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Johann Gottlieb Heineccius, A Methodical System of Universal Law: Or, the Laws of Nature and Nations [1738]

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Johann Gottlieb Heineccius, A Methodical System of Universal Law: Or, the Laws of Nature and Nations, with Supplements and a Discourse by George Turnbull. Translated from the Latin by George Turnbull, edited with an Introduction by Thomas Albert and Peter Schröder (Indianapolis: Liberty Fund, 2008). http://oll.libertyfund.org/titles/2305

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About this Title:

The natural law theory of Johann Gottlieb Heineccius was one of the most influential to emerge from the early German Enlightenment. Heineccius continued and, in important respects, modified the ideas of his predecessors, Samuel Pufendorf and Christian Thomasius. He developed distinctive views on central questions such as the freedom of the human will and the natural foundation of moral obligation, which also sharply distinguished him from his contemporary Christian Wolff. The Liberty Fund edition is based on the translation by the Scottish moral philosopher George Turnbull (1698–1748). It includes Turnbull’s extensive comments on Heineccius’s text, as well as his substantial Discourse upon the Nature and Origin of Moral and Civil Laws. These elements make the work into one of the most extraordinary encounters between Protestant natural law theory and neo-republican civic humanism.

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This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.

Table of Contents:

Edition: current; Page: [i]
a methodical system of universal la or, the laws of nature and nations, with supplements and a discourse by george turnbull
Edition: current; Page: [ii]

natural law and enlightenment classics

Knud Haakonssen

General Editor

Edition: current; Page: [iii]
lfTurnbull_figure_001.jpg

Johann Gottlieb Heineccius

Edition: current; Page: [iv] Edition: current; Page: [v]
natural law and enlightenment classics
A Methodical System of Universal Law: Or, the Laws of Nature and Nations, with Supplements and a Discourse by George Turnbull
Johann Gottlieb Heineccius
Translated from the Latin by George Turnbull
Edited and with an Introduction by Thomas Ahnert and Peter Schröder
liberty fund
Indianapolis
Edition: current; Page: [vi]

This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.

lfTurnbull_figure_002.jpg

The cuneiform inscription that serves as our logo and as the design motif for our endpapers is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 bc in the Sumerian city-state of Lagash.

Introduction, annotations, bibliography, index © 2008

by Liberty Fund, Inc.

All rights reserved

Printed in the United States of America

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Frontispiece: Copper engraving of Johann Gottlieb Heineccius by Martin Berningeroth (1732). Reproduced courtesy of Universitäts- und Landesbibliothek Sachsen-Anhalt in Halle (Saale).

Library of Congress Cataloging-in-Publication Data

Heineccius, Johann Gottlieb, 1681–1741.

A methodical system of universal law: or, The laws of nature and nations: with supplements and a discourse/by Johann Gottlieb Heineccius, George Turnbull; translated from the Latin by George Turnbull; edited and with an introduction by Thomas Ahnert and Peter Schröder.

v. cm.—(Natural law and enlightenment classics)

Originally published: London, Printed for G. Keith [etc.], 1763.

Includes bibliographical references and index.

Contents: v. 1. Of the law of nature—v. 2. Of the law of nations.

isbn-13: 978-0-86597-478-4 (hb: alk. paper) isbn-13: 0-86597-479-1 (pbk.: alk. paper)

1. Natural law—Early works to 1800. 2. Natural law. 3. International law.

I. Turnbull, George, 1698–1748. II. Ahnert, Thomas. III. Schröder, Peter. IV. Title. V. Title: Methodical system of universal law. VI. Title: Law of nature and nations.

kz2314.a3h45 2008

340′.112—dc22 2007031757

liberty fund, inc.

8335 Allison Pointe Trail, Suite 300

Indianapolis, Indiana 46250-1684

Edition: current; Page: [vii]

CONTENTS

  • Introduction ix
  • A Note on the Text xix
  • Acknowledgments xxi
  • a methodical system of universal law: or, the laws of nature and nations, with supplements and a discourse by george turnbull
    • book i. Of the Law of Nature 1
    • book ii. Of the Law of Nations 321
    • A Supplement Concerning the Duties of Subjects and Magistrates 531
    • A Discourse upon the Nature and Origine of Moral and Civil Laws 551
  • Bibliography 619
  • Index 651
Edition: current; Page: [viii] Edition: current; Page: [ix]

INTRODUCTION

The development of early modern natural law theories is an integral part of the Enlightenment,1 and the writings of Johann Gottlieb Heineccius (1681–1741) are an important example of this close relationship. Heineccius wrote when the modern European natural law tradition was already long established, especially through the important works of Hugo Grotius (1583–1645), Samuel Pufendorf (1632–94), and Christian Thomasius (1655–1728). Notably the works of Grotius and Pufendorf had gained significant influence throughout Europe, assisted by congenial translations and annotations from the Huguenot refugee Jean Barbeyrac (1674–1744).2

Heineccius drew on the works of these theorists and responded to them, but his Methodical System of Universal Law: Or, the Laws of Nature and Nations was far more than a synthesis and a commentary on the salient writings of the previous generations. It was a distinctive system of natural jurisprudence, which, together with his writings on Roman law, helped to secure Heineccius a certain international fame already in his lifetime. In the Netherlands, where he taught for several years, he enjoyed a considerable academic reputation, which was reinforced by his personal acquaintance with the house of Orange. He held prestigious positions at two leading German universities of the early Enlightenment, Frankfurt an der Oder and Halle. In England and Scotland, Edition: current; Page: [x] George Turnbull’s translation of Heineccius’s System was issued twice, in 1741 and 1763, making Heineccius’s natural jurisprudence more accessible to English-speaking audiences. Turnbull expressed great admiration for Heineccius in the preface to his translation, saying that “[t]he author of this system of the law of nature and nations is so well known, and in so high esteem in the republic of letters, that it would be arrogance in me to say any thing in recommendation of his works. Nor need I make any apology for translating into our language so excellent a book upon a subject of such universal importance.”3 As late as 1799 the Scottish lawyer Sir James Mackintosh paid Heineccius a slightly back-handed compliment by describing him as “the best writer of elementary books with whom I am acquainted on any subject.”4 Heineccius even played an important and lasting role in the Spanish, South American, and Italian academic worlds, where purified editions (editiones castigatae) suppressed those quotations and statements that could be seen as challenging the Catholic Church but where his divine voluntarism was welcome.5

Heineccius’s Life

Heineccius began his academic career by studying theology in Leipzig and then law in Halle, where he became a pupil of the controversial jurist and philosopher Christian Thomasius. The University of Halle was newly founded (1694) and one of the most important centers of the early Enlightenment in Germany. It was an intellectually thriving institution, which Heineccius took advantage of by attending lectures on a variety of subjects, including philosophy and rhetoric, taught by Samuel Stryck (1640–1710) and Johannes Franz Budde (1667–1729). His intellectual curiosity clearly was stimulated, as was his talent for free oration and Edition: current; Page: [xi] lecturing, which his son later praised in a laudatory biography. In 1723 Heineccius accepted a professorship at the Frisian University of Franeker. From this small but distinguished university Heineccius’s reputation quickly spread to most of Europe, especially because of his textbooks on Roman law, which was his main area of research and teaching at Franeker. Despite all attempts to keep him in Franeker, Heineccius changed to a professorship at the University of Frankfurt an der Oder in 1727.6

Two years later he declined a position at the University of Utrecht, but a royal order forced him to return to Halle in 1733 because the Brandenburg-Prussian government hoped to reestablish the reputation of this university. Halle had suffered severely from the disputes between theologians at the university and the philosopher Christian Wolff (1679–1754), who had been forced to leave Halle in 1723 after he had been accused of denying the existence of free will. Heineccius spent the rest of his career in Halle and developed an impressive range of lectures. One of the products of these was his System, which was first published in 1738 as Elementa iuris naturae et gentium and which saw at least four further editions.

Heineccius’s Natural Jurisprudence

In the original preface, which Turnbull did not translate, Heineccius modestly explained that he wanted to provide a short commentary on the law of nature and nations for his students and pupils. In fact, Heineccius in the System developed a distinctive theory of natural law. He disagreed, for example, with the view of the state of nature which had been put forward by Samuel Pufendorf, whose De officio hominis et civis Edition: current; Page: [xii] (1673) had become the textbook on natural law throughout much of northern Europe.7 Humans, Heineccius wrote, were subject to natural law in the state of nature. It was not enough to say, as Pufendorf did, that the law of nature was derived from the obligation to cultivate sociality, to which men were compelled by necessity. The law of nature included duties of humans toward themselves and toward God—duties which would be applicable even to a solitary human being.8 Heineccius’s tripartite division of the duties of humans into those toward self, others, and God had its roots in a long intellectual tradition, and it is likely that Heineccius encountered it in the writings and lectures of his teacher Christian Thomasius in Halle.9 Heineccius’s definition of the morally good as “whatever tends to preserve and perfect man” and of a “good action” as that “which contributes to human preservation and perfection”10 is also very similar to Thomasius’s definition of the morally good in his second work on natural law, the Foundations of the Law of Nature and Nations of 1705: “Do that which makes human life as long-lasting and happy as possible, and avoid that which makes life unhappy and hastens death”;11 so is Heineccius’s definition of love as the central principle of natural law: “Love in us is the desire of good, joined with delight in its perfection and happiness.”12 There are only three possible objects Edition: current; Page: [xiii] of the offices of love, which correspond to the tripartite division of duties: “God, the creator of all things; ourselves, who are certainly the nearest to ourselves; and other men, whom we plainly perceive to be by nature equal to us.”13

Love, as a motive, created an “internal” obligation to perform moral actions, which, Heineccius is suggesting, are generally also to the advantage of the agent. But this internal obligation was insufficient, because mankind was often mistaken about the nature of moral goods and, like Ixion in ancient mythology, who tried to seduce a cloud in the shape of the goddess Juno, often embraced false goods. Immorality could be a reflection of mistaken beliefs, rather than vicious intentions. Heineccius thereby modified the ideas of Christian Thomasius, who had argued that the desire for the true good was prior to any beliefs in the intellect. Once the desire for good, which Thomasius identified with the love for God, had established itself in human nature, true beliefs about the nature of the morally good followed spontaneously.14 Heineccius, however, argued that the general desire for what was morally good was not enough. It was necessary to have a prior rule or standard, which defined what was to be considered morally good and which directed the abstract desire for morality toward the right ends. This rule constituted the external obligation arising from the will of some “Being whose authority we are obliged to acknowledge.”15 In the case of the law of nature this Being was God: “The law of nature, or the natural rule of rectitude, is a system of laws promulgated by the eternal God to the whole human race by reason.”16 Heineccius’s notion of a “rule of rectitude” may well have been motivated by the desire to correct the radical anti-intellectualism of Christian Thomasius’s moral theory. Thomasius’s emphasis on the pre-intellectual guidance of the heart, rather than the understanding, in moral actions was a position many contemporaries Edition: current; Page: [xiv] associated with “enthusiasm,” a label Heineccius would have been keen to avoid.17

Turnbull’s Life and His Response to Heineccius

George Turnbull (1698–1748) was one of the key figures of the Scottish Enlightenment who was familiar with contemporary developments in European theories of natural law. His education and intellectual formation took place in Edinburgh, where he graduated from the university there in 1721.18 In 1721 he became a regent at Marischal College, Aberdeen, where Thomas Reid was among his students.19 Leaving the university in 1727, he traveled as tutor of young aristocrats in Europe. After joining the Anglican Church (bachelor of civil law, Oxford University, 1733) he was ordained in 1739, became chaplain to the Prince of Wales, and, finally, served as a minister in County Derry. During this period he started to draw his experiences together in a wide range of different writings, including his translation of Heineccius.20 His extensive notes surveyed modern natural law and introduced his readers to significant authors, such as Johann Franz Budde, who were barely known in Britain. At the same time, Turnbull’s notes added substantially to the ideas he found in Heineccius’s work. Often Turnbull developed Heineccius’s theory to his own liking, telling the reader what the latter really should have said.

Edition: current; Page: [xv]

Turnbull accepted Heineccius’s definition of love, for example, as the central ethical principle of natural law, but criticized his distinction between internal and external obligation, a distinction which he regarded as artificial and unnecessary. There was no need for an external obligation in the sense of a rule imposed by a superior. The obligation of natural law was reinforced externally by the natural connection between virtue and temporal happiness or prosperity. There were exceptions, but on the whole “the far greater part of the evils and miseries complained of in human life, are the effects and consequences of vicious passions, and their pursuits. Whence else is it that honesty is so universally pronounced the best policy, and dishonesty folly?”21 Punishments for immorality and rewards for morally good actions were part of the natural order created by God, not imposed in individual cases by particular acts of the divine will. There was no need to add another, “external” obligation, a “rule of rectitude,” to this,22 because the existing, natural connection between morality and happiness was already a sufficient indication of God’s providential will for humanity. Moral philosophy, therefore, involved the study of natural causes and effects, in the same way as natural philosophy.23 The consequence of this natural connection or tendency in human affairs was that the actual distribution of goods, such as happiness or wealth in this world, on the whole reflected the virtue and merit of those who owned or enjoyed them. It is important to note, however, that although morality was also advantageous, of course not every self-interested action was automatically virtuous. Turnbull distinguished the advantages of morality from vulgar notions of self-interest, which were attributed to Epicureans and the followers of Mandeville and which implied that actions were morally justified because they were self-interested. Turnbull’s emphasis on the advantageousness of morality was intended to prove the existence of a theodicy, in a loose sense, a belief that temporal Edition: current; Page: [xvi] affairs reflected the benevolent influence of a divine justice and providence.

The rewards for virtue in this life included property. Although the truly virtuous person knew how to be happy without material goods, only he or she could “have true happiness from them.”24 It was “a fact too evident to be called into question” that “man is made to purchase every thing by industry, and industry only, every good, internal or external.”25 The actual distribution of property, in general, reflected the merit of its owners, for if “we own a blind fortuitous dispensation of goods, and much more, if we own a malignant dispensation of them, or a dispensation of them more in favour of vice than of virtue, we deny a providence, or assert bad administration.”26 In fact, however, “the universe is governed by excellent general laws, among which this is one, “That industry shall be the purchaser of goods, and shall be generally successful.”

This “general law of industry”27 had important implications for Turnbull’s political theory. Turnbull believed that political society was essential for humans to reach the highest degree of happiness possible for them in this life.28 As Turnbull explained in another work, “many of the goods of life are by our social constitution dependent upon the right government of society,” that is, on “a good politic constitution, and the impartial execution of good laws.”29 Constitutional structures and the distribution of property were closely related because “a greater share of external goods, or of property, naturally begets power. And hence it will and must always hold as a general law, That dominion will follow property or that changes in property will beget certain proportional changes in government.”30 It is this belief in the close connection between government Edition: current; Page: [xvii] and property ownership which helps to explain Turnbull’s strong interest in the political theory of James Harrington (1611–77), whom he often quotes at length in his comments on Heineccius’s text.

Harrington’s central aim had been to solve the same problem as his contemporary Thomas Hobbes (1588–1679), the threat of anarchy following from constitutional collapse. However, Turnbull’s interest in Harrington was more the Englishman’s view of the relationship between property and political power. Harrington, he said, “reasons from natural causes in these matters, as natural philosophers do about phenomena commonly called natural ones.”31 Like Harrington, Turnbull argued that the ownership of property, especially of landed property, was the natural basis of power. If one man owns far more land than all others taken together, then the constitution will be that of an absolute monarchy. If a small group of people holds the greatest proportion of land, this leads either to aristocracy or a regulated monarchy. Popular government emerges when “neither one nor the few over-balance the whole people.”32 This connection between political power and property meant that Turnbull made his theory of government into a part of his theory of divine providence and justice. Any form of government which did not reflect the prevailing balance of property in a society was unnatural and had to be based on violence. It was possible for humans to influence the distribution of property, but “wherever, thro” causes unforeseen by human prudence, the balance comes to be intirely changed, it is the more immediately to be attributed to divine providence: And since God cannot will the cause, but he must also will the necessary effect or consequence, what government soever is in the necessary direction of the balance, the same is of divine right.”33 Ultimately, the providential distribution of material goods determined the balance of power within the state.

Thomas Ahnert
Peter Schröder
Edition: current; Page: [xviii] Edition: current; Page: [xix]

A NOTE ON THE TEXT

The present edition is based on the text of the 1741 London edition, which was a translation of the first edition, published in Latin, in Halle, in 1738.

Heineccius’s and Turnbull’s notes are indicated by asterisks, daggers, and single square brackets; editorial notes within original notes are contained within double square brackets. All other new editorial notes and references are indicated by arabic numerals. The “Remarks” sections at the end of some chapters are by Turnbull.

The original references by Johann Gottlieb Heineccius and George Turnbull are often incomplete or inaccurate. We have therefore provided the full title when a work is first mentioned by Heineccius or Turnbull, though it is not always possible to determine the precise editions they used. In the case of classical authors we refer to modern editions, unless indicated otherwise in the notes. Full publication details for works cited in the notes are provided in the bibliography to the extent that this has been possible. The exact sources of quotations and paraphrases are identified whenever possible. References to Roman civil law and the Bible are not explained in the footnotes, unless there are specific reasons for doing so. The archaic spelling of the 1741 text has been retained, though printer’s errors have been silently corrected. Page breaks in the original text are indicated by the use of angle brackets. For example, page 112 begins after <112>.

A general note on references to Roman law: Roman civil law, the Corpus Iuris Civilis, includes the Digest, the Code of Justinian, and the Institutes. In references these texts are abbreviated as “D.,” “C.,” and “Inst.,” respectively. The rest of the reference is to the relevant book and title of a law—“1. 24. D. de ritu nupt.,” for example, refers to the laws on the rites of marriage (“de ritu nuptiarum”) in book 24 of the Digest.

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ACKNOWLEDGMENTS

We are very grateful to Knud Haakonssen for his invitation to contribute this volume to the Natural Law and Enlightenment Classics series and for his advice and support. We are also much indebted to a number of friends and colleagues for their help and encouragement and should like to thank Antony Hatzistavrou and Jenny Gibbon, in particular, for their help in identifying the sources of some Greek quotations.

Edition: current; Page: [xxii] Edition: current; Page: [xxiii]

A Methodical System of Universal Law: Or, The Laws of Nature and Nations, with Supplements and a Discourse

BOOK I: OF THE LAW OF NATURE

Edition: current; Page: [xxiv] Edition: current; Page: [1]

A METHODICAL SYSTEM

of

Universal Law:

or, the

Laws of Nature and Nations

Deduced

From Certain Principles, and applied

to Proper Cases.

Written in Latin by the celebrated

JO. GOT. HEINECCIUS,

Counsellor of State to the King of Prussia,

and Professor of Philosophy at Hall.

Translated, and illustrated with Notes and Supplements,

By GEORGE TURNBULL, LL. D.

To which is added,

A DISCOURSE upon the Nature and Origine of Moral and Civil Laws; in which they are deduced, by an Analysis of the Human Mind in the experimental Way, from our internal Principles and Dispositions.

Natura enim juris ab hominis repetenda natura est.1 Cic.

vol. i.

london:

Printed for J. Noon, at the White-Hart, near Mercer’s Chapel, Cheapside. MDCCXLI.

Edition: current; Page: [2] Edition: current; Page: [3]

to

His Royal Highness,

WILLIAM

Duke of Cumberland,

This Translation of

A System of the Law of Nature and Nations, Written in Latin by the celebrated Jo. Got. Heineccius, Counsellor of State to the late King of Prussia, and Professor of Philosophy at Hall: With the Supplements and Discourses added to it,

Is most humbly dedicated,

In Veneration of His Royal Highness’s many great and amiable Qualities, so becoming His high Birth and exalted Rank, the suitable Care bestowed upon His Education, and the Royal Example He has daily before His Eyes, of true Greatness, and the best Use of Power,

By His Royal Highnesss
most devoted and
most obedient Servant,
George Turnbull.
Edition: current; Page: [4] Edition: current; Page: [5]

PREFACE

The author of this system of the law of nature and nations is so well known, and in so high esteem in the republic of letters, that it would be arrogance in me to say any thing in recommendation of his works. Nor need I make any apology for translating into our language so excellent a book upon a subject of such universal importance. For the knowledge of justice and equity must be owned to be necessary in some degree to every one; but to those, in a particular manner, whose birth and fortunes afford them time and means, and call upon them to qualify themselves for the higher stations in civil society. Man, and the rights and duties of man, are certainly the most proper objects of human study in general. And surely Socrates had reason to say, “That if no man can be fit to undertake a trade, how mean and mechanical soever, without having been educated to it, and bestowed some considerable time upon the learning of it, it must be absurd to think one can be qualified for discharging public trusts and duties, without having taken great pains to instruct themselves in the principles of equity, the ends and interests of civil society, and the nature, spirit, and intention of laws.” I shall only add, that every science hath its elements; and this treatise at least well deserves to be called an excellent introduction to the science of laws. As for the notes and supplements I have added, how far they are necessary, I must leave it to the reader to judge. The greater part of them relates to one question, viz. The origine of civil government, which hath not been set in its true light by any other writer besides him from whom the illustration of this point is here borrowed. The discourse upon the origine and nature of laws, is an attempt to introduce the experimental way of reasoning into morals, or to deduce human duties from internal principles and dispositions in the human mind. And hence certainly must the virtues belonging to man be deduced: hence certainly must the laws relating to the human nature and state be inferred, Edition: current; Page: [6] as Cicero in his excellent treatise of laws, has long ago told us.—Quid sit homini tributum natura, quantam vim rerum optimarum contineat; cujus muneris colendi, efficiendique causa nati, & in lucem editi simus, quae sit conjunctio hominum, & quae naturalis societas inter ipsos;—his enim explicatis fons legum & juris inveniri potest. i.e. “’Tis by discovering the qualities and powers with which men are endued by nature; and the best ends within human reach; the purposes or offices for which we are fitted and made; and the various bonds by which mankind are knit and united together, and thus prompted to, and formed for society.—’Tis only by discovering and unfolding these important matters, that the source of human rights and duties can be laid open.” I have not translated our author’s preface; because it is principally designed to shew that the Roman law can now have no other authority in deciding controversies between independent nations or states, than as it is founded upon principles of natural equity; and it is filled up with an enumeration of the titles in the civil law, some have vainly thought sufficient to determine all questions of this kind, which it would have been of very little use to have attempted to english.

