all at a blow. Such designs as these, when any king harbours in his thoughts, and seriously promotes, he immediately gives up all care and thought of the common-wealth; and consequently forfeits the power of governing his subjects, as a master does the dominion over his slaves whom he hath abandoned.

  §. 238.

  The other case is, When a king makes himself the dependent of another, and subjects his kingdom which his ancestors left him, and the people put free into his hands, to the dominion of another: for however perhaps it may not be his intention to prejudice the people; yet because he has hereby lost the principal part of regal dignity, viz. to be next and immediately under God, supreme in his kingdom; and also because he betrayed or forced his people, whose liberty he ought to have carefully preserved, into the power and dominion of a foreign nation. By this, as it were, alienation of his kingdom, he himself loses the power he had in it before, without transferring any the least right to those on whom he would have bestowed it; and so by this act sets the people free, and leaves them at their own disposal. One example of this is to be found in the Scotch Annals.

  §. 239.

  In these cases Barclay, the great champion of absolute monarchy, is forced to allow, that a king may be resisted, and ceases to be a king. That is, in short, not to multiply cases, in whatsoever he has no authority, there he is no king, and may be resisted: for wheresoever the authority ceases, the king ceases too, and becomes like other men who have no authority. And these two cases he instances in, differ little from those above mentioned, to be destructive to governments, only that he has omitted the principle from which his doctrine flows; and that is, the breach of trust, in not preserving the form of government agreed on, and in not intending the end of government itself, which is the public good and preservation of property. When a king has dethroned himself, and put himself in a state of war with his people, what shall hinder them from prosecuting him who is no king, as they would any other man, who has put himself into a state of war with them; Barclay, and those of his opinion, would do well to tell us. This farther I desire may be taken notice of out of Barclay, that he says, The mischief that is designed them, the people may prevent before it be done: whereby he allows resistance when tyranny is but in design. Such designs as these (says he) when any king harbours in his thoughts and seriously promotes, he immediately gives up all care and thought of the common-wealth; so that, according to him, the neglect of the public good is to be taken as an evidence of such design, or at least for a sufficient cause of resistance. And the reason of all, he gives in these words, Because he betrayed or forced his people, whose liberty he ought carefully to have preserved. What he adds, into the power and dominion of a foreign nation, signifies nothing, the fault and forfeiture lying in the loss of their liberty, which he ought to have preserved, and not in any distinction of the persons to whose dominion they were subjected. The peoples right is equally invaded, and their liberty lost, whether they are made slaves to any of their own, or a foreign nation; and in this lies the injury, and against this only have they the right of defence. And there are instances to be found in all countries, which shew, that it is not the change of nations in the persons of their governors, but the change of government, that gives the offence. Bilson, a bishop of our church, and a great stickler for the power and prerogative of princes, does, if I mistake not, in his treatise of Christian subjection, acknowledge, that princes may forfeit their power, and their title to the obedience of their subjects; and if there needed authority in a case where reason is so plain, I could send my reader to Bracton, Fortescue, and the author of the Mirrour, and others, writers that cannot be suspected to be ignorant of our government, or enemies to it. But I thought Hooker alone might be enough to satisfy those men, who relying on him for their ecclesiastical polity, are by a strange fate carried to deny those principles upon which he builds it. Whether they are herein made the tools of cunninger workmen, to pull down their own fabric, they were best look. This I am sure, their civil policy is so new, so dangerous, and so destructive to both rulers and people, that as former ages never could bear the broaching of it; so it may be hoped, those to come, redeemed from the impositions of these Egyptian under-task-masters, will abhor the memory of such servile flatterers, who, whilst it seemed to serve their turn, resolved all government into absolute tyranny, and would have all men born to, what their mean souls fitted them for, slavery.

  §. 240.

  Here, it is like, the common question will be made, Who shall be judge, whether the prince or legislative act contrary to their trust? This, perhaps, ill-affected and factious men may spread amongst the people, when the prince only makes use of his due prerogative. To this I reply, The people shall be judge; for who shall be judge whether his trustee or deputy acts well, and according to the trust reposed in him, but he who deputes him, and must, by having deputed him, have still a power to discard him, when he fails in his trust? If this be reasonable in particular cases of private men, why should it be otherwise in that of the greatest moment, where the welfare of millions is concerned, and also where the evil, if not prevented, is greater, and the redress very difficult, dear, and dangerous?

  §. 141.

  But farther, this question, (Who shall be judge?) cannot mean, that there is no judge at all: for where there is no judicature on earth, to decide controversies amongst men, God in heaven is judge. He alone, it is true, is judge of the right. But every man is judge for himself, as in all other cases, so in this, whether another hath put himself into a state of war with him, and whether he should appeal to the Supreme Judge, as Jeptha did.

  §. 242.

  If a controversy arise betwixt a prince and some of the people, in a matter where the law is silent, or doubtful, and the thing be of great consequence, I should think the proper umpire, in such a case, should be the body of the people: for in cases where the prince hath a trust reposed in him, and is dispensed from the common ordinary rules of the law; there, if any men find themselves aggrieved, and think the prince acts contrary to, or beyond that trust, who so proper to judge as the body of the people, (who, at first, lodged that trust in him) how far they meant it should extend? But if the prince, or whoever they be in the administration, decline that way of determination, the appeal then lies no where but to heaven; force between either persons, who have no known superior on earth, or which permits no appeal to a judge on earth, being properly a state of war, wherein the appeal lies only to heaven; and in that state the injured party must judge for himself, when he will think fit to make use of that appeal, and put himself upon it.

  §. 243.

  To conclude, The power that every individual gave the society, when he entered into it, can never revert to the individuals again, as long as the society lasts, but will always remain in the community; because without this there can be no community, no common-wealth, which is contrary to the original agreement: so also when the society hath placed the legislative in any assembly of men, to continue in them and their successors, with direction and authority for providing such successors, the legislative can never revert to the people whilst that government lasts; because having provided a legislative with power to continue for ever, they have given up their political power to the legislative, and cannot resume it. But if they have set limits to the duration of their legislative, and made this supreme power in any person, or assembly, only temporary; or else, when by the miscarriages of those in authority, it is forfeited; upon the forfeiture, or at the determination of the time set, it reverts to the society, and the people have a right to act as supreme, and continue the legislative in themselves; or erect a new form, or under the old form place it in new hands, as they think good.

  FINIS.

  [* ]It is no improbable opinion therefore, which the archphilosopher was of, that the chief person in every houshold was always, as it were, a king: so when numbers of housholds joined themselves in civil societies together, kings were the first kind of governors amongst them, which is also, as it seemeth, the reason why the name of fathers continued still in them, who, of fathers, were made rulers; as also the ancient custom of governors to do as Melchizedec, and being kings, to exercise the office of priests, which fathers did at the first, grew perhaps by the same occasion. Howbeit, this is not the only kind of regiment that has been received in the world. The inconveniences of one kind have caused sundry others to be devised; so that in a word, all public regiment, of what kind soever, seemeth evidently to have risen from the deliberate advice, consultation and composition between men, judging it convenient and behoveful; there being no impossibility in nature considered by itself, but that man might have lived without: any public regiment, Hooker’s Eccl. P. lib. i. sect. 10.

  [* ]The public power of all society is above every soul contained in the same society; and the principal use of that power is, to give laws unto all that are under it, which laws in such cases we must obey, unless there be reason shewed which may necessarily inforce, that the law of reason, or of God, doth enjoin the contrary, Hook. Eccl. Pol. l. i. sect. 16.

  [* ]To take away all such mutual grievances, injuries and wrongs, i. e. such as attend men in the state of nature, there was no way but only by growing into composition and agreement amongst themselves, by ordaining some kind of government public, and by yielding themselves subject thereunto, that unto whom they granted authority to rule and govern, by them the peace, tranquillity and happy estate of the rest might be procured. Men always knew that where force and injury was offered, they might be defenders of themselves; they knew that however men may seek their own commodity, yet if this were done with injury unto others, it was not to be suffered, but by all men, and all good means to be withstood. Finally, they knew that no man might in reason take upon him to determine his own right, and according to his own determination proceed in maintenance thereof, in as much as every man is towards himself, and them whom he greatly affects, partial; and therefore that strifes and troubles would be endless, except they gave their common consent, all to be ordered by some, whom they should agree upon, without which consent there would be no reason that one man should take upon him to be lord or judge over another, Hooker’s Eccl. Pol. l. i. sect. 10.

  [* ]At the first, when some certain kind of regiment was once appointed, it may be that nothing was then farther thought upon for the manner of governing, but all permitted unto their wisdom and discretion, which were to rule, till by experience they found this for all parts very inconvenient, so as the thing which they had devised for a remedy, did indeed but increase the sore, which it should have cured. They saw, that to live by one man’s will, became the cause of all men’s misery. This constrained them to come unto laws, wherein all men might see their duty beforehand, and know the penalties of transgressing them. Hooker’s Eccl. Pol. l. i. sect. 10.

  [† ]Civil law being the act of the whole body politic, doth therefore over-rule each several part of the same body. Hooker ibid.

  [* ]At first, when some certain kind of regiment was once approved, it may be nothing was then farther thought upon for the manner of governing, but all permitted unto their wisdom and discretion which were to rule, till by experience they found this for all parts very inconvenient, so as the thing which they had devised for a remedy, did indeed but increase the sore which it should have cured. They saw, that to live by one man’s will, became the cause of all men’s misery. This constrained them to come unto laws wherein all men might see their duty before hand, and know the penalties of transgressing them. Hooker’s Eccl. Pol. l. i. sect. 10.

  [* ]The lawful power of making laws to command whole politic societies of men, belonging so properly unto the same intire societies, that for any prince or potentate of what kind soever upon earth, to exercise the same of himself, and not by express commission immediately and personally received from God, or else by authority derived at the first from their consent, upon whose persons they impose laws, it is no better than mere tyranny. Laws they are not therefore which public approbation hath not made so. Hooker’s Eccl. Pol. l. i. sect. 10. Of this point therefore we are to note, that sith men naturally have no full and perfect power to command whole politic multitudes of men, therefore utterly without our consent, we could in such sort be at no man’s commandment living. And to be commanded we do consent, when that society, whereof we be a part, hath at any time before consented, without revoking the same after by the like universal agreement.
  
  Laws therefore human, of what kind so ever, are available by consent. Ibid.

  [* ]Two foundations there are which bear up public societies; the one a natural inclination, whereby all men desire sociable life and fellowship; the other an order, expresly or secretly agreed upon, touching the manner of their union in living together: the latter is that which we call the law of a common-weal, the very soul of a politic body, the parts whereof are by law animated, held together, and set on work in such actions as the common good requireth. Laws politic, ordained for external order and regiment amongst men, are never framed as they should be, unless presuming the will of man to be inwardly obstinate, rebellious, and averse from all obedience to the sacred laws of his nature; in a word, unless presuming man to be, in regard of his depraved mind, little better than a wild beast, they do accordingly provide, notwithstanding, so to frame his outward actions, that they be no hindrance unto the common good, for which societies are instituted. Unless they do this, they are not perfect. Hooker’s Eccl. Pol. l. i. sect. 10.

  [* ]Human laws are measures in respect of men whose actions they must direct, howbeit such measures they are as have also their higher rules to be measured by, which rules are two, the law of God, and the law of nature; so that laws human must be made according to the general laws of nature, and without contradiction to any positive law of scripture, otherwise they are ill made. Hooker’s Eccl. Pol. l. iii. sect. 9.
  
  To constrain men to any thing inconvenient doth seem unreasonable. Ibid. l. i. sect. 10.

  [* ]Another copy corrected by Mr. Locke, has it thus, Noxious brute that is destructive to their being.

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  9: 3a. Power, Corruption and Law - Cato’s Letters no. 25

  John Trenchard, Cato’s Letters, or Essays on Liberty, Civil and Religious, and Other Important Subjects. Four volumes in Two, edited and annotated by Ronald Hamowy (Indianapolis: Liberty Fund, 1995). Vol. 1. Chapter: NO. 25. SATURDAY, APRIL 15, 1721. Considerations on the destructive Spirit of arbitrary Power. With the Blessings of Liberty, and our own Constitution. (Gordon)

  Accessed from oll.libertyfund.org/title/1237/64443 on 2009-10-19

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  NO. 25. SATURDAY, APRIL 15, 1721. Considerations on the destructive Spirit of arbitrary Power. With the Blessings of Liberty, and our own Constitution. (Gordon)

  Sir,

  The good of the governed being the sole end of government, they must be the greatest and best governors, who make their people great and happy; and they the worst, who make their people little, wicked, and miserable. Power in a free state, is a trust committed by all to one or a few, to watch for the security, and pursue the interest, of all: And, when that security is not sought, nor that interest obtained, we know what opinion the people will have of their governors.

  It is the hard fate of the world, that there should be any difference in the views and interests of the governors and governed; and yet it is so in most countries. Men who have a trust frankly bestowed upon them by the people, too frequently betray that trust, become conspirators against their benefactors, and turn the sword upon those who gave it; insomuch that in the greatest part of the earth, people are happy if they can defend themselves against their defenders.

  Let us look round this great world, and behold what an immense majority of the whole race of men crouch under the yoke of a few tyrants, naturally as low as the meanest of themselves, and, by being tyrants, worse than the worst; who, as Mr. Sidney observes, use their subjects like asses and mastiff dogs, to work and to fight, to be oppressed and killed for them. Even the good qualities and courage of such subjects are their misfortune, by strengthening the wicked hands of their brutal masters, and strengthening their own chains. Tyrants consider their people as their cattle, and use them worse, as they fear them more. Thus the most of mankind are become the wretched slaves of those, who are or should be their own creatures; they maintain their haughty masters like gods, and their haughty masters often use them like dogs: A fine specimen of gratitude and duty!

  Yet this cruel spirit in tyrants is not always owing naturally to the men, since they are naturally like other men; but it is owing to the nature of the dominion which they exercise. Good laws make a good prince, if he has a good understanding; but the best men grow mischievous when they are set above laws. Claudius was a very harmless man, while he was a private man; but when he came to be a tyrant, he proved a bloody one, almost as bloody as his nephew and predecessor Caligula; who had also been a very good subject, but when he came to be the Roman emperor, grew the professed executioner of mankind.

  There is something so wanton and monstrous in lawless power, that there scarce ever was a human spirit that could bear it; and the mind of man, which is weak and limited, ought never to be trusted with a power that is boundless. The state of tyranny is a state of war; and where it prevails, instead of an intercourse of confidence and affection, as between a lawful prince and his subjects, nothing is to be seen but jealousy, mistrust, fear, and hatred: An arbitrary prince and his slaves often destroy one another, to be safe: They are continually plotting against his life; he is continually shedding their blood, and plundering them of their property.

  Cuncta ferit, dum cuncta timet.

  I think it was Justinian, the Emperor, who said, “Though we are above the law, yet we live according to the law.” But, by his Majesty's favour, there was more turn than truth in the saying; for princes that think themselves above law, act almost constantly against all law; of which truth Justinian himself is a known instance. Good princes never think themselves above it.

  It is an affecting observation, that the power given for the protection of the world, should, in so many places, be turned to the destruction of it.

  As if the law was in force for their destruction, and not for their preservation; that it should have power to kill, but not to protect, them: A thing no less horrid, than if the sun should burn us without lighting us, or the earth serve only to bury, and not feed and nourish us,

  says Mr. Waller in a speech of his in Parliament.

  Despotick power has defaced the Creation, and laid the world waste. In the finest countries in Asia, formerly full of people, you are now forced to travel by the compass: There are no roads, houses, nor inhabitants. The sun is left to scorch up the grass and fruits, which it had raised; or the rain to rot them: The gifts of God are left to perish; there being none of his creatures, neither man nor beast, left to use and consume them. The Grand Seignior, who (if we may believe some sanctified mouths, not addicted to lying) is the vicegerent of heaven, frustrates the bounty of heaven; and, being the father of his people, has almost butchered them all. Those few (comparatively very few) who have yet survived the miserable fate of their brethren, and are reserved for sacrifices to his cruelty, as occasion offers, and his lust prompts him, live the starving and wretched property of ravenous and bloody bashaws; whose duty to their master, as well as their own avarice, obliges them to keep the people, over whom they preside, poor and miserable.

  But neither bashaws, nor armies, could keep that people in such abject slavery, if their priests and doctors had not made passive obedience a principle of their religion. The holy name of God is profaned, and his authority belied, to bind down wretchedness upon his creatures, and to secure the tyrant that does it. The most consummate of all wickedness, and the highest of all evils, are sanctified by the teachers of religion, and made by them a part of it. Yes, Turkish slavery is confirmed, and Turkish tyranny defended, by religion!

  Sir Paul Ricaut tells us, that the Turks maintain, “That the Grand Seignior can never be deposed, or made accountable for his crimes, whilst he destroys carelessly of his subjects under a hundred a day”: ’Tis made martyrdom to die submissively by the hand of the tyrant; and some of his highest slaves have declared that they wanted only that honour to complete their felicity. They hold, that it is their duty to submit, though their tyrant “command a whole army of them to precipitate themselves from a rock, or to build a bridge with piles of their bodies for him to pass a river, or to kill one another to afford him pastime and pleasure.”

  Merciful God! Is this government! And do such governors govern by authority from thee!

  It is scarce credible what Monsieur de L'Estoille tells us: He says he travelled in the Indies for above twenty days together, through lanes of people hanged upon trees, by command of the King; who had ordered above a hundred thousand of them to be thus murdered and gibbeted, only because two or three robberies had been committed amongst them. Bayle, Reponse aux Quest. d'un Provinc. tom. I. p. 595.

  It is one of the great evils of servitude, that let the tyranny be ever so severe, ‘tis always flattered; and the more severe ‘tis, the more ‘tis flattered. The oppressors of mankind are flattered beyond all others; because fear and servitude naturally produce, as well as have recourse to, flattery, as the best means of self-preservation; whereas liberty, having no occasion for it, scorns it. Sir Paul Ricaut ascribes the decay of the Ottoman Empire to the force of flattery, and calls the Turkish court, a prison and banniard of slaves.

  Old Muley, the Lord's anointed of Morocco, who it seems is still alive, is thought to have butchered forty thousand of his subjects with his own hands. Such a father is he of his people! And yet his right to shed human blood being a genuine characteristick of the church of Morocco, as by law established, people are greedy to die by his hand; which, they are taught to imagine, dispatches them forthwith to paradise: Insomuch that, though, as I am told, every time he mounts his horse, he slices off the head of the slave that holds his stirrup, to shew that he is as good an executioner as he is a horseman, yet there is a constant contention among his slaves, who shall be the happy martyr on that occasion; so that several of them crowding to his stirrup at once, for the gracious favour, his Majesty has sometimes the honour to cut off two heads, and to make two saints, with one blow.

  The exercise of despotick power is the unrelenting war of an armed tyrant upon his unarmed subjects: it is a war of one side, and in it there is neither peace nor truce. Tacitus describes it, Saeva jussa, continuas accusationes, fallaces amicitias, perniciem innocentium: “Cruel and bloody orders, continual accusations, faithless friendships, and the destruction of innocents.” In another place he says, that

  Italy was one continual shambles, and most of its fair cities were defaced or overthrown; Rome itself was in many places laid in ashes, with the greatest part of its magnificent buildings: virtue was despised, and barefaced debauchery prevailed. The solitary islands were filled with illustrious exiles, and the very rocks were stained with slaughters: but, in the city itself, cruelty raged still more; it was dangerous to be noble, it was a crime to be rich, it was capital to have borne honours, and high treason to have refused them; and for virtue and merit, they brought sure and sudden destruction.

  These were some of the ravages of absolute dominion! And as to the common people, the same author says, “They were debauched and dispirited, and given up to idleness and seeing shews.” Plebs sordida circo & theatris sueta.

  Oh! abject state of such as tamely groan Under a blind dependency on one!

  This is a sort of government, which is too great and heavy a curse for any one to wish, even upon those who are foolish enough, or wicked enough, to contend for its lawfulness; or, which is the same thing, for submission to it: But surely, if ever any man deserved to feel the merciless gripesof tyranny, it is he who is an advocate for it. Phalaris acted justly, when he hanselledhis brazen bull with the wretch who invented it.

  As arbitrary power in a single person has made greater havock in human nature, and thinned mankind more, than all the beasts of prey and all the plagues and earthquakes that ever were; let those men consider what they have to answer for, who would countenance such a monstrous evil in the world, or would oppose those that would oppose it. A bear, a lion, or a tiger, may now and then pick up single men in a wood, or a desert; an earthquake sometimes may bury a thousand or two inhabitants in the ruins of a town; and the pestilence may once in many years carry off a much greater number: But a tyrant shall, out of a wanton personal passion, carry fire and sword through a whole continent, and deliver up a hundred thousand of his fellow creatures to the slaughter in one day, without any remorse or further notice, than that they died for his glory. I say nothing of the moral effect of tyranny; though 'tis certain that ignorance, vice, poverty, and vileness, always attend it.

  He who compares the world now with what it was formerly, how populous once, how thin now; and considers the cause of this doleful alteration, will find just reason to fear, that spiritual and temporal tyranny, if they go on much longer, will utterly extinguish the human race. Of Turkey I have spoken already: The great continent of America is almost unpeopled, the Spaniards having destroyed, ’tis thought, about forty millions of its natives; and for some kingdoms in Europe, especially towards the north, I do not believe that they have now half the inhabitants that they had so lately as a hundred years ago.

  Blessed be God, there are still some free countries in Europe, that abound with people and with plenty, and England is the foremost. This demonstrates the inestimable blessing of liberty. Can we ever over-rate it, or be too jealous of a treasure which includes in it almost all human felicities? Or can we encourage too much those that contend for it, and those that promote it? It is the parent of virtue, pleasure, plenty, and security; and ’tis innocent, as well as lovely. In all contentions between liberty and power, the latter has almost constantly been the aggressor. Liberty, if ever it produce any evils, does also cure them: Its worst effect, licentiousness, never does, and never can, continue long. Anarchy cannot be of much duration: and where ’tis so, it is the child and companion of tyranny; which is not government, but a dissolution of it, as tyrants are the enemies of mankind.

  Power is like fire; it warms, scorches, or destroys, according as it is watched, provoked, or increased. It is as dangerous as useful. Its only rule is the good of the people; but because it is apt to break its bounds, in all good governments nothing, or as little as may be, ought to be left to chance, or the humours of men in authority: All should proceed by fixed and stated rules, and upon any emergency, new rules should be made. This is the constitution, and this the happiness of Englishmen; as hath been formerly shewn at large in these letters.

  We have a constitution that abhors absolute power; we have a King that does not desire it; and we are a people that will never suffer it: No free people will ever submit to it, unless it steal upon them by treachery, or they be driven into it by violence. But a state can never be too secure against this terrible, this last of all human evils; which may be brought upon them by many causes, even by some that at first sight do not seem to threaten any such thing: And of all those causes, none seems more boding than a general distress, which certainly produces general discontent, the parent of revolutions; and in what such a circumstance of affairs may end, no man can ever foresee: Few are brought about without armies; a remedy almost always worse than the disease. What is got by soldiers, must be maintained by soldiers; and we have, in this paper, already seen the frightful image of a military government; a government, which, at best, is violent and bloody, and eternally inconsistent with law and property.

  It is therefore a dreadful wickedness to have any share in giving occasion for those discontents, which are so apt to burst into rage and confusion. A state sometimes recovers out of a convulsion, and gains new vigour by it; but it much oftener expires in it. Heaven preserve me from ever beholding contending armies in England! They are different things from what they once were. Our armies formerly were only a number of the people armed occasionally; and armies of the people are the only armies which are not formidable to the people. Hence it is, that, in the many revolutions occasioned by the strife between the two royal houses of York and Lancaster, there never was any danger of slavery from an armed force: A single battle decided the contention; and next day these popular soldiers went home, and resumed their ordinary arms, the tools of husbandry. But since that time armies have not been so easily parted with; but after the danger was over for which they were raised, have often been obstinately kept up, and by that means created dangers still as great.

  Some quacks in politicks may perhaps venture publick disturbances, out of an opinion that they shall be able to prevent them by art, or suppress them by force. But this shews their capacity, as well as their wickedness: For, not to mention the malignity of their hearts, in risking publick ruin, to gratify a private appetite; how can any event be certainly foreseen, when the measure of the cause cannot be certainly known? They can never ascertain the degree of opposition; they cannot foreknow what circumstances may happen, nor into whose hands things may fall. Cicero did not dream, when he employed Octavius for the commonwealth, that his young champion for liberty would ever be the tyrant of his country. Who could foresee that Cromwell would enslave those whom he was employed to defend? But there is no trusting of liberty in the hands of men, who are obeyed by great armies.