Edition: current; Page: [7]

CONTENTS1

  • BOOK I Of the Law of Nature.
    • chap. i. Of the origine and foundation of the law of nature and nations, from page 1. to page 16. with a supplement to page 19. containing observations upon the different senses in which obligation is taken by moralists, and the properest method of proceeding in the deduction of moral duties. [11]
    • chap. ii. Concerning the nature and distinguishing qualities or characteristics of human actions, from page 19. to page 39. with a supplement to page 40. containing remarks upon the controversy about liberty and necessity. [30]
    • chap. iii. Of the rule of human actions, and the true principle of the law of nature, to page 62. with a supplement to page 65. containing observations on the different methods philosophers have taken in deducing moral obligations, and the justness of our author’s principle. [51]
    • chap. iv. Of the application of this rule to actions, and the differences of actions proceeding from thence to page 81. with a supplement to page 84. containing some Edition: current; Page: [8] observations upon the imputation of actions in foro divino. [75]
    • chap. v. Of the duties of man to God, from page 84. to page 95. with a supplement to page 98. containing observations upon the evidence, certainty, and manifold usefulness of true religion. [93]
    • chap. vi. Of the duties of man to himself, to page 120. with a supplement, to page 123. containing further remarks on the moral effects of necessity, and upon the competition between self-love and duty. [107]
    • chap. vii. Concerning our absolute and perfect duties towards (others in general) and of not hurting or injuring others (in particular) to page 150. with a supplement to page 153. containing observations on the moral equality of mankind, and their natural inequalities, and the necessity of reasoning in morals from fact, or the real constitution of things. [131]
    • chap. viii. Concerning our imperfect duties to others, to page 164. with a supplement, containing observations upon the distinction between perfect and imperfect duties, and the equity and perspicuity of the golden rule, (as it is justly called) “Do as you would be done by,” to page 169. [159]
    • chap. ix. Concerning our hypothetical duties towards others, and the original acquisition of dominion or property, to page 196. with a supplement to page 201. upon the origine, foundation, and necessary effects of property. [175]
    • chap. x. Of derivative acquisitions of dominion or property made during the life of the first proprietor, to page 215. [206]
    • chap. xi. Of derivative acquisitions by succession to last-will, and to intestates, to page 230. [219]
    • chap. xii. Concerning the rights and duties which arise from property or dominion, to page 243. with a Edition: current; Page: [9] supplement upon prescription, and the distinctions used by writers on the law of nature and nations about belonging to the law of nature, directly and indirectly, &c. to page 250. [232]
    • chap. xiii. Concerning things belonging to commerce to page 295. with a supplement to page 299. upon usury, and the different regulations civil states may make about money. [252]
    • chap. xiv. Concerning pacts, to page 314. [296]
    • chap. xv. Concerning the means by which contracts are dissolved, to page 322. with a supplement upon pacts, and remarks upon the progress our author hath made in this first book. [309]
  • book ii Of the Law of Nations.
    • chap. i. Concerning the natural and social state of man, from page 1. to page 18. with a supplement to page 23. in vindication of the constitution of things as they relate to mankind; and concerning the method of determining all questions about the duties of societies to societies. [323]
    • chap. ii. Of the duties belonging to the matrimonial state or society, to page 44. [346]
    • chap. iii. Of the duties that belong to parents and children, to page 63. [366]
    • chap. iv. Concerning the duties belonging to masters and servants, to page 73. [383]
    • chap. v. Of the complex society called a family, and the duties to be observed in it, to page 80. with a supplement in answer to those who derive absolute monarchy from family government, the origins of civil government, to page 85. [393] Edition: current; Page: [10]
    • chap. vi. Of the origine of civil society, its constitution, qualities, or properties, to page 109. with a supplement, containing remarks on the natural causes of government, and of changes in government, to page 119. [405]
    • chap. vii. Of sovereignty, and the ways of acquiring it, with notes interspersed relative to the measures of submission to civil government, to page 145. with a supplement to shew the true end of civil government, and to vindicate mankind from the aspersion of their being incapable of government truly equal, to page 150. [439]
    • chap. viii. Concerning the immanent rights of majesty, and the just exercise of them, to page 184. [468]
    • chap. ix. Concerning the transeunt rights of majesty, to page 214. [498]
    • chap. x. Of the duties of subjects, to page 222. [523]
    • With a supplement concerning the duties of magistrates and subjects, to which are prefixed some observations on the study of the laws of nature and nations, to page 247. [531]
    • To all which is added a discourse on the nature and origine of moral and civil laws, in which moral and civil laws are deduced, in the experimental way, by an analysis of human nature, from our internal dispositions and principles, and our situation. [551]
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CHAPTER I: Concerning the origine and foundation of the Law of Nature and Nations.

SECTION I

What constitutes a good, and what a bad action?Whatever tends to preserve and perfect man is called good with respect to man: whatever hath a contrary tendency is called ill with regard to him:* every action therefore which contributes to human preservation and perfection is a good action; and every action is evil which tends to hurt and destroy man, or to hinder his advancement to the perfection of which his nature is capable.

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SECTION II

What Preservation and perfection mean, and what destruction and imperfection?Whatever conduces in any manner or degree towards our duration, or the continuance of our present state, is said to be preservative of man: whatever promotes and augments those properties, which belonging to human nature, and constituting our state and rank, admits of degrees, is called perfective of man.* Whence it is easy to under-Edition: 1741; Page: [2]stand what may be said to hurt, wrong, or degrade us.

SECTION III

Men have power to act well or ill.Such being the nature of human will, that it always desires good, and abhors ill; it cannot but like those actions which tend to our preservation and perfection, and it cannot but dislike those actions which tend to our hurt and imperfection: But because good and ill may be really what they appear to be, and on the other hand, a seeming good may be a real evil, and a seeming evil may be a real good;† it very often happens, that like Ixion in the fable, we embrace an empty cloud instead of Juno;1 i.e. we are deceived by appearances, and mistake seeming for solid good, and a false semblance of ill for real ill; and thus we may make a bad or a good choice, be right or wrong in our elections, and consequently in our actions.

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SECTION IV

Wherefore men stand in need of some rule by which they may direct their actions.Now the power of preferring one or other of two possibles, and by consequence of acting well or ill, is called liberty: this power we experience; wherefore it cannot be denied that there are, with regard to us, free actions which are good, and free actions which are bad. But since all things, which may be Edition: 1741; Page: [3] rightly directed or perverted, stand in need of a rule by which they may be rightly directed, it follows that our free actions ought to be directed by some rule.*

SECTION V

And this rule must be right or just, sure and immutable.By a rule here we understand an evident criterion by which good and ill may be certainly distinguished. And in order to answer that end, a rule must be true, right or just, clear, certain and constant. For suppose the rule not to be just, and that which is ruled by it will not be just or right. Suppose it not to be clear and certain, and it cannot be a sure criterion of good and evil. Finally, if we suppose it to be uncertain and variable, an action regulated by it will sometimes be good and sometimes be bad: and therefore in none of these cases would it deserve the name of a rule.

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SECTION VI

It must likewise be obligatory.Further, a rule of action would be but of little advantage to mankind, if it were not of such a kind, Edition: 1741; Page: [4] that it carried with it some motive (as it is called) by which human will might be impelled to make use of it, and apply it. Because man never acts without something present to his mind, by which he is excited or impelled to act; he will therefore not apply a rule, or at least he will be very indifferent whether he applies it or no, unless he be stimulated by some motive to apply it. But since we call the connection between a motive and a free action obligation, that a rule for the direction of human actions may answer its end, it must be obligatory.

SECTION VII

What is obligation, and how many kinds of it are there?Obligation is a connection between motives and free actions, (§6) and motives must consist either in the intrinsic goodness and pravity of actions themselves, or arise from the will of some Being whose authority we acknowledge, commanding and forbidding certain actions under a penalty. And therefore the former species of obligation is called internal; the latter is called external.* The first excites to good actions, the other Edition: current; Page: [15] to just actions. But right is the correlate (as it is called in the schools) to both. For if one person be under an obligation, some other person hath a right or title to exact something from him.

SECTION VIII

Internal obligation is not sufficient.Hence it is manifest, that a rule which carries only an internal obligation with it, is not sufficient with respect to mankind: for since this obligation solely arises from the goodness of the action, (§7), and therefore only excites a person to act by this motive, viz. that his action may be good; but man is so framed by nature, that he often embraces a false appearance of good for what is really such:* (§3). Such a rule must be uncertain, and for that reason it is not deserving of being called a rule (§5). Edition: 1741; Page: [5]

SECTION IX

An external obligation either perfect or imperfect is therefore wanting.But if a rule only carrying an internal obligation with it, would be uncertain, there is need of one which may produce an external obligation arising from the will of some Being whose authority we acknowledge. Since therefore that Being may oblige us to the practice of virtue and honesty, either without co-action, or may command and forbid certain Edition: current; Page: [16] actions with penalties and rewards, the former species of external obligation is properly denominated imperfect, and the latter perfect. Now the will of a superior commanding and forbidding under penalty is called a law: and therefore a rule for the direction of our free actions, to conform to which we are under perfect obligation, must consist of laws, and a system of such is termed by way of eminence law.* Edition: 1741; Page: [6]

SECTION X

Of this law there can be no other author but God.Now, since that Being may be justly denominated our superior, upon whom our being and happiness absolutely depend, and whose authority we are obliged to acknowledge, because he has a just title to exact obedience from us, and hath power to propose penalties to us in case of our refusing to obey him; and, it appears by many most evident arguments, that he never hath renounced, nor never can renounce his authority to rule and command us: That superior Being whose authority we are Edition: current; Page: [17] obliged to acknowledge, can be no other than the most great and good God; and he therefore is the sole author of that law, which ought, as we have said, to be the rule of action to all mankind. Edition: 1741; Page: [7]

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SECTION XI

This law is made known to mankind in no other way but by reason.Because we are enquiring, as appears from what hath been said, for no other rule of right but what Edition: 1741; Page: [8] God hath given to the whole human race for the rule of their conduct, (§10) hence it follows that this rule must be intelligible to all mankind. But since what is intelligible to, or may be known by all mankind, must be discovered to them either by a divine revelation, which all men acknowledge and receive as such, or must be discoverable by the use of natural reason; because such a revelation as hath been mentioned never existed: it is obvious that the law of nature must mean laws within the discovery of all mankind by the use of reason common to all mankind, and which therefore are by nature promulgated to all mankind.*

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SECTION XII

A definition of the law of nature and of jurisprudence, natural or divine.The law of nature, or the natural rule of rectitude, is a system of laws promulgated by the eternal God to the whole human race by reason. But if you would rather consider it as a science, na-Edition: 1741; Page: [9]tural morality will be rightly defined the practical habit of discovering the will of the supreme legislator by reason, and of applying it as a rule to every particular case that occurs. Now, because it consists in deducing and applying a rule coming from God, it may be justly called divine jurisprudence.

SECTION XIII

The law of nature may be divided into preceptive and permissive.Since the law of nature is a system of laws (§12) whatever properly belongs to laws may be ascribed to the law of nature, as to prohibit, permit, punish.* It may be divided as a body of laws is by the Roman lawyers into the permissive part, which obliges all men not to disturb any person in the use and exercise of his right and liberty; and the preceptive, which obliges all men to do good actions, and to abstain from bad ones; and it is also evident, that with respect to the preceptive part, there is no liberty left to mankind; whereas, with regard to the permissive, any one may renounce his right to what is permitted to him.* Edition: 1741; Page: [10]

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SECTION XIV

Whether would there be a law of nature if there were no God?Now seeing the law of nature comes from God (§12) as the supreme legislator, it follows by consequence, that tho’ a person may do a good action, without any regard to the law of nature as such, being excited to it by the internal goodness or obligation of the action, and by his good disposition; tho’ even an atheist, who hath no sense of religion, may do a good action thro’ the influence and guidance of his reason, because he knows it to be good in itself, and advantageous to him; yet such a person cannot on that account be said to act justly, i.e. conformably to the law of nature considered as such; much less then can it be said, that there would still be a law of nature,* tho’ it should be granted, which cannot be done without impiety, that there were no God, or that God did not take any care of human affairs. See Grotius proleg. jur. belli & pacis, §xi.

SECTION XV

Why it is said to be inscribed on our hearts.Since the rule of rectitude we are now speaking of signifies laws promulgated by right reason, Edition: 1741; Page: [11] (§12) and reason is nothing else but the faculty of reasoning, or of inferring one truth from others by necessary Edition: current; Page: [21] consequence,* it is therefore plain why the apostle affirms that the knowledge of this rule is engraved on our hearts, Rom. ii. 15. For he attributes to man the power or faculty of reasoning concerning just and unjust; which power, since it does not necessarily include in it actual exercise, why some should ascribe even to infants a certain innate sense of just and unjust, is not difficult to be comprehended.

SECTION XVI

Whether the knowledge of it is derived from the sacred writings or tradition?Hence it follows that the law of nature is not derived from the sacred writings, nor from any divine positive laws, such as the seven precepts given to Noah, of which the Jews boast so much; tho’ at the same time we readily grant, that the author of reason and revelation being the same, not only many things which reason dictates are to be found in the sacred Edition: current; Page: [22] writings, but there is every where a perfect harmony between them; nor can there indeed be any thing forbidden or commanded in the sacred oracles which is repugnant to the rule of right discoverable by reason. Edition: 1741; Page: [12]

SECTION XVII

The law of nature is immutable.Further, from the same principle it is evident that the law of nature is no less immutable than right reason it self, which cannot but remain unchangeably the same: and therefore God, who cannot do any thing contrary to his will, cannot give any indulgence repugnant to that eternal law in any respect; and much less can any among mortals arrogate to himself any power over that law.*

SECTION XVIII

The difference between the law of nature and civil law.Nor will it now be difficult to find out the difference between the law of nature and civil law. For the former is discovered by right reason, the latter is promulgated and made known either viva voce or by writing. The former extends as far as right reason: the other is the law of a particular state: The former hath for its object all actions internal as well as external, which are by nature good or evil: The other respects indifferent and ex-Edition: 1741; Page: [13]ternal actions, so far only as the good of any people or state requires their regulation and adjustment.

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SECTION XIX

The knowledge of it is of great utility with respect to civil law.But notwithstanding this difference, it is beyond all doubt, that the knowledge of the law of nature must be of the greatest use to all who apply themselves to the study of the civil law; because many of its precepts are adopted by civil law, and by it are fortified with additional penalties;* several conclusions are drawn from the law of nature by civil law; Edition: current; Page: [24] and natural equity must never be severed from civil law, lest according to the ancient saying, Strict law become severe injustice. Summum jus summa injuria. Edition: 1741; Page: [14]

SECTION XX

The brutes are not governed by the law of nature.Moreover from the same principle it is visible, that no other creatures besides men are subject to this law; since God hath dignified man alone with the prerogative of reason; and therefore that definition of Ulpian is false. Natural law is a law which nature hath taught all animals. L. 1. §3. Dig. de just. & jure.*

SECTION XXI

What is called the law of nations?Further, since the law of nature comprehends all the laws promulgated to mankind by right reason; and men may be considered either as particulars singly, or as they are united in certain political bodies or societies; we call that law, by which the actions of particulars ought to be governed, the law of nature, and we call that the law of nations, which determines what is just and unjust in society or between societies. And therefore the precepts, the laws of both are the same; nay, the law of nations is the law of nature it self, respecting or applied to social life and the affairs of societies and independent states. Edition: 1741; Page: [15]

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SECTION XXII

Whether it be different from the law of nature?Hence we may infer, that the law of nature doth not differ from the law of nations, neither in respect of its foundation and first principles, nor of its rules, but solely with regard to its object. Wherefore their opinion is groundless, who speak of, I know not what, law of nations distinct from the law of nature. The positive or secondary law of nations devised by certain ancients, does not properly belong to that law of nations we are now to treat of, because it is neither established by God, nor promulgated by right reason; it is neither common to all mankind nor unchangeable.*

SECTION XXIII

This work divided into two parts.It will not therefore be an useless attempt to treat of both these laws, which have the same foundation Edition: 1741; Page: [16] in the same work, in such a manner however, as carefully to distinguish the one from the other, since they differ from one another in respect of their objects and application. We shall therefore handle them separately in this order; in the first book, we Edition: current; Page: [26] shall enquire into the law of nature; and in the second, into the law of nations.

Remarks on This Chapter

Tho’ our Author proceeds more distinctly and methodically than most other writers on the law of nature and nations, yet some steps of the reasoning of this chapter do not intirely satisfy me. For §8. he reasons thus, “A rule carrying along with it no more than internal obligation would be uncertain, and so would not deserve the name of a rule; because internal obligation only means the intrinsic goodness of an action, but man is so framed that he may mistake seeming for real good.”—Whence he concludes §9. “That no rule can be certain, and thus sufficient for our direction, but that which carries along with it an external obligation, i.e. according to his definition, the command of a superior invested with sufficient power to enforce his commands.” Now it is plain, that the command of God to do, or to forbear an action can only be inferred from the intrinsic goodness or pravity of that action, i.e. in our author’s language, the external obligation of an action can only be inferred from its internal obligation. Our author acknowledges this §5, and afterwards §60, and §77, & seq. But this being true, it evidently follows, That we cannot be more certain about the external obligation of an action, than we are about its internal obligation: whatever uncertainty our apprehensions of the latter are liable to, our apprehensions of the former must be liable to the same uncertainty. It appears to me very odd reasoning to say, That considering how obnoxious men are to mistakes about good and evil, there must be a more certain rule for human conduct than the intrinsic goodness of actions, even the divine will; when at the same time we are told, that we cannot come at the knowledge of the divine will with respect to our conduct, otherwise than by first knowing what an action is in itself; or that we can only infer the divine will concerning an action from its intrinsic nature, its intrinsic goodness or pravity. In order to cut off many verbal disputes, with which the moral science hath been hitherto perplexed in its very first steps, it ought in my opinion to set out in this manner. 1. If there be such a thing as good or evil belonging to, or arising from actions, there is an internal obligation or a sufficient reason to choose Edition: current; Page: [27] the one and to abhor the other. But that some actions are good and others evil, must be true if preservation and destruction, pain Edition: 1741; Page: [17] and pleasure, happiness and misery, perfection and imperfection, be not words without meaning, which will not be said. This is the substance of what our author says in his first section, and thus the better antients deduced and explained the essential differences of actions, or the natural difference betwixt virtue and vice. See my Principles of moral and christian philosophy, T. 1. c. 5. t. 2. §3. introduction. In other words, if there be any such thing as natural good and evil, there must be moral good and evil; for actions tending to good must be good, and actions tending to evil must be evil; or if there be any such thing as perfection and imperfection with respect to any quality, any being, as a vine, a horse, &c. there must likewise be such a thing as perfection and imperfection with respect to moral powers and moral agents and their acts or exertions. 2. If there be a God, he must will that we should regulate our actions by, and act conformably to the internal obligation of actions. But that there is a God is the universal plain language of nature. 3. Wherefore wherever there is internal obligation to act in such or such a manner, there is likewise an external obligation to act in the same manner, i.e. there is an extrinsic reason for acting so, arising from the will of God, who is infinitely perfect, and upon whom all our interests here and hereafter absolutely depend. 4. Whatever therefore in respect of its internal obligation may be called a proper rule of conduct, is at the same time a law, in the proper and strict sense of the word, i.e. it is the will, the command of a superior who hath right to command, and power to enforce the obedience of his commands, being the will of God the creator. 5. A system of rules or of directions for our conduct, having internal obligation, may be properly called a system of laws, of natural laws, of divine laws, because it is a system of precepts discoverable from their natural fitness, or internal obligation to be the will or laws of God concerning our conduct. And therefore the whole enquiry into rules of moral conduct, may be called an enquiry into the natural laws of God concerning our conduct.

It is not properly the business of such an enquiry to prove the being of a God, and that where there is internal obligation to an action, there must also be external obligation to it. It supposes that done, and proceeds to enquire into internal obligations; or to unfold the goodness Edition: current; Page: [28] and pravity of actions, and from hence to deduce general rules or laws of conduct. Now if the preceding propositions be attended to, and the difference between a rule and a law, or between internal and external obligation, according to our author’s definition, be kept in mind; it may be asserted without any ambiguity, that abstractly from all consideration of the will of the supreme Being, there is no law for our conduct; there is a rule, but that rule is not a law, in the strict sense of that word. It would have prevented much jangling about the foundations of morality, if writers had carefully distinguished, with a late excellent writer, Dr. Sykes,2 in his Edition: 1741; Page: [18] Essay on the Connexion of Natural with Revealed Religion, between the law and the sanction of the law. cap. 2.

Our author’s reasoning will proceed very clearly, if we understand the meaning of his 8 § to be to this purpose. “A rule of conduct while it is merely apprehended under the notion of reasonable, will not be sufficient to influence men; in order to have due influence upon them, it must be considered as having external, as well as internal obligation, arising from the will of God which never changes.” See how Puffendorf reasons, b. 2. of the law of nature and nations, ch. 3. §20. “But to make these dictates of reason obtain the dignity and power of laws, it is necessary to call into our consideration a much higher principle, &c.”

With respect to what is said, §22. of the law of nations, ’tis well worth while to add an excellent remark of the author of the Persian Letters, 94 and 95.3 “As the law of nature and nations is commonly doctored, one would imagine there were two sorts of justice; one to regulate the affairs of private persons, which prevails in the civil law; the other to compose the differences that arise between people and people, which plays the tyrant in the law of nations: as if the law of nations were not itself a civil law, not indeed of a particular country, but of the world. The magistrate ought to do justice between citizen and citizen; every nation ought to do the same between themselves and another nation. This second distribution of justice, requires no maxims but what are used in the first. Between nation and nation, there is seldom Edition: current; Page: [29] any want of a third to be umpire; because the grounds of dispute are almost always clear and easy to be determined. The interests of two nations are generally so far separated, that it requires nothing but to be a lover of justice to find it out: it is not the same with regard to the differences that arise between private persons as they live in society, their interests are so mingled and confounded, and there are so many different sorts of them, that it is necessary for a third person to untangle what the covetousness of the parties strives to tie knots in, &c.”

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CHAPTER II: Concerning the nature and distinguishing qualities or characteristics of human actions.

SECTION XXIV

Transition to treat of human actions.From what hath been said of the foundation and origine of the law of nature and nations, it is obvious, that it hath for its object and Edition: 1741; Page: [19] scope the direction of human conduct; and therefore order makes it necessary to enquire accurately into the qualities and characteristics of human actions.

SECTION XXV

What is meant by action and what by passion? What by external and what by internal action?Experience, the fountain of all knowledge, teaches us, that various motions and changes happen in the human mind; but since no motion can be produced or conceived without a sufficient moving cause, the motions which happen in the mind of man must have some sufficient cause, which must either be within or without man. And therefore motions, the sufficient cause of which is in man himself, are called actions; and those the cause of which must be sought after without man, are termed passions. But because the motion called action, either produces nothing without the mind, but rests there, or produces by will some effect in the body, the former are denominated internal, the latter external actions.

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SECTION XXVI

Passions of what kinds are they?Passions not proceeding from us, but from some external cause, are so far without our power, and therefore are not unfrequently excited in us against our will or inclination; yet they may sometimes be as it were repulsed and prevented, if we are provided with sufficient force to resist the external exciting cause; and on the other hand, in certain circumstances we can assist the external mover, so as that the motion it tends to produce may be more easily excited in us. Whence it follows that some passions are within our power, and others are not.* Edition: 1741; Page: [20]

SECTION XXVII

Whether they are subject to our direction or not?Because the law of nature hath only free actions for its object, (§4) it cannot have for its object, in order to be directed by it, passions which are not within our power. Tho’ it may lay down some rules relative to our passions, so far as they are in our power, yet, properly speaking, these rules are not directions to our passions, but to those free actions, by which we can resist or assist these passions, shewing what we ought to do with regard to hindering or forwarding them.

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SECTION XXVIII

Whether the law of nature extends to them?The law of nature therefore only extends to our actions; but let it be observed, that tho’ the sufficient cause of all these be in man himself, (§25) yet experience teaches us, that of some actions we are conscious and are absolute masters; others are of such a nature that they proceed from some mechanical disposition, in such a manner that we are not always conscious of them, nor have them not wholly in our power.* Edition: 1741; Page: [21]

SECTION XXIX

Actions are either human or natural. Whether the latter are the object of the law of nature?Actions of which we are conscious, and which are within our power, and subject to our direction, are properly termed human or moral actions; those of which we are not conscious, or not masters, are called physical or natural actions; whence it is plain, that the former are free, the latter necessary; and therefore that human or moral actions alone can be directed by the law of nature (§4), and not natural ones, except so far as it is in our power to assist and promote, or contrariwise to avoid and prevent them. Edition: 1741; Page: [22]

Edition: current; Page: [33]

SECTION XXX

The understanding and will are the principles of human actions.Human or moral actions being free or within our power, and every thing being in our power which is directed by our will; it follows that human or moral actions are actions which may be directed by our will. But because the will never determines itself, unless it be excited to desire or reject by the understanding;* hence it is justly concluded, that the understanding likewise concurs in the exertion of free human actions; and therefore there are two principles of free human or moral actions; the understanding and the will.

SECTION XXXI

What the understanding is?Understanding is the faculty by which the mind perceives, judges, and reasons. When this faculty takes the name of imagination, we have sufficiently shewn in another treatise, (in the elements of rational philosophy).

SECTION XXXII

Without its concurrence an action is not moral.But since the will cannot exert itself, unless it be excited by the understanding, (§30) it follows Edition: 1741; Page: [23] that it cannot prefer a just action as such, nor abhor an unjust one as such, unless the understanding hath first distinctly perceived the action to be just or unjust, by comparing it with Edition: current; Page: [34] the rule of action, i.e. by reasoning. And therefore moral actions presuppose the capacity of perceiving a rule of action, and of comparing actions with the ideas of just and unjust.*

SECTION XXXIII

Hence conscience.That faculty by which we reason about the goodness or pravity of our actions is called conscience, concerning which we have discoursed at large in another treatise. Here however it is necessary to repeat, or rather add some observations upon conscience.