  From hence may be seen what a fatal and crying crime it would be, in any free country, to break the confidence between the prince and his people. When loyalty is once turned into indifference, indifference will soon be turned into hatred; hatred will be returned with hatred; resentment may produce tyranny, and rage may produce rebellion. There is no mischief which this mutual mistrust and aversion may not bring forth. They must therefore be the blackest traitors, who are the first authors of so terrible an evil, as are they who would endeavour to protect them.

  Henry III of Castile said, that he feared the curse of his people more than he did the arms of his enemies: In which saying he shewed as much wisdom as humanity; since, while he was beloved at home, he had nothing to fear from abroad, and the curses of his subjects were the likeliest means to bring upon him the arms of his enemies.

  G. I am, &c.

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  10: 3b. Power, Corruption and Law - Cato’s Letters no. 31

  John Trenchard, Cato’s Letters, or Essays on Liberty, Civil and Religious, and Other Important Subjects. Four volumes in Two, edited and annotated by Ronald Hamowy (Indianapolis: Liberty Fund, 1995). Vol. 1. Chapter: NO. 31. SATURDAY, MAY 27, 1721. Considerations on the Weakness and Inconsistencies of human Nature. (Gordon)

  Accessed from oll.libertyfund.org/title/1237/64451 on 2009-10-19

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

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  NO. 31. SATURDAY, MAY 27, 1721. Considerations on the Weakness and Inconsistencies of human Nature. (Gordon)

  Sir,

  The study of human nature has, ever since I could study any thing, been a principal pleasure and employment of mine; a study as useful, as the discoveries made by it are for the most part melancholy. It cannot but be irksome to a good-natured man, to find that there is nothing so terrible or mischievous, but human nature is capable of it; and yet he who knows little of human nature, will never know much of the affairs of the world, which every where derive their motion and situation from the humours and passions of men.

  It shews the violent bent of human nature to evil, that even the Christian religion has not been able to tame the restless appetites of men, always pushing them into enormities and violences, in direct opposition to the spirit and declarations of the gospel, which commands us to do unto all men what we would have all men do unto us. The general practice of the world is an open contradiction and contempt of this excellent, this divine rule; which alone, were it observed, would restore honesty and happiness to mankind, who, in their present state of corruption, are for ever dealing treacherously or outrageously with one another, out of an ill-judging fondness for themselves.

  Nay, the peaceable, the beneficent, the forgiving Christian religion, is made the cause of perpetual hatred, animosity, quarrels, violence, devastation, and oppression; and the apostles, in spite of all their poverty, disinterestedness, and love of mankind, are made to justify their pretended successors of theChurch of Rome, in engrossing to themselves the wealth and power of the earth; and in bringing mankind under a yoke of servitude, more terrible, more expensive, and more severe, than all the arts and delusions of paganism could ever bring them under: Of so much more force with the corrupt world are the destructivevillainies and falsifications of men, than the benevolent and heavenly preceptsof Jesus Christ.

  The truth is, and it is a melancholy truth, that where human laws do not tie men's hands from wickedness, religion too seldom does; and the most certain security which we have against violence, is the security of the laws. Hence it is, that the making of laws supposes all men naturally wicked; and the surest mark of virtue is, the observation of laws that are virtuous: If therefore we would look for virtue in a nation, we must look for it in the nature of government; the name and model of their religion being no certain symptom nor cause of their virtue. The Italians profess the Christian religion, and the Turks are all infidels; are the Italians therefore more virtuous than the Turks? I believe no body will say that they are; at least those of them that live under absolute princes: On the contrary, it is certain, that as the subjects of the Great Turk are not more miserable than those of the Pope, so neither are they more wicked.

  Of all the passions which belong to human nature, self-love is the strongest, and the root of all the rest; or, rather, all the different passions are only several names for the several operations of self-love. Self-love, says the Duke of Rochefoucauld, is the love of one's self, and of every thing else for one's own sake: It makes a man the idolater of himself, and the tyrant of others. He observes, that man is a mixture of contrarieties; imperious and supple, sincere and false, fearful and bold, merciful and cruel: He can sacrifice every pleasure to the getting of riches, and all his riches to a pleasure: He is fond of his preservation, and yet sometimes eager after his own destruction: He can flatter those whom he hates, destroy those whom he loves.

  This is a picture of mankind; and they who say it is a false one, ought to shew that they deserve a better. I have sometimes thought, that it was scarce possible to assert any thing concerning mankind, be it ever so good, or ever so evil, but it will prove true. They are naturally innocent, yet fall naturally into the practice of vice; the greatest instances of virtue and villainy are to be found in one and the same person; and perhaps one and the same motive produces both. The observance or non-observance of a few frivolous customs shall unite them in strict friendship and confederacy, or set thema cutting one another's throats.

  They never regard one another as men and rational beings, and upon the foot of their common humanity; but are cemented or divided by the force of words and habits. Considerations that are a disgrace to reason! The not being born in the same climate, or on this side such a river, or such a mountain, or the not wearing the like garments, or uttering the like sounds, or having the same thoughts or taste, are all so many causes of intense hatred, sometimes of mortal war. Whatever men think or do, especially if they have found a good name for it, be it ever so foolish or bad, is wisest and best in their own eyes: But this is not all; we will needs be plaguing our neighbours, if they do not quit upon our authority their own thoughts and practices for ours.

  It fills me with concern, when I consider how men use one another; and how wretchedly their passions are employed: They scarce ever have proper objects for their passions; they will hate a man for what he cannot help, and what does them no harm; yet bless and pray for villains, that kill and oppress them. There never was such a dreadful tribunal under the sun as the Inquisition: A tribunal, against which the most innocent is not safe, to which the most virtuous men are most exposed; a tribunal, where all the malice, all the sagacious cruelty, all the bitterness, and all the fury and falsehood of devils are exerted, and all the tortures of hell are imitated and practised; yet this very tribunal is so dear to the people, though it terrifies them, enslaves them, and destroys them, that rather than part with it, they would part with all that is left them. Upon the surrender of Barcelona, in the late war, the inhabitants capitulated, that the Inquisition should not be taken from them: And even here in England, we may remember the time when men have been knocked down for saying that they had a right to defend their property by force, when a tyrant attempted to rob them of it against law. To such a pitch of stupidity and distraction are people to be brought by those who belie Almighty God, and falsify his word to satiateworldly pride; and such dupes and furies are men to one another!

  Every thing is so perverted and abused, and the best things most, that a very wise man had but too much reason to say, that truth did not so much good in the world, as the appearance and pretence of it did evil. Thus the saving of men's souls is so universally understood to be a great and glorious blessing, that for the sake of it men have suffered, and do suffer, the highest misery and bondage from the impostors who pretend to bestow it, in the dark parts of the world, which are by far the greatest parts of the world. And thus civil government is the defence and security of human society; yet Dr. Prideaux makes it a doubt, whether the benefit which the world receives from government be sufficient to make amends for the calamities which it suffers from the follies, mistakes, and mal-administration of those that manage it. And thus to come home to ourselves, a project to pay off the nation's debts was so tempting; so popular and plausible, that almost every body came into it; and yet—the consequences speak themselves.

  The Roman Senate could flatter and adore a Nero and a Caligula; the Roman soldiers could butcher a Piso and a Pertinax: It is hard to say which were the most guilty, the Senate while they worshipped tyranny, or the army while they destroyed virtue. So prone are men to propagate publick destruction for personal advantages and security! I can never think without horror and trembling upon that dismal, that bloody maxim of Philip II of Spain, that he would rather be master of a kingdom ruined, miserable, and quiet; than of a kingdom rich, powerful, and turbulent. In pursuance of this maxim, he made his kingdom a desert, by destroying and expelling the most industrious of its inhabitants, the Moors: But Philip was very devout, and would frequently wash a pilgrim's feet; that is, he was very civil and charitable to an idle religious stroller, and a cruel enemy to the general happiness ofmankind.

  This puts me in mind of the history of John Basilowitz, Great Duke of Muscovy:

  No history of his time but speaks of the unheard-of cruelties exercised by him on all sorts of persons through his whole reign: They are so horrid, that never any tyrant did the like; and yet Bishop Paulus Jovius gives him the character of a good and devout Christian, though he deserves not to be numbered even amongst men: It is true, he would go often to church, say the service himself, sing, and be present at ecclesiastical ceremonies, and execute the functions of the monks: but he abused both God and man, and had no sentiments of humanity. Ambassadors Travels, p. 73, 74.

  What a medley is here of devotion and cruelty in the same men! Nor are these examples singular. Louis XI of France was a false, a wicked, and an oppressive prince, and one of the greatest bigots that ever lived; and some of the greatest saints in the Roman calendarwere pernicious villains, and bloody monsters. No sect of bigots, when they are uppermost, are willing to tolerate another; and all ground their ungodly severity upon their zeal for religion; though their want of charity is a demonstration that they have no religion. It is certain, that without universal charity and forebearance, a man cannot be a Christian.

  It is wonderful and affecting, to behold how the ideas of good and evil are confounded! The Turks place great devotion in releasing captive birds from their cages, in feeding indigent and mangey dogs, and building hospitals for them, and in paying a religious reverence to camels: But at the same time that they thus use birds and beasts like men and Christians, they use men and Christians worse than they do beasts; and with them it is a lighter offence to deny bread to a poor Christian, who is famished in his chains, than to the dogs of the street, which are fit for nothing but to breed infection. They will load a poor Christian with irons, cover him with stripes, and think that they do well and religiously in it; yet make it a matter of conscience not to overload a beast of burden.

  In popish countries, in cases where nature is left to itself, as much compassion is shewn for the distressed as in other places: Even thieves, robbers, and murderers, are accompanied to the gallows or the wheel with sighs and tears; especially of the tender sex: But when an unhappy innocent is going to be burned, to be cruelly and slowly burned, for his sincerity and piety in speaking truth, and reading the Bible himself, or teaching it to others; nothing is to be seen but a general joy, nor to be heard but loud cries of approbation and consent; and all piety, all sympathy, is denied in an instance which calls for the highest. Tell a Spanish lady of a popish priest hanged in England for sedition or murder, she instantly falls into tears and agonies: Tell her of a kinsman of hers burned for denying transubstantiation, she gives glory to God, and feels a sensible joy.

  And, in Protestant countries, how many men are there, who cheat, starve, and oppress all their life long, to leave an estate at their death to religious uses? As if men were to be rogues for God's sake. I have heard of a man, who having given half of his estate to mend highways, for the good of his country, said, that he would willingly give the other half, that England had never aship, nor a merchant, nor a dissenter from the Church, belonging to it. Strange inconsistency! By one act of his, two or three miles of causeway were kept in good repair, which was only a kindness to horses' hoofs; by another actof his, he would have made all England miserable and desolate!

  The hardships and distresses of this year shew too manifestly the rogueries and depredations of the last: Villainy was let loose amongst us, and every man endeavoured to entrap and ruin another, to enrich himself. Honesty was brow-beaten and driven into corners; humanity was extinguished; all friendship was abolished; and even the distinction of kindred and ties of blood were discarded: A raging passion for immoderate gain had made men universally and intensely hard-hearted: They were every where devouring one another. And yet the directors and their accomplices, who were the acting instruments of all this outrageous madness and mischief, set up for wonderfully pious persons, while they were defying Almighty God, and plundering men; and they set apart a fund of subscriptions for charitable uses: That is, they mercilessly made a whole people beggars, and charitably supported a few necessitous and worthless favourites. I doubt not, but if the villainy had gone on with success, they would have had their names handed down to posterity with encomiums; as the names of other publick robbers have been! We have historians and ode-makers now living, very proper for such a task. It is certain, that most people did, at one time, believe the directors to be great and worthy persons: And an honest country clergyman told me last summer, upon the road, that Sir John was an excellent publick-spirited person, for that he had beautified his chancel.

  Upon the whole, we must not judge of one another by our fair pretensions and best actions; since the worst men do some good, and all men make fine professions: But we must judge of men by the whole of their conduct, and the effects of it. Thorough honesty requires great and long proof; since many a man, long thought honest, has at length proved a knave. And it is from judging without proof, or too little, of false proof, that mankind continue unhappy.

  G. I am, &c.

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  11: 3c. Power, Corruption and Law - Blackstone on Laws in General

  Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II. Chapter: SECTION II.: OF THE NATURE OF LAWS IN GENERAL.

  Accessed from oll.libertyfund.org/title/2140/198645 on 2009-10-19

  The text is in the public domain.

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  SECTION II.

  OF THE NATURE OF LAWS IN GENERAL.

  Law, in its most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action which is prescribed by some superior, and which the inferior is bound to obey.

  Thus, when the Supreme Being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all movable bodies must conform. And, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes, at his own pleasure, certain arbitrary laws for its direction,—as that the hand shall describe a given space in a given time, to which law as long as the work conforms, so long it continues in perfection, and answers the end of its formation.

  If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws, more numerous indeed, but equally fixed and invariable. The whole progress of plants, from the seed to the root, and from thence to the seed again; the method of animal **39]nutrition, digestion, secretion, and all other branches of vital economy; are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great Creator.

  This, then, is the general signification of law, a rule of action dictated by some superior being; and, in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct; that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and free-will, is commanded to make use of those faculties in the general regulation of his behaviour.1

  Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him on whom he depends as the rule of his conduct; not, indeed, in every particular, but in all those points wherein his dependence consists. This principle, therefore, has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his Maker for every thing, it is necessary that he should, in all points, conform to his Maker’s will.

  This will of his Maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion, so, when he created man, and endued him with free-will to conduct himself in all parts of **40]life, he laid down certain immutable laws of human nature, whereby that free-will is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.2

  Considering the Creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But, as he is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice that existed in the nature of things antecedent to any positive precept. These are the eternal immutable laws of good and evil, to which the Creator himself, in all his dispensations, conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such, among others, are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian(a) has reduced the whole doctrine of law.3

  But if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be obtained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance its inseparable companion. As, therefore, the Creator is a being not only of infinite power, and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to inquire after and pursue the rule of right, but only our own self-love, that universal principle of action. For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connection of justice and human felicity, he *[*41has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised, but has graciously reduced the rule of obedience to this one paternal precept, “that man should pursue his own true and substantial happiness.” This is the foundation of what we call ethics, or natural law; for the several articles into which it is branched in our systems, amount to no more than demonstrating that this or that action tends to man’s real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man’s real happiness, and therefore that the law of nature forbids it.4

  This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original.5

  But, in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason, whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life, by considering what method will tend the most effectually to our own substantial happiness. And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.

  This has given manifold occasion for the benign interposition of divine Providence, which, in compassion to the frailty, the imperfection, and the blindness of human reason, **42]hath been pleased, at sundry times and in divers manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man’s felicity. But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in its present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages. As then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system which is framed by ethical writers, and denominated the natural law; because one is the law of nature, expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together.

  Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true, a great number of indifferent points in which both the divine law and the natural leave a man at his own liberty, but which are found necessary, for the benefit of society, to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural law; and, from these prohibitions, arises the true unlawfulness of this crime. Those human laws that annex a punishment to it do not at all increase its moral guilt, or *[*43superadd any fresh obligation, in foro conscientiæ, to abstain from its perpetration. Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. But, with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws,—such, for instance, as exporting of wool into foreign countries,—here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so.

  If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws than the law of nature, and the law of God. Neither could any other law possibly exist: for a law always supposes some superior who is to make it; and, in a state of nature, we are all equal, without any other superior but Him who is the author of our being. But man was formed for society; and, as is demonstrated by the writers on this subject,(b) is neither capable of living alone, nor indeed has the courage to do it. However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many, and form separate states, commonwealths, and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law to regulate this mutual intercourse, called “the law of nations,” which, as none of these states will acknowledge a superiority in the other, cannot be dictated by any, but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which all the communities are equally subject; and therefore the civil law(c) very justly observes, that quod naturalis ratio inter omnes homines constituit, vocatur jus gentium.7

  **44]Thus much I thought it necessary to premise concerning the law of nature, the revealed law, and the law of nations, before I proceeded to treat more fully of the principal subject of this section, municipal or civil law; that is, the rule by which particular districts; communities, or nations, are governed; being thus defined by Justinian,(d) “jus civile est quod quisque sibi populus constituit.” I call it municipal law, in compliance with common speech; for, though strictly that expression denotes the particular customs of one single municipium or free town, yet it may with sufficient propriety be applied to any one state or nation which is governed by the same laws and customs.

  Municipal law, thus understood, is properly defined to be “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.”8 Let us endeavour to explain its several properties, as they arise out of this definition. And, first, it is a rute: not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law.9 But an act to declare that the crime of which Titius is accused shall be deemed high treason: this has permanency, uniformity, and universality, and therefore is properly a rule. It is also called a rule, to distinguish it from advice or counsel, which we are at liberty to follow or not, as we see proper, and to judge upon the reasonableness or unreasonableness of the thing advised: whereas our obedience to the law depends not upon our approbation, but upon the maker’s will. Counsel is only matter of persuasion, law is matter of injunction; counsel acts only upon the willing, law upon the unwilling also.

  *[*45It is also called a rule, to distinguish it from a compact or agreement; for a compact is a promise proceeding from us, law is a command directed to us. The language of a compact is, “I will, or will not, do this;” that of a law is, “thou shalt, or shalt not, do it.” It is true there is an obligation which a compact carries with it, equal in point of conscience to that of a law; but then the original of the obligation is different. In compacts we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act without ourselves determining or promising any thing at all. Upon these accounts law is defined to be “a rule.”

  Municipal law is also “a rule of civil conduct.” This distinguishes municipal law from the natural, or revealed; the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but also the rule of faith. These regard man as a creature, and point out his duty to God, to himself, and to his neighbour, considered in the light of an individual. But municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbour than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more than that he do contribute, on his part, to the subsistence and peace of the society.

  It is likewise “a rule prescribed.” Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of England. It may be notified viva voce, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of parliament as are appointed**46] to be publicly read in churches and other assemblies. It may lastly be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament. Yet, whatever way is made use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner; not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them upon high pillars, the more effectually to ensnare the people. There is still a more unreasonable method than this, which is called making of laws ex post facto; when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust.(e) All laws should be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term “prescribed.” But when this rule is in the usual manner notified, or prescribed, it is then the subject’s business to be thoroughly acquainted therewith; for if ignorance, of what he might know were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity.10

  But farther: municipal law is “a rule of civil conduct prescribed by the supreme power in a state.” For legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.

  *[*47This will naturally lead us into a short inquiry concerning the nature of society and civil government; and the natural, inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws.

  The only true and natural foundations of society are the wants and the fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society either natural or civil; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted: and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families These formed the first natural society, among themselves; which, every day extending its limits, laid the first though imperfect rudiments of civil or political society: and when it grew too large to subsist with convenience in that pastoral state, wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent: and various tribes, which had formerly separated, reunited again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But though society had not its formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement of civil society. And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, *[*48in the very act of associating together: namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole, or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection should be certainly extended to any.11

  For when civil society is once formed, government at the same time results of course, as necessary to preserve and to keep that society in order. Unless some superior be constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs. But, as all the members which compose this society were naturally equal, it may be asked, in whose hands are the reins of government to be intrusted? To this the general answer is easy; but the application of it to particular cases has occasioned one half of those mischiefs, which are apt to proceed from misguided political zeal. In general, all mankind will agree that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which is among the attributes of Him who is emphatically styled the Supreme Being; the three grand requisites, I mean, of wisdom, of goodness, and of power: wisdom, to discern the real interest of the community; goodness, to endeavour always to pursue that real interest; and strength, or power, to carry this knowledge and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well constituted frame of government.

  How the several forms of government we now see in the world at first actually began, is matter of great uncertainty, and has occasioned infinite disputes. It is not my business or intention to enter into any of them. However they began, or by *[*49what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty, reside. And this authority is placed in those hands, wherein (according to the opinion of the founders of such respective states, either expressly given, or collected from their tacit appro bation) the qualities requisite for supremacy, wisdom, goodness, and power, are the most likely to be found.

  The political writers of antiquity will not allow more than three regular forms of government: the first, when the sovereign power is lodged in an aggregate assembly, consisting of all the free members of a community, which is called a democracy; the second, when it is lodged in a council, composed of select members, and then it is styled an aristocracy; the last, when it is intrusted in the hands of a single person, and then it takes the name of a monarchy. All other species of government, they say, are either corruptions of, or reducible to, these three.

  By the sovereign power, as was before observed, is meant the making of laws, for wherever that power resides, all others must conform to and be directed by it, whatever appearance the outward form and administration of the government may put on. For it is at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases; by constituting one, or a few, or many executive magistrates: and all the other powers of the state must obey the legislative power in the discharge of their several functions, or else the constitution is at an end.12

  In a democracy, where the right of making laws resides in the people at large, public virtue, or goodness of intention, is more likely to be found, than either of the other qualities of government. Popular assemblies are frequently foolish in their contrivance, and weak in their execution; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit. In *[*50aristocracies there is more wisdom to be found, than in the other frames of government; being composed, or intended to be composed, of the most experienced citizens: but there is less honesty than in a republic, and less strength than in a monarchy. A monarchy is indeed the most powerful of any; for, by the entire conjunction of the legislative and executive powers, all the sinews of government are knitted together, and united in the hand of the prince: but then there is imminent danger of his employing that strength to improvident or oppressive purposes.

  Thus these three species of government have, all of them, their several perfections and imperfections. Democracies are usually the best calculated to direct the end of a law; aristocracies to invent the means by which that end shall be obtained; and monarchies to carry these means into execution. And the ancients, as was observed, had in general no idea of any other permanent form of government but these three: for though Cicero(f) declares himself of opinion “esse optime constitutam rempublicam quæ ex tribus generibus illis, regali, optimo, et populari, sit modice confusa;” yet Tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a visionary whim, and one that, if effected, could never be lasting or secure.(g)

  But, happily for us of this island, the British constitution has long remained, and I trust will long continue, a standing exception to the truth of this observation. For, as with us the executive power of the laws is lodged in a single person, they have all the advantages of strength and despatch, that are to be found in the most absolute monarchy: and, as the legislature of the kingdom is intrusted to three distinct powers, entirely independent of each other; first, the king; secondly, the lords spiritual and temporal, which is an aristocratical assemblage of persons selected for their piety, **51]their birth, their wisdom, their valour, or their property; and, thirdly, the House of Commons, freely chosen by the people from among themselves, which makes it a kind of democracy: as this aggregate body, actuated by different springs, and attentive to different interests, composes the British parliament, and has the supreme disposal of every thing; there can no inconvenience be attempted by either of the three branches, but will be withstood by one of the other two; each branch being armed with a negative power, sufficient to repel any innovation which it shall think inexpedient or dangerous.

  Here then is lodged the sovereignty of the British constitution; and lodged as beneficially as is possible for society. For in no other shape could we be so certain of finding the three great qualities of government so well and so happily united. If the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy; and so want two of the three principal ingredients of good polity, either virtue, wisdom, or power. If it were lodged in any two of the branches; for instance, in the king and House of Lords, our laws might be providently made and well executed, but they might not always have the good of the people in view: if lodged in the king and commons, we should want that circumspection and mediatory caution, which the wisdom of the peers is to afford: if the supreme rights of legislature were lodged in the two houses only, and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken (if not totally destroy) the strength of the executive power. But the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest. For if ever it should happen that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would **52]soon be an end of our constitution.13 The legislature would be changed from that, which (upon the supposition of an original contract, either actual or implied) is presumed to have been originally set up by the general consent and fundamental act of the society: and such a change, however effected, is according to Mr. Locke,(h) (who perhaps carries his theory too far,) at once an entire dissolution of the bands of government; and the people are thereby reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power.

  Having thus cursorily considered the three usual species of government, and our own singular constitution, selected and compounded from them all, I proceed to observe, that, as the power of making laws constitutes the supreme authority, so wherever the supreme authority in any state resides, it is the right of that authority to make laws; that is, in the words of our definition, to prescribe the rule of civil action. And this may be discovered from the very end and institution of civil states. For a state is a collective body, composed of a multitude of individuals, united for their safety and convenience, and intending to act together as one man. If it therefore is to act as one man, it ought to act by one uniform will. But, inasmuch as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot by any natural union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. It can therefore be no otherwise produced than by a political union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is intrusted: and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be law.

  Thus far as to the right of the supreme power to make laws; but farther, it is its duty likewise. For since the *[*53respective members are bound to conform themselves to the will of the state, it is expedient that they receive directions from the state declaratory of that its will. But, as it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, it is therefore incumbent on the state to establish general rules, for the perpetual information and direction of all persons in all points, whether of positive or negative duty. And this, in order that every man may know what to look upon as his own, what as another’s; what absolute and what relative duties are required at his hands; what is to be esteemed honest, dishonest, or indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the benefits of society; and after what manner each person is to moderate the use and exercise of those rights which the state assigns him, in order to promote and secure the public tranquillity.