SECTION XXXIV

Which is reasoning.Because conscience reasons concerning the goodness and pravity of actions; (§33) but actions are called just, in respect of an external obligation arising from a law; conscience must therefore compare the one with the other, the law and the fact; that is, form two propositions, and from them deduce a third; which, since it cannot be done but by syllogism, it follows that every reasoning of Edition: 1741; Page: [24] conscience is a syllogism, consisting of three propositions, the law, the action, and the conclusion.†

Edition: current; Page: [35]

SECTION XXXV

It is divided into good and evil conscience.Since conscience in its reasonings always terminates in a sentence which it draws (§34): but every sentence either condemns or absolves according as the action is found to be conformable or disagreable to the law. Conscience, when it absolves, is called good, and when it condemns, it is called evil; the former is attended with tranquillity and confidence; the latter with suspiciousness and dread.*

SECTION XXXVI

It is likewise divided into antecedent and consequent.We may reason either about past or future actions, and therefore conscience reasoning about actions not yet performed, is called antecedent conscience, and when it reasons about actions already done, it is called consequent conscience.

SECTION XXXVII

In some persons both are found.In both cases conscience compares the action with the law. But because the good and upright man, Edition: 1741; Page: [25] who hath a due sense of virtue and duty alone sets himself to conform his future actions to the divine law; such only exercise antecedent conscience. The consequent exerts itself even in the breasts of the most profligate.†

Edition: current; Page: [36]

SECTION XXXVIII

Conscience either excites, admonishes, or reclaims.Further, as often as we compare a future action with the law, we find it either to be commanded, forbidden, or permitted. In the first case conscience excites us to perform the action. In the second it restrains us from it. In the third, having wisely examined all its circumstances, it advises what ought to be done. Conscience is therefore divided into exciting, restraining, and admonishing.* Edition: 1741; Page: [26]

SECTION XXXIX

Conscience is either right or erroneous.Moreover, because conscience is a reasoning, the same things agree to it which are true of a syllogism; wherefore as reasoning, so conscience may be either right or erroneous; and as every reasoning is either faulty in the form or in the matter, so conscience errs, either because the law, or because the action is not rightly represented; or because the rules of just reasoning are not observed.†

Edition: current; Page: [37]

SECTION XL

It is either certain or probable.Again, as in other reasonings, so likewise in those of conscience chiefly, it happens that an argument is sometimes taken from a certain principle, and sometimes from an hypothesis, a probable proposition, but yet merely hypothetical. Hence conscience is called certain, when it argues upon an indisputable law; and probable, when it founds upon the probable opinion of others.* Now, because there are various degrees of probability, conscience must sometimes be more, and sometimes less probable. Edition: 1741; Page: [27]

SECTION XLI

What doubtful and scrupulous conscience mean?Because what is probable may be true, or may be false (§40): therefore it happens that probable arguments present themselves to us on both sides of the question; now in this case we think more deliberation is required, the affair being dubious; and conscience is then said to be Edition: current; Page: [38] doubtful; but if the perplexity we are in, and cannot get totally rid of, be of smaller consequence, it is then called scrupulous.* Edition: 1741; Page: [28]

SECTION XLII

What free and less free conscience mean?Besides, it may happen that the mind, precipitated into vice by impetuous appetites, and as it were enslaved by evil habits, is not able to reason freely about actions; but is strongly biassed towards the side of its passions; in which servile state conscience is not a free and impartial reasoner. But the mind which hath delivered itself from such miserable bondage into a state of liberty is free. This distinction is accurately explained by Wolfius ’s Ethic. §84.†1

Edition: current; Page: [39]

SECTION XLIII

What sleeping, awakened and seared conscience mean?We know by experience that men are sometimes lulled so fast asleep by their vices, that they have no feeling of their misery, and never think upon duty, or right and wrong. Now, as we then say, conscience is in a deep lethargy; or if it is, by a long habit of vice, become quite obdurate and Edition: 1741; Page: [29] callous, we say it is seared as with a burning iron.* So conscience seems as it were to awake, when a person rouzed by calamity, or a sense of danger, begins to examine and ponder his actions with some attention, and to reflect and reason about their goodness or depravity.

SECTION XLIV

What is meant by quiet, disturbed, anxious, disquieted conscience and remorse?We have already remarked that every one’s conscience condemns or absolves him (§35): but because absolution must be accompanied with the highest satisfaction of mind, and condemnation with the bitterest uneasiness and disquiet; hence it follows, that a good conscience, acting upon certain evidence, is for the most part quiet and easy; an evil conscience is disturbed by racking remorse; (which torment the antients compared to the burning torches of the furies): and a dubious one is very anxious and restless, to such a degree, that it knows not to what hand to turn itself. These affections however belong more properly to the effects Edition: current; Page: [40] of conscience than to conscience itself, as every one will immediately perceive.* Edition: 1741; Page: [30]

SECTION XLV

Whether conscience be the rule of human actions?Whence we see what judgment we are to form of the opinion of those who assert that conscience is to be held for the internal rule of human actions. For if a rule cannot answer the end of a rule unless it be right, certain, and invariable (§5); who will admit conscience to be a rule which is sometimes erroneous (§39); sometimes only probable (§40); sometimes doubtful and wavering; (§41) and frequently overpowered by perverse appetites (§42); wherefore, tho’ he be guilty who acts contrary to conscience, whether certain or probable; yet he cannot for that reason be said to act rightly and justly, who contends that he has acted according to his conscience. Edition: 1741; Page: [31]

Edition: current; Page: [41]

SECTION XLVI

Why action ought to be suspended while conscience doubts?Hence we may conclude, that while conscience is uncertain, and fluctuates between contrary opinions, action ought to be suspended. This we assert in opposition to Ger. Gottl. Titus,2in his observations on Puffendorf de off. hom. & civ. l. 1. C. 1. §6. And for one to do any thing with such an obstinate obdurate mind, as to be very little concerned about knowing the divine will, and determined to do the same, even tho’ he should find it to be prohibited by God, is the heighth of perverseness.*

SECTION XLVII

The weaknesses or defects of the understanding, ignorance and error.From what hath been laid down, it is plain that ignorance and error are the great hinderances to conscience in the application of a law to a fact. By the former is understood the mere want of knowledge; by the other is meant the disagreement of an idea, a judgment, or a reasoning to truth, or the nature of the thing. One therefore is said to be ignorant who hath no idea before his mind; and one is said to err, who hath either a false idea of the object, that is, an idea not conformable to it; an obscure, confused, or unadequate idea. For an error in the idea must of necessity Edition: current; Page: [42] infuse itself into the judgment made concerning an object, and from thence into all the reasonings about it. Edition: 1741; Page: [32]

SECTION XLVIII

Whether ignorance and error of all sorts be culpable?But because all men are not under an obligation to find out the more abstruse truths which may be said to lie at the bottom of a deep well; and in reality the ignorance of some things is rather attended with advantage than detriment;* (yea, as Terence observes, Hecyra.3the ignorant and illiterate often do more good in one day, than ever the learned and knowing do;) hence it may be inferred, that ignorance and error of every kind is not evil and blameable.

SECTION XLIX

What kind of ignorance and what kind of error is culpable?Yet since the will makes no election unless it be excited to it by the understanding; and therefore the understanding concurs in producing moral actions (§30), the consequence from this is, that they are not blameless who are grosly ignorant of those truths relative to good and ill, just and unjust, which it was in their power easily to understand, or who err with regard to these matters, when error might have been avoided by due care and attention to acquire right and true knowledge.

Edition: current; Page: [43]

SECTION L

Ignorance is either vincible or invincible, voluntary or involuntary, efficacious or concomitant.Hence arise various divisions or classes of ignorance and error, so far as it is or is not in our power Edition: 1741; Page: [33] to escape ignorance, it is vincible or invincible.*So far as one is or is not the cause of it himself, it is voluntary or involuntary. Finally, if one does any thing he would not have done had his mind not been obscured by ignorance, such ignorance is called efficacious or effectual. But if he would have done the same action tho’ he had not been in the state of ignorance in which he did it, it is called concomitant. Repentance is the mark of the former; but the latter discovers itself by the approbation given to the action done in a state of ignorance, when that ignorance no longer takes place. Now all this is equally applicable to error.

SECTION LI

What will is?We proceed now to consider the other principle of human or moral free actions, viz. the will, (§30) which Edition: 1741; Page: [34] is that faculty of our mind by which we choose and refuse. Hence it is justly said, that truth and falshood Edition: current; Page: [44] are the objects of the understanding; but that the will is conversant about good and ill. For the will only desires truth as it is good, and is averse to falshood only as it is ill.*

SECTION LII

Its nature and acts.From this definition we may conclude that the will cannot choose any thing but what is exhibited to it by the understanding under the shew of good, nor turn aside from any thing but what appears to it to be ill. The greater good or ill there seems to be in any thing, the stronger in proportion is our inclination or aversion; and therefore the desire of a lesser good or a lesser evil may be overpowered by the representation of a greater good or evil. Aversion does not consist in a mere absence of desire, but hath something positive in it, which is called by Koehler, exerc. jur. nat. §167.4 noluntas vel reclinatio, refusing or aversion. Edition: 1741; Page: [35]

SECTION LIII

Its spontanity and liberty.From the same definition it is clear that man, with regard to his will, acts not only spontaneously but freely. For spontaneity being the faculty of Edition: current; Page: [45] directing one’s aim to a certain end, but liberty being the power of choosing either of two possibles one pleases; it is plain from experience, that both these faculties belong to our minds. The servile subjection one is under to his perverse appetites and affections till virtue makes him free, is not inconsistent with these properties. For these obstacles are of such a kind, as hath been observed, that they may be removed and overpowered by the representation of a greater good or evil to the understanding (§52).* Edition: 1741; Page: [36]

SECTION LIV

Do temperament or bodily constitution affect it?Hence it is evident, that bodily constitution, (which philosophers call temperament) does not infringe upon the liberty of human will. For tho’ the mind be variously affected by the body, so as to be rendered by it more propense to certain vices; yet that propensity hath no more of compulsion or force in it than there is in the inducement to walk out when fine weather invites one to it. But who can deny that the will is left intire, and not hindered or prevented from choosing either to walk out or not as it shall appear most reasonable, when inticed by all the charms of spring?

Edition: current; Page: [46]

SECTION LV

Whether affections and habits encroach upon it?The same is true concerning all the affections and motions excited in the mind by the appearances of good and ill. For tho’ the mind, with respect to the first impression, be passive, every thing else is however intirely in its power; to resist the first impulse, not to approve it, nor to suffer it to gain too much force. And it likewise holds with regard to habits, i.e. propensions confirmed by long use and practice. For tho’ these gradually become so natural, that tho’ expelled with never so much force, they recoil, Hor. ep. 1. 10. v. 24. (si expellas furca, tamen usque recurret)5 yet they are not incorrigible, but may be amended, if one will but exert his liberty.*Edition: 1741; Page: [37]

SECTION LVI

What may be said of external force.External violence is so far from taking away the liberty of the human mind, that it affords a strong proof of our liberty. For tho’ one may be hindered by force from doing what he chooses to do; yet no force can Edition: current; Page: [47] make one will what he does not will, or not choose what he chooses.* If the understanding represents the good attending an action as greater than the imminent evil, no external violence can force one to quit his resolution, he will remain unshaken by all the menaces of power or cruelty.

  • Nec civium ardor prava jubentium
  • Nec vultus instantis tyranni
  • Mente quatiet solida.6

SECTION LVII

The will is divided into consequent and antecedent.Hence we see that the distinction between antecedent and consequent will ought not to be rejected; the former of which decides without a view of all the circumstances which may happen at the time of acting; the other suits itself to the circumstances which appear at that instant. The one therefore is not opposite to the other, tho’ they be very different. Thus it is true that God loves peace, and yet that in certain circumstances he does not disapprove war. Edition: 1741; Page: [38]

SECTION LVIII

Actions are spontaneous, forced, voluntary, and mixed.Further, it is equally plain that those actions are spontaneous which are performed by a mind determining itself to a certain known proposed end; these are not spontaneous which do not proceed from such a determination of the mind, but are done without intention. Again, even spontaneous actions are voluntary, to perform which no external necessity Edition: current; Page: [48] compels; and such are forced, to which one is necessitated by some external urgent circumstances. We need not add mixed, because actions called such, being performed under some external necessity urging to it, coincide with those which are called forced actions.*

SECTION LIX

Actions not spontaneous are involuntary. Forced actions are voluntary.Hence it is obvious that no action which is not spontaneous is voluntary (§58); but forced actions may be voluntary. For tho’ we would rather not act were not a very great evil set before us, yet it is the will which determines to act; whence it follows, that the antient lawyers were in the right when they affirmed, that one who is forced, wills. D. l. 21. §5. quod met. causa, “coactum etiam velle.” Edition: 1741; Page: [39]

Remarks on This Chapter

Our Author doth not enter at all into the dispute about necessity and free agency. It would have been a digression from his subject. The question is most accurately handled by Mr. Locke in the chapter of Power, in his Essay on human understanding. See likewise what I have said of it in my Introduction to the principles of moral philosophy; and in the Christian philosophy, sect. 3. prop. 4. But I think the whole matter may Edition: current; Page: [49] be dispatched in a few words. It is as much a matter of experience as any other whatever. That several things depend upon our will as to their existence or non-existence; as to sit, or stand, or walk; to write or not write: to think or leave off thinking on this or the other subject, &c. But so far as it depends in this manner on our will, or pleasure to do, or not to do, we are free, we have power, dominion, agency; or we are not passive but active beings. To say we are not free, but necessary, must be to assert either that we are not conscious, which is contrary to experience; or that we never will, which is also contrary to experience; or that our will never is effective, which is equally so, since many things depend on our will: For necessity must mean one or other of these three, or all of them together. There is no other property included in the idea of a free agent; there is no other conceivable property belonging to action or agency, besides willing with power to effect what is willed. To say that the will is not free, because it must desire good and hate ill as such, is to say freedom or activity cannot belong to a mind endued with the power of willing; since willing means complacency in good, or preferring it, and aversion to evil, or desire to avoid it, i.e. it is to say freedom means some property that can’t exist, because it implies a contradiction, viz. willing without willing. Freedom is the very idea of agency: it is that which constitutes an agent; and it signifies having a certain degree or extent of power, efficiency, or dominion by our will. And that we have a certain degree or extent of power, efficiency, or dominion by our will, is as manifest to experience as that we think: nor can a proof of it be demanded, unless at the same time a proof of thinking and consciousness be demanded.

As for what our Author says about erroneous conscience, it will be better understood by what is said in the fourth chapter about imputation, and our remark added to that chapter. Mean time we may observe, 1. That if to acquire knowledge for the direction of our actions be not among our τὰ ἐϕ’ ἡμὶν, or within our power, the direction of our actions cannot be in our power, that is, we are not agents. If we are not accountable for our not having knowledge sufficient to direct our actions rightly, we cannot be accountable for our actions. 2. Our views, our judgments of things must be our rule; we can have no other: yet ultimately, the nature of things is the rule, because the natures of things are stubborn, and will not yield to our misapprehensions Edition: 1741; Page: [40] of Edition: current; Page: [50] them. It is the same here as with regard to mechanicks, where no difficulty is started. The nature of mechanical powers and properties will not submit to our notions; yet we must work in mechanical arts according to our apprehensions of mechanical laws and properties. Our ideas and judgments are our immediate guide; but the natural qualities and relations of things are the ultimate standard. The former may vary, but the latter are unchangeable. The ultimate measure of opinions, which is truth or nature, is constant, immutable.

Edition: current; Page: [51]

CHAPTER III: Of the rule of human actions, and the true principle of the law of nature.

SECTION LX

Of what nature or kind the rule of human action must be.Such, we have already seen, is the nature of our free actions, that they must have a rule to direct them (§4); there we likewise shewed that a rule could not serve the purposes of a rule, if it be not streight or right, certain, evident, and invariable, and have external as well as internal obligation. Let us now enquire a little more accurately what this rule is which hath all these properties essential to a rule for human, free, moral actions.*Edition: 1741; Page: [41]

Edition: current; Page: [52]

SECTION LXI

The rule of human actions is not to be found in us, but without us.The rule of human actions must either be within us or without us. If it be within us, it can be none other but either our own will, or our understanding and conscience. But neither of these faculties is always right, neither of them is always certain, neither of them is always the same and invariable; wherefore neither any of them, nor both of them together, can be the rule of human actions; whence it follows that the rule of human actions is not to be found in ourselves; but if there be any such, it must be without us.

SECTION LXII

It is to be found in the will of God.Now without us exist other created beings, and likewise a God, the author of all things which exist. But since we are enquiring after a rule of human actions, carrying with it an external obligation (§9) and made known or promulgated to all mankind by right reason (§11); and since external obligation consists in the will of some being, whose authority we acknowledge (§9), there being no other whose authority we are obliged more strictly to acknowledge than the infinitely perfect and blessed God (§10); and seeing he alone can promulgate any thing to us by right reason, of which he is the author, it follows, by necessary consequence, that the will of God must be the rule of human actions, and the principle or source of all natural obligation, and of all virtue.*Edition: 1741; Page: [42]

SECTION LXIII

The will of God is a right, certain, and constant rule.That this rule is right cannot be doubted, since an infinitely perfect Being cannot will what is not perfectly good and right: it must be a certain rule, since reason discovers it to all men; and it must be unvariable, because the will of God can no more change, or be changed, than God himself, Edition: current; Page: [53] or right reason, by which it is discoverable. Finally, it must be obligatory, since God hath the justest claim and title to our obedience; and men have no reason or right to decline his authority, and cannot indeed if they would. Hence at the same time it is evident, that every will of God is not the rule of human actions, but his obligatory will only.*

SECTION LXIV

This rule may be called a law with regard to mankind.Since therefore the obligatory will of God, which we have shewn to be the only rule of human actions, is his will with respect to the actions of his rational creatures, as to acting or forbearing to act (§63); it is evident, that this rule, considered with relation to man, may properly be called a divine law, because it is the will of the supreme Being, commanding or forbidding certain actions with rewards and penalties (§9). But because there are other laws of Edition: 1741; Page: [43] God to mankind which are made known by revelation, and are therefore called positive, those which are known to man by natural reason, are justly denominated natural; and according as they either command, prohibit, or permit, they are with good reason divided into affirmative, negative, or permissive.

Edition: current; Page: [54]

SECTION LXV

The explication of the divine justice may be deduced from the divine will.Now since this divine will, or divine natural law, is the source and principle of all justice (§63), it follows that every action, not only human, but divine, which is conformable to this divine will, is just; and therefore it is objected, without any reason, against this doctrine, that there could not be any such thing as divine justice, were there no other principle or source of the law besides the divine will. *Edition: 1741; Page: [44]

Edition: current; Page: [55]

SECTION LXVI

The difference between the rule of divine and the rule of human justice, in what does it consist?Herein chiefly lies the difference between divine and human justice, that with regard to the former there is no law or co-action; whereas the latter includes in it a respect to a law, and external obligation or co-action (§65 & §64). Wherefore the divine will, as it is a rule of action to men, carries with it a commination of some evil or punishment to transgressors; tho’ that punishment be not, as in human laws, defined and ascertained, but be, for the greater part, indefinite, and reserved to God himself, to be inflicted according to his wisdom and justice.*Edition: 1741; Page: [45]

SECTION LXVII

That we may apply this rule, there must be some principle or criterion by which it may be known or ascertained.But since it cannot be doubted that there is no other rule of human actions but the will or law of God (§63), it is to be enquired how we may come to the certain knowledge of this law. But since it is universally acknowledged to be promulgated to all men by right reason (§11), and since right reason is our faculty of reasoning, by which we deduce truths from other truths by a chain of consequences (§15), it is obvious that there must be some truth or proposition, from which what is agreeable to the will of God, and therefore just, may be ascertained by necessary Edition: current; Page: [56] consequence. There must then be some universal principle of science with regard to the law of nature.*

SECTION LXVIII

This principle must be true, evident, and adequate.Every principle of science must be true, evident, and adequate; wherefore the principle of science, with respect to natural law, must be true; lest being false or fictitious, the conclusions inferred from it be such likewise: it must be evident, and that not only in this sense, that it is intelligible to the literate; but universally, to the unlearned as well as the learned, all being equally under obligation to Edition: 1741; Page: [46] conform themselves to the law of nature. In fine, it must be adequate, or of such an extent, as to include in it all the duties of men and citizens, not Christians only, but those also who have not the benefit of divine revelation.

Edition: current; Page: [57]

SECTION LXIX

Whence this principle is not to be found in the sanctity of God.Therefore we must not expect to find this principle of the law of nature in the conformity of our actions to the sanctity of God: for tho’ the proposition should be granted to be true, yet it is not evident enough, nor of such a nature, as that all the duties of men and citizens can be inferred and proved from it.*

SECTION LXX

Nor in the justice and injustice of actions considered in themselves.Nor is this a sufficient principle, “that what is in its own nature just is to be done, and what is in its own nature unjust is not to be done.” For tho’ we have already admitted, that certain actions are Edition: 1741; Page: [47] in their own nature good, and others evil, and that man is therefore obliged to perform the one, and to avoid the other, by an intrinsic obligation (§8); yet an action antecedently to, or independently of a law, is not just (§7); not to add that this principle is not evident enough, nor that all human offices are not deducible from it.

Edition: current; Page: [58]

SECTION LXXI

Nor in the consent of all nations.None, I think, will rashly go into the opinion of those learned men, who held the consent of all nations, or of all the more civilized nations, to be the principle of natural law. For it is not true, that what all nations agree in, is also conformable to the divine will;* nor is this universal consent evident to all, since it must be collected from various testimonies of authors, antient and modern; nor is it sufficiently adequate to point out all duties.*.Edition: 1741; Page: [48]

SECTION LXXII

Nor in the seven precepts of Noah.But as those who endeavour to establish the law of nature and nations from the consent of nations, not only lay down a false, unevident, and unadequate principle; but likewise go out of the question into one of another kind, while they derive the law of nature not from nature itself, Edition: current; Page: [59] but from the traditions or opinions of nations: so the opinion of those who have attempted to deduce the law of nature and nations from the precepts given to Noah, labours under the same defects, as hath been sufficiently proved (§16).

SECTION LXXIII

Nor in the right of all to all things, or in the study of external peace.What shall we then say of the whole philosophy of Hobbes1 in his books de Cive, or his Leviathan? when he asserts the right of every man in a state of nature to all things, he affirms a proposition which is neither true, nor evident, nor adequate, since the duties of men to God and themselves cannot be deduced from that principle; yea, while he goes about in Edition: 1741; Page: [49] that manner, pretending to establish the law of nature, he really subverts it, as Hen. Cocei.2 def. de jure omnium in omnia, has shewn. Hence it is plain what we are to think of this other principle, viz. “that external peace is to be sought and studied if it can be obtained, and if not, force and war must be called to our aid.” For here likewise Hobbes lurks behind a curtain.*

Edition: current; Page: [60]

SECTION LXXIV

Nor in the state of integrity.That principle laid down by Val. Alberti 3 professor of divinity and philosophy at Leipsic, hath a specious shew of truth and piety, viz. a state of integrity. But Puffend. Specim. controv. 4. 12. and Thomas. jurisp. divin. 4. 40 & seq. have proved it to be false. And granting it to be true, that whatever is agreeable to a state of primitive integrity, is truly of the law of nature; yet how unevident this principle must be, not only to Pagans, but even to Christians, is manifest. Further, since the laws of citizenship, of war, of contracts, and many others, for which there was not place in that most happy state, cannot be deduced from the idea of it, who can call this principle adequate? *Edition: 1741; Page: [50]

SECTION LXXV

Nor in sociability.Grotius, Puffendorf, and several antients, were wonderfully pleased with the principle of sociability; nor can it be denied, as we have afterwards expressly proved, that men are so framed that they must live socially: but that this is not the true, evident, and adequate principle of the law of nature, hath been already demonstrated by the learned and worthy Sam. Edition: current; Page: [61] de Coccius de principio juris nat. diss. 1. qu. 2. §9.4 I shall only add this one thing, that many of our duties to God, and to ourselves, would take place, even tho’ man lived solitary, and without society in the world.*Edition: 1741; Page: [51]

SECTION LXXVI

Nor in the order of nature, and such like hypotheses.Other principles of natural law are highly boasted of by others; such as the order of nature, which the Creator intends in his works; the interest of mankind; a moral Theocracy, and other such like principles.† But it is agreed to by all, that these principles are not evident or adequate; and some of them indeed cannot be admitted without some cautions and restrictions.

Edition: current; Page: [62]

SECTION LXXVII

The will of God intends our happiness.But to give the opinion, which, upon a mature examination of this subject, appears to me the most solid, first of all I would observe, that God being infinitely wise and good, cannot will any thing else with relation to mankind but their happiness. For being perfect, he stands in no need of any thing; and therefore men, who of all the beings within our cognizance, alone are capable of felicity, were not created by him Edition: 1741; Page: [52] for his own advantage, but that he might render them capable of true happiness.*

SECTION LXXVIII

To this the will of God obliges us.This being the will of God, that man should aim at and pursue true happiness, and his will being the rule of human free actions, and therefore the source of the law of nature and justice (§62); by consequence whereas, human legislators being themselves indigent in several respects, have their own advantage no less in view than that of their subjects in making laws, God, on the contrary, must have made laws to men solely for their own benefit, and have intended nothing by them but their attainment to true happiness, by conforming themselves to them.Edition: 1741; Page: [53]

Edition: current; Page: [63]

SECTION LXXIX

That happiness consists in the fruition of good by love; and therefore love is the principle of the law of nature.If therefore God intend the happiness of mankind, and the law of nature be directed towards it as its end (§78), and true happiness consist in the enjoyment of good, and the absence of evil; the consequence must be, that by the law of nature God must intend that we may attain to the enjoyment of true good, and avoid evil. But since we can only enjoy good by love, hence we infer that God obliges us to love, and that love is the principle of natural law, and, as it were, a compend of it.*

SECTION LXXX

What is love and hatred?Love in us is the desire of good, joined with delight in its perfection and happiness. Hatred is Edition: 1741; Page: [54] aversion from evil, joined with satisfaction in its unhappiness; wherefore what we love, we receive pleasure from its perfection and happiness, and we are disposed to promote that perfection Edition: current; Page: [64] and happiness to the utmost of our power. What, on the contrary, we hate, we rather desire its misery than its happiness.

SECTION LXXXI

Love does not give uneasiness.Since we receive satisfaction from the excellence and happiness of what we love (§80) it is obvious that the lover does not will to give uneasiness to what he loves; nay, he rather suffers pain if any other should attempt any such thing. For because he who gives uneasiness to one, or suffers it to be done without feeling any pain, takes pleasure in another’s unhappiness; but to take delight in the suffering of any one, is the same as to hate (§80); and to love and hate the same object at one and the same time is a contradiction; the consequence is, that it is inconsistent or impossible at the same time to love one, and to hurt him; or to bear his being hurted by another without disturbance and pain.

SECTION LXXXII

Hence the first degree of love, which we call the love of justice.One may be hurt two ways, either by doing something which makes him more unhappy than he is by nature, or by depriving him of some happiness he is already possessed of. But seeing to do something which conduces to render one more unhappy than he is, is to hurt one; and to dispossess one of something he hath justly acquired, and which contributes to his happiness, is to deny one, or to take from him something that belongs to him; hence it follows, that he violates the law of love in the highest manner who hurts one, and disturbs his possession, or takes it away, and hinders his enjoyment of it; and, on the other hand, the lowest degree of love is to hurt no person, but to render to every one Edition: 1741; Page: [55] what is due to him, or leave him in the undisturbed possession and enjoyment of what he hath; which degree of love we call the love of justice. *

Edition: current; Page: [65]

SECTION LXXXIII

From which there is another very differing degree, which we call the love of humanity and beneficence.But because a lover receives pleasure from the happiness of him whom he loves (§80), it follows that he renders to him whom he loves chearfully, even that which is not strictly due to him, or his right, if he perceives it to be conducive to his happiness: and this is a more sublime degree of love, which we call love of humanity, or beneficence. * But because we call the capacity of discerning things which are contributive to our own happiness and that of others, prudence or wisdom; it is obvious that this love of humanity or beneficence must have wisdom for its guide and director.*Edition: 1741; Page: [56]

SECTION LXXXIV

The difference between them in respect of obligation.Moreover, whereas he who does not observe the love of justice, who hath it not, or does not act conformably to it, is a profligate person; he, on the other hand, who hath not the love of humanity and beneficence, Edition: current; Page: [66] can only be said not to perform the nobler and greater virtues (§82). Now none may be forced to do virtuous actions, but all acts of wickedness may be restrained by punishments (§9). Whence it is plain, that men may be compelled to acts of justice, but not to acts of humanity and beneficence. But when obligation is joined with coaction, it is perfect; when it is not, it is imperfect (§9). We are therefore perfectly obliged to the love of justice, and but imperfectly to the love of humanity and beneficence.*Edition: 1741; Page: [57]

SECTION LXXXV

Love, how distinguished in respect of its object.Since love always tends towards good (§80). But whatever we embrace with affection as good, must either be a more perfect being than our selves, equal, or inferior to us, and less excellent. Love of the first kind, we call love of devotion or obedience; love of the second kind, we call love of friendship; and love of the third sort, we call benevolence.

SECTION LXXXVI

What love of devotion is; what love of friendship; and what benevolence?Love of devotion or obedience, is love towards a more excellent and perfect being, with whose excellence and happiness we are so delighted, that we look upon such a being, as to be honoured and obeyed with the highest complacency and veneration. The love of friendship is the love of our equal, or satisfaction and delight in his happiness, equal to what we perceive Edition: current; Page: [67] in our own. The love of benevolence, is the love of an inferior and more imperfect being, which disposes us seriously to promote its happiness, as much as the nature of the being permits.

SECTION LXXXVII

The nature of the love of devotion and obedience.From these definitions it follows, that we cannot have love of devotion or obedience towards a being, unless we be persuaded of its superiority and greater perfection; nor can this love take place, unless such a being be of such a character and temper as to desire to be loved by us. And this love ought Edition: 1741; Page: [58] always to be joined with veneration and obedience suitable to the perfections of such a being.*

SECTION LXXXVIII

The love of friendship its nature.Further it is plain that the love of friendship arises from equality. Now equality is either an equality of nature, or an equality of perfections. Wherefore, where the former takes place, equal offices of love are reciprocally due; and for that reason, amongst all who are by nature equal, these incomparable rules ought to obtain. “Whatever you would not have done to yourself, do it not to other.” And, “Whatever you would have another do to you do unto them.” Matt. vii. 12. Luke vi. 31. Tob. iv. 16. The first of which is the foundation of the love of justice; the other, of the love of beneficence and humanity. But because, however equal the being beloved, and the being loving may be by nature, yet the one may be either more perfect, or more imperfect than the other; it may happen that we may be obliged to have at the same time a love of friendship towards a man, as equal to us by nature, and a love of devotion and Edition: current; Page: [68] obedience, or of benevolence towards him as being more perfect or more imperfect.*Edition: 1741; Page: [59]

SECTION LXXXIX

The love of benevolence.Finally, since benevolence seeks the enlargement and promotion of the happiness of a more imperfect being, as much as its nature is capable of happiness (§86). Hence it follows, that we ought not to hurt such a being, or refuse to it what is its right and due; but that we ought to do good to it, to the utmost of our power, with prudence however; and therefore whatever kindness is not agreeable to reason, or conducted by prudence, is not benevolence and liberality, but profusion, or any thing else you please to call it.

SECTION XC

What are the objects of this love?Now if we consider accurately the beings with which we are surrounded, we shall find there are three only, to which we are under obligation to render the offices of love: God, the creator of all things; ourselves, who are certainly the nearest to ourselves; and other men, whom we plainly perceive to be by nature equal to us. For as to spirits, such as angels, we know not their nature, nor have we such commerce with them, as to be under the obligation of certain duties towards them. And between men and brutes there is no communion of right, and therefore no duty is properly owing to them; but we owe this to God not perversely to abuse any of his creatures. Puffend. de jure nat. & gent. 4. 3. 6. Edition: 1741; Page: [60]

Edition: current; Page: [69]

SECTION XCI

The first axiom of love to God.Since we cannot conceive otherwise of God than as a most excellent, most perfect, and infinitely good Being, upon whom depends absolutely our existence and felicity, of whose superiority we are absolutely persuaded, as well as of his will and desire to be loved by us (§87), it follows, that we owe to him a love of devotion and obedience, which that it may be worthy or suitable to a most perfect Being, this rule or maxim immediately occurs, “That God, upon whom we absolutely depend, ought to be adored by us with all the vigour of our mind; and that to him ought to be rendered the most perfect and sincere obedience.”*

SECTION XCII

A second axiom concerning love to ourselves.Our love to ourselves must consist in satisfaction and delight in our own perfection and happiness (§80). Hence therefore we are obliged to pursue Edition: 1741; Page: [61] the preservation and augmentation of our perfection and happiness with all our might. But since the more perfect a being is, the more honour and obedience we owe to it (§87); we must take care that we do not love ourselves more than God, least our self-love should thus degenerate into immoderate and unproportioned selfishness. Whence flows this other maxim, “That man is obliged to omit nothing, that may Edition: current; Page: [70] conduce to preserve, promote, or augment his perfection and happiness, which is consistent with his love of God.”*

SECTION XCIII

A third axiom concerning love to others.Since moreover all men are by nature equal, and that natural equality requires a reciprocal obligation to equal love (§88); the consequence of this is, that we are obliged to delight in the happiness of others, not less, but not more than in our own; and therefore to love others as ourselves; but ourselves not less than our neighbour. Whence flows a third maxim, “That man is obliged to love his fellow-creature no less than himself, and consequently not to do to any other, what he would not have him do to him; but, on the other hand, to do to others all those offices of kindness which he can reasonably desire them to render to him.”

SECTION XCIV

This principle is true, evident and adequate.In fine, upon a due consideration of the pre-requisites to a principle of moral science which have Edition: 1741; Page: [62] been explained, we will find that this is the most genuine principle of moral science. Nothing can be more certain, it necessarily flows from the divine will and the nature of man; and, which is very satisfactory to me, it is authorised by the sacred writings. Nothing can be more evident, since it is such as may be easily conceived by the unassisted reason of every man, even among Pagans. Nothing can be more adequate, for in fact we shall soon see, that there is no duty of a man as such, or of a citizen, which may not be easily and clearly deduced from this first principle.

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Remarks on This Chapter

I can’t help thinking that our excellent author is not so distinct in this chapter as he ought to have been, and withal too tedious. It was indeed necessary to distinguish between the principle which constitutes external or legal obligation, and the principle which is the medium of knowledge with regard to it; or the mean by which it may be known and demonstrated. Now it is the will of God which constitutes external or legal obligation. But what is the medium by which the divine will may be known? Our author had already often said, that right reason is the faculty by which it may be known. But hence it follows, that conformity to reason, is the mean by which agreeableness to the divine will may be known and demonstrated. Why then does he dispute against those who say conformity to Reason, or which comes to the same thing, to our rational nature, is the principle or mean of moral knowledge? Or why does he not immediately proceed to enquire what is, and what is not agreeable to reason or our rational nature? Why does he dispute against those who in their reasonings about the laws of nature, infer them from the divine sanctity or moral rectitude, which must mean reason, or our rational nature compared with the rational nature of the supreme Being? For if the law of nature be discoverable by reason, conformity to reason, to the reason of God, and the reason of man, must be the principle of knowledge with regard to the law of nature. Nor can the divine sanctity or divine moral rectitude be an obscure idea, unless conformity to reason, or to a reasonable nature, be an obscure idea. Our author seems to have forgot what he said (§1), when he says (§86), that the happiness and perfection of mankind is not a principle from which the law of nature can be inferred; and what he here refutes, he afterwards (§77) returns to, as a necessary first principle in demonstrating the law of nature, viz. “That God intends the happiness and perfection of mankind.” For if his reasoning, Edition: 1741; Page: [63] (§77) be just, the business of the moral science is to enquire what tends to the perfection and happiness of man, and what is necessary to it; and these will be good moral reasonings, which shew an action to be conducive to human happiness and perfection, or contrariwise: For thus they shew what the divine will commands, and what it forbids: nay, according to his reasoning in that section, we can not advance one step in morals, without first determining Edition: current; Page: [72] what our happiness and perfection requires, and what is repugnant to it. He seems likewise (§70) where he says, “That the intrinsic pravity or goodness of actions, is not a sufficient principle for deducing and establishing the moral laws of nature,” to have forgot what he had said in the former chapter, and frequently repeats in succeeding ones, of the priority in nature or idea of internal to external obligation. And indeed, to say that the laws of nature concerning human conduct, cannot be deduced from the consideration of the internal nature of actions, is in other words to say, that they cannot be deduced by reason; for it is to say, that they cannot be deduced from the conformity or disconformity of actions to reason. All I would infer from this is, 1. That it is impossible to make one step in moral reasonings, without owning a difference between conformity and disagreeableness to reason, and using that general expression, or some one equivalent to it; for the will of God cannot be inferred but from conformity to reason, or something equivalent to it, i.e. from some principle, which however it may be expressed, ultimately signifies conformity to the nature of things, or to reason. 2. That conformity to reason, to a reasonable nature, to moral rectitude, to the divine nature, and conduciveness to the perfection and happiness of a rational being, or conduciveness to the perfection and happiness of man, as such, and several other such phrases used by moralists, have and must all have the same meaning, or terminate in the same thing. 3. That to ask why a reasonable being ought to act agreeably to reason, is to ask why it is reasonable to act reasonably; or why reasonable is reasonable. This must be the meaning of that question, as it is distinguished from this other, “Is there good ground to think, that the supreme Being, the maker and governor of the universe, wills that his reasonable creatures should act reasonably, and will proportion their happiness according to their behaviour?” which question does likewise amount in other terms, to asking whether it is agreeable to supream reason, to approve acting according to reason? There is therefore no necessity of dwelling long upon either of these questions in moral philosophy; but it is its business to enquire what rules of conduct, what methods of action are agreeable, and what are disagreeable to reason, to the nature of things, to the qualities of reasonable beings, to the perfection and happiness of mankind as such; all which phrases, as hath been said, must have the same meaning, and Edition: current; Page: [73] may therefore be promiscuously used: And indeed about them there can be no dispute, unless Edition: 1741; Page: [64] one has a mind to make a particular favourite of some one of them in opposition to all the rest; in which case, the dispute, ’tis evident, will be merely about a phrase; as in fact, most disputes in the moral science realy are, for that very reason, viz. through a particular liking to some favourite words.

Our author’s method of reasoning is, when he brings it out, plain and just enough. It amounts to this, “If we own the being of a God, and have a clear and just idea of his perfection, we must own that he wills the perfection and happiness of all his creatures, his moral creatures in particular: man therefore being a moral creature, God must will the happiness and perfection of man. He must then for that reason, will that man pursue his own perfection and happiness. But such is the nature of man, and so are things relating to him constituted and connected, that the pursuit of his perfection and happiness consists in what may properly be expressed in one word, Love, the love of his Creator, the love of his fellow creatures, those of his own kind in particular, and the love of himself.” Now according to this way of reasoning what our author hath to prove, is the latter proposition; and accordingly he goes on in the succeeding chapters to prove it.

In other words, our author’s manner of deducing human duties amounts to this, “Every obligation which man can be under as a rational agent, external or internal, may be expressed by one word, Love. For we can owe nothing to any being but love: all our obligations must therefore be reducible to these three; the love of our Creator, the love of our fellow-creatures, of those of our own kind, or with whom we are more nearly and immediately connected in particular; and the love of ourselves.” And accordingly our author proceeds to explain the duties belonging to these three classes. The principle upon which he founds may justly be called clear, certain, and adequate. For if there be any such thing as obligation upon a rational agent, external or internal, it can be nothing else, but obligation to love: internal obligation can belong to nothing else but the dictates and offices of reasonable love; and therefore external obligation can belong to nothing else. Wherefore love is justly said in the sacred writings, to be the fulfillment of the law; of the law of nature, of the law of reason, of the law of God. But let me observe, that this method of our author’s, is the same in other words Edition: current; Page: [74] with some of them he refutes. For is it not evidently the same thing as to say “that duty, obligation, or what is reasonable with regard to human conduct, must be inferred from the human nature, and the constitution of things relative to man. But according to the frame of man and the constitution of things, the chief happiness and perfection of every man arises from the love and the pursuit of order within and without him; or from the observation of the prevalency of wisdom and good order, and consequently of greater happiness in the administration of the universe; and from such an orderly discipline of his Edition: 1741; Page: [65] affections as tend to produce universal happiness, order, and perfection, as far as his affections, and the actions they lead to, have any influence?’’ According to which state of the question, the remaining enquiry will be what the love of good order and general happiness requires.

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CHAPTER IV: Of the application of this rule to actions, and the differences of actions proceeding from thence.

SECTION XCV

The connexion.Having considered the nature of human free actions, and the rule according to which they ought to be regulated; the next thing to be considered, is the application of this rule to free actions. The application of a law to a fact is called imputation, and therefore we shall in this chapter treat of it.

SECTION XCVI

Imputation is made by comparing a law with a fact; and therefore by reasoning.Imputation being the application of a law to a fact (§95), which cannot be done otherwise than by comparing a law and a fact, i.e. by two propositions compared together, and with a third by a syllogism; the consequence is, that imputation is a syllogism or reasoning, the major proposition of which signifies a law; the minor a certain action: and the conclusion is the sentence, with regard to the agreement or disagreement of the action with the law.*Edition: 1741; Page: [66]

Edition: current; Page: [76]

SECTION XCVII

Wherein it differs from conscience.Having said much the same thing above concerning conscience (§94), which however is not the same with imputation, let us observe wherein the difference between them consists; and it lies in this: Whereas conscience is a reasoning about the justice and injustice of one’s own actions: imputation is a reasoning about the agreement or disagreement with law of another’s actions. In the first case, every one is his own judge: in the other, another person judges of our actions, and compares them with the law.* Edition: 1741; Page: [67]

Edition: current; Page: [77]

SECTION XCVIII

An action is imputed either by God or by human judges.Every application of law to fact is called imputation (§9), whether an action be compared with the divine law or with a human law; and in like manner, whether God himself, or men, whose office it is, apply law to a fact. The former, however, moralists are accustomed to call imputation in foro divino; the latter in foro humano. But there is this very considerable difference between the two, that in the latter none suffers punishment for thoughts, l. 18. D. de poenis; but God being omniscient, and requiring internal obedience (§91), he justly imputes to us even thoughts which are disagreeable to his law.* Edition: 1741; Page: [68]

SECTION XCIX

And then man is declared to have merited either punishment or reward.Further, whereas the law which is applied to human actions is enforced by a sanction (§64), hence it follows, that to impute is the same as to declare, that the effect which a certain law assigns to an action, agrees to such a particular action. This effect is called in general merit; punishment, Edition: current; Page: [78] if the effect of an action exhibited by the law be evil; and reward, if the effect be good.*

SECTION C

The definition of imputation and axioms relative to it.Imputation therefore is a reasoning by which an action of another person, being, in all its circumstances, compared with a law, whether divine or human, is declared to merit, or not merit a certain effect proposed by a law. From which definition it is manifest, that we cannot certainly pronounce whether an action be imputable or not, unless we have a distinct comprehension both of the law and of the action in all its circumstances: and that one circumstance often alters the whole state of the case.

SECTION CI

It supposes the knowledge and interpretation of the law.Since the law must be known to him who would form a right judgment of the imputability of actions, the consequence is, that he ought to be sure there is a certain law, and ought rightly to under-Edition: 1741; Page: [69]stand the whole of that law, and therefore to interpret it rightly, if it be conceived in concise or obscure terms; i.e. he ought distinctly to comprehend the mind of the law-giver declared by words, or by whatever other signs.

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SECTION CII

Its foundation.Seeing an interpreter represents distinctly the law-giver’s meaning, declared by words or other signs; it follows, that in interpreting laws, great attention must be given both to the proper and the metaphorical signification of words; to their connection with what precedes and what follows, and to the nature and character of the subject itself; and yet more especially to the scope and intention of the law-giver, which induced him to enact the law; wherefore they judge well, and we agree with them who assert the reason of the law to be its spirit or soul. See our preface ad Elem. Pandect.*1Edition: 1741; Page: [70]

SECTION CIII

Its various sorts.Further, since the reason of a law is as it were its soul, hence it must follow, that the law ceases when the sole reason of it wholly and absolutely ceases: that if it do not agree to a certain case, that case cannot fall under the law on account of the very reason of the law; and this is the foundation of what is called restrictive interpretation; to which may be rightly referred equity, i.e. a power of correcting the law in respect of Edition: current; Page: [80] universality: Grot. de Aequit. indulg. & facilit. c. 1. n. 3.22 that if the words of a law do not quadrate with a certain case, and yet the reason of the law be applicable to it, then there is place for what is called extensive interpretation: Finally, that when the words and reason of the law keep as it were pace together, then there is only room for declarative interpretation.*Edition: 1741; Page: [71]

SECTION CIV

The difference between authentic, customary, and doctrinal interpretation.Besides, because the law is interpreted either by the legislator or judge, or some other, to whose office it belongs to apply the law to facts, or by a lawyer, interpretation on these accounts is therefore called authentic, customary, or doctrinal; the foundation of the first is the will of the legislator; of the second, practice in courts of justice; and of the last, the application of the rules of interpretation abovementioned.