  From what has been advanced, the truth of the former branch of our definition, is (I trust) sufficiently evident; that “municipal law is a rule of civil conduct prescribed by the supreme power in a state.” I proceed now to the latter branch of it; that it is a rule so prescribed, “commanding what is right, and prohibiting what is wrong.”

  Now in order to do this completely, it is first of all necessary that the boundaries of right and wrong be established and ascertained by law. And when this is once done, it will follow of course that it is likewise the business of the law, considered as a rule of civil conduct, to enforce these rights, and to restrain or redress these wrongs. It remains therefore only to consider in what manner the law is said to ascertain the boundaries of right and wrong; and the methods which it takes to command the one and prohibit the other.

  For this purpose every law may be said to consist of several parts: one, declaratory; whereby the rights to be observed, and the wrongs to be eschewed, are clearly defined and *[*54laid down: another, directory; whereby the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs: a third, remedial, whereby a method is pointed out to recover a man’s private rights, or redress his private wrongs: to which may be added a fourth, usually termed the sanction, or vindicatory branch of the law; whereby it is signified what evil or penalty shall be incurred by such as commit any public wrongs, and transgress or neglect their duty.

  With regard to the first of these, the declaratory part of the municipal law, this depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislator. This doctrine, which before was slightly touched, deserves a more particular explication. Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture. Neither do divine or natural duties (such as, for instance, the worship of God, the maintenance of children, and the like) receive any stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and misdemesnors, that are forbidden by the superior laws, and therefore styled mala in se, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature in all these cases acts only, as was before observed, in subordination to the great law-giver, transcribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong.

  **55]But, with regard to things in themselves indifferent, the case is entirely altered. These become either right or wrong, just or unjust, duties or misdemesnors, according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life. Thus our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband; and our statute law has declared all monopolies a public offence: yet that right, and this offence, have no foundation in nature, but are merely created by the law, for the purposes of civil society. And sometimes, where the thing itself has its rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the law of the land shall direct. Thus, for instance, in civil duties; obedience to superiors is the doctrine of revealed as well as natural religion: but who those superiors shall be, and in what circumstances or to what degrees they shall be obeyed, it is the province of human laws to determine. And so, as to injuries or crimes, it must be left to our own legislature to decide, in what cases the seizing another’s cattle shall amount to a trespass or a theft; and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent.

  Thus much for the declaratory part of the municipal law: and the directory stands much upon the same footing; for this virtually includes the former, the declaration being usually collected from the direction. The law that says, “thou shalt not steal,” implies a declaration that stealing is a crime. And we have seen(i) that, in things naturally indifferent, the very essence of right and wrong depends upon the direction of the laws to do or to omit them.

  The remedial part of a law is so necessary a consequence of the former two, that laws must be very vague and imperfect **56]without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting these rights, when wrongfully withheld or invaded. This is what we mean properly, when we speak of the protection of the law. When, for instance, the declaratory part of the law has said, “that the field or inheritance, which belonged to Titius’s father, is vested by his death in Titius;” and the directory part has “forbidden any one to enter on another’s property, without the leave of the owner:” if Gaius after this will presume to take possession of the land, the remedial part of the law will then interpose its office; will make Gaius restore the possession to Titius, and also pay him damages for the invasion.

  With regard to the sanction of laws, or the evil that may attend the breach of public duties, it is observed, that human legislators have for the most part chosen to make the sanction of their laws rather vindicatory than remuneratory, or to consist rather in punishments, than in actual particular rewards. Because, in the first place, the quiet enjoyment and protection of all our civil rights and liberties, which are the sure and general consequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards. Because also, were the exercise of every virtue to be enforced by the proposal of particular rewards, it were impossible for any state to furnish stock enough for so profuse a bounty. And farther, because the dread of evil is a much more forcible principle of human actions than the prospect of good.(k) For which reasons, though a prudent bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws, which enforce and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law; but do constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those who are intrusted with the care of putting the laws in execution.

  *[*57Of all the parts of a law the most effectual is the vindicatory. For it is but lost labour to say, “do this, or avoid that,” unless we also declare, “this shall be the consequence of your non-compliance.” We must therefore observe, that the main strength and force of a law consists in the penalty annexed to it. Herein is to be found the principal obligation of human laws.

  Legislators and their laws are said to compel and oblige: not that by any natural violence they so constrain a man, as to render it impossible for him to act otherwise than as they direct, which is the strict sense of obligation; but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law; since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty; for rewards, in their nature, can only persuade and allure; nothing is compulsory but punishment.

  It is true, it hath been holden, and very justly, by the principal of our ethical writers, that human laws are binding upon men’s consciences. But if that were the only or most forcible obligation, the good only would regard the laws, and the bad would set them at defiance. And, true as this principle is, it must still be understood with some restriction. It holds, I apprehend, as to rights; and that, when the law has determined the field to belong to Titius, it is matter of conscience no longer to withhold or to invade it. So also in regard to natural duties, and such offences as are mala in se: here we are bound in conscience; because we are bound by superior laws, before those human laws were in being, to perform the one and abstain from the other. But in relation to those laws which enjoin only positive duties, and forbid only such things as are not mala in se, but mala prohibita merely, without any intermixture of moral guilt, *[*58annexing a penalty to non-compliance,(l) here I apprehend conscience is no farther concerned, than by directing a submission to the penalty, in case of our breach of those laws: for otherwise the multitude of penal laws in a state would not only be looked upon as an impolitic, but would also be a very wicked thing; if every such law were a snare for the conscience of the subject. But in these cases the alternative is offered to every man; “either abstain from this, or submit to such a penalty:” and his conscience will be clear, whichever side of the alternative he thinks proper to embrace. Thus, by the statutes for preserving the game, a penalty is denounced against every unqualified person that kills a hare, and against every person who possesses a partridge in August. And so too, by other statutes, pecuniary penalties are inflicted for exercising trades without serving an apprenticeship thereto,14 for not burying the dead in woollen, for not performing the statute-work on the public roads, and for innumerable other positive misdemesnors. Now these prohibitory laws do not make the transgression a moral offence, or sin: the only obligation in conscience is to submit to the penalty, if levied. It must however be observed, that we are here speaking of laws that are simply and purely penal, where the thing forbidden or enjoined is wholly a matter of indifference, and where the penalty inflicted is an adequate compensation for the civil inconvenience supposed to arise from the offence.15 But where disobedience to the law involves in it also any degree of public mischief or private injury, there it falls within our former distinction, and is also an offence against conscience.(m)

  I have now gone through the definition laid down of a municipal law; and have shown that it is “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong;” in the explication of which I have endeavoured to interweave a few useful principles concerning the nature of civil government, and the obligation of human laws Before I conclude this section, it may not be amiss to add a few observations concerning the interpretation of laws.

  When any doubt arose upon the construction of the Roman laws, the usage was to state the case to the emperor in writing, and take his opinion upon it. This was certainly a bad method of interpretation. To interrogate the legislature to decide particular disputes is not only endless, but affords great room for partiality and oppression. The answers of the emperor were called his rescripts, and these had in succeeding cases the force of perpetual laws; though they ought to be carefully distinguished by every rational civilian from those general constitutions which had only the nature of things for their guide. The emperor Macrinus, as his historian Capitolinus informs us, had once resolved to *[*59abolish these rescripts, and retain only the general edicts: he could not bear that the hasty and crude answers of such princes as Commodus and Caracalla should be reverenced as laws. But Justinian thought otherwise,(n) and he has preserved them all. In like manner the canon laws, or decretal epistles of the popes, are all of them rescripts in the strictest sense. Contrary to all true forms of reasoning, they argue from particulars to generals.

  The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. Let us take a short view of them all.

  1. Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf(o) which forbade a layman to lay hands on a priest, was adjudged to extend to him who had hurt a priest with a weapon. Again, terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited “to the princess Sophia, and the heirs of her body, being Protestants,” it becomes necessary to call in the assistance of lawyers to ascertain the precise idea of the words “heirs of her body,” which, in a legal sense, comprise only certain of her lineal descendants.16

  **60]2. If words happen to be still dubious, we may establish their meaning from the context, with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament.17 Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point.18 Thus, when the law of England declares murder to be felony without benefit of clergy, we must resort to the same law of England to learn what the benefit of clergy is; and, when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony.19

  3. As to the subject matter, words are always to be understood as having a regard thereto, for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of our Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victual; but, when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to benefices by the pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.

  4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf,(p) which enacted “that whoever drew blood in the streets should be punished with the utmost severity,” was held after long debate not to extend to the surgeon who opened the vein of a person that fell down in the street with a fit.

  *[*615. But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.20 For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the treatise inscribed to Herennius.(q) There was a law, that those who in a storm forsook the ship should forfeit all property therein; and that the ship and lading should belong entirely to those who stayed in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who, by reason of his disease, was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel; but this is a merit which he could never pretend to, who neither stayed in the ship upon that account, nor contributed any thing to its preservation.21

  From this method of interpreting laws by the reason of them, arises what we call equity, which is thus defined by Grotius:(r) “the correction of that wherein the law (by reason of its universality) is deficient.” For, since in laws all cases cannot be foreseen or expressed, it is necessary that, when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of defining those circumstances, which (had they been foreseen) the legislator himself would have expressed. And these are the cases which, according to Grotius, “lex non exacte definit, sed arbitrio boni viri permittit.”22

  Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established **62]rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to a positive law. And, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.

  [1 ] This, perhaps, is the only sense in which the word law can be strictly used; for in all cases where it is not applied to human conduct, it may be considered as a metaphor, and in every instance a more appropriate term may be found. When it is used to express the operations of the Deity or Creator, it comprehends ideas very different from those which are included in its signification when it is applied to man, or his other creatures. The volitions of the Almighty are his laws: he had only to will, ϕως γενεσθω και εγενετι. When we apply the word law to motion, matter, or the works of nature or of art, we shall find in every case, that with equal or greater propriety and perspicuity we might have used the words quality, property, or peculiarity.—We say that it is a law of motion, that a body put in motion in vacuo must forever go forward in a straight line with the same velocity; that it is a law of nature, that particles of matter shall attract each other with a force that varies inversely as the square of the distance from each other; and mathematicians say, that a series of numbers observes a certain law, when each subsequent term bears a certain relation or proportion to the preceding term: but, in all these instances, we might as well have used the word property or quality, it being as much the property of all matter to move in a straight line, or to gravitate, as it is to be solid or extended; and when we say that it is the law of a series that each term is the square or square-root of the preceding term, we mean nothing more than that such is its property or peculiarity. And the word law is used in this sense in those cases only which are sanctioned by usage; as it would be thought a harsh expression to say, that it is a law that snow should be white, or that fire should burn. When a mechanic forms a clock, he establishes a model of it either in fact or in his mind, according to his pleasure; but if he should resolve that the wheels of his clock should move contrary to the usual rotation of similar pieces of mechanism, we could hardly with any propriety established by usage apply the term law to his scheme. When law is applied to any other object than man, it ceases to contain two of its essential ingredient ideas, viz. disobedience and punishment.

  Hooker, in the beginning of his Ecclesiastical Polity, like the learned judge, has with incomparable eloquence interpreted law in its most general and comprehensive sense. And most writers who treat law as a science begin with such an explanation. But the editor, though it may seem presumptuous to question such authority, has thought it his duty to suggest these few observations upon the signification of the word law.—Christian.

  It has been objected that law, in its proper sense, is confined to the conduct of intelligent beings. It is to be observed, however, that we apply the term in the English language to any rule whatever which we conceive to have been established by a superior. In this sense, all the operations of nature may be considered as the result of certain rules laid down by the Supreme Being in creation; in other words, that every existence, spiritual, animal, vegetable, or mineral, had impressed upon it certain rules of action. They may be called qualities, properties, or peculiarities; but, considering them all as the work of an Almighty Creator, it is perfectly accurate and most proper to call them laws. By the use of this word we keep constantly in mind, as we ought, that the universe was not the result of a blind chance, but the work of Intelligence. A perfectly correct, as well as most general, definition of the word law is, the command of a superior.

  In most languages there are two words,—one expressive of law in its general or abstract, and another in its concrete, sense. Thus, in Latin, jus expresses the former, lex the latter; in French, droit and loi; in German, recht and gesetz. The word right, in English, might be adopted for the abstract sense of law; but it has not been. Usus non jus facit norma loquendi. Considering the word law as comprehending this general and abstract sense, there is no objection to the text.—Sharswood.

  [2 ] The laws of our moral being are the necessary relations sustained by us to our Maker and to other beings. The existence of a Supreme Being—a Spirit infinite, eternal, omniscient, omnipotent—is a first truth of moral science. It may be assumed safely as an admitted truth. Having created us such as we are, our relations to him and to one another arose not from his will, but from those eternal principles of rectitude which were coeternal with his will. “Erat enim ratio profecta a rerum natura et ad recti faciendum impellens, et a delicto avocans; quæ tum denique incepit lex esse non cum scripta est, sed tum, cum orta est; orta autem simul est cum mente divina.”—Cic. de Legg., I. ii. s. 4. The same may be affirmed of other than moral relations. We may say without the slightest irreverence that, having created things having extension, God could not make two things, both equal to a third, which would not at the same time be equal to one another. There is, in like manner, an inherent difference between right and wrong, independently of the will of any being. God himself cannot make right wrong or wrong right. Right and wrong are eternal as the Deity. They depend upon the relations of moral beings; and, even before such beings were created, those relations existed in possibility, though not in act. The will of God existed coeternally with himself; and that will, infinitely perfect and incorrupt, never could do else than choose the right and refuse the wrong. Right and wrong are not created existences, but the moral qualities of created existences.

  It may well be questioned, then, whether the learned commentator, in starting with the assertion that the law of nature is the will of the Creator, has not assumed an erroneous principle as the foundation of his reasoning. In his sense, the law of nature denotes “the rules of human action or conduct; that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and free-will, is commanded to make use of those faculties in the general regulation of his behaviour.” It is clear that this law respects entirely the question of what is right and wrong. It is true that, in willing to create moral beings, our Maker knew what their necessary relations both to himself and each other would be; and, in a secondary sense, he may be said to have willed the existence of those relations. But this is an entirely different thing from the idea that the rules of right and wrong resulting from those relations were simple creations of his will; for that implies that he might have made them other than they are.—Sharswood.

  [(a) ]Juris præcepta sunt hæc, honeste vivere, alterum non lædere, suum cuique tribuere. Inst. I. i. 3.

  [3 ] It is rather remarkable, that both Harris, in his translation of Justinian’s Institutes, and the learned Commentator, whose profound learning and elegant taste in the classics no one will question, should render in English, honeste vivere, to live honestly. The language of the Institutes is far too pure to admit of that interpretation; and besides, our idea of honesty is fully conveyed by the words suum cuique tribuere. I should presume to think that honeste vivere signifies to live honourably, or with decorum, or bienséance; and that this precept was intended to comprise that class of duties of which the violations are ruinous to society, and not by immediate but remote consequences, as drunkenness, debauchery, profaneness, extravagance, gaming, &c.—Christian.

  [4 ] There is in every moral being a faculty or sense by which he is enabled to distinguish right from wrong. There have been a great number of theories among those who have rejected the doctrine of a moral sense. They have succeeded each man in showing every other theory but his own to be baseless. The reductio ad absurdum of every other system, which ingenuity has ever framed; would alone seem to leave the advocates of a moral sense in possession of the field. The appeal, after all, must be made to every man’s consciousness. And why not? Every other faculty is proved in the same way. Let any one attempt to demonstrate that there is in men a natural taste for beauty. He will be met by precisely the same course of argument as that which attacks the existence of the moral sense, or, as it may well be termed, the taste for moral beauty. All men have it not in the same perfection. In some it is undeveloped, in some it is corrupted. Indeed, the same objections may be urged against the perceptions of the palate or of any other natural sense. That some men love the taste of tobacco by no means proves that there is not a natural faculty in all men which distinguishes between the qualities of sweet and bitter.

  The commentator appears to have adopted the idea that utility is the standard of right and wrong; in other words, that we are determined in our judgment of the moral qualities of an action solely by a consideration of its effect on our happiness. Such a doctrine contradicts the common sense and feeling of mankind. If a gross instance of ingratitude to a benefactor—of filial impiety—of marital cruelty—is presented to the mind, no man stops to estimate its consequences before pronouncing judgment of condemnation or feeling a sense of detestation. If a grovelling miser were robbed of his treasure by a philanthropist in order to devote every cent of it to the relief of suffering humanity, nay, though the result should be peace and joy to many families, without one element of unhappiness to the sordid wretch whose property was thus wrested from him, the common sense and feeling of mankind would condemn the act as wrong. It would be right on the utilitarian scheme, even if you give the widest scope to the idea of utility, as Archdeacon Paley has done; for even the precedent, if we confine its authority (as all precedents must be) to the very case given, would not be bad.

  “According to this view,” says the Rev. Dr. Alexander, “unless a man is persuaded that he shall gain something by keeping his word, he is under no obligation to do it. Even if God should clearly make known his will and lay upon him his command, he is under no obligation to obey, unless certain that he shall receive benefit by so doing. This is, indeed, to make virtue a mercenary thing and reduce all motives to a level. And, as self-love or the desire of happiness is the only rational motive, (and all men possess this in a sufficient degree of strength,) the only conceivable difference between the good and the bad consists in the superior sagacity which the one has above the other to discern what will most contribute to happiness. And if what we call vice or sin could be made to contribute to happiness, then it would change its nature and become virtue.”—Elements of Moral Science, p. 57.

  Right and wrong, indeed, are words which are often employed in common speech in a much larger sense than is attached to them by moral science; and it is necessary to distinguish this popular from their strictly philosophical meaning. Right, in this popular sense, is synonymous with expediency,—fitness to an end. In the strict sense of the word, as a moral quality, right is conformity to that rule of moral conduct which the conscience approves; wrong, that which it disapproves. It is not the conscience, but the understanding, which is called into exercise when we judge of questions of expediency or utility,—of the fitness of certain things or actions to certain ends. That feeling of complacency which, in its higher or lower degrees, we term admiration or approbation, must always accompany a judgment of moral right; detestation or disapprobation, a judgment of moral wrong.—Sharswood.

  [5 ] Mr. Justice Coleridge remarks that he understands the author to mean by this merely that a human law against the law of nature has no binding force on the conscience, and that if a man submits to the penalty of disobedience he stands acquitted; and that, in this sense, the position seems unquestionable. He subsequently states that the burden of proof and the moral responsibility in case of error lie on him who disobeys; that is, on him who sets up his own understanding of the divine law as a ground in conscience for refusing to submit to the lawfully-constituted legislature of the country.

  It appears to me, however, that, in such a case, the subject or citizen has only one of two alternatives: revolution,—an appeal to the ultimate power which exists in every society, after he has tried all the ordinary forms of the constitution to obtain a repeal of the obnoxious law,—or removal to another country. I cannot agree that when a law, decided to be constitutional, is in full force, its provisions can be conscientiously violated, even though its penalty be submitted to. It may be necessary to do so for a time, and such necessity may afford a sufficient justification in foro conscientiæ. I do not say that a man’s circumstances, and especially his relation to his family, may not be such as to make this justification permanently a good one. All I mean to say is that he ought not voluntarily to place himself, or remain, in such a position.—Sharswood.

  [(b) ] Puffendorf, l. 7, c. 1, compared with Barbeyrac’s Commentary.

  [(c) ]Ff. i. 1, 9.

  [7 ] The law of nature, or morality, which teaches the duty towards one’s neighbour, would scarce be wanted in a solitary state, where man is unconnected with man. A state of nature, to which the laws of nature, or of morals, more particularly refer, must signify the state of men, when they associate together previous to, or independent of, the institutions of regular government. The ideal equality of men in such a state no more precludes the idea of a law, than the supposed equality of subjects in a republic. The superior, who would prescribe and enforce the law in a state of nature, would be the collective force of the wise and good, as the superior in a perfect republic is a majority of the people, or the power to which the majority delegate their authority.—Christian.

  Modern writers have agreed that the term International Law is more proper than Law of Nations. Jus gentium is rather what Adam Smith has called natural jurisprudence, which he says is “a theory of the principles which ought to run through, and to be the foundation of, the laws of all nations.” The two phrases jus naturæ and jus gentium are used by the Roman lawyers almost indiscriminately. Jus feciale more properly was employed to express among the Romans what we mean by the law of nations. They had a college of heralds, by whose ministry the declaration of war was always announced to the enemy, and by whom occasionally, no doubt, questions connected with the relation of states were considered. The history of Rome is a history of continual wars. From Numa to Augustus, the gates of the temple of Janus were never closed. Hence most of the questions which arose must necessarily have been connected with a state of war. On the other hand, the definition of jus gentium by the Digest is, Quod naturalis ratio inter omnes homines constituit, idque apud omnes peræque custoditur vocaturque jus gentium.—Dig. i. 9. What is termed the Law of Nations was more accurately called the jus inter gentes—the law between or among nations—by Dr. Zouch, an English civilian, distinguished in the celebrated controversy between the civil and common lawyers, during the reign of Charles II., as to the extent of the admiralty jurisdiction. He suggested this term as more appropriate to express the real scope and object of the law. An equivalent term in the French language was subsequently proposed by Chancellor D’Aguesseau, as better adapted to express the idea properly annexed to that system of jurisprudence commonly called le droit des gens, but which, according to him, ought to be called le droit entre les gens. The term International Law has since been advocated by Mr. Bentham, as well adapted to express in our language, “in a more significant manner, that branch of jurisprudence which goes under the name of law of nations,—a denomination [he remarks] so uncharacteristic, that, were it not for the force of custom, it would rather seem to refer to internal or municipal jurisprudence.” The terms International Law and Droit international have now taken root in our legal nomenclature, and are constantly used in all discussions connected with this important science.—Sharswood.

  [(d) ]Inst. i. 2, 1.

  [8 ] Though the learned judge treats this as a favourite definition, yet, when it is examined, it will not perhaps appear so satisfactory as the definition of civil or municipal law, or the law of the land, cited above from Justinian’s Institutes, viz. Quod quisque populus ipse sibi jus constituit, id ipsius proprium civitatis est vocaturque jus civile, quasi jus proprium ipsius civitatis.

  A municipal law is completely expressed by the first branch of the definition: “A rule of civil conduct prescribed by the supreme power in a state.” And the latter branch, “commanding what is right, and prohibiting what is wrong,” must either be superfluous, or convey a defective idea of a municipal law; for if right and wrong are referred to the municipal law itself, then whatever it commands is right, and what it prohibits is wrong, and the clause would be insignificant tautology. But if right and wrong are to be referred to the law of nature, then the definition will become deficient or erroneous; for though the municipal law may seldom or never command what is wrong, yet in ten thousand instances it forbids what is right.—It forbids an unqualified person to kill a hare or a partridge; it forbids a man to exercise a trade without having served seven years as an apprentice; it forbids a man to keep a horse or a servant without paying the tax. Now all these acts were perfectly right before the prohibition of the municipal law. The latter clause of this definition seems to have been taken from Cicero’s definition of a law of nature, though perhaps it is there free from the objections here suggested: Lex est summa ratio insita à naturâ quæ jubet ea, quæ facienda sunt prohibetque contraria.—Cic. de Leg. lib. i. c. 6.

  The description of law given by Demosthenes is perhaps the most perfect and satisfactory that can either be found or conceived: Οί δὲ νόμοι τὸ δὶκαιον καὶ τὸ καλὸν καὶ τὸ συμφέρον βούλονται, καὶ τοῦτο ζητοῦσι. καὶ ἑπειδὰν εὑρεθῆ, κοινὸν τοῦτο πρόϛαγμα ἀπεδείχθν, πᾶσιν ὶσον καὶ ομοιον. καὶ τοῦτ’, ἑϛι ·νόμος, ᾢ πάντας προσήκει πείθεσθαι διὰ πολλὰ καὶ μάλισθ’, ὀτι πᾶς ἐϛι νόμος εὐρημα μὲν καὶ δῶρον θεῶν, δόγμα δ’ ἀνθρώπον ϕρονίμων, ἐπανόρθωμα δε των ἑκουσίων καὶ ἀκουσίων ἁμαρτνμάτων, πόλεως δὲ συιθήκη κοινή· καθ ἣν πᾶσι προσήκει ζῇν τοῖς ἐν τῇ πόλει. “The design and object of the laws is to ascertain what is just, honourable, and expedient; and, when that is discovered, it is proclaimed as a general ordinance, equal and impartial to all. This is the origin of law, which, for various reasons, all are under an obligation to obey; but especially because all law is the invention and gift of heaven, the sentiment of wise men, the correction of every offence, and the general compact of the state; to live in conformity with which is the duty of every individual in society.”—Orat. 1, cont. Aristogit.—Christian.

  It has been justly observed that the last clause of this definition is surplusage, if the meaning be that what the law commands is therefore right, and what it prohibits wrong. But mere law, the command of a superior, cannot per se annex the moral quality of right or wrong to the action in itself considered, commanded or prohibited. Right or wrong are abstract moral qualities, resulting necessarily from the relations of persons or things. No law can make that right which is itself wrong. The definition of Cicero certainly avoids this objectionable feature of Blackstone’s language:—Lex est summa ratio insita à naturâ, quæ jubet ea, quæ facienda sunt prohibetque contraria. If the definition of the text were modified so as to conform to this idea, it would be better:—“Municipal law is a rule of civil conduct prescribed by the supreme power in a state, commanding what is to be done, and forbidding the contrary.”—Sharswood.

  [9 ] The act to confiscate the goods of Titius would, in Latin, be lex, not jus; in French, loi, not droit; in English, however, it is called law. Public and private acts of the legislature are indiscriminately termed laws.—Sharswood.

  [(e) ] Such laws among the Romans were denominated privilegia,* or private laws, of which Cicero (de leg. 3, 19, and in his oration, pro domo, 17) thus speaks: “Vetant leges sacratæ, vetant duodecim tabulæ, leges privatis homimbus irrogari; id enim est privilegium. Nemo unquam tulit nihil est crudelius, nihil perniciosius, nihil quod minus hæc civitas ferre possit.”

  [* ] An ex post facto law may be either of a public or of a private nature; and when we speak generally of an ex post facto law, we perhaps always mean a law which comprehends the whole community.

  The Roman privilegia seem to correspond to our bills of attainder, and bills of pains and penalties, which, though in their nature they are ex post facto laws, yet are never called so.—Christian.

  [10 ] Many instances formerly occurred of acts of parliament taking effect prior to the passing thereof, by legal relation from the first day of the session. See 1, Lev. 91, 4 T. R. 660; but this is remedied by 33 Geo. III. c. 13; and frequently it is provided that the act shall commence at a future-named day.

  In New York, every law, unless a different time is prescribed therein, takes effect on the twentieth day after the day of its final passage. 1 R. S. 157.

  The statutes of the United States take effect from their date. 1 Kent’s Com. 426; 1 Gallis. 62; 7 Wheat. 164. The constitution of the United States prevents Congress from passing any ex post facto law. Article 1, sec. 2, 3. So, article 1, sect. 10, 1, prevents any State from passing any ex post facto law, or law impairing the obligation of contracts. By ex post facto laws is only meant laws relating to criminal, not civil, matters. 7 Johns. R. 477; 3 Dallas, 386. See, however, 2 Peters 681,—Mr. Justice Johnson’s opinion.

  According to the rule of the English law, acts of parliament took effect by relation to the first day of the session of parliament at which they were passed, unless some other day was specially named in the body of the act. The entire session of parliament was regarded by a fiction as one day. In the case of the King vs. Thurston, this doctrine of carrying a statute back by relation to the first day of the session was admitted in the King’s Bench, although the consequence of it was to render an act murder which would not have been so without such relation. (1 Lev. 91.) By the stat. 33 Geo. III. c. 13, it was declared that statutes are to have effect only from the time they receive the royal assent; and the former rule was abolished, to use the words of the statute, by reason of “its great and manifest injustice.”

  In the United States, an act of Congress takes effect from the time of its passage. So wide-spread is the territory the inhabitants of which may be affected by the provisions of such act, that it is impossible they can have notice of the existence of the law until some time after it has been passed.

  The Code Napoleon declared that laws were binding from the moment their promulgation could be known; and that the promulgation should be considered as known in the department of the Imperial residence one day after that promulgation, and in each of the other departments of the French empire after the expiration of the same space of time, augmented by as many days as there were distances of twenty leagues between the seat of government and the place. The New York Revised Statutes have also declared that every law, unless a different time be prescribed therein, shall take effect throughout the State on and not before the twentieth day after the day of its final passage.

  By the constitution of the United States, art. 1, s. 8 and 10, Congress and the States are forbidden to pass ex post facto laws. An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. Every law that makes an act done before the passing of the law, and which was innocent when done, criminal, or which aggravates a crime and makes it greater than it was when it was committed, or which changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed, or which alters the legal rules of evidence and makes less or different testimony than the law required at the time of the commission of the offence sufficient in order to convict the offender, falls within this definition. Ex post facto laws relate to penal and criminal proceedings, which impose punishments or forfeitures, and not to civil proceedings, which affect private rights retrospectively. Retrospective laws and State laws divesting vested rights, unless ex post facto, or impairing the obligation of contracts, do not fall within the prohibition contained in the constitution of the United States, however repugnant they may be to the principles of sound legislation. Of retrospective laws Lord Bacon says, “Cujus generis leges; raro et magna cum cautione sunt adhibendæ: neque enim placet Janus in legibus.”—Tract. de Just. Univ., aphorisin xlvii. 1 Kent Com. 405. Calder vs. Bull, 3 Dall. 386 Fletcher vs. Peck, 6 Cranch, 135. Satterlee vs. Matthewson, 2 Peters, 413. Watson vs. Mercer, 8 Peters, 88.—Sharswood.

  [11 ] Man is by nature a social being. He is made to live in the society of other moral beings. He cannot be contented in a state of solitude. He would rather “dwell in the midst of alarm than reign” in a desert. The commentator is right when he says that “man was formed for society, and, as is demonstrated by the writers on this subject, is neither capable of living alone, nor, indeed, has the courage to do it.” But it is not consistent with this admission to say, as he afterwards does, that “the only true and natural foundations of society are the wants and fears of individuals.” It may be fearlessly asserted that a state of solitude would be unnatural and unsuited to a man if he had no wants and no fears. He confounds in this passage society and government. It is true that the wants and fears of individuals in society tend to government; or, as he after wards expresses it, government “results of course, as necessary to preserve and keep society in order.” But it would be more philosophical to go one step further back to that principle in human nature which makes the wants and fears of men in society tend necessarily to government. That principle is, that, strong as the social feelings are, the individual or selfish (using the word in a sense not necessarily bad) are still stronger. Each man, in consequence, looks more to his own interest and happiness than those of others, and conflicts must take place,—universal discord and confusion, destructive of the social state and the ends for which it is ordained. There must be a controlling power somewhere lodged; and, wherever or whatever it is, that is Government.

  It having been shown that government is a necessary relation of man from his natural constitution, it follows that government is right. The moral government of the Supreme Being over the universe of matter and mind has this same moral quality. It is therefore in a secondary sense that all government—and, of course, human government—may be said to be of divine ordination. In the creation of moral beings with social natures, this relation of government resulted as necessarily as the equality of the three angles of a triangle to two right angles. It is in this sense we are to receive the declaration that “the powers that be are ordained of God.”—Rom. xiii. 1.

  Writers have amused themselves with supposing an original compact in every society. The nearest approach to such a thing in history is to be found in the original settlement of the United States. The different colonies were constituted under charters from the crown of Great Britain; and the original adventurers, as well as those who succeeded, may without much violence be considered as having, either expressly or tacitly, become parties to a compact of society founded upon the terms set forth in those charters. Each colony was a separate state or nation. They all agreed in recognising the King of Great Britain as their supreme executive magistrate, and the power of the British Parliament to extend over them in certain respects; but, in the main, their local laws were to be made by them through their Representative Assemblies. At the Revolution, they threw off their dependence upon the British crown and declared themselves “free and independent States.” The Declaration of Independence was the joint and several act of the colonies, and its effect was to constitute each separate colony a free and independent State. So they themselves considered; for, as they had done before, they continued to act by a Congress of States, each State, by its delegates, having one vote in the Congress; and when, subsequently, they entered into articles of confederation, it was declared expressly, “Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled.”

  The fundamental principle announced to the world in the Declaration of Independence was that governments derive their just powers from the consent of the governed, that it is the right of the people to alter or abolish their form of government and institute a new one, laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness. This may be treated as the established doctrine of this country. Nor is it inconsistent with any thing before advanced in these notes; for, while government is a moral relation necessarily resulting from the nature of men, and therefore of divine ordination, the particular form of government is evidently of human contrivance. The great majority of governments have been the result of force or fraud; yet even these may be considered as resting upon the tacit consent or acquiescence of the governed. If they have the physical power, they are competent to overthrow it; nor are other nations justified in interfering in such domestic conflicts. It is to be remarked that in the freest nations—even in the republics which compose the United States—the consent of the entire body of the people has never been expressly obtained. The people comprehend all the men, women, and children of every age and class. A certain number of the men have assumed to act in the name of all the community. The qualifications of electors or voters was in general settled by the colonial charters, and so continued until altered subsequently by the authority of the same body. It was settled, too, that the acts of the majority of such body of electors were binding on the whole number.

  Very plainly, then, it is essential to the American doctrine to hold that every citizen shall have a right at any time to expatriate himself. It is well known that it is settled to the contrary in the English courts. Nemo potest exuere patriam. But how can the consent of the governed be in any sense implied if the citizen is coerced to remain a member of the state through all the changes which its form of government may undergo, whether with or without his approbation? It is clear that in any such change he may remove himself and his property to another country if he chooses, and should be allowed a reasonable time in which to make his election. This course was adopted at the period of the American Revolution. All persons, whether natives or inhabitants, were considered entitled to make their choice either to remain subjects of the British crown or to become citizens of one or other of the United States. This choice was necessarily to be made within a reasonable time. In some cases, that time was pointed out by express acts of the legislature; and the fact of abiding within the State after its assumed independence, or after some other specified period, was declared to be an election to become a citizen. That was the course in Massachusetts, New York, New Jersey, and Pennsylvania. In other States, no special laws were passed, but each case was left to be decided upon its own circumstances, according to the voluntary acts and conduct of the party.—Sharswood.

  [12 ] The sovereignty or supreme power in every state resides ultimately in the body of the people. Blackstone supposes the jura summi imperii, or the right of sovereignty, to reside in those hands in which the exercise of the power of making laws is placed. Our simple and more reasonable idea is, that the government is a mere agency established by the people for the exercise of those powers which reside in them. The powers of government are not, in strictness, granted, but delegated, powers. As all delegated powers are, they are trust powers, and may be revoked. It results that no portion of sovereignty resides in government. A man makes no grant of his estate when he constitutes an attorney to manage it. The sovereignty—the jura summi imperii—resides in the body of the state or nation by whose consent, expressed or implied, a form of government was at one time established as the organ to make known its sovereign will. This sovereignty is indivisible, and can be lost only in one way,—by a voluntary or forced subjection to, or merger with, some other state or people.

  That act of the people which constitutes the form of government we call the constitution. It may be a general unlimited delegation of all the power of the people to certain prescribed functionaries. This is the case with the English constitution. The king, Lords, and Commons are vested with unlimited power. They can change at any time the established form of the government, and have done so in many instances, as in the change of the succession to the throne, the powers and organization of the Lords and House of Commons. What is popularly termed the English constitution are certain principles according to which the government has been organized, and which, according to the most liberal view, forms an implied restriction upon the omnipotence of the king, Lords, and Commons. Yet it is certain that, if Parliament were to pass a law clearly inconsistent with those principles, no court in England would venture to pronounce it void. And if it could not be repealed by the force of the popular will, by the same power which made it, it would have to be submitted to as the law of the land, unless the people chose to resort to a revolution. Revolution means nothing more nor less than a peaceable or forcible change by a people of their constitution.

  The constitutions of our American Republics have always been written. The charters which prescribed the forms of government were so. Those adopted by the several States at the period of the Revolution were all so. They not only organized the several departments,—the legislative, executive, and judicial,—but by various Bills of Rights, as well as express restrictions, prescribed limitations to the power of the government. In other words, certain of the powers of sovereignty they refused to delegate, and as to others, provided that they should only be exercised in a prescribed manner. It results that the provisions of the constitution, emanating directly from the people, are the expression of their permanent will, and no act of the government inconsistent with it of any validity. The courts will pronounce such acts invalid, null, and void. “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution, if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law, the court must determine which of the conflicting rules governs the case. This is of the essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the constitution and see only the law. This doctrine must subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet in practice completely obligatory. It would declare that, if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure.”—C.J. Marshall, in Marbury vs. Madison, 1 Cranch, 177.

  In general, in our State constitutions the right of suffrage is almost universally extended to all free white male citizens, and the principle is to give effect to the will of the numerical majority of the voters. Yet the States are not pure, but representative, democracies. The legislative functions are vested in two separate bodies, differently constituted,—a Senate and a House,—whose concurrence is required to the passage of laws, and a qualified veto is generally allowed to the executive. But, as the representatives of the people in the legislatures are elected by separate districts, it may so happen, if there are large majorities for some of the representatives, while those of different views are chosen by small majorities, that either or both branches may not truly represent the views of a majority of all the voters. While the bare numerical majority may be safely intrusted with the election of the executive magistrate, and in general, directly or indirectly, with the disposition of the offices of trust and profit, it has long been a prevailing opinion that something more than a bare numerical majority should be required in the passage of laws. Stability is of the highest importance in regard to measures of financial and jurisprudential policy; and, where parties are pretty nearly equally divided, a sudden gust of popular excitement—a flying camp of voters easily swayed by passion or interest from one side to another—what is still worse, a small neutral party with one idea, ready to make its terms with either of the others—will often change the politics of a state so frequently as to be very injurious to the best interests of the commonwealth. The difficulty is, and has been felt to be, how to arrange such a system which, while not denying to the numerical majority its legitimate influence, will operate to afford such a check upon it as to secure the rights and interests of the minority. Perhaps the adoption of a different basis for the two branches, as of territory for the Senate, and of population for the lower house, comes nearer practicability than any other plan.

  Besides the constitutions of the several States, there is also the constitution of the United States, with paramount authority over the people of all the States. By that constitution certain specified powers were delegated to a general or federal government,—all powers not delegated being reserved to the States or to the people. The special powers thus delegated are principally such as concern the foreign relations of the country, the rights of war and peace, the regulation of foreign and domestic commerce, and other objects most appropriately assigned to the general government. The government invested with the exercise of these powers is distributed into legislative, executive, and judicial departments. The legislative is divided into two branches,—a Senate, composed of two members from each State, elected by the legislature thereof, and a House, composed of representatives from each State in proportion to their respective numbers, determined by adding to the whole number of free persons, including those bound to service for a term of years and excluding Indians not taxed, three-fifths of all other persons. The voters in each State are such persons as by the constitution thereof are the electors of the most numerous branch of the State legislature. The executive power is vested in a President, who is chosen by electors chosen in each State as its legislature may prescribe,—each State being entitled to as many electors as it has Senators and representatives. He has a qualified veto upon the acts of the legislature. The judicial power is vested in a supreme court, and such inferior courts as may be established by law,—the judges receiving their appointment from the President by and with the advice and consent of the Senate, and holding, their office by the tenure of good behaviour. It is unnecessary to proceed with further details on this subject. The student must be referred to the instrument itself, with which he should make himself familiar at an early stage of his professional studies; and it would be well worth his while to commit it to memory so as to have its very words at all times at command.—Sharswood.

  [(f) ] In his fragments, de rep. l. 2.

  [(g) ] “Cunclas nationes et urbes populus aut primores, aut unguli regunt; delecta ex his et constituta reipublicæ forma laudari facilius quam evenire, vel si evenit, haud diuturna esse potest.” Ann. l. 4.

  [13 ] If it be true that there would be an end of the constitution if at any time any one of the three should become subservient to the views of either of the other branches, then assuredly the constitution is at an end; for it would be difficult to contend that in the times of Henry VIII. and Elizabeth the two Houses of Parliament were not subservient to the crown, or that before the Reform Act the House of Lords had not the ascendency, or that since that act the House of Commons have not had it. Indeed, it does not seem easy to name any eventful period of our constitutional history when the exact equilibrium of power, referred to by Blackstone, existed. That this supposed theory of our constitution is now denied by political writers of different parties is, at any rate, in disputable.—Stewart.

  [(h) ] On government, part 2, 212.

  [(i) ] See page 43.

  [(k) ] Locke, Hum. Und., b. ii. c. 21.

  [(l) ] See book ii. page 420.

  [14 ] By stat. 54 Geo. III., c. 96, this law, and by stat. 54 Geo. III., c. 108 that for not burying in woollen, are repealed.—Chitty.

  [15 ] This is a doctrine to which the editor cannot subscribe. It is an important question, and deserves a more extensive discussion than can conveniently be introduced into a note. The solution of it may not only affect the quiet of the minds of conscientious men, but may be the foundation of arguments and decisions in every branch of the law. To form a true judgment upon this subject, it is necessary to take into consideration the nature of moral and positive laws. The principle of both is the same,—viz., utility, or the general happiness and true interests of mankind, “atque ipsa utilitas justi prope mater et æqui.”

  But the necessity of one set of laws is seen prior to experience; of the other, posterior. A moral rule is such, that every man’s reason, if not perverted, dictates it to him as soon as he associates with other men. It is universal, and must be the same in every part of the world. Do not kill, do not steal, do not violate promises, must be equally obligatory in England, Lapland, Turkey, and China. But a positive law is discovered by experience to be useful and necessary only to men in certain districts, or under peculiar circumstances. It is said that it is a capital crime in Holland to kill a stork, because that animal destroys the vermin which would undermine the dykes, or banks, upon which the existence of the country depends. This may be a wise law in Holland; but the life of a stork in England would be of no more value than that of a sparrow, and such a law would be useless and cruel in this country.

  By the laws of nature and reason, every man is permitted to build his house in any manner he pleases; but, from the experience of the destructive effects of fire in London, the legislature, with great wisdom, enacted that all party-walls should be of a certain thickness; and it is somewhat surprising that they did not extend this provident act to all other great towns. (14 Geo. III., c. 78.)

  It was also discovered, by experience, that dreadful consequences ensued when seafaring people, who returned from distant countries infected with the plague, were permitted immediately to come on shore and mix with the healthy inhabitants. It was, therefore, a wise and merciful law, though restrictive of natural right and liberty, which compelled such persons to be purified from all contagion by performing quarantine (Book iv., 161.)

  He who, by the breach of these positive laws, introduces conflagration and pestilence, is surely guilty of a much greater crime than he is who deprives another of his purse or his horse.

  The laws against smuggling are entirely juris positivi; but the criminality of actions can only be measured by their consequences; and he who saves a sum of money by evading the payment of a tax does exactly the same injury to society as he who steals so much from the treasury, and is therefore guilty of as great immorality, or as great an act of dishonesty. Or, smuggling has been compared to that species of fraud which a man would practise who should join with his friends in ordering a dinner at a tavern, and, after the festivity and gratifications of the day, should steal away and leave his companions to pay his share of the reckoning.

  Punishments or penalties are never intended as an equivalent or a composition for the commission of the offence; but they are that degree of pain or inconvenience which is supposed to be sufficient to deter men from introducing that greater degree of inconvenience which would result to the community from the general permission of that act which the law prohibits. It is no recompense to a man’s country for the consequences of an illegal act that he should afterwards be whipped, or should stand in the pillory, or lie in a jail. But in positive laws, as in moral rules, it is equally false that omnia peccata paria sunt. If there are laws (such as the game-laws) which, in the public opinion, produce little benefit or no salutary effect to society, a conscientious man will feel, perhaps, no further regard for the observance of them than from the consideration that his example may encourage others to violate those laws which are certainly beneficial to the community. Indeed, the last sentence of the learned judge upon this subject is an answer to his own doctrine; for the disobedience of any law in existence must be presumed to involve in it either public mischief or private injury. It is related of Socrates that he made a promise with himself to observe the laws of his country; but this is nothing more than what every good man ought both to promise and perform; and he ought to promise, still further, that he will exert all his power to compel others to obey them. As the chief design of established government is the prevention of crimes and the enforcement of the moral duties of man, obedience to that government necessarily becomes one of the highest of moral obligations; and the principle of moral and positive laws being precisely the same, they become so blended that the discrimination between them is frequently difficult or impracticable, or, as the author of “The Doctor and Student” has expressed it with beautiful simplicity, “In every law positive well made is somewhat of the law of reason and of the law of God; and to discern the law of God and the law of reason from the law positive is very hard.” 1 Dial. c. 4. An eloquent modern divine has also said, “Let the great general duty of submission to civil authority be engraven on our hearts, wrought into the very habit of the mind, and made a part of our elementary morality.” Hall’s Sermon, Oct. 1803.—Christian.

  The morality of this position of the learned commentator has been well questioned. Its soundness as a legal principle, though it once had sway in the courts, has been since repudiated. With all the qualifications which have been cautiously annexed to it in the text,—namely, that the thing forbidden or enjoined is wholly a matter of indifference, and the penalty inflicted an adequate compensation for the civil inconvenience supposed to arise from the offence,—it must be admitted to be fraught with practical danger to society. There is a moral obligation resting on every individual to obey the laws of that community in which he lives. The breach of any known law is a violation of that obligation. If the laws be so multiplied that the citizen cannot be expected to know or understand them, then, although in the eye of the law he may not be excused,—legis ignorantia neminem excusat,—yet it is different in foro conscientiæ. This is the answer to the suggestion that such laws would be a snare to the conscience. But if the subject knows, or ought to know, the law, if he had exercised ordinary diligence, he has no right to set up his own judgment as to the indifference of the action which the legislature has prohibited or enjoined. Every penalty implies a prohibition, even if not expressed. It is now well settled that every contract to do a thing made penal by statute is void as unlawful. Aubert vs. Maze, 2 Bos. & Pul. 371. Cannon vs. Bryce, 3 B. & Ald. 179. De Begnis vs. Armistead, 10 Bingh. 107. Mitchell vs. Smith, 4 Dall. 269; 1 Binn. 118. Elkins vs. Parkhurst, 17 Verm. 105.—Sharswood.

  [(m) ]Lex pure poenalis obligat tantum ad poenam, non item ad culpam: lex poenalis mixta et ad culpam obligat, et ad poenam. (Sanderson de conscient. obligat. prael. viii. 17. 24.)

  [(n) ]Inst. 1, 2, 6.

  [(o) ] L. of N. and N. 5, 12, 3.

  [16 ] If words or expressions have acquired a definite meaning in law, they must be so expounded. 2 M. & Sel. 230. 1 Term. Rep. 723.

  The natural import of the words is to be adopted; and if technical words are used, they are in general to have assigned to them their technical sense. Ex parte Hall, 1 Pick. 261. The State vs. Smith, 5 Humph. 392. Bank vs. Cook, 4 Pick. 405. Where a word has a clear and settled meaning at common law, it ought to have the same meaning in construing a statute in which it is used. Adams vs. Turrentine, 8 Iredell, 147. Where a law is plain and unambiguous, whether expressed in general or limited terms, there is no room left for construction, and a resort to extrinsic facts is not permitted to ascertain its meaning. Bartlett vs. Morris, 9 Porter, 266. No mere misnomer in the name of a natural person or corporation is fatal to the validity of an act if the person or corporation intended can be collected from the words. Blanchard vs. Sprague, 3 Summer, 279. The term “person” in a statute embraces not only natural but artificial persons or corporations, unless the language indicates that it was used in a more limited sense. Bank vs. Andrews, 8 Porter, 404. U.S. vs. Ammedy, 11 Wheat. 392. Where provision is made that criminal prosecutions are to be instituted “on complaint,” a complaint under oath or affirmation is implied as a part of the technical meaning of the terms. Campbell vs. Thompson, 4 Shep. 117. The word “may” always is held to mean “must” or “shall” in cases where the public interest and rights are concerned, and where the public or third persons have a claim de jure that the power delegated should be exercised. Ex parte Simonton, 9 Porter, 390. Minor vs. Bank, 1 Peters, 64. Schuyler Co. vs. Mercer Co., 4 Gilman, 20. Turnpike vs. Miller, 5 Johns. Ch. Rep. 101. A conjunctive may be taken in a disjunctive sense: in other words, “and” may be construed to be “or.” Barker vs. Esty, 19 Vermont, 131. By judicial construction, in some instances the extent and force of the term “void” when used in statutes has been limited so as to mean “voidable;” that is, to be made void by some plea or act of the party in whose favour the statutes are set up. Green vs. Kemp, 13 Mass. 515. Smith vs. Saxton, 6 Pick. 483.—Sharswood.

  [17 ] But a positive enactment is not to be considered restrained by the preamble. 1 Term. Rep. 44. 4 Term. Rep. 790. 3 M. & Sel. 66. Lofft’s Rep. 783.—Chitty.