Edition: current; Page: [81]

SECTION CV

An action is imputed to its author or cause.Because he who would interpret a law aright, ought to know all the circumstances of the fact, (§108), and the principal circumstance is the person acting; hence we conclude, that an action is to be imputed to him who is the author or cause of it; and, on the contrary, imputation ceases if any thing be done, of which the doer is neither the cause nor the author, tho’ we sometimes impute the merits of one to others; which imputation is commonly called imputation by favour, in contradistinction to that which is of debt or merit, strictly so called. Puffend. de jur. nat. & gent. 1. 9. 2.*Edition: 1741; Page: [72]

SECTION CVI

What actions are not imputable.If therefore an action be imputed to none, unless he be the cause or author of it (§105); but a person cannot be called the author of any action which is not human; i.e. which is not done by the will, under the direction of the understanding (§30); hence it is obvious, that neither passions, nor natural actions, nor events wholly providential, nor things done in a fit of madness, nor natural imperfections either of body or mind, nor things done in sleep or drunkenness can be imputed to any person, but so far as it depended upon the agent to prevent them (§26, 29, 49).Edition: 1741; Page: [73]

Edition: current; Page: [82]

SECTION CVII

Whether actions done thro’ ignorance or error be imputable.As for what relates to ignorance and error, since both these imperfections of the understanding are either culpable or inculpable (§48, 49), vincible or invincible, voluntary or unvoluntary (§50), it follows from the same principles, that inculpable, invincible, involuntary ignorance cannot justly be imputed to a person; but that an action done thro’ culpable, vincible, and voluntary ignorance is justly imputable: and the same holds Edition: current; Page: [83] with regard to error: much less can ignorance or error be any excuse to one, if the action itself be unlawful, or be done in an unlawful place, time, or manner; because, in such cases, it not only was in the agent’s power not to be ignorant or not to err, but he was absolutely obliged to omit the action.*Edition: 1741; Page: [74]

SECTION CVIII

Of error in fact and in law.Further, one may err either in point of fact or in point of law. To the former belong the rules already laid down (§107), because a circumstance in a fact may escape the most prudent persons, and therefore his error, in point of fact, may be inculpable, invincible, involuntary. But error, in point of law, with relation to the law of nature, does not excuse, because right reason promulgates this law to every one, unless, perhaps, when age, stupidity, and the more subtle nature of a particular law dictate a milder sentence. But as for civil law, ignorance of it is so far imputable, as it is so framed and promulgated that the person might know it.Edition: 1741; Page: [75]

Edition: current; Page: [84]

SECTION CIX

Whether undersigned and forced actions are imputable.Since the free will of man must concur to render an action such of which one can be called the author and cause (§30); but unintended actions are such, that they do not proceed from the determination of the mind (§58); hence it follows, that an action which one does against his will, or without intention, cannot be imputed to him; on the contrary, whatever is done spontaneously, is imputable, and much more whatever is done of one’s own free accord: yea, what one is forced to do is imputable to him, if he who forced him had a right to force him; but not, if he who forces him was not in the exercise of his right, or if the person forced was, previously to the force used, under no obligation of doing it.* Edition: 1741; Page: [76]

Edition: current; Page: [85]

SECTION CX

Whether bodily constitution, habit, &c.But seeing neither temperament, affections, propensions, habits, nor external force, hinder the free exercise of the will (§54 & seq.) it is abundantly manifest, that neither bodily constitution, which hath so great an influence commonly on the affections of the mind, nor passions, however impetuous and vehement, nor habit, tho’ become a second nature, can hinder the imputation of an action; tho’ sometimes, in human courts, he be reckoned an object of just commiseration, who was transported into a bad action by the violence of just grief, or any afflictive passion.*

SECTION CXI

Whether actions extorted by some are imputable?Hence it is easy to see whether one be in any degree excusable, who being overpowered by fear, to which the bravest mind may succumb, commits Edition: 1741; Page: [77] any action contrary to law. For if the fact be such that there is no room to plead necessity, in vain is it pretended. But in what Edition: current; Page: [86] cases necessity cannot be pleaded, we shall enquire more accurately afterwards.*

SECTION CXII

When and how an action is imputed to the moral cause?Whensoever the understanding and will, and the physical motion of the body concur to an action, then he who does it is called the physical cause of the action; but if the mind alone acts without any corporeal motion, he is called the moral cause. Since therefore understanding and will are the only principles of human actions (§30), hence it follows, that an action is no less imputable to the moral cause than to the physical cause, if the concurrence of the will and understanding in both be equal; more imputable to the moral than to the physical cause, if one induces another, who is under obligation to obey him, to act, by commanding or compelling him; less imputable to the moral than to the physical cause, if one concurs with the action by advice or approbation only.Edition: 1741; Page: [78]

Edition: current; Page: [87]

SECTION CXIII

Whether the condition of the agent contributes any thing toward imputability.To the circumstances of the person to whom an action is imputable (§105), belong his dignity, rank, and quality; and therefore it is indisputable, that when many persons concur in the same action, if the action be just it is less imputable, and if the action be unjust, it is more imputable to him whom relation, prudence, duty, age, dignity, ought to influence to good conduct, and restrain from bad, than to a stranger, an ignorant, stupid person, one under no particular tie, a boy, a stripling, or, in fine, a person of no rank or dignity.*Edition: 1741; Page: [79]

SECTION CXIV

Occasion being wanting, the action is not imputed.Since, in the imputation of actions, regard ought to be had not only to the person of the agent, but to all the other circumstances; but that concurrence of circumstances in the object, of time and place, together with sufficient abilities, without which an action cannot be done, is called occasion or opportunity; it follows necessarily, that he is not excusable Edition: current; Page: [88] whom occasion tempts to commit any crime; nor he who loses the opportunity of doing a good action thro’ indolence or negligence; but an omission of an action is not to be imputed to one who had no opportunity of doing it.*

SECTION CXV

Whether the omission of things impossible can be imputed, or how and when?Much less then can the omission of these actions be imputed to one, which are either impossible in the nature of things, or contrary to laws and good manners, or at least which he had not sufficient ability to perform, except so far as one had weakened the abilities with which he was endowed by his own fault, or had rashly, with bad intention, promised what he might have foreseen to be impossible for him to perform.Edition: 1741; Page: [80]

SECTION CXVI

What actions are good, and what are evil?Moreover, actions compared in this manner with a rule of action, take different names. If they, in all their circumstances, be agreeable to right reason, not obliging by external obligation, or to internal obligation merely (§7), they are good; but if in one or more circumstances they Edition: current; Page: [89] deviate from right reason to whatever side, they are bad. From which definitions it follows, that an action must be both materially and formally good (as the schools speak) in order not to be classed with bad actions.*

SECTION CXVII

What actions are just, and what are unjust?Again, if we compare actions with a law, those which are in all things agreeable to law are just; those which are, in any one circumstance, disagreeable to law, are unjust, and are therefore called sins. Whence we may learn why St. John places all sin in ἀνομἰα, i.e. a transgression of a law.

SECTION CXVIII

The difference between just and honest actions, and between unjust and dishonest actions.Finally, since the divine law or will obliges us to love (§79), and love is either love of justice, or love of beneficence (§82), an action agreeing inEdition: 1741; Page: [81] all circumstances with the love of justice, is a just action, and one ever so little repugnant to it, is an unjust action; but those which proceed from the love of humanity and beneficence, are called honest, and those which are not agreeable to that love, are called dishonest, base, inhumane; and hence it is easy to understand wherein the difference lies between expletive and attributive justice.

Remarks on This Chapter

Our Author’s positions concerning the interpretation of laws, and the imputation of actions in foro humano, are very clear and just. But it Edition: current; Page: [90] may not be improper to add the following observations concerning the effects of ignorance and error in foro divino, i.e. with respect to the good and bad consequences of actions occasioned by ignorance or error, according to the laws of God in his government of the world.

1. It must be as true in morals as it is confessed to be in mechanics, that deviation from truth will lead into a wrong manner of acting; and all action must be liable to all the consequences of the laws of nature, i.e. to all the consequences connected with it in the regular and wise constitution of things, according to which every cause operates, means are proper and effectual, and different operations have different effects. And in fact we know no mistakes in action through ignorance, rash judgments, or whatever way it happens, which do not produce hurtful consequences; insomuch that there is good reason to conclude, that more of the misery of mankind is owing to wrong methods of action which are the effects of ignorance or error, than to any other cause. It must be true in general, that in a world governed by general laws; or in which connexions are invariably established, every deviation from truth, every mistake about the connexions of things in it, must be in some degree hurtful.

But, 2. Since all the interests of intelligent agents require government by general laws, or fixed connexions which operate invariably, the government of the world will be perfectly good, if the connexions or general laws which constitute it are the best adapted that may be, to promote the greater good of rational agents in the sum of things. Now, that it is so, must be certain, if the being and providence of an infinitely good God can be proved à priori. And there is sufficient reason to conclude that it is so à posteriori, because the more examples we find by enquiring into the government of the world, of such good general laws, the greater is the presumption that the whole is governed by the best general laws. But the further we enquire, the further we search, the more and clearer instances do we find Edition: 1741; Page: [82] of good, of perfect government. See my Principles of Moral and Christian Philosophy.

3. Our great business therefore is to endeavour to acquire just notions of the connexions of things; or of the good and bad consequences of actions, in order to act agreeably to them. If getting knowledge to direct our conduct were not in our power, directing our conduct could not be in our power: wherefore, if ignorance, want of knowledge, error, Edition: current; Page: [91] false notions or judgments be not imputable to us, wrong actions are not imputable to us. So that ultimately, whether we speak of the imputation of actions in the juridical stile, or in other words, as we have now spoken of it, (both of which must mean the same thing) it is ignorance or error in judgment that is imputed, when action is imputed; it is ignorance or error that brings evil upon us, when wrong action does it; because every action is directed by our present opinion and judgment, and the affection corresponding to it. And for that reason, our chief business, interest and duty, must be to have just or true ideas of the nature and consequences of actions; or of the connexions of things, according to which our actions ought to be regulated, since it is according to them that actions have certain effects or consequences.

4. False judgments, which tend to direct into a wrong course of action, or to introduce a wrong temper into the mind, must, (as hath been said) be hurtful. But, on the one hand, it is as sure as that there is a God, and that the world is governed by good laws, for the greater general good of the whole, that a virtuous reasonable temper, and virtuous reasonable conduct, are, upon the whole of things, the most advantageous course of acting. It is so in fact in the present life considered by itself without any regard to futurity; and it must be so in a special manner in a future state. And, on the other hand, it is as sure as that there is a God, that no opinions, tho’ false, which do not tend to corrupt the temper, or to lead into a wrong course of action, can render us obnoxious to the divine displeasure, can be provoking to him, as such, if the bent of the heart be sincerely towards truth and right; or can as such involve in any hurtful consequences appointed to be punishments of false opinions, not tending to corrupt the temper, nor to lead to vitious behaviour; and not proceeding from want of love to truth and right in any degree, or from want of impartial, honest diligence, as far as that is in our power, to find out truth and avoid error.

How moral conscience, or our sense of right and wrong may be, and only can be impaired, corrupted, or overpowered, is explained at great length in the Enquiry concerning virtue, Characteristicks, T. 2.p. 40, amp;c.3And to improve it, and preserve it pure and untainted, must Edition: current; Page: [92] be our chief duty and interest. Enquiries therefore into right and wrong conduct are of the utmost importance. They are enquiries into the natures and consequences of things, and are in that sense philosophy. But which is more, they are enquiries into the natures and consequences of Edition: 1741; Page: [83] things which ought to direct our conduct; and therefore they are moral philosophy, or compose the science of life, the science of right conduct, the science and art of living suitably to our nature and rank, suitably to our dignity; agreeably to the will of our Creator, manifested by the connexions of things established by him; and agreeably to our own best interest. For this must be certain, that it is the established connexions of things which constitute our best interest. And if the established connexions of things be according to the best order, acting according to virtue or the best order, must be in the sum of things our best interest. And why should we doubt that it is really so in a future state, and for ever, since it is really so at present, even while virtue is but in its first state of education, culture and discipline; since the compleat natural effect of highly improved virtue cannot take place till virtue be brought to a great pitch of perfection by gradual culture, because the effect cannot precede the cause. But that virtue is our best interest, as well as acting according to the best order, and easily discoverable to be such, will appear as our author proceeds in his deduction and demonstration of particular duties or virtues. I thought it proper to add this remark, as well on account of those who speak vaguely and loosely about the imputability of ignorance and error, as of those who maintain opinions which result in asserting, That sincere love of truth, and impartial diligence to discover it, is not the best temper, the best part we can act, nay, all the good within our power, with regard to knowledge, speculative or practical. And if this be not the temper and conduct which leads to happiness, according to the constitution of things, what a terrible, what a wretched constitution of things must it be!

Edition: current; Page: [93]

CHAPTER V: Of the duties of man to God.

SECTION CXIX

A Transition to the doctrine of duties.Hitherto we have but premised some of the first principles of the beautiful moral science; let us now proceed to consider the offices or duties which the law of nature prescribes to mankind; to all and every one of the human race. What the Greek philosophers called τὸ Δὲον, and the Stoics τὸ καθῆκον, Tully afterwards, in explaining this part of philosophy in the Roman language, called Edition: 1741; Page: [84] officium, not without deliberating about the matter a long time, and consulting his friends.*

Edition: current; Page: [94]

SECTION CXX

Office or duty defined.By office or duty I understand an action conformable to the laws, whether of perfect or imperfect obligation. Nor can I entirely approve the definition given by the Stoics, who say, it is an action, for the doing which a probable reason can be given; or, in other words, an action which reason persuades to do.*Diog. Laert. 7. 107. 108. Cicero de finibus, l. 3. 17.1 Edition: 1741; Page: [85]

SECTION CXXI

The nature of duty.But since office or duty means an action conformable to law, it is plain that duty cannot be conceived without a law; that he does not perform a duty, who imposes upon himself what no law commands; that an action ceases to be duty, when the law, or the reason of the law enjoining it ceases; and that when a law extends to certain persons only, of two persons who do the same action, the one performs his duty, and the other acts contrary to his duty.

Edition: current; Page: [95]

SECTION CXXII

Duty divided into perfect and imperfect.The obligation binding one to do his duty being either perfect or imperfect (§120), duty must likewise be divided into perfect and imperfect; the former being done in obedience to perfect obligation, or a law; the other being performed in consequence of imperfect obligation, or from virtue.* Edition: 1741; Page: [86]

SECTION CXXIII

Into natural and christian.Further, law being the rule of duties (§121), because law is either divine or human, and divine law is either natural or positive, there are so many corresponding divisions of duties. Those which are commanded by the divine natural law, are called natural duties. Those commanded by the divine positive law, are called christian duties; and those, in fine, which are enjoined by human laws, are called civil offices or duties.

SECTION CXXIV

Into duties to God, to ourselves, and to others.But the principal division of duties is taken from their object. For as there are three objects to whom we owe certain duties, God, ourselves, and other men (§90), so there are duties of three kinds; duties to God, duties to ourselves, and duties to other men; of all which we are to treat in order.

Edition: current; Page: [96]

SECTION CXXV

The foundation of our duties towards God.As to our duties towards God we have already observed, that they must be inferred from the consideration of the divine perfections (§87); and hence we concluded, that God ought to be loved with a love of devotion and obedience, and therefore ought to be worshipped with all the powers of our soul, as the most perfect of Beings, upon whom we wholly depend, and to be obeyed with the most sincere and perfect obedience (§91). Edition: 1741; Page: [87]

SECTION CXXVI

Our obligation to know God.Since the duties we owe to God must be deduced from his infinite perfections (§125), it follows, by necessary consequence, that man is obliged not only to acquire the most lively knowledge of God, and of his perfections, but daily to encrease this knowledge, and advance in it, that he may attain daily to greater and greater certainty and perfection in it; which, since it cannot be done but by daily meditation upon those truths which reason is able to discover concerning God, by the careful and serious contemplation of his works of creation and providence, so full of evident marks of his infinite wisdom and goodness; hence it is manifest that we are obliged to these exercises, and that those who neglect these means of coming to the knowledge of God, which are in every one’s power who has a sound mind, are in a state of inexcusable ignorance; and those who ascribe any imperfection to God, are in a state of inexcusable error (§107).* Edition: 1741; Page: [88]

Edition: current; Page: [97]

SECTION CXXVII

And to have just apprehensions of his perfections.Hence it likewise follows, that we are obliged, or that it is our duty to have just apprehensions of the divine perfections, and to know and believe that he is the Creator and Governor of all things, that all things are made by him, and are under his providence and government, human affairs principally; and that he is one pure, eternal, independent, omnipotent, incomprehensible, intelligent, wise, omniscient, free, active, good, true, just, and most excellent Being.*

SECTION CXXVIII

All impiety and blasphemy are inexcusable.He who obstinately denies the being, or any of the perfections of God, is impious: he who ascribes imperfections to God, repugnant to his nature, is called a blasphemer: since therefore they, who do not know the perfections of God, are inexcusably ignorant, and they, who attribute any imperfection to him, inexcusably err; it is incontrovertible that all blaspheming and impiety are inexcusable. But they are therefore impious, and without excuse, who, with a hardened mind, deny the divine existence or providence; and they are blasphemers, who, with Homer, and other poets, assert a plura-Edition: 1741; Page: [89]lity of Gods, and represent them as contending and quarrelling one with another; as adulterers, incestuous, or deformed, lame, in pain, and groaning in an effeminate manner; and who have not only professed in words such absurd opinions of the Gods, Edition: current; Page: [98] but have not hesitated to set them forth to the eyes of men under horrible images, and by wicked and vile ceremonies.*

SECTION CXXIX

Our obligation to promote the glory of God.He who has a just and lively notion of any perfections, cannot but be highly delighted with the contemplation of them, and will spare no pains to persuade others to pay the same regard to the Being possessed of them; it is therefore our duty to endeavour to bring others to the knowledge of the divine perfections, and to restore those who err to a right apprehension Edition: current; Page: [99] of them; and, as much as in us lies, to convince the impious, by solid and per-Edition: 1741; Page: [90]suasive reasoning with them, of their absurdity and wickedness, and bring them to render due reverence to God: and they who do so, are said to exert themselves to promote the glory of God.*

SECTION CXXX

And to the love of God.Because he who has a just conception of the divine perfections, cannot but highly delight in them (§129), and the desire of good to an object, with delight arising from the consideration of its perfection and happiness, is love (§8), the consequence is, that God must be loved. And because of the more excellent and sublime a nature a Being is, the more love and veneration is due to it (§87): God ought to be loved with the most perfect love; i.e. as the scripture expresses it, “with all our heart, with all our soul, and with all our strength,” Mat. xxii. 37. Luke x. 27. Because goodness is one of the divine perfections (§127); God is in himself, and with regard to mankind, infinitely good: he is therefore to be loved for both these reasons. Edition: 1741; Page: [91]

Edition: current; Page: [100]

SECTION CXXXI

And likewise obedience and fear.Among the divine perfections are omnipotence and omniscience (§127); but none can keep these perfections in view without being excited to the diligent, unintermitted study of doing whatever may be pleasing to God, and of avoiding whatever may be disagreeable to him; which study and endeavour we call obedience to God. And since none can represent God to himself as a most just Being, without being seriously concerned not to offend him; not to do or say any thing that is dishonourable to him, or tends to create his displeasure; it must be our duty to fear him: for this concern not to incur his anger is fear, and when united with the love of him above described (§130), it is properly called filial fear.*

SECTION CXXXII

As also to avoid superstition.He who fears God with a servile fear, separates the love of God from the fear of him (§131); but because love of God consists in delight in the consideration of the divine perfections (§130); he therefore who fears God without any knowledge of his perfections, is called superstitious; and hence it follows, that a good man ought carefully to avoid Edition: 1741; Page: [92] all superstition, because it proceeds from ignorant servile fear.

Edition: current; Page: [101]

SECTION CXXXIII

Its effects.All superstition, internal and external, being inconsistent with just apprehensions of the divine perfections (§132), one who has just notions of them, will keep himself carefully from all slavish fear of created beings, and from those absurd errors, whereby God is represented as avaritious and placable by gifts; and likewise from magical arts and divinations, from idol-worship; and, in fine, from this absurd opinion, that God may be propitiated by mere external worship, tho’ not accompanied either with internal fear or love.* Edition: 1741; Page: [93]

Edition: current; Page: [102]

SECTION CXXXIV

And to repose our trust in God.Further, since none can represent the divine perfections to himself without presenting to his mind the ideas of perfect wisdom, power and goodness; such a person cannot but place his confidence and trust in God, and be satisfied in his mind with the divine administration; and thus be disposed to submit to whatever may happen to him in the course of divine providence with a firm and cheerful soul; nor will he be stumbled because evils fall upon the good, and good things fall to the share of the wicked, but be persuaded that all things shall co-operate to the good of the virtuous, to good in the whole.

SECTION CXXXV

Of internal and external worship.In these and the like offices does that internal worship of God consist, by which we understand the love, fear and trust, with which we embrace God in our pure minds. But man being so framed, that his affections naturally exert themselves in certain external actions, his internal love of God could not be thought sincere unless it exerted itself in external love; i.e. in such external acts as express love, fear, and resignation towards God.*Edition: 1741; Page: [94]

Edition: current; Page: [103]

SECTION CXXXVI

External worship ought to flow from the love of God.Since therefore the external worship of God consists in actions flowing from love, fear, and resignation towards God (§135), but love must naturally exert itself in praising the Being in whose perfection and happiness we highly delight, it must be our duty always to speak honourably of God, and with due reverence, and to excite others by our actions to love him, to sing praises to him, and not to dishonour his name by rash swearing, by perjury, or by whatever irreverent discourse.

SECTION CXXXVII

As also from the fear of God.From the fear and obedience we owe to God as the most perfect of Beings, we may justly conclude that all our actions ought to be conformed to his precepts, and that we ought always to have in mind his omnipresence and omniscience, by which he discerns our most secret thoughts; whence it follows, that all hypocrisy and dissimulation ought to be avoided, as being necessarily accompanied with injurious and contemptible apprehensions of God.* Edition: 1741; Page: [95]

SECTION CXXXVIII

Confidence ought to be placed in God.In fine, he who places his trust in God (§134), will never cease to send up pure devout prayers to him, and will cheerfully embrace every occasion of speaking well of and with God privately and publicly. For this is what right reason prescribes concerning the external worship of God. As for the external rites, it is likewise obvious, that public worship cannot Edition: current; Page: [104] be performed unless certain times and places be devoted to it; and a duty of such importance ought to be done with all decency; but as to the rites or ceremonies themselves, reason can lay down no other rule about them, but in general, that they ought to be in every respect such as are proper to recal to our minds those sentiments in which divine worship consists.

Remarks on This Chapter

I have but little to add to what our Author hath said of Religion. Our Harrington justly lays down the following truths relative to religion as aphorisms. “Nature is of God: some part in every religion is natural; an universal effect demonstrates an universal cause; an universal cause is not so much natural, as it is nature itself; but every man has either to his terror or his consolation, some sense of religion: man may therefore be rather defined a religious than a rational creature; in regard that other creatures have something of reason, but there is nothing of religion.”2 So we frequently find ancient philosophers reasoning about human nature and religion, as I have shewn from several authorities in the 7th chapter of my Principles of Moral Philosophy, the whole of which treatise is designed to be a demonstration à posteriori, i.e. from the wisdom and goodness of providence, that the whole world is made and governed by an infinitely perfect mind, in the contemplation, adoration and imitation of whom the chief happiness of man consists, according to his make and frame. The arguments, à priori, for the proof of a God, are shewn in the conclusion of that essay not to be so abstruse as is said by some; and they are more fully explained in my Christian Philosophy. The end, the happiness, the duty of a Being (all which ways of speaking must mean the same thing) can only be inferred from its frame and constitution, its make and situation. But nothing can be more evident than, “That man is made to love order, to delight in the idea of its universal prevalence throughout nature, and to have joy and satisfaction from the Edition: 1741; Page: [96] consciousness of order within his own breast, and in the conduct of his actions.” All the joys of which man is susceptible, which never nauseate or cloy, but are equally remote from Edition: current; Page: [105] grossness and disgust, or remorse, may be reduced to the love of order and harmony: nothing else can give him any pleasure in contemplation or in practice, but good order; the belief of good administration in the government of the world; the regular exercises of those generous affections which tend to public good; the consciousness of inward harmony; and the prevalence of good order and publick happiness in society, through regular and good government: to these classes are the principal pleasures for which man is framed by nature, reducible, as might be shewn, even from an analysis of the pleasures belonging to refined imagination or good taste in the polite arts: but whence such a constitution? Does it not necessarily lead us to acknowledge an infinitely perfect author of all things; an universal mind, the former and governor of the universe, which is itself perfect order and harmony, perfect goodness, perfect virtue? Whence could we have such a make? whence could we have understanding, reason, the capacity of forming ideas of general order and good, and of delighting so highly in it, but from such a Being? Thus the ancients reasoned. Thus the sacred writers often reason. And this argument is obvious to every understanding. It is natural to the mind of man. It is no sooner presented to it than it cleaves to it, takes hold of it with supreme satisfaction, and triumphs in it. And what part of nature does not lead us naturally to this conception, if we ever exercise our understanding, or if we do not wilfully shut our eyes? But having fully enlarged upon this and several other arguments for the Being of a God in my Principles of Moral Philosophy; I shall here only remark, 1. That Polybius, Cicero, and almost all the ancients, have acknowledged that a public sense of religion is necessary to the well-being and support of society: society can hardly subsist without it: or at least, it is the most powerful mean for restraining from vice, and promoting and upholding those virtues by which society subsists, and without which every thing that is great and comely in society, must soon perish and go to ruin. 2. That with regard to private persons, he who does not often employ his mind in reviewing the perfections of the Deity, and in consoling and strengthening his mind by the comfortable and mind-greatning reflexions to which meditation upon the universal providence of an all-perfect mind, naturally, and as it were necessarily lead, deprives himself of the greatest joy, the noblest exercise and entertainment the human mind is capable of; and whatever obligations Edition: current; Page: [106] there may be to virtue independent of, or abstract from such a perswasion, he cannot make such progress in virtue, he cannot be so firm, steady and unshaken in his adherence to it, as he who being persuaded of the truth just mentioned, is daily drawing virtuous strength and comfort from it. This is fully proved by an excellent writer on morals, who, not-Edition: 1741; Page: [97]withstanding hath been often most injuriously reproached for aiming at a scheme of virtue without religion.3 This author hath fully proved that the perfection and heighth of virtue must be owing to the belief of a God; since, where the latter is wanting, there can neither be the same benignity, firmness or constancy; the same good composure of the affections, or uniformity of mind, Characteristics, T. 2. p. 56, &c. 3. I would remark, that the being and providence of an universal, all-perfect mind, being once established, it plainly follows from hence, by necessary consequence, that all the duties of rational creatures may be reduced to this one, with several antient moralists, viz. “to act as becomes an intelligent active part of a good whole, and conformably to the temper and character of the all-governing mind.” This is acting agreeably to nature; to the nature of an intelligent creature endued with active powers, a sense of public good and order; agreeably to the nature of the Supreme Governor of all things, and to the order of his creation and government. All our duties may be reduced to, or comprehended under that one general article of acting as becomes an intelligent part of a good whole: for to do so, we must delight in the author of the world, and resign to his will cheerfully the management of all things independent of our will; and by our will cheerfully co-operate with him in the pursuit of publick good, as far as we are active and have power, or as things are made by him dependent upon our will and conduct. He who is incapable of receiving pleasure from the belief of a God, and the contemplation of general order and harmony, must be a very imperfect creature: for he wants the noblest of senses or faculties. And he who can delight in the contrary persuasion, i.e. in the idea of a fatherless world and blind chance, or, which is yet more horrible, malignant administration, must have a very perverted mind, if perversion has any meaning: he must be as properly a monster, in respect of a moral frame, as any deformity is monstrous in regard to bodily texture.