  [18 ] It is an established rule of construction that statutes in pari materiâ, or upon the same subject, must be construed with reference to each other; that is, that what is clear in one statute shall be called in aid to explain what is obscure and ambiguous in another. Thus, the last qualification act to kill game (22 and 23 Car. II., c. 25) enacts “that every person not having lands or tenements, or some other estate of inheritance, of the clear yearly value of 100l. or for life, or having lease or leases of ninety-nine years of the clear yearly value of 150l.,” (except certain persons,) shall not be allowed to kill game. Upon this statute a doubt arose whether the words or for life should be referred to the 100l. or to the 150l. per annum. The Court of King’s Bench, having looked into the former qualification acts, and having found that it was clear by the first qualification act (13 R. I. st. 1, c. 13) that a layman should have 40s. a year, and a priest 10l. a year, and that, by the 1 Ja. c. 27, the qualifications were clearly an estate of inheritance of 10l. a year, and an estate for life of 30l. a year, they presumed that it still was the intention of the legislature to make the yearly value of an estate for life greater than that of an estate of inheritance, though the same proportions were not preserved; and thereupon decided that clergymen, and all others possessed of a life-estate, only must have 150l. a year to be qualified to kill game. Lowndes vs. Lewis, E. T. 22 Geo. III.

  The same rule to discover the intention of a testator is applied to wills,—viz.: the whole of a will shall be taken under consideration in order to decipher the meaning of an obscure passage in it.—Christian. See 5 Cowen, 421.

  [19 ] It may be laid down that the intention of the makers of a statute is to govern, even though the construction grounded upon such intention may appear to be contrary to the literal import of the words. Every technical rule as to the construction or form of particular terms must yield to the clear expression of the paramount will of the legislature. Wilkinson vs. Leland, 2 Peters, 661. In construing statutes, penal as well as others, an interpretation must never be adopted, which will defeat the evident purpose of the law, if it will admit of any other reasonable construction. The Emily and Caroline, 9 Wheat. 388.

  All the parts of a statute—title and preamble as well as the body—may be consulted for the purpose of arriving at a knowledge of the general intention of the lawgivers. The title and preamble, however, yield always to the clear expressions of the body of the act, and are referred to as explanatory only when an ambiguity exists. Jackson vs. Gilchrist, 15 Johns. 89. Holbrook vs. Holbrook, 1 Pick. 248. Eastman vs. McAlpin, 1 Kelly, 157. Bartlett vs. Morris, 9 Porter, 266. When the language of the enacting part or body of a law is doubtful and may admit of a larger or more restricted interpretation, the preamble may be referred to in order to determine which sense was intended by the legislature. The U.S. vs. Webster, Davies, 38. The true rule seems to be that, where an inconvenience or particular mischief would arise from giving the enacting words their broad and general meaning, they shall in that case be restrained by the preamble, but not otherwise. Seidenbender vs. Charles, 4 S. & R. 166. Lucas vs. McBlair, 12 Gill. & Johns. 1. James vs. Dubois, 1 Harring, 285.

  Statutes in pari materiâ are to be construed together. Schooner Harriet, 1 Story, 51 Soctt vs. Searles, 1 S. & M. 590. Harrison vs. Walker, 1 Kelly, 32. If it can be gathered from a subsequent statute what meaning the legislature attached to the words of a former one, this will amount to a legislative declaration of its meaning. U.S. vs. Freeman. 3 How. U.S. 556. The general system of legislation upon the subject-matter may be taken into view, in order to throw light upon a particular act relating to the same subject. Fort vs. Burch, 6 Barb. S. C. 60. Thus, the history of legislation, including the language of repealed statutes, may be referred to and considered. Henry vs. Tilson, 17 Verm. 479.—Sharswood.

  [(p) ]l. 5, c. 12, 8.

  [20 ] The ends contemplated are to be considered, and general words may be thereby restrained. 3 Maule and Selwyn, 510.—Chitty.

  [(q) ]l. 1, c. 11.

  [21 ] See a very sensible chapter upon the interpretation of laws in general, in Rutherforth’s Institutes of Natural Law, b. ii. c. 7.—Christian.

  [(r) ]De Æquitate, 3.

  [22 ] The only equity, according to this description, which exists in our government, either resides in the king, who can prevent the summum jus from becoming summa injuria, by an absolute or a conditional pardon, or in juries, who determine whether any, or to what extent, damages shall be rendered. But equity, as here explained, is by no means applicable to the court of chancery; for the learned judge has elsewhere truly said, that “the system of our courts of equity is a laboured connected system, governed by established rules, and bound down by precedents, from which they do not depart, although the reason of some of them may perhaps be liable to objection.” Book iii. 432.—Christian.

  What the learned commentator here says is certainly inaccurate, if it leads to the supposition that any other rules of interpretation are applied to statutes in courts of equity than in courts of law. On the contrary, herein equity follows the law, just as it does in the construction of wills and other instruments. In England, the court of chancery often sends cases to the common law courts, in order to procure their opinion on such points. The system administered in that court differs from the common law mainly in its means of getting at the truth by enforcing a discovery by the defendant under oath, and by the peculiar remedy it affords by injunction and the decree for specific performance.

  What the commentator does mean, perhaps, is what is generally termed the equity of a statute, which is in reality a compendious mode of expressing his fifth rule of interpretation. Those cases are said to be within the equity of a statute which, though not directly comprehended by its language, are nevertheless within the intention of the lawgiver, reached by its reason and spirit.

  It seems that when, had the legislature foreseen the occurrence of a particular contingency, the letter of the statute would have been enlarged to receive it, this is sufficient warrant for the courts to bring it within the spirit. Brinker vs. Brinker, 7 Barr, 23.—Sharswood.

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  12: 4a. Power, Corruption, and the Early Republic - Jefferson, A Summary View

  Thomas Jefferson, The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 2. Chapter: A SUMMARY VIEW OF THE RIGHTS OF BRITISH AMERICA. SET FORTH IN SOME RESOLUTIONS

  Accessed from oll.libertyfund.org/title/755/86029 on 2009-10-19

  The text is in the public domain.

  ---

  A SUMMARY VIEW

  A SUMMARY VIEW OF THE RIGHTS OF BRITISH AMERICA. SET FORTH IN SOME RESOLUTIONS INTENDED FOR THE INSPECTION OF THE PRESENT DELEGATES OF THE PEOPLE OF VIRGINIA. NOW IN CONVENTION.

  By a NATIVE, and MEMBER of the HOUSE of BURGESSES. by Thomas Jefferson

  WILLIAMSBURG: Printed by CLEMENTINARIND.

  Est proprium munus magistratus intelligere, se gerere personam civitatis, debereque; ejus dignitatem & decus sustinere, servare leges, jura discribere, ea fidei suæ commissa meminisse.

  CiceroDe Of. L. 1, C. 34.

  It is the indispensible duty of the supreme magistrate to consider himself as acting for the whole community, and obliged to support its dignity, and assign to the people, with justice their various rights, as he would be faithful to the great trust reposed in him.

  the preface of the editors

  The following piece was intended to convey to the late meeting of DELEGATES the sentiments of one of their body, whose personal attendance was prevented by an accidental illness. In it the sources of our present unhappy differences are traced with such faithful accuracy, and the opinions entertained by every free American expressed with such a manly firmness, that it must be pleasing to the present, and may be useful to future ages. It will evince to the world the moderation of our late convention, who have only touched with tenderness many of the claims insisted on in this pamphlet, though every heart acknowledged their justice. Without the knowledge of the author, we have ventured to communicate his sentiments to the public, who have certainly a right to know what the best and wisest of their members have thought on a subject in which they are so deeply interested.

  A SUMMARY VIEW
  1774

  One of the most difficult points to be met by the proposed Congress of the Colonies was an agreement of a common ground on which to rest their statements of grievances and claims for redress. While all the colonies were united in resisting and protesting, they nevertheless, like the individuals in each colony, disagreed on foundations and degrees. The various arguments of James Otis, Stephen Hopkins, John Dickinson, Daniel Dulaney, and Richard Bland had each its own supporters and followers, and were all almost equally untenable. Virginia being so prominent in the movement for the Congress, as well as in colony influence generally, her instructions to her attending delegates would carry great if not controlling influence in that body, and might supply the field for all future contests. Under this belief, Jefferson desired that the strongest position should be taken from the start, and so prepared this paper as the instructions for the delegates from Virginia to the first Congress. Of it, he himself wrote:

  “Before I left home to attend the Convention, I prepared what I thought might be given, in instruction, to the Delegates who should be appointed to attend the General Congress proposed. They were drawn in haste, with a number of blanks, with some uncertainties and inaccuracies of historical facts, which I neglected at the moment, knowing they could be readily corrected at the meeting. I set out on my journey, but was taken sick on the road, and was unable to proceed. I therefore sent on, by express, two copies, one under cover to Patrick Henry, the other to Peyton Randolph, who I knew would be in the chair of the Convention. Of the former, no more was ever heard or known. Mr. Henry probably thought it too bold, as a first measure, as the majority of the members did. On the other copy being laid on the table of the Convention, by Peyton Randolph, as the proposition of a member, who was prevented from attendance by sickness on the road, tamer sentiments were preferred, and, I believe, wisely preferred; the leap I proposed being too long, as yet, for the mass of our citizens. The distance between these, and the instructions actually adopted is of some curiosity, however, as it shews the inequality of pace with which we moved, and the prudence required to keep front and rear together. My creed had been formed on unsheathing the sword at Lexington. They printed the paper, however, and gave it the title of ‘A summary view of the rights of British America.’ In this form it got to London, where the opposition took it up, shaped it to opposition views, and, in that form, it ran rapidly through several editions.”

  See also Jefferson’s Autobiography, Vol. I., p. 15.

  Edmund Randolph gives a further and somewhat different account of it as follows:

  “Thomas Jefferson, who was one of the elected, was prevented by indisposition from attending. But he forwarded by express for the consideration of its members a series of resolutions. I distinctly recollect the applause bestowed on the most of them, when they were read to a large company at the house of Peyton Randolph, to whom they were addressed. Of all the approbation was not equal. From the celebrated letters of the Pennsylvanian Farmer (John Dickinson) we had been instructed to bow to the external taxation of parliament, as resulting from our migration, and a necessary dependence on the mother country. But this composition of Mr. Jefferson, shook this conceeded principle although it had been confirmed by a still more celebrated pamphlet of Daniel Dulaney of Maryland, and cited by Lord Chatham as a text book of American rights. The young ascended with Mr. Jefferson to the source of those rights, the old required time for consideration before they could tread this lofty ground, which, if it had not been abandoned, at least had not been fully occupied throughout America. From what cause it happened, that the resolutions were not printed by order of the convention does not appear; but as they were not adopted, several of the author’s admirers subscribed for their publication. When the time of writing is remembered, a range of inquiry not then very frequent, and marching far beyond the politics of the day will surely be allowed them.”—Ms. History of Virginia, p. 25.

  These resolutions were printed in a twenty-three-paged pamphlet at Williamsburg, from a copy of which edition, formerly in Jefferson’s possession, and now in the Library of Congress, containing his MS. notes and corrections, it is here reprinted. The numerals inserted in the text indicate the pagings of this edition.

  Of this copy Jefferson wrote to Merriwether Jones, Oct. 19, 1804:

  “I received last night your favor of the 15th. I have but a single copy of the pamphlet you ask for and that is bound up in a volume of pamphlets of the same year and making one of a long suite of volumes of the same nature. I mention this to impress you with the value I set on the volume as part of the history of the times, and to justify a request of attention in the use and return of it. It happens that Mr. Duval sets out this afternoon for Richmond & furnishes an opportunity of conveying it to you. It should be noted in the republication that the title, the motto and the preface were of the editors, and, with the piece itself, were printed without my knolege. I had drawn the paper at home, set out for the Convention, was taken ill on the road & sent on the paper to Peyton Randolph, moderator of the Convention. It was laid by him on the table of the convention for the perusal of the members, and by them justly deemed ahead of the sentiments of the times: but some of them deemed it useful to publish it & they affixed the title, epigraph and preface. I was informed by Parson Hurt who was in England when it arrived there that it ran through several editions there.”

  It was reprinted in Philadelphia, without any change of text, with the following title:

  A / summary view / of the / Rights / of / British America./ Set forth in some / Resolutions / Intended for the / inspection / Of the present / Delegates / Of the / people of Virginia, / Now in / Convention./ By a Native, and Member of the / House of Burgesses./ Williamsburg: Printed: / Philadelphia: Re-Printed by John Dunlap./ M,DCC,LXXIV. [8vo. pp. 23.]

  Jefferson states that it was “taken up by the opposition” in England, “interpolated a little by Mr. Burke so as to make it answer opposition purposes, and in that form ran rapidly through several editions.” Two editions were printed in England with the following titles:

  A / summary view / of the / Rights / of / British America./ Set forth in some / Resolutions / intended for / the Inspection of the present Delegates / of the People of Virginia, now in Con-/ vention./ . . . / By a Native, and Member of the House of Burgesses./ Williamsburg, Printed by Clementina Rind./ London,/ Re-printed for G. Kearsley, at No. 46, near Sergeants /Inn, in Fleet Street, 1774. [8vo. pp. XVI, 5-44.]

  A / summary view / of the / Rights / of / British America./ Set forth in some / Resolutions / intended for / the inspection of the Delegates / of the People of Virginia, now in Con-vention./ . . . / By a Native, and Member of the House of Burgesses. / The Second Edition. / Williamsburg, Printed by Clementina Rind./ London,/ Re-printed for G. Kearsley, at No. 46, near Sergeants / Inn in Fleet Street, 1774. [8vo. pp. XVI, 5-44.]

  The texts of these two editions are not, however, in the slightest degree altered or added to, except by a new preface. Of it the Monthly Review said:

  “It affords a concise and spirited review of the rights and grievances of the colonies, deduced from their first settlement, and proposed as the subject of an address to his majesty from the several ‘States of British America.’

  “To this pamphlet is prefixed an address to the King, severely reflecting on the late measures of government, and written with much freedom and boldness, but by whom we are not told.”

  This preface here alluded to was written by Arthur Lee, and is as follows:

  “To the King.

  “Sir,

  “There is not a man of thought, in the whole nation, who does not espouse bad measures from bad principles, but is justly alarmed, and seriously anxious, for the common good. Affairs of such magnitude now employ the public attention, as seem to involve in them the fate of EMPIRE. The times are big with great events. What will be the consequences, it is not in human sagacity to foretel. But if the same system be pursued, which for a long time hath employed the attention of your Majesty’s ministers, they ought to tremble for their heads.

  “The present contentions with America, if not soon happily terminated, must end in such scenes of trouble, bloodshed, and devastation, which, in contemplation alone, shock us with horror. But little time remains for deliberation or choice: a blow will lead on to the decisive scene; and the tyranny begun. This era of your Majesty’s reign is likely to be marked with the most important characters. It is impossible for subjects to stand by idle, unaffected spectators, when they see their Sovereign, and themselves, nearly involved in distresses, which, for ought he can foresee, may end in the ruin of both: you, Sir! may lose your sovereignty and honour; we, our liberties, fortunes, and lives.

  “The charge of presumption upon individuals, for speaking freely upon these important things, is at once taken off, by the evidence of things themselves, and the transcendant interest that every man has in them. Of affairs of state; of the artifice, cunning, address, and subtility of courts, it is the general lot to be ignorant: But of the great principles of government, especially of this free state, of those laws, and proceedings, that are either subversive, or corroborative of the system, many are as able to judge as any minister employed in your Majesty’s service. These, with the first laws of nature, the prerogatives of man in human society, with the sacred and immutable laws of justice, equity, moderation, and wisdom, men fully understand, who were never tutored or well received at court; where indeed, for the most part, men are more likely to lose than gain, accurate ideas of these things. They are not among the arcana imperii: we can judge of them; and have a fair, undoubted, constitutional right, as free subjects, who claim liberty by birth-right, and enjoy it by the laws, to apply these principles to the present conduct of your Majesty’s ministers. And, in justice bound to our country, and ourselves, and that fidelity we owe, Sir, to you, as our Sovereign, we openly declare, that the whole proceedings against our brethren in America, who are entitled, in common with ourselves, to the privileges of men, and the liberties, franchises, and protection of Englishmen, are in open violation of the natural laws of equity and justice: and unparalleled infractions upon the principles, and promulgated laws of this free state: not to say, that every idea of good policy is sacrificed to maintain and inforce the most vicious and dangerous system that ever infatuated despots pursued.

  “Fruitless were the hopes that these few pages will effect, what the sagest counsels, the most consummate wisdom and plainest remonstrances, of some of the wisest, and best men, of the present age, have not been able to accomplish. But if the perusal, either by your Majesty, or your ministers, should for a moment, suspend the fatal counsels, or designs which are now taking, or seem systematically planned to overturn AMERICAN LIBERTY, I shall think my labours well rewarded. God is my witness, that I write not these things to excite sedition, or stir up rebellion: I should deem my life well disposed of, if, by the sacrifice, your Majesty could learn the wisdom of righteous government, and your ministers be taught to counsel good things. Happy should I be to convince your Majesty, where legal authority ends, and tyranny begins; and that your dignity alone consists in the happiness of your subjects; and that when virtue and justice forsake your councils, error and ruin must inevitably ensue. With your Majesty’s ministers we can keep no longer. If at any time we pitied their innocent infirmities, that pity has long ago been converted into abhorrence from the wickedness of their counsels, and the injustice of their deeds. By their breaches upon your prerogative, Sir! they have broken down the legal barriers of the constitution, and destroyed the distinctions of government; they have changed, or attempted to change lawful possession into arbitrary dominion: and, in the mad career, they may endeavor to make their Sovereign dispense with every thing that entitles him to obedience; and, by this means, convert the first duty of subjects into an opposition which the great and primary law of nature, self-defence, makes necessary. Those cruel, in-expedient tyrannical measures, which first they adopted, respecting America, notwithstanding the perilous circumstances into which they have brought both the colonies, and our own country, they carry violently on; as if they could persuade us that perseverance was integrity; and open opposition, state necessity. Their system is not only manifestly repugnant to the laws of the state; but it runs counter to the whole stream of authority, and examples derived from the various histories of the several states of the world. From them, they ought to have learned that confidence is the first, and strongest principle of obedience; and, which once lost, is seldom recovered; and that almost all struggles for liberty, against violence, and oppression, have been crowned with success; and, without impiety, whatever doctrines concerning Providence may prevail at court, we attribute such success to the interposition of Heaven: and to Heaven the Americans now appeal. And, would to God that any accommodations could soften those rigours which your Majesty’s ministers seemed determined to pursue. But it seems that no equivalent but Liberty will be deemed a sufficient satisfaction for the affronts which the honest struggles for freedom have given: under the pretence of law, natural justice and equity fall defeated; and the constitution is wounded under the semblance of a temporary cure.—Your ministers, Sir! are total strangers to those nice temperaments and allays to mitigate the evils and maladies of the state, in which much of the wisdom of government consists. They strain, where they ought to relax; and think to accomplish by exertion, what they want abilities to effect by lenient measures. They do not see these happy mediums, so necessary in the adjustments of great affairs; by which authority is preserved on the one hand, and allegiance secured on the other. These impracticable men renounce all expedients but power. They have recourse to arms, when they should seek only counsel. They attempt that by oppression which justice, well administered, would more effectually accomplish.—They talk of enforcing the laws, when they are violating the constitution; and urge the necessities of state, when they themselves are the authors of the very necessities of which they complain. They are for doing that in a free state, which the most despotic, in like circumstances, if wise, would carefully avoid. What is there, Sir! to countenance so great a hazard of ruining America, and distressing ourselves? of exciting them to arms, and ourselves to the slaughter of our own sons? Have your ministers, Sir! discovered mines of inexhaustible riches in America, which they wish to plunder, to discharge our enormous national debt? Alas! they will find no other riches but what a strenuous industry has gained; virtue, which the love of Liberty has inspired; and a race of men not degenerate enough to part with Freedom without a noble struggle. Before their charters were violated, their laws infringed, their trade oppressed, one of their chief cities, and its inhabitants sent to awe and intimidate them, their lives and fortunes were at our disposal: can subjects offer, can they give more? I will be bold to declare to your Majesty, that before these fatal proceedings, no nation in the known history of the world, considering the growing strength, grandeur, and extent of that mighty empire, tho’ dependent, could ever boast such confidence and obedience, as Great Britain did in her Colonies. These are now in danger of being irrecoverably lost, not by their defection, but our own unaccountable folly. Quos Deus vult perdere, eos prius dementat.

  “Your ministers, Sir! as tyrants ever do, justify their oppressions, by the resistance they have met with: and perhaps have imposed upon their Prince, by talking of the satisfaction which the honour and dignity of the crown should receive upon their supposed violation. Satisfy, Sir! the dignity and honour of the crown; but let your ministers beware that they do not sacrifice your crown to the vain, and impracticable schemes of satisfying its honour, and maintaining its dignity. I will boldly affirm, Sir, that if the dignity and honour of the crown are to be purchased at the rate your ministers seem to estimate them, that the price will be held too dear by every good, and virtuous man in the nation.

  “And here, Sir! pause—disappoint your ministers, and gratify millions of your subjects. The Americans have not as yet revolted. They have not thrown off their allegiance. Their submission is so habitual, that it cannot easily be dispensed with. Do them but justice, and they will esteem it an act of Grace. They will call that a favour now, which hereafter they will claim as their right. What they now demand, the following pages, which, with all due submission, I offer to your Majesty, will declare—hitherto they have kept themselves within proper limits; and have extended their requests no farther than they were countenanced by the laws, and that friendly protection, which from our country, they had reason to expect. But further oppressions, Sir, may probably change their mode of suit. Allegiance will sometimes relax its submission. Wisdom itself does not intermeddle in the regulation of extremities; and what can moderate the conduct of despair? When dangers surround men they are not very nice in the method of salvation. And the only means of extricating themselves, will appear the right. When our friends rise up to oppress us, it is pardonable, and justifiable, to throw ourselves into the arms, even of an enemy, for protection. I am, with all due submission, and allegiance, your Majesty’s faithful subject,

  “TRIBUNUS.”

  A SUMMARY VIEW, ETC.

  Resolved, that it be an instruction to the said deputies, when assembled in general congress with the deputies from the other states of British America, to propose to the said congress that an humble and dutiful address be presented to his Majesty, begging leave to lay before him, as Chief Magistrate of the British empire, the united complaints of his Majesty’s subjects in America; complaints which are excited by many unwarrantable encroachments and usurpations, attempted to be made by the Legislature of one part of the empire, upon those rights which God and the laws have given equally and independently to all. To represent to his Majesty that these his states have often individually made humble application to his imperial throne to obtain, through its intervention, some redress of their injured rights, to none of which was ever even an answer condescended; humbly to hope that this their joint address, penned in the language of truth, and divested of those expressions of servility which would persuade his Majesty that we were asking favours, and not rights, shall obtain from his Majesty a more respectful acceptance. And this his Majesty will think we have reason to expect when he reflects that he is no more than the chief officer of the people, appointed by the laws, and circumscribed with definite powers, to assist in working the great machine of government, erected for their use, and consequently subject [6] to their superintendance. And in order that these our rights, as well as the invasions of them, may be laid more fully before his Majesty, to take a view of them from the origin and first settlement of these countries.

  To remind him that our ancestors, before their emigration to America, were the free inhabitants of the British dominions in Europe, and possessed a right which nature has given to all men, of departing from the country in which chance, not choice, has placed them, of going in quest of new habitations, and of there establishing new societies, under such laws and regulations as to them shall seem most likely to promote public happiness. That their Saxon ancestors had, under this universal law, in like manner left their native wilds and woods in the north of Europe, had possessed themselves of the island of Britain, then less charged with inhabitants, and had established there that system of laws which has so long been the glory and protection of that country. Nor was ever any claim of superiority or dependence asserted over them by that mother country from which they had migrated; and were such a claim made, it is believed that his Majesty’s subjects in Great Britain have too firm a feeling of the rights derived to them from their ancestors, to bow down the sovereignty of their state before such visionary pretensions. And it is thought that no circumstance has occurred to distinguish materially the British from the Saxon emigration. America was conquered, and her settlement made, and firmly established, at the expense of individuals, and not of the British public. Their own blood was spilt in acquiring lands for their settlements, their own fortunes expended in making that settlement effectual; for themselves they fought, for themselves they conquered, and for themselves alone they have right to hold. Not a shilling1 was ever issued from the public treasures of his Majesty, or his ancestors, for their assistance, till, of very late times, after the colonies had become established on a firm and permanent footing. That then, indeed, having become valuable to Great Britain for her commercial purposes, his Parliament [7] was pleased to lend them assistance against the enemy, who would fain have drawn to herself the benefits of their commerce, to the great aggrandizement of herself, and danger of Great Britain. Such assistance, and in such circumstances, they had often before given to Portugal, and2 other allied states, with whom they carry on a commercial intercourse; yet these states never supposed, that by calling in her aid, they thereby submitted themselves to her sovereignty. Had such terms been proposed, they would have rejected them with disdain, and trusted for better to the moderation of their enemies, or to a vigorous exertion of their own force. We do not, however, mean to under-rate those aids, which to us were doubtless valuable, on whatever principles granted; but we would shew that they cannot give a title to that authority which the British Parliament would arrogate over us, and that they may amply be repaid by our giving to the inhabitants of Great Britain such exclusive privileges in trade as may be advantageous to them, and at the same time not too restrictive to ourselves. That settlements having been thus effected in the wilds of America, the emigrants thought proper to adopt that system of laws under which they had hitherto lived in the mother country, and to continue their union with her by submitting themselves to the same common Sovereign, who was thereby made the central link connecting the several parts of the empire thus newly multiplied.

  But that not long were they permitted, however far they thought themselves removed from the hand of oppression, to hold undisturbed the rights thus acquired, at the hazard of their lives, and loss of their fortunes. A family of princes was then on the British throne, whose treasonable crimes against their people brought on them afterwards the exertion of those sacred and sovereign rights of punishment reserved in the hands of the people for cases of extreme necessity, and judged by the constitution unsafe to be delegated to any other judicature. While every day brought forth some new and unjustifiable exertion of power over their subjects on that side the water, it was not [8] to be expected that those here, much less able at that time to oppose the designs of despotism, should be exempted from injury.

  Accordingly that country, which had been acquired by the lives, the labours, and the fortunes of individual adventurers, was by these princes, several times, parted1 out and distributed among the favourites and2 followers of their fortunes, and, by an assumed right to the crown alone, were3 erected into distinct and independent governments; a measure which it is believed his Majesty’s prudence and understanding would prevent him from imitating at this day, as no exercise of such power, of dividing and dismembering a country, has ever occurred in his Majesty’s realm of England, though now of very ancient standing; nor could it be justified or acquiesced under there, or in any other part of his Majesty’s empire.

  That the exercise of a free trade with all parts of the world, possessed by the American colonists, as of natural right, and which no law of their own had taken away or abridged, was next the object of unjust encroachment. Some of the colonies having thought proper to continue the administration of their government in the name and under the authority of his Majesty King Charles the First, whom, notwithstanding his late deposition by the commonwealth of England, they continued in the sovereignty of their state; the Parliament for the commonwealth took the same in high offence, and assumed upon themselves the power of prohibiting their trade with all other parts of the world, except the island of Great Britain. This arbitrary act, however, they soon recalled, and by [9] solemn treaty, entered into on the 12th day of March, 1651, between the said commonwealth by their commissioners, and the colony of Virginia by their house of burgesses, it was expressly stipulated, by the 8th article of the said treaty, that they should have “free trade as the people of England do enjoy to all places and with all nations, according to the laws of that commonwealth.” But that, upon the restoration of his majesty king Charles the second, their rights of free commerce fell once more a victim to arbitrary power; and by several acts1 of his reign, as well as of some of his successors, the trade of the colonies was laid under such restrictions as shew what hopes they might form from the justice of a British Parliament, were its uncontrouled power admitted over these states. History has informed us that bodies of men, as well as individuals, are susceptible of the spirit of tyranny. A view of these acts of parliament for regulation, as it has been affectedly called, of the American trade, if all other evidence were removed out of the case, would undeniably evince the truth of this observation. Besides the duties they impose on our articles of export and import, they prohibit our going to any markets northward of Cape Finisterre, in the kingdom of Spain, for the sale of commodities which Great Britain will not take from us, and for the purchase of others, with which she cannot supply us, and that for no other than the arbitrary purposes of purchasing for themselves, by a sacrifice of our rights and interests, certain privileges in their commerce with an allied state, who in confidence that their exclusive trade with America will be continued, while the principles and power of the British parliament be the same, have indulged themselves in every exorbitance which their avarice could dictate, or our necessities extort; have raised their commodities called for in America, to the double and treble of what they sold for before such exclusive privileges were given them, and of what better commodities of the same kind would cost us elsewhere, and at the [10] same time give us much less for what we could carry thither than might be had at more convenient ports. That these acts prohibit us from carrying in quest of other purchasers the surplus of our tobaccoes remaining after the consumption of Great Britain is supplied; so that we must leave them with the British merchant for whatever he will please to allow us, to be by him reshipped to foreign markets, where he will reap the benefits of making sale of them for full value. That to heighten still the idea of parliamentary justice, and to shew with what moderation they are like to exercise power, where themselves are to feel no part of its weight, we take leave to mention to his majesty certain other acts of British parliament, by which they would prohibit us from manufacturing for our own use the articles we raise on our own lands with our own labour. By an act1 passed in the 5th year of the reign of his late majesty king George the second, an American subject is forbidden to make a hat for himself of the fur which he has taken perhaps on his own soil; an instance of despotism to which no parallel can be produced in the most arbitrary ages of British history. By one other act2 passed in the 23d year of the same reign, the iron which we make we are forbidden to manufacture, and heavy as that article is, and necessary in every branch of husbandry, besides commission and insurance, we are to pay freight for it to Great Britain, and freight for it back again, for the purpose of supporting not men, but machines, in the island of Great Britain. In the same spirit of equal and impartial legislation is to be viewed the act of parliament3 passed in the 5th year of the same reign, by which American lands are made subject to the demands of British creditors, while their own lands were still continued unanswerable for their debts; from which one of these conclusions must necessarily follow, either that justice is not the same in America as in Britain, or else that the British parliament pay less regard to it here than there. But that we do not point out to his majesty the injustice of these acts, with intent to rest on that principle the cause of their [11] nullity; but to shew that experience confirms the propriety of those political principles which exempt us from the jurisdiction of the British parliament. The true ground on which we declare these acts void is, that the British parliament has no right to exercise its authority over us.

  That these exercises of usurped power have not been confined to instances alone, in which themselves were interested, but they have also intermeddled with the regulation of the internal affairs of the colonies. The act of the 9th of Anne for establishing a post office in America seems to have had little connection with British convenience, except that of accommodating his majesty’s ministers and favourites with the sale of a lucrative and easy office.

  That thus we have hastened through the reigns which preceded his majesty’s during which the violations of our rights were less alarming, because repeated at more distant intervals than that rapid and bold succession of injuries which is likely to distinguish the present from all other periods of American story. Scarcely have our minds been able to emerge from the astonishment into which one stroke of parliamentary thunder had involved us, before another more heavy, and more alarming, is fallen on us. Single acts of tyranny may be ascribed to the accidental opinion of a day; but a series of oppressions begun at a distinguished period, and pursued, unalterably through every change of ministers, too plainly prove a deliberate and systematical plan of reducing us to slavery.

  That the act,1 passed in the 4th year of his majesty’s reign, entitled “An act for granting certain duties in the British colonies and plantations in America, &c.”

  One other act,2 passed in the 5th year of his reign, entitled “An act for granting and applying certain stamp duties and other duties in the British colonies and plantations in America, &c.”

  One other act,3 passed in the 6th year of his reign, entitled “An act for the better securing the depend-[12]ency of his majesty’s dominions in America upon the crown and parliament of Great Britain”; and one other act,4 passed in the 7th year of his reign, entitled “An act for granting duties on paper, tea, &c.” form that connected chain of parliamentary usurpation, which has already been the subject of frequent applications to his majesty, and the houses of lords and commons of Great Britain; and no answers having yet been condescended to any of these, we shall not trouble his majesty with a repetition of the matters they contained.

  But that one other act,5 passed in the same 7th year of the6 reign, having been a peculiar attempt, must ever require peculiar mention; it is entitled “An act for suspending the legislature of New York.” One free and independent legislature hereby takes upon itself to suspend the powers of another, free and independent as itself; this exhibiting a phœnomenon unknown in nature, the creator and creature of his own power. Not only the principles of common sense, but the common1 feelings of human nature, must be surrendered up before his majesty’s subjects here can be persuaded to believe that they hold their political existence at the will of a British parliament. Shall these governments be dissolved, their property annihilated, and their people reduced to a state of nature, at the imperious breath of a body of men, whom they never saw, in whom they never confided, and over whom they have no powers of punishment or removal, let their crimes against the American public be ever so great? Can any one reason be assigned why 160,000 electors in the island of Great Britain should give law to four millions in the states of America, every individual of whom is equal to every individual of them, in virtue, in understanding, and in bodily strength? Were this to be admitted, instead of being a free people, as we have hitherto supposed, and mean to continue ourselves, we should suddenly be found the slaves not of one but of 160,000 tyrants, distinguished too from all others by this singular circumstance, that they are removed [13] from the reach of fear, the only restraining motive which may hold2 the hand of a tyrant.

  That by “an act1 to discontinue in such manner and for such time as they are therein mentioned, the landing and discharging, lading or shipping, of goods, wares, and merchandize, at the town and within the harbour of Boston, in the province of Massachusetts Bay, in North America” which was passed at the last session of British parliament; a large and populous town, whose trade was their sole subsistence, was deprived of that trade, and involved in utter ruin. Let us for a while suppose the question of right suspended, in order to examine this act on principles of justice: An act of parliament had been passed imposing duties on teas, to be paid in America, against which act the Americans had protested as inauthoritative. The East India Company, who till that time had never sent a pound of tea to America on their own account, step forth on that occasion the assertors of parliamentary right, and send hither many ship loads of that obnoxious commodity. The masters of their several vessels, however, on their arrival to America, wisely attended to admonition, and returned with their cargoes. In the province of New England2 alone the remonstrances of the people were disregarded, and a compliance, after being many days waited for, was flatly refused. Whether in this the master of the vessel was governed by his obstinacy, or his instructions, let those who know say. There are extraordinary situations which require extraordinary interposition. An exasperated people, who feel that they possess power, are not easily restrained within limits strictly regular. A number of them assembled in the town of Boston, threw the tea into the ocean, and dispersed without doing any other act of violence. If in this they did wrong, they were known and were amenable to the laws of the land, against which it could not be objected that they had ever, in any instance, been obstructed or diverted from their regular course in favour of popular offenders. They should therefore not have been distrusted on this occasion. [14] But that ill fated colony had formerly been bold in their enmities against the house of Stuart, and were now devoted to ruin by that unseen hand which governs the momentous affairs of this great empire. On the partial representations of a few worthless ministerial dependants, whose constant office it has been to keep that government embroiled, and who, by their treacheries, hope to obtain the dignity of the British knighthood,1 without calling for the party accused, without asking a proof, without attempting a distinction between the guilty and the innocent, the whole of that ancient and wealthy town is in a moment reduced from opulence to beggary. Men who had spent their lives in extending the British commerce, who had invested in that place the wealth their honest endeavors had merited, found themselves and their families thrown at once on the world for subsistence by its charities. Not the hundredth part of the inhabitants of that town had been concerned in the act complained of, many of them were in Great Britain and in other parts beyond sea, yet all were involved in one indiscriminate ruin, by a new executive power unheard of till then, that of a British Parliament. A property, of the value of many millions of money, was sacrificed to revenge, not repay, the loss of a few thousands. This is administering justice with a heavy hand indeed! and when is this tempest to be arrested in its course? Two wharfs are to be opened again when his Majesty shall think proper. The residue, which lined the extensive shores of the bay of Boston, are forever interdicted the exercise of commerce. This little exception seems to have been thrown in for no other purpose than that of setting a precedent for investing his majesty with legislative powers. If the pulse of his people shall beat calmly under this experiment, another and another shall be tried, till the measure of despotism be filled up. It would be an insult on common sense to pretend that this exception was made in order to restore its commerce to that great town. The trade which cannot be received at two wharfs alone must of necessity be transferred to some other place; to which [15] it will soon be followed by that of the two wharfs. Considered in this light, it would be insolent and cruel mockery at the annihilation of the town of Boston.

  By the act1 for the suppression of riots and tumults in the town of Boston, passed also in the last session of parliament, a murder committed there is, if the governor pleases, to be tried in a court of King’s Bench, in the island of Great Britain, by a jury of Middlesex. The witnesses, too, on receipt of such a sum as the governor shall think it reasonable for them to expend, are to enter into recognizance to appear at the trial. This is, in other words, taxing them to the moment of their recognizance, and that amount may be whatever a governor pleases; for who does his majesty think can be prevailed on to cross the Atlantic for the sole purpose of bearing evidence to a fact? His expences are to be borne, indeed, as they shall be estimated by a governor; but who are to feed the wife and children whom he leaves behind and who have had no other subsistence but his daily labour? Those epidemical disorders too, so terrible in a foreign climate, is the cure of them to be estimated among the articles of expence, and their danger to be warded off by the almighty power of parliament? And the wretched criminal, if he happen to have offended on the American side, stripped of his privilege of trial by peers of his vicinage, removed from the place where alone full evidence could be obtained, without money, without council, without friends, without exculpatory proof, is tried before judges predetermined to condemn. The cowards who would suffer a countryman to be torn from the bowels of their society, in order to be thus offered a sacrifice to parliamentary tyranny, would merit that everlasting infamy now fixed on the authors of the act! A clause1 for a similar purpose had been introduced into an act passed in the twelfth year of his majesty’s reign, entitled “An act for the better securing and preserving his majesty’s dockyards, magazines, ships, ammunition and stores,” against which, as [16] meriting the same censures, the several colonies have already protested.

  That these are acts of power, assumed by a body of men, foreign to our constitutions, and unacknowledged by our laws, against which we do, on behalf of the inhabitants of British America, enter this our solemn and determined protest; and we do earnestly entreat his majesty, as yet the only mediatory power between the several states of the British empire, to recommend to his parliament of Great Britain the total revocation of these acts, which, however nugatory they may yet prove the cause of further discontents and jealousies among us.

  That we next proceed to consider the conduct of his majesty, as holding the executive powers of the laws of these states, and mark out his deviations from the line of duty. By the constitution of Great Britain, as well of the several American states, his majesty professes the power of refusing to pass into a law any bill which has already passed the other two branches of legislature. His majesty, however, and his ancestors, conscious of the impropriety of opposing their single opinion to the united wisdom of two houses of parliament, while their proceedings were unbiassed by interested principles, for several ages past have modestly declined the exercise of this power in that part of his empire called Great Britain. But by change of circumstances, other principles than those of justice simply obtained an influence on their determinations; the addition of new states to the British empire has produced an addition of new, and sometimes opposite interests. It is now, therefore, the great office of his majesty, to resume exercise of his negative power, and to prevent the passage of laws by any one legislature of the empire, which might bear injuriously on the rights and interests of another. Yet this will not excuse the wanton exercise of this power which we have seen his Majesty practise on the laws of the American legislatures. For the most trifling reasons, and sometimes for no conceivable reason at all, his majesty has rejected laws of the most salutary tendency. The abolition of do-[17]mestic slavery is the great object of desire in those colonies,where it was unhappily introduced in their infant state. But previous to the enfranchisement of the slaves we have, it is necessary to exclude all further importations from Africa; yet our repeated attempts to effect this by prohibitions, and by imposing duties which might amount to a prohibition, have been hitherto defeated by his majesty’s negative: Thus preferring the immediate advantages of a few African1 corsairs to the lasting interests of the American states, and to the rights of human nature deeply wounded by this infamous practice. Nay, the single interposition of an interested individual against a law was scarcely ever known to fail of success, though in the opposite scale were placed the interests of the whole country. That this is so shameful an abuse of a power trusted with his majesty for other purposes, as if not reformed, would call for some legal restrictions.

  With equal inattention to the necessities of his people here has his Majesty permitted our laws to lie neglected in England for years, neither confirming them by his assent, nor annulling them by his negative; so that such of them as have no suspending clause we hold on the most precarious of all tenures, his majesty’s will and such of them as suspend themselves till his majesty’s assent be obtained, we have feared, might be called into existence at some future and distant period, when the time and change of circumstances shall have rendered them destructive to his people here. And to render this aggrievance still more oppressive, his majesty by his instructions has laid his governors under such restrictions that they can pass no law of any moment unless it have such suspending clause; so that, however immediate may be the call for legislative interposition, the law cannot be executed till it has twice crossed the Atlantic, by which time the evil may have spent its whole force.

  But in what terms, reconcileable to majesty, and at the same time to truth, shall we speak of a late instruction to his majesty’s1 governor of the colony of Virginia, by which he is forbidden to assent to any law for the division of a county, unless the new county [18] will consent to have no representative in assembly? That colony has as yet fixed no boundary to the westward. Their westward counties, therefore, are of indefinite extent; some of them are actually seated many hundred miles from their eastward limits. Is it possible, then, that his majesty can have bestowed a single thought on the situation of those people, who, in order to obtain justice for injuries, however great or small, must, by the laws of that colony, attend their county court, at such a distance, with all their witnesses, monthly, till their litigation be determined? Or does his majesty seriously wish, and publish it to the world, that his subjects should give up the glorious right of representation, with all the benefits derived from that, and submit themselves the absolute slaves of his sovereign will? Or is it rather meant to confine the legislative body to their present numbers, that they may be the cheaper bargain whenever they shall become worth a purchase.

  One of the articles of impeachment against Trestlain, and the other judges of Westminister-Hall, in the reign of Richard the second, for which they suffered death, as traitors to their country, was, that they had advised the king that he might dissolve his parliament at any time; and succeeding kings have adopted the opinion of these unjust judges. Since the establishment,1 however, of2 the British constitution, at the glorious revolution,3 on its free and antient principles, neither his majesty, nor his ancestors, have exercised such a power of dissolution in the island of Great Britain; and when his majesty was petitioned, by the united voice of his people there, to dissolve the present parliament, who had become obnoxious to them, his ministers were heard to declare in open parliament, that his majesty possessed no such power by the constitution.1 But how different their language and his practice here! To declare, as their duty required, the known rights of their country, to oppose the usurpations of every foreign judicature, to disregard the imperious mandates of a minister or governor, have been the avowed causes of dissolving houses of representatives in America. But if such powers be [19] really vested in his majesty, can he suppose they are there placed to awe the members from such purposes as these? When the representative body have lost their confidence of their constituents, when they have notoriously made sale of their most valuable rights, when they have assumed to themselves powers which the people never put into their hands, then indeed their continuing in office becomes dangerous to the state, and calls for an exercise of the power of dissolution. Such being the causes for which the representative body should, and should not be dissolved, will it not appear strange to an unbiased observer, that that of Great Britain was not dissolved, while those of the colonies have repeatedly incurred that sentence?

  But your majesty, or your governors, have carried this power beyond every limit known, or provided for, by the laws: After dissolving one house of representatives, they have refused to call another, so that for a great length of time, the legislature provided by the laws has been out of existence. From the nature of things, every society must at all times possess within itself the sovereign powers of legislation. The feelings of human nature revolt against the supposition of a state so situated as that it may not in any emergency provide against dangers which perhaps threatened immediate ruin. While those bodies are in existence to whom the people have delegated the powers of legislation, they alone possess and may exercise those powers; but when they are dissolved by the lopping off one or more of their branches, the power reverts to the people, who may exercise it to unlimited extent, either assembling together in person, sending deputies, or in any other way they may think proper.1 We forbear to trace consequences further; the dangers are conspicuous with which this practice is replete.

  That we shall at this time take notice of an error in the nature of our land holdings, which crept in at a very early period of our settlement. The introduction of the feudal tenures into the kingdom of England, though ancient, is well enough understood to set this matter in a proper light. In the earlier ages of the Saxon settlement feudal holdings were [20] certainly altogether unknown; and very few, if any, had been introduced at the time of the Norman conquest. Our Saxon ancestors held their lands, as they did their personal property, in absolute dominion, disencumbered with any superior, answering nearly to the nature of those possessions which the feudalists term allodial. William, the Norman, first introduced that system generally. The land which had belonged to those who fell in the battle of Hastings, and in the subsequent insurrections of his reign, formed a considerable proportion of the lands of the whole kingdom. These he granted out, subject to feudal duties, as did he also those of a great number of his new subjects, who, by persuasions or threats, were induced to surrender them for that purpose. But still much was left in the hands of his Saxon subjects; held of no superior and not subject to feudal conditions. These, therefore, by express laws, enacted to render uniform the system of military defence, were made liable to the same military duties as if they had been feuds; and the Norman lawyers soon found means to saddle them also with all the other feudal burthens. But still they had not been surrendered to the king, they were not derived from his grant, and therefore they were not holden of him. A general principle indeed, was introduced, that “all lands in England were held either mediately or immediately of the crown,” but this was borrowed from those holdings, which were truly feudal, and only applied to others for the purposes of illustration. Feudal holdings were therefore but exceptions out of the Saxon laws of possession, under which all lands were held in absolute right. These, therefore, still form the basis, or groundwork, of the common law, to prevail wheresoever the exceptions have taken place. America was not conquered by William the Norman, nor its lands surrendered to him, or any of his successors. Possessions there are undoubtedly of the allodial nature. Our ancestors, however, who emigrated hither, were farmers,1 not lawyers. The fictitious principle that all lands belong originally to the king, they were early persuaded to believe [21] real; and accordingly took grants of their own lands from the crown. And while the crown continued to grant for small sums, and on reasonable rents, there was no inducement to arrest the error, and lay it open to the public view. But his majesty has lately taken on him to advance the terms of purchase, and of holding to the double of what they were, by which means the acquisition of lands being rendered difficult, the population of our country is likely to be checked. It is time, therefore, for us to lay this matter before his majesty, and to declare that he has no right to grant lands of himself. From the nature and purpose of civil institutions, all the lands within the limits which any particular society has circumscribed around itself are assumed by that society, and subject to their allotment only. This may be done by themselves assembled collectively, or by their legislature, to whom they may have delegated sovereign authority; and if they are alloted in either of these ways, each individual of the society may appropriate to himself such lands as he finds vacant, and occupancy will give him title.

  That in order to force the arbitrary measures before complained of, his majesty has from time to time sent among us large bodies of armed forces, not made up of the people here, nor raised by the authority of our laws. Did his majesty possess such a right as this, it might swallow up all our other rights whenever he should think proper. But his majesty has no right to land a single armed man on our shores, and those whom he sends here are liable to our laws made for the suppression and punishment of riots, and unlawful assemblies; or are hostile bodies, invading us in defiance of the law. When in the course of the late war it became expedient that a body of Hanoverian troops should be brought over for the defence of Great Britain, his majesty’s grandfather, our late sovereign, did not pretend to introduce them under any authority he possessed. Such a measure would have given just alarm to his subjects in Great Britain, whose liberties would not be safe if armed men of another country, and of another spirit, might be brought into the realm at any time without the con-[22]sent of their legislature. He therefore applied to parliament, who passed an act for that purpose, limiting the number to be brought in, and the time they were to continue. In like manner is his majesty restrained in every part of the empire. He possesses, indeed, the executive power of the laws in every state, but they are the laws of the particular state which he is to administer within that state, and not those of any one within the limits of another. Every state must judge for itself the number of armed men which they may safely trust among them, of whom they are to consist, and under what restrictions they shall be laid.

  To render these proceedings still more criminal against our laws, instead of subjecting the military to the civil powers, his majesty has expressly made the civil subordinate to the military. But can his majesty thus put down all law under his feet? Can he erect a power superior to that which erected himself? He has done it indeed by force, but let him remember that force cannot give right.

  That these are our grievances which we have thus laid before his majesty, with that freedom of language and sentiment which becomes a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate: Let those flatter who fear, it is not an American art. To give praise which is not due might be well from the venal, but would ill beseem those who are asserting the rights of human nature. They know, and will therefore say, that kings are the servants, not the proprietors of the people. Open your breast, sire, to liberal and expanded thought. Let not the name of George the third be a blot in the page of history. Your are surrounded by English counsellors, but remember that they are parties. You have no minister for American affairs, because you have none taken up from among us, nor amenable to the laws on which they are to give you advice. It behooves you, therefore, to think and to act for yourself and your people. The great principles of right and wrong are legible to every reader; to pursue them requires not the aid of many counsellors. The whole art of government consists [23] in the art of being honest. Only aim to do your duty, and mankind will give you credit where you fail. No longer persevere in sacrificing the rights of one part of the empire to the inordinate desires of another; but deal out to all equal and impartial right. Let no act be passed by any one legislature which may infringe on the rights and liberties of another. This is the important post in which fortune has placed you, holding the balance of a great, if a well poised empire. This, sire, is the advice of your great American council, on the observance of which may perhaps depend your felicity and future fame, and the preservation of that harmony which alone can continue both in Great Britain and America the reciprocal advantages of their connection. It is neither our wish nor our interest to separate from her. We are willing, on our part, to sacrifice everything which reason can ask to the restoration of that tranquillity for which all must wish. On their part, let them be ready to establish union and1 a generous plan. Let them name their terms, but let them be just. Accept of every commercial preference it is in our power to give for such things as we can raise for their use, or they make for ours. But let them not think to exclude us from going to other markets to dispose of those commodities which they cannot use, or to supply those wants which they cannot supply. Still less let it be proposed that our properties within our own territories shall be taxed or regulated by any power on earth but our own. The God who gave us life gave us liberty at the same time; the hand of force may destroy, but cannot disjoin them. This, sire, is our last, our determined resolution; and that you will be pleased to interpose with that efficacy which your earnest endeavors may ensure to procure redress of these our great grievances to quiet the minds of your subjects in British America, against any apprehensions of future encroachment, to establish fraternal love and harmony through the whole empire, and that these may continue to the last ages of time, is the fervent prayer of all British America.