Edition: current; Page: [107]

CHAPTER VI: Of the duties of man to himself.

SECTION CXXXIX

Man is obliged to love himself.Nothing is nearer to man, besides the ever-blessed God, than he is to himself; nature having inlaid into his frame such a sensibility to his interests, and so tender a love of himself, that we justly look upon him to be out of his senses and distracted, who Edition: 1741; Page: [98] hates and wishes ill to himself. Nor is this self-love unjust, while it does not disturb good order. For it is that love with which one delights in his own perfections and happiness, and is concerned to procure and augment these goods. But since God hath created us, and adorned us with many excellent perfections, and given us the means of improving in perfection and happiness, he must be concluded to will that we should endeavour to promote our happiness and perfection, and be delighted with it; i.e. that we should love our selves (§92).

SECTION CXL

What this love is.From which we have already inferred (§92), that man is bound to pursue, promote, and preserve his own perfection and happiness, as far as is consistent with the love of the supreme Being.*

Edition: current; Page: [108]

SECTION CXLI

What are its objects.Since man is obliged, by the will of God, to all and every thing which tends to promote, preserve, and enlarge his happiness and perfection (§140); and man consists, not only of mind, but of body likewise, in such a manner, that he is a compound of body and mind; the consequence is, that man is obliged to promote the perfection of both his constituent parts; and because the faculties of the mind are two, understanding and will, he is obliged to study the perfection of both; wherefore the duties of man, with respect to himself, are relative partly to the whole man, partly to the understanding, partly to the will, and partly to his body and external state.* Edition: 1741; Page: [99]

SECTION CXLII

These duties ought not to be severed.Whence we conclude, that these duties ought not to be severed from one another; and therefore, that neither the mind nor the body ought totally to be neglected: but if it should happen that the duties due to both cannot be performed, we ought, of many perfections and goods, which cannot be obtained at one and the same time, to choose the most excellent and necessary (§94). And therefore the mind being more excellent than Edition: current; Page: [109] the body, we ought to be more diligent about the perfecting of our minds than our bodies, yet so as not to neglect the latter.* Edition: 1741; Page: [100]

SECTION CXLIII

Man is obliged to preserve his life and eschew death.As for what relates to the whole man, as consisting of soul and body, his felicity and perfection as such, consists in this, that the union of his mind and body be safe, because these parts being separated, tho’ the mind, being immortal, survive, yet the man no longer subsists. Man therefore is obliged to take care to preserve his life, and to avoid the dissolution of the union between his body and mind, which is death, unless the mind be persuaded of a greater good to be obtained by death: in which case one ought not indeed voluntarily to choose death, but to suffer the menaces of it and itself with a brave and intrepid magnanimity.

Edition: current; Page: [110]

SECTION CXLIV

And therefore self-murder is unlawful.Hence moreover we infer, that he acts contrary to his duty who lays violent hands on himself. And this may be proved from other considerations, as, that this action is repugnant to the nature of Edition: 1741; Page: [101] love, and to a right disposition of mind, and therefore involves an absurdity or contradiction in it; that it is inconsistent with that trust and resignation which are due to God, and that acquiescence in the divine will, which we have already shewn to be commanded by the law of nature (§134). But it will be sufficient to add this one argument. Man is obliged to love man as himself; and therefore himself as others (§93). But the love of justice does not permit us to kill a man, therefore self-love does not permit us to destroy ourselves.*

SECTION CXLV

So is the neglect of life and health.From the same principles laid down (§143), it is evident that they act no less contrary to their duty who hasten their death by immoderate labour, or by luxury and lasciviousness, or who do not take proper care of their health; and who, when neither duty calls, nor necessity urges, voluntarily expose themselves to danger, and bring themselves into peril or pain by their own fault. Edition: 1741; Page: [102]

Edition: current; Page: [111]

SECTION CXLVI

The duties of man with regard to his understanding.The perfection of human understanding certainly consists in the knowledge of truth and good; to acquire, enlarge, and preserve which man being obliged (§140), the consequence is, that every one is bound to exert himself to strengthen and cultivate his understanding, or to improve his faculty of discerning truth from falshood, and good from evil; and to let no opportunity pass neglected, whether of instruction from others, from books, or from experience, of learning useful truths, and wholesome precepts and maxims concerning good and evil,* that thus he may attain to all the useful knowledge within his reach; and if he be in that condition of life that does not allow him to learn all that it is useful to know, he may at least be master of what it is most necessary and advantageous for him to understand, and have that at his command as ready coin, so to speak.

SECTION CXLVII

Of the particular culture to which particulars are obliged.From which last proposition (§146), it follows, that whereas all persons are equally obliged to the Edition: 1741; Page: [103] duties hitherto mentioned; every one is for himself in particular obliged to that special culture of his understanding, which is suitable to his particular talents and genius, and to his rank and condition in life; and therefore every one ought to know his force and genius, and one is hardly excusable if he chooses a way of Edition: current; Page: [112] life to himself for which he is not qualified, or if he forces any in his power,* under his authority, or committed to his direction, so to do.

SECTION CXLVIII

Duties relative to the will.The perfection of the will consists in the desire and fruition of good. But since we cannot pursue good, unless we have first conceived a just notion of its excellence, nor avoid evil, unless we know it to be such (§30); hence it is manifest, that we ought not to acquiesce in any knowledge of good and evil whatsoever, but exert ourselves with all our power to have a true and lively conception of them; that not every good is to be chosen, but of Edition: 1741; Page: [104] many goods that which is best and most necessary: yea, that evil ought not to be avoided, if it be necessary to our attaining to a greater good: and finally, that our chief good ought to be desired and pursued above all things; and that we ought to bear the want of other goods with a patient and satisfied mind, if we cannot attain it without being deprived of them.

Edition: current; Page: [113]

SECTION CXLIX

The amendment of the will is chiefly necessary.Further, since he who is obliged to the end, is likewise obliged to the means, it follows, that none of these means ought to be neglected which right reason shews to be necessary or proper for attaining to our greatest happiness; but that we ought to apply ourselves with uninterrupted care daily to amend and perfect our minds, to obtain the right government of our affections, and to rescue ourselves from every vitious appetite and passion.* Edition: 1741; Page: [105]

SECTION CL

Our obligation to preserve and perfect our body.It now remains to speak of our body, the perfection of which consists in the fitness of all its parts to perform their necessary functions; and it is plain that we are obliged to take care of our health, and therefore to direct our eating and drinking, labour, exercise, and every thing to that end; to the preservation of our health, and the increase of our strength and Edition: current; Page: [114] agility;* and, on the other hand, to avoid, as much as lies in our power, whatever tends to maim, hurt, or destroy our bodies, or any of its members, in any degree.

SECTION CLI

How far one is obliged to seek riches.But all this is enjoined in vain, if one be so distressed by poverty, that he has it not in his power either to live in a wholesome manner, nor to regu-Edition: 1741; Page: [106]late his labour as his health requires; and therefore it is obvious, that a person must have a right to seek after the things that are necessary to subsistence and decent living. When the provision of these things is abundant, it is called wealth or riches; and every one is obliged to acquire as large a share of them as he can by just means, and to preserve and use prudently what he hath justly acquired.

Edition: current; Page: [115]

SECTION CLII

And therefore to industry.But because the end cannot be acquired without the means, and there is no other mean of acquiring what is necessary to supply our necessities but labour and industry, it is manifest that every one is bound to go through with the labours of the business Edition: 1741; Page: [107] in life he hath chosen with a cheerful mind, and to give all diligence to get a comfortable subsistence; and therefore he acts contrary to duty who lives in idleness, and thus brings poverty and misery upon himself; for such distress is ignominious; whereas poverty is not criminal or shameful, when one, who does all in his power, is overwhelmed by some private or public calamity; or when one, without his own fault, can find no occasion of doing for himself.*

Edition: current; Page: [116]

SECTION CLIII

And likewise to preserve and increase our good name.Since a person ought not to neglect any of those things which are necessary to increase or preserve his happiness (§140); and none can doubt but a good name, which consists in the favourable opinion of others with regard to our virtue and accomplishments, is necessary to preserve and increase our happiness. [For one, of whose virtue and accomplishments all think well, all think worthy of happiness, and all are therefore sollicitous to promote his happiness.] For these reasons, every one is obliged to take care of his reputation, as a mean of his happiness; and therefore to act in every affair, private or public, as reason directs, and not only to preserve his good name by worthy actions, but, as much as lies in his power, to increase it.* Edition: 1741; Page: [108]

SECTION CLIV

And to refute aspersions.But if it be one’s duty to take care to preserve his good name unblemished (§153); since calumnies, i.e. false reports, may blacken it; the consequence Edition: current; Page: [117] is, that we ought to omit nothing that is necessary to wipe off aspersions cast injuriously upon us, unless they be so groundless and malicious, or the author of them so contemptible, that it is better to overlook them with generous contempt.* Edition: 1741; Page: [109]

SECTION CLV

Whether in case of necessity our duties to ourselves ought to be prefered before those to God.Tho’ so far the love of ourselves be most just and lawful; yet, no doubt, it becomes vitious, so soon as it exceeds its due bounds, and gets the ascendant over our love to God, the most perfect of Beings (§92); and hence we concluded above, (§140), that all our duties to ourselves keep their due rank and place, if they are performed in proper subordination to the love of God, or do not encroach upon it; whence it is manifest, that the common maxim, “That necessity has no law,” is not universally true.

Edition: current; Page: [118]

SECTION CLVI

Upon what it is founded.But seeing this rule is not always true; and yet in some cases it ought to be admitted (§155); different cases must be distinguished: now, because in Edition: 1741; Page: [110] an action imposed upon us by sovereign necessity, no other circumstance can vary the case, but either necessity itself, the nature of the law, or the nature of the duty to be omitted, these circumstances ought therefore to be a little more accurately and distinctly considered, in order to be able to determine how far necessity has the power of a law, and when it has not.

SECTION CLVII

Necessity what it is, and of what kinds.By necessity we understand such a situation of a person, in which he cannot obey a law without incurring danger. This danger, as often as it extends to life itself, is extreme; and when it does not, it ought to be measured by the greatness of the impendent evil. Again, necessity is absolute, when it cannot be avoided by any means but by violating a law; and it is relative, when another might avoid it, but not the person now in the circumstances.*

Edition: current; Page: [119]

SECTION CLVIII

Where necessity merits favour.Now every one may easily perceive, that not only extreme necessity, but even necessity in which life is not in danger, comes here into the account. For because some calamities are bitterer than death, who can doubt but such may strike terror into the most Edition: 1741; Page: [111] intrepid breast; such as being deprived of one’s eyes, and other such like distresses. Besides, since of two physical evils the least is to be chosen, the consequence must be, that not only absolute necessity deserves favour, but even relative necessity, if one had no hand in bringing himself into the strait.*

SECTION CLIX

Affirmative laws, divine and human, admit the exception of necessity.Law being either divine or human, and both being either affirmative or negative (§64); because even a sovereign cannot oblige one to suffer death without a fault, the consequence is, that all human laws ought regularly to be understood, with the exception of necessity. And the same is true of divine affirmative laws, because the omission of an action cannot be imputed to one, if the occasion for performing it was wanting (§114), unless the omission be of such a nature and kind, that it tends directly to reflect dishonour on God; in Edition: 1741; Page: [112] which case, the negative law, forbidding Edition: current; Page: [120] all such actions likewise concurs (§131). And to this case belongs the action of Daniel, Dan. vi. 10.*

SECTION CLX

But not divine negative laws relative to our duties to God or ourselves.Divine negative laws bind us either to duties towards God, towards our selves, or towards other men (§90 & 124). Those which respect our duties towards God are of such a nature, that they cannot be intermitted without dishonouring God. But we are strictly bound to avoid whatever tends to dishonour God; the consequence of which is, that no necessity can excuse the violation of the negative laws relating to our duties towards God. On the other hand, in a collision of two duties respecting Edition: current; Page: [121] ourselves, the safest course is to choose the least of two physical evils. Edition: 1741; Page: [113]

SECTION CLXI

Divine affirmative laws respecting our duties to others admit of favour in the case of necessity.As to our duties towards other men, affirmative laws, ’tis certain, admit of favour in the case of necessity; partly because an omission cannot be imputed when the occasion of performing a duty was wanting (§114); partly because the law of benevolence does not oblige us to delight in the happiness of others more than our own, or to love others better than ourselves (§94); and so far the maxim holds just, “Every one is nearest to himself.”*

SECTION CLXII

What is the case with regard to negative laws.Moreover negative laws, relative to our social duties, in the case of providential necessity, interfere either with the duty of self-preservation, or with the duty of defending and increasing our perfection and happiness. Now in the former situation, since we are not obliged to love others more than ourselves, (§94), without doubt, in the case of necessity, every way of preserving ourselves is allowable, when a man hath not fallen under that necessity by his own neglect or default; or if the condition of the persons be equal; for equality leaves no room to Edition: 1741; Page: [114] favour or privilege. In the latter case, it is better for us to want some perfection, or some particular kind or degree of happiness, than that another should perish that we may have it.

Edition: current; Page: [122]

SECTION CLXIII

What if the necessity proceeds from human malice? All this holds true, if the necessity we are under be merely providential (§142); but if it proceeds from the malice of men, they do it either that we may perish, or that they may lay us under the necessity of acting wrong. And in the former case, since we are not bound to love any other better than ourselves, much less a bad person (§94); he is justly excusable who suffers another to perish rather than himself. In the latter case, the cruelest things ought to be submitted to, rather than do any thing dishonourable to God (§131).* Edition: 1741; Page: [115]

SECTION CLXIV

An admonition with regard to the application of these rules to particular cases.Having mentioned these rules, most of which have been fully explained by others, it will not be difficult to determine the cases proposed by Pufendorff and others. Indeed, if we attend narrowly to the matter, we will find that many proposed on this subject are such as very rarely happen, and many others are of such a nature, that all is transacted in an instant, so that there is hardly time or room for calling in reason to give Edition: current; Page: [123] its judgment of the justice, or injustice of an action; to which cases, we may not improperly apply what Terence says,

  • Facile omnes, quum valemus, recta consilia aegrotis damus,
  • Tu, si hic esses, aliter sentires.
  • Andr. 1. 1. v. 9.1

For which reason, it is better to leave many of these cases to the mercy of God, than to enter into too severe a discussion of them.

SECTION CLXV

Whether it be lawful to cut off a member.Thus none can doubt but necessity will excuse a person who must let a member be cut off to prevent his perishing; or that the other parts may not be endangered by it. For tho’ we owe both these duties to ourselves, viz. to preserve our life, and to preserve every member intire, yet the least of two physical evils is to be chosen (§160); and it is certainly a lesser evil to be deprived of a member than to lose life. It is therefore a lawful Edition: 1741; Page: [116] mean of saving life to do it by the loss of a member.*

Edition: current; Page: [124]

SECTION CLXVI

Whether it be lawful to eat human flesh in extreme necessity?There is no doubt but that they are excusable, who in extreme hunger and want have recourse to any food, even to the flesh of dead men: for since here there is a contest between two duties towards ourselves; of two physical evils, death and detestable food, the least ought to be chosen (§160). But he is by no means excusable who kills another, that he may prolong a little his own miserable life by eating his flesh; for however direful and imperious the necessity of long hunger may be, it does not give us a right to another’s life that we ourselves may be saved, because here the condition and necessity* of both persons are equal (§162). Edition: 1741; Page: [117]

SECTION CLXVII

Whether in shipwreck?The case is not the same, when one in shipwreck, having got upon a plank only sufficient to save himself, keeps others from it with all his force; or with those who leaping first into a boat, will not allow others, whom it cannot contain with safety, to come into it, but precipitate them into the sea; because in these cases, he who first seized the plank, or they who first got into the boat, are in possession, and therefore others have no right to deprive them of it, tho’ they be in the same danger. And who will not own, that it is a less evil that a few, than that all should perish, or a greater good that a few, than that none should be saved? Edition: 1741; Page: [118]

Edition: current; Page: [125]

SECTION CLXVIII

Whether necessity excuses an executioner commanded to put an innocent person to death.I can by no means think an executioner, or any other, excusable, who being commanded to put an innocent person to death, thinks he ought to obey, and that his own danger is sufficient to exculpate him. For this necessity proceeds from the wickedness of men; and in such a case every one ought to bear every thing, rather than do any thing tending to dishonour God (§163).*

SECTION CLXIX

Whether it be lawful to throw down one who is in our way when we fly.But an innocent person, to save his life, may, in flying from his enemy, push out of his way, or throw down any person who stops or hinders his flight, even tho’ he may have reason to suspect the person may thereby be hurted. For if one stops the person who flies with a bad intention, this necessity proceeds from human malice, and such a person really does what he can to make the person flying perish. And if one be in his way, without any intention to hurt him, this necessity is providential in respect Edition: current; Page: [126] of the flyer. But in both cases, every way of saving one’s self is allowable (§163).* Edition: 1741; Page: [119]

SECTION CLXX

Whether in case of necessity we may lawfully seize upon another’s goods?The same must be said of those cases in which one is necessitated by hunger or cold to lay hold of the goods belonging to others; or when, in the danger of shipwreck, the goods of others must be thrown over board. For, in the first case, the necessity arises from the malice of men in suffering any to be in imminent danger from hunger or cold, (§163); and, in the last case, of two physical evils the least is chosen, when, in the danger of shipwreck, men perceiving that they must either perish themselves together with the goods, or make reparation to others for their goods which are cast in this necessity into the sea (§160), throw them over board. Edition: 1741; Page: [120]

SECTION CLXXI

The conclusion of this chapter.But numberless such cases may happen, or at least may be put, some of which are truly perplexed and dubious; and therefore let us not forget Edition: current; Page: [127] the admonition already mentioned (§164). We shall add no more upon the subject, leaving other questions to those who assume to themselves the province of commanding or guiding mens consciences.

Remarks on This Chapter

The principles our author hath laid down in this chapter, are most exact, and proper to decide all questions which can be proposed concerning the right, the privilege, the favour, the leave, or whatever we call it, that arises from necessity. It is however well worth while to look into what the learned Barbeyrac2 hath said upon this difficult subject in his notes upon Pufendorff ’s sixth chapter, book second, of the law of nature and nations. Pufendorff, in the beginning of that chapter, quotes an excellent passage of Cicero with regard to necessity, in which the general rule is very clearly stated. It is towards the end of his second book of invention; too long indeed to be inserted here, but deserving of attentive consideration. The chief design of our Author’s scholia being to refer his readers to passages in ancient authors, where moral duties are rightly explained and urged by proper arguments, in order to shew that the duties of the law of nature are discoverable by reason, and were actually known in all ages to thinking persons, at least, he might very properly have on this occasion referred us to that place in Cicero. For this is no doubt the most perplexed subject in morals, The right and priviledge of necessity. And upon it we find Cicero reasoning with great accuracy and solidity: insomuch, that if we compare with this passage the 25th chapter of his second book of offices, where he treats of comparing things profitable one with another; and the 3, 4, 5, and following chapters in the third book, where he considers competition between honesty and interest, or profit, we will find full satisfaction upon this head. In the 4th chapter of the 3d book he hath this remarkable passage.—“What is it that requires consideration on this subject? I suppose it is this, that it sometimes happens men are not so very certain, whether the action deliberated upon be honest or not honest.” For that which is usually counted a piece of villainy is frequently Edition: current; Page: [128] changed by the times or circumstances, and is found to be the contrary. To lay down one instance, which may serve to give some light to a great many others: pray what greater wickedness can there be upon earth (if we speak in general) than for any one to murder not only a man, but a familiar Edition: 1741; Page: [121] friend? And shall we therefore affirm that he is chargeable with a crime who has murdered a tyrant, tho’ he were his familiar? The people of Rome, I am sure, will not say so, by whom this is counted among the greatest and most glorious actions in the world. You will say then, Does not interest carry it against honesty? No, but rather honesty voluntarily follows interest. If therefore, we would upon all emergencies be sure to determine ourselves aright, when that which we call our advantage or interest seems to be repugnant to that which is honest, we must lay down some general rule or measure, which, if we will make use of in judging about things, we shall never be mistaken as to point of duty. Now this measure I would have to be conformable to the doctrine and principles of the Stoics, which I principally follow throughout this work. For tho’ I confess, that the ancient Academics and your Peripatetics, which were formerly the same, make honesty far preferable to that which seems one’s interest: yet those who assert, that whatever is honest must be also profitable, and nothing is profitable but what is honest, talk much more bravely and heroically upon this subject than those who allow, that there are some things honest which are not profitable, and some things profitable which are not honest. The principle of the Stoics he explains more fully a little after, where he asserts with them, “Certainly greatness and elevation of soul, as also the virtues of justice and liberality, are much more agreeable to nature and right reason than pleasure, than riches, than even life itself: to despise all which, and regard them as just nothing, when they come to be compared with the public interest, is the duty of a brave and exalted spirit: whereas to rob another for one’s own advantage, is more contrary to nature than death, than pain, or any other evil whatever of that kind.” This question concerning the interferings which may happen between duty and private interest, or self-preservation, will clear up, as we go on with our Author in the enquiry into our duties to others, and into the rights and bounds of self-defence; I shall only add to what our author asserts, in opposition to Pufendorff, about executioners, that if we consult the apology of Socrates by Plato, and that by Xenophon, we will find several Edition: current; Page: [129] fine passages, which shew that we ought never to obey our superiors to the prejudice of our duty; but very far from it; and unless we are in an entire incapacity to resist them, we ought to exert ourselves to the utmost of our power, and endeavour to hinder those who would oppress the innocent from doing them any mischief. See Grotius, l. 2. c. 26. §4. 9. as also Sidney’s discourse upon government, ch. 3. §20,3 and Mr. Barbeyrac’s notes on Pufendorff, of the law of nature and nations, b. 8. c. 1. §6. I beg leave to subjoin, that I know nothing that can better serve to prepare one for wading through all the subtleties, with which morality in general, and this particular question about the contrariety or competition that may happen between self-love and benevolence in cer-Edition: 1741; Page: [122]tain cases, are perplexed, than a careful attention to two discourses upon the love of our neighbour, by Dr. Butler (Bishop of Bristol) in his excellent sermons,4 to copy which would take up too much room in these notes, and to abridge them without injuring them is hardly possible, with such conciseness and equal perspicuity are they wrote. These sermons make the best introduction to the doctrine of morals I have seen; and the principles laid down in them being well understood, no question in morals will afterwards be found very difficult. It is owing to not defining terms, or not using terms in a determinate fixed sense, (the terms self-love, private interest, interested and disinterested, and other such like, more particularly) that there hath been so much jangling about the foundations of morality. They who say, that no creature can possibly act but merely from self-love; and that every affection and action is to be resolved up into this one principle, say true in a certain sense of the term self-love. But in another sense, (in the proper and strict sense of self-love,) how much soever is to be allowed to it, it cannot be allowed to be the whole of our inward constitution; but there are many other parts and principles which come into it. Now, if we ought to reason with regard to a moral constitution, as we do with respect to a bodily frame, we must not reason concerning it from the consideration of one part singly or separately from the rest with which it is united; but from all the parts taken together, as they are united, and by that union constitute a particular frame or constitution. Edition: current; Page: [130] The final cause of a constitution can only be inferred from such a complex view of it. And the final cause of a constitution is but another way of expressing what may properly be called the end for which it was so framed, or the intention of its Author in so constituting it. The end of our frame therefore, and by consequence the will of our Maker with regard to our conduct, can only be inferred from the nature of our frame, or the end to which it is adapted: But if we are to infer our end from our frame, no part of this frame ought to be left out in the consideration. Wherefore, tho’ self-love ought to be taken into the account, yet several particular affections must also be taken into the account; benevolence must likewise be taken into the account, if it really belongs to our nature; a sense of right and wrong, and reason must also be taken into the account; and whatever is taken into the account must be taken into it as it really is, i.e. affections must be considered as subjects of government, and reason must be considered as a governing principle, for such they are in their natures. But of this more afterwards, in the remark upon the duties reducible to benevolence. Edition: 1741; Page: [123]

Edition: current; Page: [131]

CHAPTER VII: Concerning our absolute and perfect duties towards (others in general), and of not hurting or injuring others (in particular).