  CORRESPONDENCE and MISCELLANEOUS WRITINGS
  1774–1779

  [1 ]Altered in author’s copy to “No shilling.”

  [2 ]“Portugal, and” struck out in author’s copy.

  [1 ]Altered to “parcelled” in author’s copy.

  [2 ]1632 Maryland was granted to Lord Baltimore, 14, c. 2. Pennsylvania to Penn, and the province of Carolina was in the year 1663 granted by letters patent of majesty, king Charles II. in the 15th year of his reign, in propriety, unto the right honourable Edward earl of Clarendon, George duke of Albemarle, William earl of Craven, John lord Berkeley, Anthony lord Ashley, sir George Carteret, sir John Coleton, knight and barronet, and sir William Berkeley, knight; by which letters patent the laws of England were to be in force in Carolina: But the lords proprietors had power, with the consent of the inhabitants, to make by-laws for the better government of the said province; so that no money could be received or law made, without the consent of the inhabitants, or their representatives. Note in original. In the author’s copy it is struck out and the following substituted:
  
  In 1621 Nova Scotia was granted by James I. to Sir Wm. Alexander. In 1632 Maryland was granted by Charles I. to Lord Baltimore. In 1664 New York was granted by Charles II. to the D. of York: as also New Jersey, which the D. of York conveied again to Ld Berkely & Sr Geo. Carteret. So also were the Delaware counties, which the same Duke conveied again to Wm. Penn. In 1665 the country including North & South Carolina, Georgia & the Floridas was granted by Charles II. to the E. of Clarendon, D. of Albemarle, E. of Craven, Ld Berkely, Ld Ashley, Sr George Carteret, Sr John Coleton, & Sr. Wm Berkely. In 1681 Pennsylvania was granted by Charles II. to Wm. Penn.

  [3 ]Altered to “was” in author’s copy.

  [1 ]12. c. 2. c. 18. 15. c. 2. c. 11. 25. c. 2. c. 7. 7. 8. W. M. c. 22. 11. W. 3. 4. Anne. 6. G. 2. c. 13.—T. J.

  [1 ]5. G. 2.—T. J.

  [2 ]23. G. 2. c. 29.—T. J.

  [3 ]5. G. 270.—T. J.

  [1 ]4. G. 3. c. 15.—T. J.

  [2 ]5. G. 3. c. 12. —T. J.

  [3 ]6 G. 3. c. 12.—T. J.

  [4 ]7. G. 3.—T. J.

  [5 ]7. G. 3. c. 59.—T. J.

  [6 ]Altered to “his” in author’s copy.

  [1 ]“Common” struck out in author’s copy.

  [2 ]Altered to “withhold” in author’s copy.

  [1 ]7. G. 3. c. 59. T. J.

  [2 ]Altered to “Massachusetts” in author’s copy.

  [1 ]“Alluding to the knighting of Sir Francis Bernard.”—MS. note in author’s copy.

  [1 ]14. G. 3.—T. J.

  [1 ]12. G. 3. c. 23.—T. J.

  [1 ]Altered to “British” in author’s copy.

  [1 ]“His majesty’s” stricken out, and “the” substituted in author’s copy.

  [1 ]“Establishment” struck out, and “reign of the Second William” substituted in author’s copy.

  [2 ]“Of” struck out, and “under which” substituted in author’s copy.

  [3 ]“At the glorious revolution” struck out, and “was settled” substituted in author’s copy.

  [1 ]“Since this period the king has several times dissolved the parliament a few weeks before its expiration, merely as an assertion of right.”—MS. note in author’s copy. “On further inquiry I find two instances of dissolutions before the Parliament would, of itself, have been at an end: viz., the Parliament called to meet August 24, 1698, was dissolved by King William, December 19, 1700, and a new one called, to meet February 6, 1701, which was also dissolved November 11, 1701, and a new one met December 30, 1701.”—Additional note by author, in MS. copy, Department of State Archives.

  [1 ]“insert ‘and the frame of government thus dissolved, should the people take upon them to lay the throne of your majesty prostrate, or to discontinue their connection with the British empire, none will be so bold as to decide against the right or the efficacy of such avulsion.’”—MS. note in author’s copy.

  [1 ]“Farmers” altered to “laborers” in author’s copy.

  [1 ]“And” altered to “on” in author’s copy.

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  13: 4b. Power, Corruption, and the Early Republic - Jefferson, Query XIII

  Thomas Jefferson, The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 4. Chapter: QUERY XIII The constitution of the State and its several charters?

  Accessed from oll.libertyfund.org/title/756/86247 on 2009-10-19

  The text is in the public domain.

  ---

  QUERY XIII
  The constitution of the State and its several charters?

  Queen Elizabeth by her letters patent, bearing date March 25, 1584, licensed Sir Walter Raleigh to search for remote heathen lands, not inhabited by Christian people, and granted to him in fee simple, all the soil within 200 leagues of the places where his people should, within six years, make their dwellings or abid-[194] ings; reserving only to herself and her successors, their allegiance and one fifth part of all the gold and silver ore they should obtain. Sir Walter immediately sent out two ships, which visited Wococon island in North Carolina, and the next year despatched seven with 107 men, who settled in Roanoke island about latitude 35°. 50′. Here Okisko, king of the Weopomeiocs, in a full council of his people is said to have acknowledged himself the homager of the Queen of England, and, after her, of Sir Walter Raleigh. A supply of 50 men were sent in 1586, and 150 in 1587. With these last Sir Walter sent a Governor, appointed him twelve assistants, gave them a charter of incorporation, and instructed them to settle on Chesapeak bay. They landed, however, at Hatorask. In 1588, when a fleet was ready to sail with a new supply of colonists and necessaries, they were detained by the Queen to assist against the Spanish armada. Sir Walter having now expended 40,000l in these enterprises, obstructed occasionally by the crown without a shilling of aid from it, was under a necessity of engaging others to adventure their money. He, therefore, by deed bearing date the 7th of [195] March 1589, by the name of Sir Walter Raleigh, Chief Governor of Assamàcomòc, (probably Acomàc,) alias Wingadacoia, alias Virginia, granted to Thomas Smith and others, in consideration of their adventuring certain sums of money, liberty to trade to this new country free from all customs and taxes for seven years, excepting the fifth part of the gold and silver ore to be obtained; and stipulated with them and the other assistants, then in Virginia, that he would confirm the deed of incorporation which he had given in 1587, with all the prerogatives, jurisdictions, royalties and privileges granted to him by the Queen. Sir Walter, at different times sent five other adventurers hither, the last of which was in 1602; for in 1603 he was attainted and put into close imprisonment, which put an end to his cares over his infant colony. What was the particular fate of the colonists he had before sent and seated, has never been known; whether they were murdered, or incorporated with the savages.

  Some gentlemen and merchants, supposing that by the attainder of Sir Walter Raleigh the grant to him was forfeited, not enquiring over carefully whether the sentence of an [196] English court could affect lands not within the jurisdiction of that court, petitioned king James for a new grant of Virginia to them. He accordingly executed a grant to Sir Thomas Gates and others, bearing date the 9th of March, 1607, under which, in the same year, a settlement was affected at Jamestown, and ever after maintained. Of this grant, however, no particular notice need be taken, as it was superceded by letters patent of the same king, of May 23, 1609, to the Earl of Salisbury and others, incorporating them by the name of ‘The Treasurer and company of Adventurers and Planters of the City of London for the first colony in Virginia,’ granting to them and their successors all the lands in Virginia from Point Comfort along the sea-coast, to the northward 200 miles, and from the same point along the sea coast to the southward two hundred miles, and all the space from this precinct on the sea coast up into the land, West and North west, from sea to sea, and the islands within one hundred miles of it, with all the commodities, jurisdictions, royalties, privileges, franchises, and pre-eminences, within the same, and thereto and thereabouts, by sea and land, appertain-[197] ing in as ample manner as had before been granted to any adventurer; to be held of the king and his successors, in common soccage, yielding one-fifth part of the gold and silver ore to be therein found, for all manner of services; establishing a council in England for the direction of the enterprise, the members of which were to be chosen and displaced by the voice of the majority of the company and adventurers, and were to have the nomination and revocation of the governors, officers, and ministers, which by them should be thought needful for the colony, the power of establishing laws and forms of government and magistracy, obligatory not only within the colony, but also on the seas in going and coming to and from it; authorizing them to carry thither any persons who should consent to go, freeing them forever from all taxes and impositions on any goods or merchandise on importation into the colony, or exportation out of it, except the five per cent. due for customs on all goods imported into the British dominions, according to the ancient trade of merchants; which five per cent. only being paid they might, within 13 months, re-export the same goods [198] into foreign parts, without any custom, tax, or other duty, to the king or any his officers, or deputies; with powers of waging war against those who should annoy them; giving to the inhabitants of the colony all the rights of natural subjects, as if born and abiding in England; and declaring that these letters should be construed, in all doubtful parts, in such manner as should be most for the benefit of the grantees.

  Afterwards on the 12th of March 1612, by other letters patent, the king added to his former grants, all islands in any part of the ocean between the 30th and 41st degrees of latitude, and within 300 leagues of any of the parts before granted to the treasurer and company not being possessed or inhabited by any other Christian prince or state, nor within the limits of the northern colony.

  In pursuance of the authorities given to the company by these charters, and more especially of that part in the charter of 1609, which authorized them to establish a form of government, they on the 24th of July 1621, by charter under their common seal, declared that from thence forward there should be two supreme councils in Virginia, the one [199] to be called the council of state, to be placed and displaced by the treasurer, council in England, and company from time to time, whose office was to be that of assisting and advising the governor; the other to be called the general assembly, to be convened by the governor once yearly or oftener, which was to consist of the council of state, and two burgesses out of every town, hundred, or plantation, to be respectively chosen by the inhabitants. In this all matters were to be decided by the greater part of the votes present; reserving to the governor a negative voice; and they were to have power to treat, consult, and conclude all emergent occasions concerning the public weal, and to make laws for the behoof and government of the colony, imitating and following the laws and policy of England as nearly as might be; providing that these laws should have no force till ratified in a general quarter court of the company in England, and returned under their common seal; and declaring that, after the government of the colony should be well framed and settled, no orders of the council in England should bind the colony unless ratified in the said [200] general assembly. The king and company quarrelled, and by a mixture of law and force, the latter were ousted of all their rights without retribution, after having expended 100,000£ in establishing the colony, without the smallest aid from government. King James suspended their powers by proclamation of July 15, 1624, and Charles I. took the government into his own hands. Both sides had their partisans in the colony: but, in truth, the people of the colony in general thought themselves little concerned in the dispute. There being three parties interested in these several charters, what passed between the first and second, it was thought could not affect the third. If the king seized on the powers of the company, they only passed into other hands, without increase or diminution, while the rights of the people remained as they were. But they did not remain so long. The northern parts of their country were granted away to the lords Baltimore and Fairfax; the first of these obtaining also the rights of separate jurisdiction and government. And in 1650 the parliament, considering itself as standing in the place of their deposed king, and as having succeeded [201] to all his powers, without as well as within the realm, began to assume a right over the colonies, passing an act for inhibiting their trade with foreign nations. This succession to the exercise of kingly authority gave the first color for parliamentary interference with the colonies, and produced that fatal precedent which they continued to follow, after they had retired, in other respects, within their proper functions. When this colony, therefore, which still maintained its opposition to Cromwell and the parliament, was induced in 1651 to lay down their arms, they previously secured their most essential rights by a solemn convention, which, having never seen in print, I will here insert literally from the records.

  “ARTICLES agreed on & concluded at James Cittie in Virginia for the surrendering and settling of that plantation under ye obedience and government of the commonwealth of England by the commissioners of the Councill of State by authoritie of the parliamt of England, and by the Grand assembly of the Governour, Councill, & Burgesses of that countrey. [202]

  “First it is agreed & consted that the plantation of Virginia, & all the inhabitants thereof, shall be and remaine in due obedience and subjection to the Comonwealth of England, according to ye lawes there established, and that this submission and subscription bee acknowledged a voluntary act not forced nor constrained by a conquest upon the countrey, and that they shall have and enjoy such freedoms and priviledges as belong to the free borne people of England, and that the former government by the Commissions and Instructions be void and null.

  “2ly, Secondly, that the Grand assembly as formerly shall convene & transact the affairs of Virginia, wherein nothing is to be acted or done contrairie to the government of the Comonwealth of England & the lawes there established.

  “3ly, That there shall be a full and totall remission and indempnitie of all acts, words, or writeings done or spoken against the parliament of England in relation to the same.

  “4ly, That Virginia shall have & enjoy ye antient bounds and lymitts granted by [203] the charters of the former kings, and that we shall seek a new charter from the parliament to that purpose against any that have intrencht upon ye rights thereof.

  “5ly, That all the pattents of land granted under the collony seale by any of the precedent governours shall be & remaine in their full force & strength.

  “6ly, That the priviledge of haveing ffiftie acres of land for every person transported in that collonie shall continue as formerly granted.

  “7ly, That ye people of Virginia have free trade as ye people of England do enjoy to all places and with all nations according to ye lawes of that commonwealth, and that Virginia shall enjoy all priviledges equall with any English plantations in America.

  “8ly, That Virginia shall be free from all taxes, customs & impositions whatsoever, & none to be imposed on them without consent of the Grand assembly. And soe that neither fforts nor castles bee erected or garrisons maintained without their consent.

  “9ly, That noe charge shall be required from this country in respect of this present ffleet. [204]

  “10ly, That for the future settlement of the countrey in their due obedience, the Engagement shall be tendred to all ye inhabitants according to act of parliament made to that purpose, that all persons who shall refuse to subscribe the said engagement, shall have a yeare’s time if they please to remove themselves and their estates out of Virginia, & in the meantime during the said yeare to have equall justice as formerly.

  “11ly, That ye use of the booke of common prayer shall be permitted for one yeare ensueinge with referrence to the consent of ye major part of the parishes, provided that those which relate to kingshipp or that government be not used publiquely, and the continuance of ministers in their places, they not misdemeaning themselves, and the payment of their accustomed dues and agreements made with them respectively shall be left as they now stand dureing this ensueing yeare.

  “12ly, That no man’s cattell shall be questioned as ye companies, unles such as have been entrusted with them or have disposed of them without order. [205]

  “13ly, That all ammunition, powder and armes, other than for private use, shall be delivered up, securitie being given to make satisfaction for it.

  “14ly, That all goods all readie brought hither by ye Dutch or others which are now on shoar shall be free from surprizall.

  “15ly, That the quittrents granted unto us by the late kinge for seaven yeares bee confirmed.

  “16ly, That ye commissioners for the parliament subcribeing these articles engage themselves & the honour of parliament for the full performance thereof: and that the present governour, & ye councill, and the burgesses do likewise subscribe and engage the whole collony on their parts.

  Rich. Bennett.—Seale.

  Wm. Claiborne.—Seale.

  Edmond Curtis.—Seale.

  “Theise articles were signed and sealed by the Commissioners of the Councill of state for the Commonwealth of England the twelveth day of March 1651.”

  Then follow the articles stipulated by the governor and council, which relate merely [206] to their own persons and property, and then the ensuing instrument:

  “An act of indempnitie made att the surrender of the countrey.

  “Whereas, by the authoritie of the parliament of England wee the commissioners appointed by the councill of state authorized thereto, having brought a ffleet and force before James cittie in Virginia to reduce that collonie under the obedience of the commonwealth of England, and finding force raised by the Governour and countrey to make opposition against the said ffleet, whereby assured danger appearinge of the ruine and destruction of the plantation, for prevention whereof the burgesses of all the severall plantations being called to advise and assist therein, uppon long and serious debate, and in sad contemplation of the greate miseries and certaine destruction which were soe neerely hovering over the whole countrey; Wee the said Commissioners have thought fitt and condescending and granted to signe and confirme under our hands, seales and by our oath, Articles bearing date with theise presents, and do further declare that by the authoritie of the par-[207] liament and commonwealth of England derived unto us their commissioners, that according to the articles in generall wee have granted an act of indempnitie and oblivion to all the inhabitants of this colloney from all words, actions, or writings that have been spoken acted or writt against the parliament or comonwealth of England or any other person from the beginning of the world to this daye. And this we have done that all the inhabitants of the collonie may live quietly and securely under the comonwealth of England. And we do promise that the parliament and commonwealth of England shall confirm and make good all those transactions of ours. Witenes our hands and seales this 12th of March 1651.

  Richard Bennett.—Seale.

  William Claiborne.—Seale.

  Edmond Curtis.—Seale.

  The colony supposed, that, by this solemn convention, entered into with arms in their hands, they had secured the antient limits1 of their country, its free trade2 its exemption from taxation3 but by their own [208] assembly, and exclusion of military force4 from among them. Yet in every of these points was this convention violated by subsequent kings and parliaments, and other infractions of their constitution, equally dangerous, committed. Their General Assembly, which was composed of the council of state and burgesses, sitting together and deciding by plurality of voices, was split into two houses, by which the council obtained a separate negative on their laws. Appeals from their supreme court, which had been fixed by law in their general assembly, were arbitrarily revoked to England, to be there heard before the king and council. Instead of four hundred miles on the seacoast, they were reduced, in the space of thirty years, to about one hundred miles. Their trade with foreigners was totally suppressed, and when carried to Great Britain, was there loaded with imposts. It is unnecessary, however, to glean up the several instances of injury, as scattered through American and British history, and the more especially as, by [209] passing on to the accession of the present king, we shall find specimens of them all, aggravated, multiplied and crouded within a small compass of time, so as to evince a fixed design of considering our rights natural, conventional and chartered as mere nullities. The following is an epitome of the first sixteen years of his reign. The colonies were taxed internally and externally; their essential interests sacrificed to individuals in Great Britain; their legislatures suspended; charters annulled; trials by juries taken away; their persons subjected to transportation across the Atlantic, and to trial before foreign judicatories; their supplications for redress thought beneath answer; themselves published as cowards in the councils of their mother country and courts of Europe; armed troops sent among them to enforce submission to these violences; and actual hostilities commenced against them. No alternative was presented but resistance, or unconditional submission. Between these could be no hesitation. They closed in the appeal to arms. They declared themselves independent states. They confederated together into one great republic; thus securing to [210] every state the benefit of an union of their whole force. In each state separately a new form of government was established. Of ours particularly the following are the outlines. The executive powers are lodged in the hands of a governor, chosen annually, and incapable of acting more than three years in seven. He is assisted by a council of eight members. The judiciary powers are divided among several courts, as will be hereafter explained. Legislation is exercised by two houses of assembly, the one called the house of delegates, composed of two members from each county, chosen annually by the citizens, possessing an estate for life in 100 acres of uninhabited land, or 25 acres with a house on it, or in a house or lot in some town: the other called the Senate, consisting of 24 members, chosen quadrennially by the same electors, who for this purpose are distributed into 24 districts. The concurrence of both houses is necessary to the passage of a law. They have the appointment of the governor and council, the judges of the superior courts, auditors, attorney general, treasurer, register of the land office, and delegates to congress. As the dismemberment of the state had never had its con-[211] firmation, but, on the contrary, had always been the subject of protestation and complaint, that it might never be in our own power to raise scruples on that subject, or to disturb the harmony of our new confederacy, the grants to Maryland, Pennsylvania and the two Carolinas were ratified.

  This constitution was formed when we were new and unexperienced in the science of government. It was the first, too, which was formed in the whole United States. No wonder then that time and trial have discovered very capital defects in it.

  1. The majority of the men in the state, who pay and fight for its support, are unrepresented in the legislature, the roll of freeholders entitled to vote not including generally the half of those on the roll of the militia, or of the tax-gatherers.

  2. Among those who share the representation, the shares are very unequal. Thus the county of Warwick, with only one hundred fighting men, has an equal representation with the county of Loudon, which has 1746. So that every man in Warwick has as much influence in the government as 17 men in Loudon. But lest it should be thought that an equal interspersion of small among large coun-[212] ties, through the whole state, may prevent any danger of injury to particular parts of it, we will divide it into districts, and shew the proportions of land, of fighting men, and of representation in each:

  	Square miles.	Fighting men.	Delegates.	Senators.
  1Of these, 542 are on the eastern shore.—T. J.
  2Of these, 22,616 are Eastward of the meridian of the mouth of the Great Kanhaway.—T. J.
  Between the sea - coast and falls of the rivers	111,205	19,012	71	12
  Between the falls of the rivers and Blue Ridge of mountains	18,759	18,828	46	8
  Between the Blue Ridge and the Alleghany	11,911	7,673	16	2
  Between the Alleghany and Ohio	279,650	4,458	16	2
  Total	121,525	49,971	149	24

  An inspection of this table will supply the place of commentaries on it. It will appear at once that nineteen thousand men, living below the falls of the rivers, possess half of the senate, and want four members only of possessing a majority of the house of delegates; a want more than supplied by the vicinity of their situation to the seat of government, and of course the greater degree of convenience and punctuality with which [213] their members may and will attend in the legislature. These nineteen thousand, therefore, living in one part of the country, give law to upwards of thirty thousand living in another, and appoint all their chief officers executive and judiciary. From the difference of their situation and circumstances, their interests will often be very different.

  3. The senate is, by its constitution, too homogenous with the house of delegates. Being chosen by the same electors, at the same time, and out of the same subjects, the choice falls of course on men of the same description. The purpose of establishing different houses of legislation is to introduce the influence of different interests or different principles. Thus in Great Britain it is said their constitution relies on the house of commons for honesty, and the lords for wisdom; which would be a rational reliance, if honesty were to be bought with money, and if wisdom were hereditary. In some of the American States, the delegates and senators are so chosen, as that the first represent the persons, and the second the property of the State. But with us, wealth and wisdom have equal chance for admission into both houses. We do not [214], therefore, derive from the separation of our legislature into two houses, those benefits which a proper complication of principles is capable of producing, and those which alone can compensate the evils which may be produced by their dissensions.