SECTION CLXXII

The foundation of our duties towards others.Let us now proceed to consider our duties towards others, the foundation of which lies, as was observed above, in this, that man is by nature equal to man, and therefore every man is obliged to love every other with a love of friendship (§85 & 88). And because equality of nature requires equality of offices, hence we concluded, that every man is obliged to love every man no less than himself (§93).

SECTION CLXXIII

They are either perfect or imperfect.We have also shewn that there are two degrees of this love, one of which we called love of justice, and the other love of humanity and beneficence (§82 & seq.) But because the former consists in doing nothing that may render one more unhappy, and therefore in not hurting any person, and in giving to every one his own, or what is due to him; and the latter consists in endeavouring, to the utmost of our ability, to increase and promote another’s perfection and happiness, and in rendering to him even what we do not owe to him by strict and perfect obligation; the consequence of this is, that of the duties we owe to others, some are duties of justice, which are of perfect obligation, and others are duties of humanity and beneficence, which are of imperfect obligation. Edition: 1741; Page: [124]

Edition: current; Page: [132]

SECTION CLXXIV

These duties defined.Therefore those are perfect duties, to which one is bound by such perfect obligation, that he may be forced to perform them; such as to injure no person, and to render to every one what is due to him: those are imperfect, to which we cannot be forced, but are only bound by the intrinsic goodness of the actions themselves; such as, to study to promote the perfection and happiness of others to the utmost of our power (§84).*

SECTION CLXXV

They are divided into absolute and hypothetical.Since perfect duties may be reduced to not injuring any one, and rendering to every one his due (§174); but to injure, is to render one more unhappy than he is by nature, or would otherwise be (§82); and one may call that his due, or his own, which he hath justly acquired (§82); it follows, that obligation not to injure any one is natural; and obligation to render to every one his due is acquired; whence the former is called absolute, and the latter we call hypothetical. Edition: 1741; Page: [125]

Edition: current; Page: [133]

SECTION CLXXVI

In what order these duties ought to be treated.Further, since the right we acquire to any thing arises either from dominion, or from compact or convention, it follows that all hypothetical duties spring either from compact or from dominion; and therefore this will be the properest order we can follow, to begin first with considering perfect absolute duties, and then to treat of imperfect ones; next to speak of those hypothetical duties, which arise from dominion or property; and lastly, to handle those which arise from compact. But imperfect ones ought to be considered before we come to the hypothetical ones, because after dominion and compacts were introduced into the world, humanity becoming very cold and languid, men have sadly degenerated into selfishness.

SECTION CLXXVII

Every man ought to treat every other as his equal.First of all, it ought to be laid down as a maxim, that men are by nature equal (§172), being composed of the same essential parts; and because tho’ one man may share perfections, as it were by his good lot, above others, yet different degrees of perfection do not alter the essence of man, but all men are equally men: whence it follows, that every one ought to treat every other as equally a man with himself, and not to arrogate to himself any privilege in things belonging to many by perfect right, without a just cause; and therefore not to do to Edition: 1741; Page: [126] any other what he would not have done to himself (§88).*

Edition: current; Page: [134]

SECTION CLXXVIII

And then no person ought to be injured.Since therefore we ought not to do to any one what we would not have done to ourselves (§177); but none of us would like to be deprived by any other of our perfection and happiness which we have by nature, or have justly acquired; i.e. to be injured or hurt (§82); the consequence is, that we ought not to render any one more imperfect or unhappy, i.e. injure any one. And because to what constitutes our felicity and perfection, belongs not only our body, but more especially our mind, this precept must extend to both these parts, and an injury to our mind must be as much greater than an injury to our bodily part, as the mind is more excellent than the body.* Edition: 1741; Page: [127]

SECTION CLXXIX

No person may be killed, no injury may be done to one’s body, health, &c.The perfection and happiness of man consists in life, i.e. in the union of his soul and body (§143), which is of all he hath received from nature the most excellent gift, and is indeed the basis or foundation of all the rest: since therefore it is unlawful to deprive any one of the perfection and happiness he hath received from nature, and we would not choose to have our life taken away by another, (§178), it is self-evident, that it is our duty not to kill any person; not to do the least detriment to his health; not to give any occasion to his sickness, pain, or death, or not to Edition: current; Page: [135] expose him to any danger, without having a right to do it, or with an intention to have him killed.*

SECTION CLXXX

Unless necessity obliges to lawful self-defence.Yet since none is obliged to love another more than himself (§94), and it may often hap-Edition: 1741; Page: [128]pen that either one’s self or another must perish; the consequence is, that in case any one attack us, in this doubtful state of danger, every way of saving one’s self is lawful (§163); and therefore we may even kill an aggressor, provided we do not exceed the limits of just self-defence.

SECTION CLXXXI

Its limits.But what are the limits of just self-defence none will be at a loss to understand, who calls to mind, that absolute or inevitable necessity merits favour, (§158): For hence it follows, That blameless self-defence takes place, if one be in absolute necessity, or even in relative necessity, provided he be so, not by his own fault (§158): That all danger being past, there is no further any right of defence: That when danger can be avoided without hurting the aggressor, or by a lesser evil, there is no right to kill him; because of two evils the least ought always to be chosen.

Edition: current; Page: [136]

SECTION CLXXXII

Against whom we may use it.These evident principles being attended to, nothing can be more easy than to answer all the questions which are commonly proposed with relation to due moderation in self-defence. For if it be asked against whom it is allowable, you will answer rightly, if you say, against all by whom we are brought into danger without any fault of our own (§81); and therefore even against mad persons, persons disordered in their senses, and even against those Edition: 1741; Page: [129] who attack you by mistake, when they are intending to assault another. For as Grotius of the rights of war and peace, 2. 1. 3. has well observed, the right of self-defence in such cases does not proceed from his injustice or fault, by whom the danger is occasioned, but from our own right of repelling all danger by any means, and of not preferring in such circumstances the life or safety of another to our own.*

SECTION CLXXXIII

The extent of it in a state of natural liberty.Nor will it be less easy to determine how long this right of defence against an aggressor continues. For here doctors justly distinguish between those living in a state of nature, and subject to no magistrate, by whom they may be defended and protected, and those who live in a civil state, and under magistracy. For since, in a state of natural liberty, there is none to protect us against injuries, our right of self-defence cannot but begin the moment our danger commences, and cannot but continue while it lasts, or till we are absolutely secure, (§181). But our danger begins the moment Edition: current; Page: [137] one shews a hostile disposition against us, and while that continues, our right of self-defence lasts.* Edition: 1741; Page: [130]

SECTION CLXXXIV

And in a civil state.On the other hand, in a civil state, one who shews enmity against another, trapps, or lays snares for him, may be coerced by the civil magistrate; the consequence of which is, that a member of a civil state, hath not a right, by his own force and arms, to resist another member who attacks him, or lays snares for him; nor, when the danger is over, to take that revenge at his own hand which he might expect from the magistrate. And therefore, the space or time of just self-defence is confined within much narrower limits in that state; it begins with the danger, and lasts no longer than the danger itself lasts.

SECTION CLXXXV

The measure of violent self-defence.Moreover, from these principles (§181), you may easily see that self-defence to the point of killing the aggressor is not lawful; if one was forewarned of the assault, or foreseeing it in time, could have kept at home, or retired into a safer place, or could, by wounding or maiming the injurious person, disable him: tho’ no person, when he is assaulted, Edition: current; Page: [138] be absolutely obliged to betake himself to flight, because of the danger or uncertainty of it, unless there be near at hand a place of most secure refuge, Edition: 1741; Page: [131] (Pufendorff of the law of nature and nations, 2. 5. 13.). But upon this head it is proper to observe, that under civil governments, the time of making an unblameable self-defence being confined within very narrow bounds, and indeed almost reduced to a point or instant, since, in such a perturbation of mind, one cannot think of all the ways of escaping; therefore, with good reason, such cases ought not to be too rigidly exacted, but great allowances ought to be made.

SECTION CLXXXVI

For what things it is lawful.Hence we may likewise perceive for what things one may proceed to self-defence by force and violence: for since some calamities are bitterer to man than death, and not only extreme necessity, but even that which may be undergone with safety to our life, merits favour (§158); the consequence is, that what is allowable for the sake of life, is permitted likewise in defence of health, the soundness of our bodies, and even our chastity;* and likewise in defence of magistrates, parents, children, friends, and all others whom we find in danger. Edition: 1741; Page: [132]

Edition: current; Page: [139]

SECTION CLXXXVII

Whether it be allowable in defence of our honour and reputation?The question, whether one is excusable for killing another in defence of his honour and reputation, e.g. for a box on the ear, or some more slight injury, is more difficult. But tho’ nothing be more valuable, life only excepted, than honour; and therefore some think, that in this case violent self-defence is not unlawful; (see Grotius of the rights of war and peace, 2. 1. 10.) yet because the danger of losing life, or other things upon an equal footing with life, alone give us the right to blameless self-defence (§186); and because honour and reputation are not lost by an injury done to us; and there are not wanting in civil governments lawful means of revenging an injury; we cannot choose but assent to their opinion, who prudently affirm, that the right of violent self-defence ceases in these cases.

SECTION CLXXXVIII

No person ought to be injured with regard to his understanding.Again, the absolute duty of not hurting any person extends no less to the mind than to the body (§178), and the faculties of the mind are will and understanding: as to the first therefore, none can deny that he greatly injures a person, who seduces into error a young person, or any one of less acute parts than himself by falshood and specious sophistry; or who prepossesses any one with false opinions, or he who, even by a tedious disagreeable method of teaching, or affected severity, begets, in any one committed to his charge, an aversion to truth and the study of wisdom.* Edition: 1741; Page: [133]

Edition: current; Page: [140]

SECTION CLXXXIX

Nor with respect to the will.Now because that injury done to the will, which is called corruption, is no less detrimental to one; the consequence is, that they act contrary to their duty who corrupt any person, by alluring him to pursue unlawful pleasures, or to commit any vice, and either by vitious discourse or example, debauch his mind; or when they have it in their power, and ought to restrain one from a vitious action, and reclaim him into the right course of life, either do it not, or set not about it with that serious concern which becomes them; but, on the contrary, do all that lies in them to forward him in his vitious carrier.* Edition: 1741; Page: [134]

Edition: current; Page: [141]

SECTION CXC

Nor with respect to the body.Since it is not more allowable to hurt one’s body than his mind (§178), it is certainly unlawful to beat, strike, hurt, injure, wound any one in any manner or degree, or to maim any member or part of his body; to torment him by starving, pinching, shackling him, or in any other way; or by taking from him, or diminishing any of the things he stands in need of in order to live agreeably and comfortably; or, in one word, to do any thing to any one by which his body, which he received from nature sound and intire, can, by the malice or fault of another, suffer any wrong or detriment. Because since we ourselves certainly are so abhorrent of all these things, that death itself does not appear less cruel to us than such injuries do; surely what we would not have done to ourselves by others, we ought not to do to them, and we must, for that very reason, or by that very feeling, know that we ought not to do so to them.* Edition: 1741; Page: [135]

SECTION CXCI

Nor in respect of fame and reputation.As to the state or condition of man, to this article chiefly belongs reputation, not only a simple good name, or being looked upon not as a bad person, but likewise the superior reputation one deserves by his superior merits above others; (for of wealth and possessions, which cannot be conceived without dominion or property, we are afterwards to speak). Now, seeing one’s fame cannot but be hurt by calumnies (§154), or deeds and words tending to disgrace one, which we call injuries; it is as clear Edition: current; Page: [142] and certain that we ought to abstain from all these, as it is, that we ourselves take them in very ill part.*

SECTION CXCII

Nor in respect of chastity.Besides, the condition of a person may be wronged in respect of chastity, because being thus corrupted by violence, or by flattery, one’s good name suffers, and the tranquillity of families is disturbed, (§178); whence it is plain, that we ought not to lay snares against one’s chastity, and that all uncleanness, whether violently forced, or voluntary; and much more, adultery, and other such abominable, cruel injuries, are absolutely contrary to the law of nature. Edition: 1741; Page: [136]

Edition: current; Page: [143]

SECTION CXCIII

One may be injured by thoughts, gestures, words, and deeds.From what hath been said, it is plain enough that a person may be wronged even by internal actions; i.e. by thoughts intended to one’s prejudice, as well as by external actions, as gestures, words, and deeds (§18); whence it follows, that even hatred, contempt, envy, and other such vices of the mind, are repugnant to the law of nature. And that we ought to abstain from all gestures shewing hatred, contempt, or envy, and what may give the least disturbance to the mind of any person. But that hurt, which consists in words and deeds, is accounted greatest (in foro humano) in human courts of judicature.* Edition: 1741; Page: [137]

SECTION CXCIV

The faculty of speech distinguishes man above the brute creation.Because a person may be hurt by words or discourse (§193), it is worth while to enquire a little more accurately into our duties with relation to speech. For such is the bounty of the kind author of nature towards us, that he hath not only given us minds to perceive, judge and reason, and to pursue good, but likewise the faculty of communicating our sentiments to others, that they may know our thoughts and inclinations. For tho’ the brutes, we see, can express, by neighing, hissing, grunting, bellowing, Edition: current; Page: [144] and other obscure ways, their feelings,* yet to man is given the superior faculty of distinctly signifying his thoughts by words, and thus making his mind certainly known to others. Edition: 1741; Page: [138]

SECTION CXCV

What discourse is.Seeing what peculiarly distinguishes us from the brutes, with relation to speech, consists in our being able clearly to communicate our thoughts to others, (§193), which experience tells us we do by articulate sounds; i.e. by sounds so diversified by our organs of speech as to form different words, by which all things, and all their affections and properties or modes may be expressed; therefore discourse is articulated sound, by which we impart the thoughts of our minds to others distinctly and clearly. Edition: 1741; Page: [139]

Edition: current; Page: [145]

SECTION CXCVI

How it ought to be employed.From this definition it is obvious enough, that the faculty of speech is given us, not for the sake of God, nor of brutes, but for our own advantage, and that of our kind; and therefore, that God wills that by it we should communicate our thoughts to others agreeably to the love he requires of us: for which reason, he wills that we should not injure any one by our discourse, but employ it, as far as is in our power, to our own benefit, and the advantage of others.*

SECTION CXCVII

We ought to use words in their received signification.The design of discourse being to communicate our sentiments to others (§196), which is done by articulate sounds, denominating things, and their affections, modes, qualities, and properties (§195); it follows, that being to speak to others, we ought not to affix any meaning to words but what they are intended and used to signify in common discourse; Edition: 1741; Page: [140] or if we make use of uncommon words, or employ them in a less ordinary acceptation, we ought accurately to explain our mind. But no person has reason to be displeased, if we use words in a sense they have been taken in by those acquainted with languages, or which is received at the present time, if the construction of words and other circumstances admit of it.

Edition: current; Page: [146]

SECTION CXCVIII

No person ought to be wronged by discourse.And since God wills that we communicate the sentiments of our mind to others by speech, agreeably to the love of others he requires of us by his law (§196); which love does not permit us to hurt any person by our discourse: but it is to injure a person, to detract any thing from his perfection or felicity (§82): hence it follows, that we ought, not to hide from any one any thing, the knowledge of which he hath either a perfect or imperfect right* to exact from us; not to speak falshood in that case: not to mislead any person into error, or do him any detriment by our discourse. Edition: 1741; Page: [141]

SECTION CXCIX

We may hurt another by dissimulation, by lying, by deception.He who conceals what another has a perfect or imperfect right to demand certain and true information of from him, dissembles. He who in that case speaks what is false, in order to hurt another, lies. Finally, he who misleads any one to whom he bears ill-will into an error, deceives him. Now, by these definitions, compared with the preceding paragraph, Edition: current; Page: [147] it is abundantly plain, that dissimulation, as we have defined it, and all lying and deception, are contrary to the law of nature and nations.

SECTION CC

When it is allowable to be silent, to speak falsly or ambiguously.But since we are bound to love others, not with greater love than ourselves, but with equal love, (§94); the consequence is, that it is lawful to be silent, if our speaking, instead of being advantageous to any person, would be detrimental to ourselves or to others: and that it is not unlawful to speak falsly or ambiguously, if another have no right to exact the truth from us (§198); or if by open discourse to him, whom, in decency, we cannot but answer, no advantage would redound to him, and great disadvantage would accrue from it to ourselves or others; or when, by such discourse with one, he himself not only suffers no hurt, but receives great advantage.* Edition: 1741; Page: [142]

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What is meant by taciturnity, what by false speech, and what by fiction.Hence we may infer, that all dissimulation is unjust (§199), but not all silence: (by which we mean, not speaking out that to another which we are neither perfectly nor imperfectly obliged to discover to him (§200); that all lying is unjust (§199), but not all false speaking (§200); that all Edition: current; Page: [148] deception is unjust (§199); but not all ingenious or feigned discourse (§200). And therefore all these must be carefully distinguished, if we would not deceive ourselves, and make a false judgment concerning them.* Edition: 1741; Page: [143]

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What truth and veracity mean.The same holds with respect to truth and veracity. For since one is said to be a person of veracity, who speaks the truth without dissimulation, whenever one has a perfect or imperfect right to know the truth from us; the consequence is, that veracity always means a commendable quality. On the other hand, speaking truth may be good, bad, or indifferent; because it consists in the agreement of words and external signs with our thoughts, and one does not always do his duty who lays open his thoughts.

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What is meant by an asseveration, what by an oath, what by benediction, and what by imprecation.Words, by which we seriously assert that we are speaking truth, and not falsly, are called asseverations. An asseveration made by invoking God as our judge, is called an oath. Words by which we wish good things to a person, or pray to God for his prosperity, are called benedictions. Words by which we, in the heat of our wrath, wish ill to our neighbour, are commonly called malediction or cursing. When we imprecate calamities upon our own heads, it is called execration. Edition: 1741; Page: [144]

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When it is allowable to use asseverations.From the definition of an asseveration (§203), it is plain that no good man will use it rashly or unnecessarily, but then only, when a person, without any cause, calls what he says into doubt, and he cannot otherwise convince him of the truth whose interest it is to believe it; whence we may conclude, that he acts greatly against duty, who employs asseverations to hurt and deceive any one.*

SECTION CCV

When it is allowable to use benedictions, and when imprecations.Since we desire happiness no less to those we love, and in whose felicity we delight, than to ourselves, it cannot be evil to wish well to another, and pray for all blessings upon him, provided it be done seriously and from love, and not customarily and in mere compliment. But all maledictions Edition: current; Page: [150] breathe hatred, and are therefore unjust, unless when one with commiseration only represents to wicked persons the curses God hath already threatened against their practices. Finally, execrations, being contrary to the love we owe to ourselves, and the effects of immoderate anger and despair, are never excusable; but here, while we are examining matters by reason, certain heroic examples do not come into the consideration, they belong to another chair. Edition: 1741; Page: [145]

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What is the use of an oath?As to an oath, which is an asseveration by which God is invoked as a witness or avenger (§203), since we ought not to use a simple asseveration rashly or unnecessarily (§204); much less certainly ought we to have recourse rashly or unnecessarily to an oath; but then only when it is required by a superior as judge; or by a private person, in a case where love obliges us to satisfy one fully of the truth, and to remove all suspicion and fear of deception and falsity. And this takes place with regard to every oath, and therefore there is no need of so many divisions of oaths into promissory and affirmatory, and the latter into an oath for bearing witness, and an oath decisive of a controversy: for the same rules and conditions obtain with respect to them all.* Edition: 1741; Page: [146]

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Who and how.Since by those who swear God is invoked as a witness and avenger (§203), the consequence is, that atheists must make light of an oath, and that it is no small crime to tender an oath to such persons; that an oath ought to be suited to the forms and rites of every one’s religion;* and therefore asseverations by things not reckoned sacred, cannot be called oaths; that he is justly punished for perjury, who perjures himself by invoking false gods; nay, that even an atheist is justly punished for perjury, who concealing or dissembling his atheistical opinions, swears falsly by God, seeing he thereby deceives others.

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How an oath ought to be administred.Moreover, since one ought not to swear rashly, or without being called to it (§206); hence it follows, that an oath is made for the sake, not of the swearer, but of him who puts it to the swearer; and therefore it ought to be understood and explained by his mind and intention, and not according to that of the person sworn; for which reason Edition: 1741; Page: [147] all those equivocations and mental reservations, as they are called, by which wicked men endeavour to elude the obligation of an oath, are most absurd. Those interpretations of oaths are likewise absurd, which require Edition: current; Page: [152] base or unreasonable things of one, who of his own accord had sworn to another not to refuse him any thing he should ask of him.*

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The obligation and effects of an oath.Again, an oath being an invocation of God, (§203), it follows that it ought to be religiously fulfilled; that it cannot be eluded by quibles and equivocations, but that the obligation of an oath must yield to that of law: and therefore that it can produce no obligation, if one swears to do any thing that is base and forbidden by law; tho’ if it be not directly contrary to law, it be absolutely binding, provided it was neither extorted by unjust violence, nor obtained by deceit (§107 & 109): whence is manifest what ought to be said of the maxim of the canonists, “That every oath ought Edition: 1741; Page: [148] to be performed which can be so without any detriment to our eternal happiness.”

Edition: current; Page: [153]

SECTION CCX

He who does an injury, is obliged to make re-paration.We have sufficiently proved that it is unlawful to hurt any one by word or deed, nay even in thought. Now, since whosoever renders another more unhappy, injures him; but he renders one most unhappy, who, having injured him, does not repair the damage; the consequence is, that he who does a person any injury, is obliged to make reparation to him; and that he who refuses to do it, does a fresh injury, and may be truly said to hurt him again; and that if many persons have a share Edition: 1741; Page: [149] in the injury, the same rule ought to be observed with regard to making satisfaction and reparation, which we laid down concerning the imputation of an action in which several persons concur (§112 & seq.).*

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What is satisfaction?By satisfaction we here understand doing that which the law requires of one who has done an injury. Now, every perfect law requires two things, Edition: current; Page: [154] 1. That the injury be repaired,* because a person is hurt or wronged. 2. That the injurious person should suffer for having transgressed the law by doing an injury, because the legislator is leased by his disobedience or transgression. And for this reason satisfaction comprehends both reparation and punishment, (Grotius of the rights of war and peace, 2. 17. 22. & 120.). The one doth not take off the other, because the guilt of the action for which punishment is inflicted, and the damage that is to be repaired, are conjunct in every delinquency. But of punishment in another place. Edition: 1741; Page: [150]

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How it is to be made.Damage done, is either of such a nature that every thing may be restored into its former state, or that this cannot be done. In the former case, the nature of the thing requires that every thing should be restored into its first state, and, at the same time, that the loss should be repaired which the injured person suffered by being deprived of the thing, and by the expences he was obliged to in order to recover it. In the latter case, the nature of the thing requires, that the person wronged should be indemnified by as equal a valuation of his loss as can be made; in which regard is to be had not only to the real value, but to the price of fancy or affection. Pufendorff hath illustrated this doctrine by examples in murder, in maiming, in wounding, in adultery, in rapes, in theft, and other crimes. Puf. of the law of nature and nations, B. 3. c. 1.