  4. All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. 173 despots would surely be as oppressive as one. Let those who doubt it turn their eyes on the republic of Venice. As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for, but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason that convention, which passed the ordinance of government [215] laid its foundation on this basis, that the legislative, executive and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. But no barrier was provided between these several powers. The judiciary and executive members were left dependent on the legislative, for their subsistence in office, and some of them for their continuance in it. If therefore the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can it be effectual; because in that case they may put their proceedings into the form of an act of assembly, which will render them obligatory on the other branches. They have accordingly in many instances, decided rights which should have been left to judiciary controversy: and the direction of the executive, during the whole time of their session, is becoming habitual and familiar. And this is done with no ill intention. The views of the present members are perfectly upright. When they are led out of their regular province, it is by art in others, and inadvertence in themselves. And this will probably be the case for some [216] time to come. But it will not be a very long time. Mankind soon learn to make interested uses of every right and power which they possess, or may assume. The public money and public liberty, intended to have been deposited with three branches of magistracy, but found inadvertently to be in the hands of one only, will soon be discovered to be sources of wealth and dominion to those who hold them; distinguished, too, by this tempting circumstance, that they are the instrument, as well as the object, of acquisition. With money we will get men, said Cæsar, and with men we will get money. Nor should our assembly be deluded by the integrity of their own purposes, and conclude that these unlimited powers will never be abused, because themselves are not disposed to abuse them. They should look forward to a time, and that not a distant one, when a corruption in this, as in the country from which we derive our origin, will have seized the heads of government, and be spread by them through the body of the people; when they will purchase the voices of the people, and make them pay the price. Human nature is the same on every side of the Atlan-[217] tic, and will be alike influenced by the same causes. The time to guard against corruption and tyranny, is before they shall have gotten hold of us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered. To render these considerations the more cogent, we must observe in addition:

  5. That the ordinary legislature may alter the constitution itself. On the discontinuance of assemblies, it became necessary to substitute in their place some other body, competent to the ordinary business of government, and to the calling forth the powers of the State for the maintenance of our opposition to Great Britain. Conventions were therefore introduced, consisting of two delegates from each county, meeting together and forming one house, on the plan of the former house of Burgesses, to whose places they succeeded. These were at first chosen anew for every particular session. But in March 1775, they recommended to the people to choose a convention, which should continue in office a year. This was done, accordingly, in April 1775, and in the July following that convention passed an ordinance for the election of delegates in the month of April annually. It is well known, that in July 1775, a separation from Great Britain and establishment of republican government, had never yet entered into any person’s mind. A convention, therefore, chosen under that ordinance, cannot be said to have been chosen for the purposes which certainly did not exist in the minds of those who passed it. Under this ordinance, at the annual election in April 1776, a convention for the year was chosen. Independance, and the establishment of a new form of government, were not even yet the objects of the people at large. One extract from the pamphlet called Common sense had appeared in the Virginia papers in February, and copies of the pamphlet itself had got in a few hands.1 But the idea had not been opened to the mass of the people in April, much less can it be said that they had made up their minds in its favor.2 So that the electors of April 1776, no more than the legislators of July 1775, not thinking of independance and a permanent republic, could not mean to vest in these delegates powers of establishing them, or any authorities other than those of the ordinary [219] legislature. So far as a temporary organization of government was necessary to render our opposition energetic, so far their organization was valid. But they received in their creation no powers but what were given to every legislature before and since. They could not, therefore, pass an act transcendent to the powers of other legislatures. If the present assembly pass an act, and declare it shall be irrevocable by subsequent assemblies, the declaration is merely void, and the act repealable, as other acts are. So far, and no farther authorized, they organized the government by the ordinance entituled a Constitution or Form of government. It pretends to no higher authority than the other ordinance of the same session; it does not say that it shall be perpetual; that it shall be unalterable by other legislatures; that it shall be transcendent above the powers of those who they knew would have equal power with themselves. Not only the silence of the instrument is a proof they thought it would be alterable, but their own practice also; for this very convention, meeting as a House of Delegates in General assembly with the Senate in the autumn of that year, [220] passed acts of assembly in contradiction of their ordinance of government; and every assembly from that time to this has done the same. I am safe therefore in the position that the constitution itself is alterable by the ordinary legislature. Though this opinion seems founded on the first elements of common sense, yet is the contrary maintained by some persons. I. Because, say they, the conventions were vested with every power necessary to make effectual opposition to Great Britain. But to complete this argument, they must go on, and say further, that effectual opposition could not be made to Great Britain without establishing a form of government perpetual and unalterable by the legislature; which is not true. An opposition which at some time or other was to come to an end, could not need a perpetual institution to carry it on: and a government amendable as its defects should be discovered, was likely to make effectual resistance, as one that should be unalterably wrong. Besides, the assemblies were as much vested with all powers requisite for resistance as the Conventions were. If therefore these powers included that of modelling the form [221] of government in the one case, they did so in the other. The assemblies then as well as the conventions may model the government; that is, they may alter the ordinance of government. 2. They urge that if the convention had meant that this instrument should be alterable, as their other ordinances were, they would have called it an ordinance; but they have called it a constitution, which ex vi termini, means “an act above the power of the ordinary legislature.” I answer that constitutio, constitutum, statutum, lex, are convertible terms. “Constitutio dicitur jus quod a principe conditur.” “Constitutum, quod ab imperatoribus rescriptum statutumve est.” “Statutum, idem quod lex.” Calvini Lexicon juridicum. Constitution and statute were originally terms of the1 civil law, and from thence introduced by Ecclesiastics into the English law. Thus in the statute 25 Hen. VIII. c. 19, §. 1, “Constitutions and ordinances” are used as synonimous. The term constitution has many [222] other significations in physics and politics; but in Jurisprudence, whenever it is applied to any act of the legislature, it invariably means a statue, law, or ordinance, which is the present case. No inference then of a different meaning can be drawn from the adoption of this title: on the contrary, we might conclude that, by their affixing to it a term synonimous with ordinance or statute, they meant it to be an ordinance or statute. But of what consequence is their meaning, where their power is denied? If they meant to do more than they had power to do, did this give them power? It is not the name, but the authority which renders an act obligatory. Lord Coke says, ‘an article of the statute, 11. R. II. c. 5. that no person should attempt to revoke any ordinance then made, is repealed, for that such restraint is against the jurisdiction and power of the parliament.’ 4. inst. 42. and again, ‘though divers parliaments, have attempted to restrain subsequent parliaments, yet could they never effect it; for the latter parliament hath ever power to abrogate, suspend, qualify, explain, or make void the former in the whole or in [223] any part thereof, notwithstanding any words of restraint, prohibition, or penalty, in the former; for it is a maxim in the laws of the parliament, ‘quod leges posteriores priores contrarias abrogant.’ 4. inst. 43.—To get rid of the magic supposed to be in the word constitution, let us translate it into its definition as given by those who think it above the power of the law; and let us suppose the convention, instead of saying, ‘We the ordinary legislature, establish a constitution,’ had said, ‘We the ordinary legislature, establish an act above the power of the ordinary legislature.’ Does not this expose the absurdity of the attempt? 3. But, say they, the people have acquiesced, and this has given it an authority superior to the laws. It is true that the people did not rebel against it: and was that a time for the people to rise in rebellion? Should a prudent acquiescence, at a critical time, be construed into a confirmation of every illegal thing done during that period? Besides, why should they rebel? At an annual election they had chosen delegates for the year, to exercise the ordinary powers of legislation, and to manage the great contest in which they were engaged. These [224] delegates thought the contest would be best managed by an organized government. They therefore, among others, passed an ordinance of government. They did not presume to call it perpetual and unalterable. They well knew they had no power to make it so; that our choice of them had been for no such purpose, and at a time when we could have no such purpose in contemplation. Had an unalterable form of government been meditated, perhaps we should have chosen a different set of people. There was no cause then for the people to rise in rebellion. But to what dangerous lengths will this argument lead? Did the acquiescence of the colonies under the various acts of power exercised by Great Britain in our infant state, confirm these acts, and so far invest them with the authority of the people as to render them unalterable, and our present resistance wrong? On every unauthoritative exercise of power by the legislature must the people rise in rebellion, or their silence be construed into a surrender of that power to them? If so, how many rebellions should we have had already? One certainly for every session of assembly. The other states in the union have been of opi-[225]nion that to render a form of government unalterable by ordinary acts of assembly, the people must delegate persons with special powers. They have accordingly chosen special conventions to form and fix their governments. The individuals then who maintain the contrary opinion in this country, should have the modesty to suppose it possible that they may be wrong, and the rest of America right. But if there be only a possibility of their being wrong, if only a plausible doubt remains of the validity of the ordinance of government, is it not better to remove that doubt by placing it on a bottom which none will dispute? If they be right we shall only have the unnecessary trouble of meeting once in convention. If they be wrong, they expose us to the hazard of having no fundamental rights at all. True it is, this is no time for deliberating on forms of government. While an enemy is within our bowels, the first object is to expel him. But when this shall be done, when peace shall be established, and leisure given us for intrenching within good forms, the rights for which we have bled, let no man be found indolent enough to de-[226]cline a little more trouble for placing them beyond the reach of question. If anything more be requisite to produce a conviction of the expediency of calling a convention at a proper season to fix our form of government, let it be the reflection:

  6. That the assembly exercises a power of determining the quorum of their own body which may legislate for us. After the establishment of the new form they adhered to the Lex majoris partis, founded in1 common law as well as common right. It is the2 natural law of every assembly of men, whose numbers are not fixed by any other law. They continued for some time to require the presence of a majority of their whole number, to pass an act. But the British parliament fixes its own quorum; our former assemblies fixed their own quorum; and one precedent in favor of power is stronger than an hundred against it. The house of delegates, therefore, have3 lately voted that, dur-[227]ing the present dangerous invasion, forty members shall be a house to proceed to business. They have been moved to this by the fear of not being able to collect a house. But this danger could not authorize them to call that a house which was none;4 and if they may fix it at one number, they may at another, till it loses its fundamental character of being a representative body. As this vote expires with the present invasion, it is probable the former rule will be permitted to revive; because at present no ill is meant. The power, however, of fixing their own quorum has been avowed, and a precedent set. From forty it may be reduced to four, and from four to one; from a house to a committee, from a committee to a chairman or speaker, and thus an oligarchy or monarchy be substituted under forms supposed to be regular. ‘Omnia mala exempla ex bonis orta sunt; sed ubi imperium ad ignaros aut minus bonos pervenit, novum illud exemplum ab dignis et idoneis ad indignos et non idoneos fertur.’ When, therefore, it is considered, that there is no legal obstacle to the assumption by the assembly of all the powers legislative, executive, and judiciary, [228] and that these may come to the hands of the smallest rag of delegation, surely the people will say, and their representatives, while yet they have honest representatives, will advise them to say, that they will not acknowledge as laws any acts not considered and assented to by the major part of their delegates.

  In enumerating the defects of the constitution, it would be wrong to count among them what is only the error of particular persons. In December 1776, our circumstances being much distressed, it was proposed in the house of delegates to create a dictator, invested with every power legislative, executive, and judiciary, civil and military, of life and of death, over our persons and over our properties: and in June 1781,1 again under calamity, the same proposition was repeated, and wanted a few votes only of being passed.1 —One who entered into this contest from a pure love of liberty, and a sense of injured rights, who determined to make every sacrifice, and to meet every danger, for the re-establishment of those rights on a firm basis, who did not mean to expend his blood and substance for the wretched pur- [229] pose of changing this master for that, but to place the powers of governing him in a plurality of hands of his own choice, so that the corrupt will of no one man might in future oppress him, must stand confounded and dismayed when he is told, that a considerable portion of that plurality had meditated the surrender of them into a single hand, and, in lieu of a limited monarch, to deliver him over to a despotic one! How must he1 find his efforts and sacrifices abused and baffled, if he may still, by a single vote, be laid prostrate at the feet of one man! In God’s name, from whence have they derived this power? Is it from our ancient laws? None such can be produced. Is it from any principle in our new constitution expressed or implied? Every lineament of that expressed or implied, is in full opposition to it. Its fundamental principle is, that the state shall be governed as a commonwealth. It provides a republican organization, proscribes under the name of prerogative the exercise of all powers undefined by the laws; places on this basis the whole system of our laws; and by consolidating them together, chooses that they shall be left to stand or fall together, never [230] providing for any circumstances, nor admitting that such could arise, wherein either should be suspended; no, not for a moment. Our antient laws expressly declare, that those who are but delegates themselves shall not delegate to others powers which require judgment and integrity in their exercise. Or was this proposition moved on a supposed right in the movers, of abandoning their posts in a moment of distress? The same laws forbid the abandonment of that post, even on ordinary occasions; and much more a transfer of their powers into other hands and other forms, without consulting the people. They never admit the idea that these, like sheep or cattle, may be given from hand to hand without an appeal to their own will.—Was it from the necessity of the case? Necessities which dissolve a government, do not convey its authority to an oligarchy or a monarchy. They throw back, into the hands of the people, the powers they had delegated, and leave them as individuals to shift for themselves. A leader may offer, but not impose himself, nor be imposed on them. Much less can their necks be submitted to his sword, their breath be held at his will or caprice. [231] The necessity which should operate these tremendous effects should at least be palpable and irresistible. Yet in both instances, where it was feared, or pretended with us, it was belied by the event. It was belied, too, by the preceding experience of our sister states, several of whom had grappled through greater difficulties without abandoning their forms of government. When the proposition was first made, Massachusets had found even the government of committees sufficient to carry them through an invasion. But we at the time of that proposition, were under no invasion. When the second was made, there had been added to this example those of Rhode-Island, New-York, New-Jersey, and Pennsylvania, in all of which the republican form had been found equal to the task of carrying them through the severest trials. In this state alone did there exist so little virtue, that fear was to be fixed in the hearts of the people, and to become the motive of their exertions, and the principle of their government? The very thought alone was treason against the people; was treason against mankind in general; as rivetting forever the chains which bow down their necks by gi-[232] ving to their oppressors a proof, which they would have trumpeted through the universe, of the imbecility of republican government, in times of pressing danger, to shield them from harm. Those who assume the right of giving away the reins of government in any case, must be sure that the herd, whom they hand on to the rods and hatchet of the dictator, will lay their necks on the block when he shall nod to them. But if our assemblies supposed such a resignation in the people, I hope they mistook their character. I am of opinion, that the government, instead of being braced and invigorated for greater exertions under their difficulties, would have been thrown back upon the bungling machinery of county committees for administration, till a convention could have been called, and its wheels again set into regular motion. What a cruel moment was this for creating such an embarrassment, for putting to the proof the attachment of our countrymen to republican government! Those who meant well, of the advocates for this measure, (and most of them meant well, for I know them personally, had been their fellow-labourers in the common cause, and had [233] often proved the purity of their principles,) had been seduced in their judgment by the example of an antient republic, whose constitution and circumstances were fundamentally different. They had sought this precedent in the history of Rome, where alone it was to be found, and where at length, too, it had proved fatal. They had taken it from a republic rent by the most bitter factions and tumults, where the government was of a heavy-handed unfeeling aristocracy, over a people ferocious, and rendered desperate by poverty and wretchedness; tumults which could not be allayed under the most trying circumstances, but by the omnipotent hand of a single despot. Their constitution, therefore, allowed a temporary tyrant to be erected, under the name of a Dictator; and that temporary tyrant, after a few examples, became perpetual. They misapplied this precedent to a people mild in their dispositions, patient under their trial, united for the public liberty, and affectionate to their leaders. But if from the constitution of the Roman government there resulted to their Senate a power of submitting all their rights to the will of one man, does it follow that [234] the assembly of Virginia have the same authority? What clause in our constitution has substituted that of Rome, by way of residuary provision, for all cases not otherwise provided for? Or if they may step ad libitum into any other form of government for precedents to rule us by, for what oppression may not a precedent be found in this world of the bellum omnium in omnia? Searching for the foundations of this proposition, I can find none which may pretend a colour of right or reason, but the defect before developed, that there being no barrier between the legislative, executive, and judiciary departments, the legislature may seize the whole: that having seized it, and possessing a right to fix their own quorum, they may reduce that quorum to one, whom they may call a chairman, speaker, dictator, or by any other name they please.—Our situation is indeed perilous, and I hope my countrymen will be sensible of it, and will apply, at a proper season, the proper remedy; which is a convention to fix the constitution, to amend its defects, to bind up the several branches of government by certain laws, which, when they transgress, their acts shall [235] become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights.

  [1 ]Art. 4.—T. J.

  [2 ]Art. 7.—T. J.

  [3 ]Art. 8.—T. J.

  [4 ]Art. 8.—T. J.

  [1 ]Yet in the advertisement of the second edition of Paine’s Common Sense, in the Pennsylvania Evening Post of Jan. 25, 1776, is stated: “several hundreds are already bespoke, one thousand for Virginia.”

  [2 ]This statement is hardly borne out by Jefferson’s statement at the time, for he wrote to Thomas Nelson from Philadelphia, May 16, 1776: “I wish much to see you here, yet hope you will contrive to bring on as early as you can in convention the great questions of the session. I suppose they will tell us what to say on the subject of independence, but hope respect will be expressed to the right of opinion in other colonies who may happen to differ from them. When at home I took great pains to enquire into the sentiments of the people on that head, in the upper counties I think I may safely say nine out of ten are for it.”

  [1 ]To bid, to set, was the ancient legislative word of the English. Ll. Hlotharri and Eadrici. Ll. Inæ. Ll. Eadwerdi. Ll. Æathelstani.—T. J.

  [1 ]Bro. Abr. Corporations, 31, 34. Hakewell, 93.—T. J.

  [2 ]Puff. Off. hom. L. 2, c. 6, §. 12.—T. J.

  [3 ]June 4, 1781.—T. J.

  [4 ]In the original proof-sheets of the Notes, now in the New York State Library, this passage reads: “But they might as well have voted that a square inch of linen should be sufficient to make them a shirt, and walk into public view in confidence of being covered by it. Nor would it make the shirt bigger, that they could get no more linen.” The comparison seemed too strong apparently, and all the words after “But,” are stricken out, and in place is inserted in MS. “this danger could not authorize them to call that a house which was none; and if they could fix it at one number, they may at another, till it loses its fundamental character of being a representative body.”

  [1 ]“The delegates were then sitting at Staunton, and had voted that 40 of their number should make a house. There were between 40 and 50 present when motion for the dictator was made, and it was rejected by a majority of 6 only.”—Note in the edition of 1853.

  [1 ]This story of a dictator was later the subject of controversy. It was first reintroduced to injure Patrick Henry in the political heats of 1798–9, by suggesting him as the proposed dictator. This was at once denied by the Henry adherents, and later Wirt again did so in his Life of Henry. As some of these denials went further than the mere question of the personnel of the dictator, Jefferson endeavored later to obtain accounts of what actually passed, by writing to different friends. In reply to one of these inquiries, Archibald Stuart wrote him (Sparks MSS., Harvard College) from Staunton, Sept. 8, 1818:
  
  “Dear Sir,—I presume you have seen Mr. Wirt’s Sketches of the life of Patrick Henry; and that he denies Mr. H. favored the project of Establishing a Dictator during the revolutionary War.—Even doubts respecting events of such recent date tend greatly to impair the credit of History. There are many living now who witnessed the part Mr. Henry took on that subject.—After the Assembly was dispersed at Charlottesville in the year 1781 it met in Staunton where Mr Geo. Nicholas a member of that body proposed that a Dictator be established in this Commonwealth who should have the power of disposing of the lives and fortunes of the Citizens thereof without being subject to account.—In support of this resolution he observed that the Country was overrum by the Enemy and that the Operation of the Govt was nearly suspended:—That although the powers proposed to be conferred were very great the character he proposed to fill the office would remove all apprehensions arising from the abuse of them—That this character was Genl. Washington—That he was our fellow citizen, that we had a right to command his services and that he had no doubt but that on such an Occasion he would obey the call of his country.—In the course of his speech he refered to the practice of the Romans on similar occasions. After Mr. Nicholas sat down Mr. Henry addressed the Chair; he observed it was immaterial to him whether the Officer proposed was called a Dictator or a Governor with enlarged powers or by any other name yet surely an officer armed with such powers was necessary to restrain the unbridled fury of a licentious enemy and concluded by seconding the Motion.—
  
  “On the other hand it was contended by Mann Page from Spottsylvania and several other Members;—That our Affairs were not desperate, That the pressure we felt was but temporary, That the Govt. was still efficient, That the spirit of the people was unbroken, That it was unbecoming in their representatives to damp their ardor by an Act of despair—That they had equal confidence with the mover of the resolution in the Integrity of Genl. Washington, but that he nor no other man ought to be armed with such unlimited powers.—That they well know he would not accept the office—That if he was willing to accept it, he was better employed at the head of the Army than in the exercise of powers which would render him odious to the people—After a lengthy discussion the proposition was negatived.—
  
  “I was present at this discussion and could easily discover that the proposition was not relished by the people. Their feelings were of a different character; had the enemy advanced they would have risen in mass to repel them.—
  
  “I communicated these facts to you shortly after they took place.—
  
  “I am yours most sincerely
  
  “Arch: Stuart.”

  [1 ]Altered to “we” in edition of 1787.

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  14: 4c. Power, Corruption, and the Early Republic - Madison, Federalist 10

  George W. Carey, The Federalist (The Gideon Edition), Edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001). Chapter: No. 10: The same Subject continued

  Accessed from oll.libertyfund.org/title/788/108577 on 2009-10-19

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  No. 10

  by James Madison

  The same Subject continued

  Among the numerous advantages promised by a well constructed union, none deserves to be more accurately developed, than its tendency to break and control the violence of faction. The friend of popular governments, never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion, introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have every where perished; as they continue to be the favourite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are every where heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable; that the public good is disregarded in the conflicts of rival parties; and that measures are too often decided, not according to the rules of justice, and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labour, have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice, with which a factious spirit has tainted our public administrations.

  By a faction, I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.

  There are two methods of curing the mischiefs of faction: The one, by removing its causes; the other, by controling its effects.

  There are again two methods of removing the causes of faction: The one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

  It could never be more truly said, than of the first remedy, that it is worse than the disease. Liberty is to faction, what air is to fire, an aliment, without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

  The second expedient is as impracticable, as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to an uniformity of interests. The protection of these faculties, is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

  The latent causes of faction are thus sown in the nature of man; and we see them every where brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders, ambitiously contending for pre-eminence and power; or to persons of other descriptions, whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other, than to co-operate for their common good. So strong is this propensity of mankind, to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions, and excite their most violent conflicts. But the most common and durable source of factions, has been the various and unequal distribution of property. Those who hold, and those who are without property, have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a monied interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests, forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of government.

  No man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay, with greater reason, a body of men are unfit to be both judges and parties, at the same time; yet, what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? and what are the different classes of legislators, but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side, and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction, must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes; and probably by neither with a sole regard to justice and the public good. The apportionment of taxes, on the various descriptions of property, is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party, to trample on the rules of justice. Every shilling with which they over-burden the inferior number, is a shilling saved to their own pockets.

  It is in vain to say, that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm: nor, in many cases, can such an adjustment be made at all, without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another, or the good of the whole.

  The inference to which we are brought, is, that the causes of faction cannot be removed; and that relief is only to be sought in the means of controlling its effects.

  If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views, by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest, both the public good and the rights of other citizens. To secure the public good, and private rights, against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add, that it is the great desideratum, by which alone this form of government can be rescued from the opprobrium under which it has so long laboured, and be recommended to the esteem and adoption of mankind.

  By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority, at the same time, must be prevented; or the majority, having such co-existent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know, that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together; that is, in proportion as their efficacy becomes needful.

  From this view of the subject, it may be concluded, that a pure democracy, by which I mean, a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert, results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have, in general, been as short in their lives, as they have been violent in their deaths. Theoretic politicians, who have patronised this species of government, have erroneously supposed, that, by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

  A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the union.

  The two great points of difference, between a democracy and a republic, are, first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

  The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen, that the public voice, pronounced by the representatives of the people, will be more consonant to the public good, than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests of the people. The question resulting is, whether small or extensive republics are most favourable to the election of proper guardians of the public weal; and it is clearly decided in favour of the latter by two obvious considerations.

  In the first place, it is to be remarked, that however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the constituents, and being proportionally greatest in the small republic, it follows, that if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice.

  In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practise with success the vicious arts, by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit, and the most diffusive and established characters.

  It must be confessed, that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representative too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal constitution forms a happy combination in this respect; the great and aggregate interests, being referred to the national, the local and particular to the state legislatures.

  The other point of difference is, the greater number of citizens, and extent of territory, which may be brought within the compass of republican, than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former, than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked, that where there is a consciousness of unjust or dishonourable purposes, communication is always checked by distrust, in proportion to the number whose concurrence is necessary.

  Hence it clearly appears, that the same advantage, which a republic has over a democracy, in controling the effects of faction, is enjoyed by a large over a small republic . . . is enjoyed by the union over the states composing it. Does this advantage consist in the substitution of representatives, whose enlightened views and virtuous sentiments render them superior to local prejudices, and to schemes of injustice? It will not be denied, that the representation of the union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties, comprised within the union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the union gives it the most palpable advantage.

  The influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states: a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source: a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union, than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire state.

  In the extent and proper structure of the union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit, and supporting the character of federalists.

  publius

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  15: 4d. Power, Corruption, and the Early Republic - Madison, Federalist 51

  George W. Carey, The Federalist (The Gideon Edition), Edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001). Chapter: No. 51: The same subject continued, with the same view, and concluded

  Accessed from oll.libertyfund.org/title/788/108659 on 2009-10-19

  The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

  ---

  No. 51

  by James Madison

  The same subject continued, with the same view, and concluded

  To what expedient then shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full developement of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.

  In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which, to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies, should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments, would be less difficult in practice, than it may in contemplation appear. Some difficulties, however, and some additional expense, would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle; first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.

  It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other, would be merely nominal.

  But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man, must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

  This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power; where the constant aim is, to divide and arrange the several offices in such a manner as that each may be a check on the other; that the private interest of every individual may be a centinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state.

  But it is not possible to give to each department an equal power of self-defence. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them, by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society, will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature, appears, at first view, to be the natural defence with which the executive magistrate should be armed. But perhaps it would be neither altogether safe, nor alone sufficient. On ordinary occasions, it might not be exerted with the requisite firmness; and on extraordinary occasions, it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connexion between this weaker department, and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department?

  If the principles on which these observations are founded be just, as I pers