Remarks on This Chapter

We shall have occasion afterwards to consider a little more fully with our Author, that natural equality of mankind upon which he founds our natural obligation to mutual love. Let me only observe here, that Edition: current; Page: [155] it is at least an improper way of speaking among moralists to say, “That all men are naturally equal in this respect, that antecedently to any deed or compact amongst them, no one hath power over another, but each is master of his own actions and abilities; and that none are subjected to others by nature.” For we ought, as in physicks, so in morals, to reason from the real state, frame, constitution, or circumstances of things. And with regard to mankind, abstractly from all consideration of inequality occasioned by civil society, this is the true state of the case: 1. “That men are born naturally and necessarily subject to the power and will of their parents; or dependent upon them for their sustenance and education. The author of nature hath thus subjected us. 2. Men are made to acquire prudence by experience and culture; and therefore naturally and necessarily those of less experience and less prudence, are subjected to those of greater experience and prudence. There is naturally this dependence among mankind. Nay, 3. which is more, the Author of nature (as Edition: 1741; Page: [151] Mr. Harrington says in his Oceana) hath diffused a natural aristocracy over mankind, or a natural inequality with respect to the goods of the mind. And superiority in parts will always produce authority, and create dependence, or hanging by the lips,1 as the same author calls it. Such superiority and inferiority always did universally prevail over the world; and the dependence or subjection which this superiority and inferiority in parts or virtues creates, is natural. 4. Industry, to which, as the same excellent author says, nature or God sells every thing, acquires property; and every consequence of property made by industry is natural, or the intention of nature. But superiority in Edition: current; Page: [156] property purchased by industry, will make dependence, hanging, as that author calls it, by the teeth. Here is therefore another dependence or subjection amongst mankind, which is the natural and necessary result of our being left by nature each to his own industry.” All these inequalities, or superiorities and dependencies, are natural to mankind, in consequence of our frame and condition of life. Now the only question with regard to these superiorities, and the right or power they give, must be either, 1. “Was it right, was it just and good to create mankind in such circumstances, that such inequalities must necessarily happen among them?” To which question, because it does not belong immediately to our present point, it is sufficient to answer, “That we cannot conceive mankind made for society, and the exercise of the social virtues without mutual dependence; and mutual dependence necessarily involves in its very idea inequalities, or superiorities and inferiorities: and that as we cannot conceive a better general law, than that the goods of the mind, as well as of the body, should be the purchase of application and industry; so the advantages arising from superiority in the goods of the mind, or from superiority in external purchases by ingenuity and industry, i.e. the authority the one gives, and the power the other gives, are natural and proper rewards of superior prudence, virtue and industry.” 2. Or the question must mean, “Does it appear from our constitution, to be the intention of our Author, that man should exercise his natural or acquired parts and goods for the benefit of his kind, in a benevolent manner, or contrariwise?” To which I answer, “That as it plainly appears from our constitution to be the intention of our Author, that we should exercise our natural abilities to the best purpose, for our own advancement in the goods of the mind and of the body; and that we should improve in both, and reap many advantages by improvement in both, the chief of which is superiority over those who have not made equal advances either in internal or external goods: so it as plainly appears from our constitution, to be the will and intention of our Author, that we should love one another, act benevolently towards one another, and never exercise our power to do hurt, but on the contrary, always exercise it or increase it, in order to do good.” If this appears to be the will of our Maker, from the consideration of Edition: 1741; Page: [152] our constitution and condition of life, then to act and behave so is right; and to act or behave otherwise is wrong, in every sense of these words, Edition: current; Page: [157] i.e. it is contrary to the end of our make; and consequently repugnant to the will and intention of our Maker. Now, that we are made for benevolence; and are under obligation by the will of our Maker, to promote the good of others to the utmost of our power, will be fully proved, if it can be made out, that we are under obligation by the will of our Maker, appearing from our make and constitution, to forgive injuries, to do good even to our enemies, and in one word, to overcome evil by good. If the greater can be proved, the lesser involved in it, is certainly proved. And therefore, if it can be made appear, that by the law of nature, (in the sense we have defined these words) we are obliged to benevolence, even towards our enemies, all that our Author hath said about not injuring one by word or deed, or even by thought; and about the caution and tenderness that ought to be used in necessary self-defence, will be indisputable. Now, that it appears to be the will of our Author, from our make, that we should be benevolent even to the injurious and ungrateful, must be owned by any one who considers, that resentment in us is indignation against injustice or injury; is not, or cannot be otherwise excited in us; and therefore is not in the least a kin to malice; and that as resentment is natural to us, so likewise is compassion. For if both these passions be in us, and we have Reason to guide them, as we plainly have, it is clear, that they must be intended to operate conjointly in us, or to mix together in their operations. Now what is resentment against injury, allayed or tempered by compassion, under the direction of reason, but such resentment as the suppression of injustice requires, moderated by tenderness to the unjust person. And what is compassion, allayed, mixed or moderated by resentment against injustice, but such tenderness towards the injurious person himself, as the preservation of justice, and consequently of social commerce and public good, permits? This argument is fully illustrated in my Christian Philosophy, p. 395, &c. And therefore I shall not here insist any longer upon it. The same thing may be proved, and hath been fully proved by moralists from other considerations. But I choose to reason in this manner, that we may see how reasonings about duties may proceed in the same manner as physical reasonings about the uses of parts in any bodily frame, or the final cause of any particular bodily whole. For if it be good reasoning to say, any member in a certain bodily organization is intended for such an end in that composition, it must be Edition: current; Page: [158] equally good reasoning to say, a moral constitution, in which there is a social and benevolent principle, compassion, and many public affections, and no hatred or aversion or resentment, but against injustice, together with reason capable of discerning public good, and delighting in it, is intended by its Author for the exercises of social affections; for justice; nay, for benevolence, and for commiserating Edition: 1741; Page: [153] even the injurious, as far as public good admits that tenderness to take place.

Having mentioned the necessity of reasoning from the frame of mankind, and our condition, in order to infer the will of our Creator concerning our conduct, it may not be improper to add, that there is no difficulty in determining the will of our Creator, even with respect to our conduct towards inferior animals, if we state the case as it really is in fact, which is, “That such is the condition of mankind by the will of our Maker, that our happiness cannot at all be procured without employing certain inferior animals in labouring for us; nor even the happiness of the inferior animals themselves, in a great measure.” For that being the case, tho’ we can never have a right to employ inferior animals for our service by compact, they being incapable of it, yet we have a natural right to it, a right arising from the circumstances of things, as they are constituted by the Author of nature. But the right which arises from these circumstances, is not a right to torment them unnecessarily, because not only our happiness does not require that, but we really are framed by nature even to compassionate suffering brutes. But we shall have occasion afterwards to shew more fully, that a right may arise from the nature and circumstances of things, previous to compact or consent; or where there cannot be any compact or consent. Whoever would see the true meaning of the precept, to love our neighbours as ourselves, fully and clearly laid open, may consult Dr. Butler’s sermon already quoted upon the love of our neighbour. That the precept, Do as you would be done by, is not peculiar to Christianity, but is a precept of the law of nature, and was known and inculcated by Confucius, Zoroaster, Socrates, and almost all ancient moralists, Pufendorff hath shewn, and Mr. Barbeyrac in his history of the moral science, prefixed to his notes on Pufendorff ’s system: so likewise our Author in the following chapter.

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CHAPTER VIII: Concerning our imperfect duties towards others.

SECTION CCXIII

The order and connexion.We think our obligation not to hurt any person, and the nature of injury have been sufficiently cleared and demonstrated. The next thing would be to explain with equal care our obligation to render to every one his own, and the nature of that duty (§175); were not the nature of our hypothetical duties such, that they could not be explained Edition: 1741; Page: [154] without having first considered the nature of our imperfect absolute duties. But this being the case, it is proper to begin with them; and this premonition is sufficient to skreen us against being charged with the crime reckoned so capital among the critics of this age (ne ὕστερον πρότερον) transgressing order designedly, and with evil intention.

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The foundation and division of imperfect duties.The source of all these duties is love of humanity or beneficence (§84), by which we cheerfully render him whom we love, not merely what we owe him by strict and perfect right, but whatever we think may conduce to his happiness. But because humanity commands us to be as good to others as we can be without detriment to ourselves; and beneficence commands us to do good to others even with detriment to ourselves (§83); therefore our imperfect duties are of two kinds, and may be divided into those of humanity, or unhurt utility, and those of beneficence or generosity. Edition: current; Page: [160] Both are, for many reasons, or on the account of many wants, so necessary, that it is impossible for men to live agreeably or conveniently without them.

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Axioms concerning them.Since there can be no other measure with respect to these duties but the love of ourselves, and therefore we are obliged to love others as ourselves, (§93); the consequence is, that whatever we would have others to do to us, we ought to do the same to them (§88); whence above, in premising a certain principle to which all our duties to others might be reduced, we laid down this rule, Man is obliged to love man no less than himself, and not to do to any other what he would think inexcusable if done to himself, (from which principle we have deduced our perfect duties); but, on the contrary, to do to others what he would desire others to do to him (§93). Now Edition: 1741; Page: [155] hence we shall see that all our imperfect duties may be clearly inferred.

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Our obligation to the duties which may be done to others without detriment to ourselves.First of all, none would have those things denied to him by others which they can render to him without hurting themselves; wherefore every one is obliged liberally to render such good offices to another; and consequently it is justly reckoned most inhuman for one, when it is in his power, not to assist another by his prudence, his counsel and aid; or not to do all in his power to save his neighbour’s goods; not to direct a wanderer into the right road; to refuse running water to the thirsty; fire to the cold; shade to those who languish with excessive heat; or to exact any thing from another to his detriment, which can more easily, either without hurting ourselves or any other, be procured some other way. This kind of benignity is so small and trivial, that either by law or custom, the duties of this class have passed almost every where into duties of perfect obligation.*

Edition: current; Page: [161]

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It extends to those things with which we abound.It belongs to the same class of unhurt utility to communicate such things to others as we can, Edition: 1741; Page: [156] (such is our abundance), spare them without any loss or hurt to ourselves; and to dispense among others things which would otherwise be lost and perish with us; insomuch, that they are very inhuman who suffer things to corrupt and spoil, who destroy in the fire, throw into the sea, or bury under ground things on purpose that no other may be the better for them.*

Edition: current; Page: [162]

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What if our humanity would be hurtful to ourselves?But since we are bound to render such good offices to others from the love we are obliged to entertain towards others by the law of an infinitely good and merciful God (§215), and yet none is obliged to love another more than himself (§93); the consequence is, that we may deny these good offices to others, if we foresee the doing them may be detrimental to ourselves or our friends; which, since Edition: 1741; Page: [157] it may easily happen in a state of nature, where there is no common magistracy to protect and secure us, if we readily render these good offices even to our manifest enemies; there is therefore a plain reason why the good offices, even of harmless use, may be refused to an enemy in that state, as being ill disposed towards us; whereas in a civil state to deny them rashly to others under that pretext, would be very blameable.*

Edition: current; Page: [163]

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Humanity is due to enemies.Yea rather, since the love which is the source of all these duties, is due, not for the merits of others, but on account of the equality of nature (§88), it is very evident, that even to enemies those things in which we abound, and which we can give them without any hurt to ourselves, ought to be given. And this humanity is so much the more splendid Edition: 1741; Page: [158] and noble, the less hope there is of our ever returning into great friendship with the enemy to whom such services are rendered.*

SECTION CCXX

The degrees of relation and affinity ought to be considered.But because this love of humanity, from which these duties flow as their fountain or source, ought to have prudence for its director, which is that faculty by which things conducive to our own happiness and that of others is discerned; hence it is conspicuous, that regard ought to be had not only to persons, but to the necessities they labour under; and therefore in like circumstances, if it be not in our power to satisfy all, greater humanity is due to a good man than to a scelerate; more is owing to a friend than to an enemy; more to a kinsman and relative than to a stranger; and more to him who is in greater, than to him who is in less indigence Edition: current; Page: [164] of our assistance; and therefore so far the illustrious Leibnitz defines very justly, justice to be the love of a wise man.* Edition: 1741; Page: [159]

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Our obligation to beneficence.That degree of love, which we called above love of beneficence (§214), is of a sublimer kind, because it excites us to exert ourselves to the utmost, and even with detriment to ourselves, to promote the good of others. Now, since what we would desire to be done to us by others we are obliged to do to them (§88), and many cases happen in which we ourselves would be very unhappy unless others should liberally bestow upon us what we want, and there is none who does not desire that others should so treat him; the consequence is, that we are obliged, in such cases, to supply others liberally with what they stand in need of, even with some detriment to ourselves. Edition: 1741; Page: [160]

Edition: current; Page: [165]

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What is meant by beneficent, and what by officious.A benefit is a service rendered to one without hope of restitution or retribution; and therefore readiness to render such services we call beneficence; as readiness to do good offices, to lay on obligation of restoring or compensating by services to one’s self is called officiousness by Sidon. Apollin. 23. v. 478.1 But tho’ such services be not properly called benefits; yet they ought to be highly valued, and gratefully received, if they are greater than to admit of payment, or are rendered to us by one whom the nature of the good office did not oblige to do it.*

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Beneficence ought to proceed from inclination to be useful to others.Since therefore beneficence is readiness to render such offices to others as we have reason to think will be serviceable to them (§222), every one must Edition: 1741; Page: [161] see that they have no title to the praise of beneficence, who, as the servant in Terence, Hecyr. 5. 4. v. 39. “do more good ignorantly and imprudently, than ever they did knowingly, and with design (§48),” or who do good with an intention to hurt; or who do good only, because they think the benefit will turn more to their own advantage than to that of the receiver. From all which it is manifest, that in judging of benefits Edition: current; Page: [166] the mind and intention of the benefactor are more to be considered than the act or effect itself.*

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Benefits ought to be dispensed with prudence.Since benefits flow from love, which is always joined with prudence (§83), it is plain that whatever is not agreeable to reason is profusion, and any thing rather than liberality: nor are those offices deserving of the name of benefits, which proceed from ambition and vain-glory, more than from love, and are bestowed upon the more opulent, and not the indi-Edition: 1741; Page: [162]gent; upon unworthy persons preferably to men of merit; Edition: current; Page: [167] or, in fine, which are done contrary to that natural order founded in natural kindred and relation, of which above (§220).

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Benefits ought to be proportioned to the necessity and condition of persons.Besides, because benefits ought to be advantageous to persons (§222), it is evident from hence, that benefits ought to be suited to every one’s condition and necessities; and therefore that those are not benefits which do no good to a person; much less such as do him great hurt, or at least are attended with considerable inconvenience to him.* Edition: 1741; Page: [163]

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The degrees of kindred and connexion are to be considered.Since that love of humanity and beneficence which binds to render good offices, extends even to enemies (§219), it is clear that those have a much better title to our love, who have done us all the kindnesses they had in their power; and that they are the worst of men, nay, more hard-hearted than the most savage brutes, who are not won to love by favours: they are so much the more unjust that it cannot be denied, that by accepting favours, we bind ourselves to mutual love (§221).

Edition: current; Page: [168]

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The obligation to gratitude.Love to benefactors is called a grateful mind or gratitude; wherefore, seeing one is obliged to love him from whom he hath received favours, the consequence is, that every one is obliged to shew gratude in every respect: yet this duty is imperfect, and therefore one cannot be compelled to perform it; an ungrateful person cannot be sued for his ingratitude in human courts, unless the laws of the state have expressly allowed such an action. Some such thing we have an example of in Xenophon’s institution of Cyrus, 1. 2. 7. p. 9. Edit. Oxon.* 2 Edition: 1741; Page: [164]

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The rules relating to it.Seeing gratitude is love to a benefactor (§227), it follows, that one is obliged to delight in the perfection and happiness of his benefactor; to commend and extol his beneficence by words, and to make suitable returns to his benefits; not always indeed the same, or equal, but to the utmost of his power; but if the ability be wanting, a grateful disposition is highly laudable.

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The obligation to the other.In fine, since we are obliged, even to our own detriment, and without any hope of restitution or retribution, to do good to others (§221), the Edition: current; Page: [169] consequence is, that we ought much less to refuse favours to any one which he desires with the promise of restitution or retribution; and therefore every one is obliged to render to another what we called above officiousness (§222), provided this readiness to help others be not manifestly detrimental to ourselves (§93).

Remarks on This Chapter

It is not improper to subjoin the few following observations upon our Author’s reasoning in this chapter.

1. When duty is defined to be something enjoined by the divine will under a sanction, duties cannot be distinguished into perfect and imperfect in any other sense but this: “That some precepts of God give a right to all mankind to exact certain offices or duties from every one. But other precepts do not give any such right.” Thus the precept of God not to hurt any one, but to render to every one his due, gives every one a right to exact his due, and to repel injuries. But the precept to be generous and bountiful, gives no man a right to exact acts of generosity and bounty, tho’ it lays every man under an obligation to be generous and bountiful, to the utmost of his power. So that he who sins against the former is more criminal, or is guilty of Edition: 1741; Page: [165] a higher crime than he who does not act conformably to the other. This is the only sense in which duties can be called, some perfect, and others imperfect, when duty is considered, with our Author, as an obligation arising from the divine will commanding or forbidding. For all such obligation is equally perfect, equally full. The distinction takes its rise from the consideration of what crimes do, and what crimes do not admit of a civil action, consistently with the good order of society; and it is brought from the civil law into the law of nature. But it would, in my opinion, be liable to less ambiguity in treating of the law of nature, instead of dividing duties into those of perfect and those of imperfect obligation, to divide them into greater or lesser duties, i.e. duties, the transgression of which is a greater crime, and duties the omission of which is a lesser crime: or, in other words, duties the performance of which may be lawfully exacted, nay compelled; and duties the performance of which cannot be compelled or even exacted. But our Author’s terms mean the same thing, and cannot, if his definitions be attended to, create any Edition: current; Page: [170] ambiguity. However, we may see from his reasoning in this chapter, the necessity (as we observed in our preceeding remarks) of having recourse to internal obligation (as our Author calls it) or the intrinsic goodness and pravity of actions, in deducing and demonstrating human duties.

2. Since our Author’s reasoning wholly turns upon the reasonableness of this maxim, “Do as you would be done by; and do not to another what you would not have done by any one to you in like circumstances.” Perhaps some may have expected from him demonstration of the reasonableness of this maxim. Now this truth, which is indeed as self-evident as any axiom in any science, as for instance, “That two things equal to some common third thing, are equal to one another”: and which therefore, it is as hard to reason about as it is to demonstrate any axiom, for the very same reason, viz. that it does not in the nature of the thing require or stand in need of any reasoning to prove it: This truth may however be illustrated several ways, in order to make one feel its evidence and reasonableness. As with Pufendorff, law of nature, &c. B. 3. cap. 2. §4.3 thus: “It as much implies a contradiction to determine differently in my own case and another’s, when they are precisely parallel, as to make contrary judgments on things really the same. Since then every man is well acquainted with his own nature, and as well, at least, as to general inclinations, with the nature of other men, it follows, that he who concludes one way as to his own right, and another way as to the same right of his neighbour, is guilty of a contradiction in the plainest matter: an argument of a mind unsound in no ordinary degree. For no good reason can be given, why what I esteem just for myself, I should reckon unjust for another in the same circumstances. Those therefore are most properly sociable creatures who grant the same privilege to others which they desire should be allowed themselves; Edition: 1741; Page: [166] and those, on the other hand, are most unfit for society, who imagining themselves a degree above vulgar mortals, would have a particular commission to do whatever they please.” He observes in another place, B. 2. c. 3. §13. “For the easy knowledge of what the law of nature dictates, Hobbes himself commends the use of this rule (De civ. Edition: current; Page: [171] c. 3. §26.)4 when a man doubts whether what he is going to do to another be agreeable to the law of nature, let him suppose himself in the other’s room. For by this means, when self-love, and the other passions which weighed down one scale, are taken thence and put into the contrary scale, ’tis easy to guess which way the balance will turn.” He afterwards shews us it was a precept of Confucius, and of Ynca Manco Capace, the founder of the Peruvian empire, as well as of our Saviour. And in answer to Dr. Sharrock, who is of opinion (De off. ch. 2. n. 2.)5 “That this rule is not universal, because if so, a judge must needs absolve the criminals left to his sentence, in as much as he would certainly spare his own life, were he in their place; and I must needs give a poor petitioner what sum soever he desires, because I should wish to be thus dealt with, if I was in his condition, &c.” He replies, “The rule will still remain unshaken, if we observe, that not one scale only, but both are to be observed; or that I am not only to weigh and consider what is agreeable to me, but likewise what obligation or necessity lies on the other person, and what I can demand of him without injuring either of our duties.” Thus Pufendorff reasons about this principle. But both he and our Author seem to consider it not as a fundamental or primary principle of the law of nature, but rather as a Corollary of that law, which obliges us, To hold all men equal with ourselves. But it cannot be so properly said to be a Corollary from that principle, as to be the principle itself in other words. For what is the meaning of this rule, To hold all men equal with ourselves, but to hold ourselves obliged to treat all men as we think they are obliged to treat us? The equality of mankind means equality of obligation common to all mankind, with regard to their conduct one towards another. Now, if any one seeks a proof of the reasonableness of holding all men equal in this sense, that it is reasonable for us to do to others what it is reasonable for them to do, or for us to expect they should do to us in like circumstances; if any one, I say, should seek a proof of this maxim, he really seeks a proof to shew, that like judgments ought to be given of like cases, i.e. that like cases Edition: current; Page: [172] are like cases;—and if, owning the truth of the proposition, he asks why it ought to be a rule of action, does he not ask a reason why a reasonable rule should be admitted as a reasonable rule; or why reason is reason, as we had occasion to observe in another remark?

3. But in the third place, that we are made for benevolence because we have benevolent affections, and our principal happiness consists in the exercise of the social affections, or the social Edition: 1741; Page: [167] virtues; and our greatest and best security for all outward enjoyments, and for having and possessing the love of others, is by being benevolent;—that upon these and many other accounts, we are made and intended for benevolence, is as evident as that a clock is made to measure time, and in consequence of the same way of reasoning, viz. the way we reason about any constitution, or any final cause. We see what sad shifts they are reduced to, who would explain away into certain selfish subtle reflexions, all that has the appearance of social, kindly and generous in our frame; and the perplexity and subtlety of such philosophy is the same argument against it, which is reckoned a very good one against complicated, perplexing hypotheses in natural philosophy, compared with more simple ones. (See some excellent observations on Hobbes’s account of pity in Dr. Butler’s excellent sermon on compassion, in a marginal note.)6 Who feels not that we are naturally disposed to benevolence, and what is the way in which our natural benevolence operates, and so points us to the proper exercises of it, while Cicero thus describes it: “There is nothing,” says he, “so natural, and at the same time so illustrious, and of so great compass, as the conjunction and society of men, including a mutual communication of conveniencies, and general love for mankind. This dearness begins immediately upon one’s birth, when the child is most affectionately beloved by the parent; from the family, it by degrees steals abroad into affinities, friendships, neighbourhoods; then amongst members of the same state; and amongst states themselves, united in interests and confederacies; and at length stretcheth itself to the whole human race. In the exercise of all these duties, we are farther disposed to observe what every man hath most need of, and what with our help he may, what without our help he cannot attain; so that in some cases the tye of relation must yield to Edition: current; Page: [173] the point of time; and some offices there are which we would rather pay to one relation than to another. Thus you ought sooner to help a neighbour with his harvest, than either brother or a familiar acquaintance; but, on the other side, in a suit at law, you ought to defend your brother or your friend before your neighbour, &c.” Cicero de fin. l. 5. c. 23. Who feels not that this is the language of nature; that thus our affections work; that thus nature moves, prompts and points us to work? And who can consider this natural tendency or course of our affections without perceiving by his reason, the advantage, the usefulness of this their natural tendency, with regard to ourselves and others equally; and consequently the fitness of our taking care that they should always continue to operate according to this rule, according to this their natural tendency? Or who does not feel that indeed this is the true account of human happiness, the happiness nature intended for us, our best and noblest happiness? Edition: 1741; Page: [168]

  • Happier as kinder! in whate’er degree,
  • And heighth of bliss but heighth of charity.
  • Essay on Man, Ep. 4.7

But if nature points out this course, this regular course of our affections; if it is felt to be the state of mind that alone affords true happiness; and if the general happiness of mankind plainly requires this direction and course of our affections: If, in one word, nature dictates it, and reason must approve of it in every view we can take of it, in what sense can it be denied to be our natural duty and the will of our Creator? And is it any wonder, that this rule of conduct hath been known to thinking men in all ages (as we cannot look into ancient authors without clearly seeing it hath been) since every heart dictates it to itself? This rule, “Do as you would be done by,”8 is a rule of easy application, and it is universal, or it gives an easy, ready and clear solution in all cases. This appears from our Author’s preceding and following applications of it to cases: for it is from it alone he reasons Edition: current; Page: [174] throughout all his deductions of duties. And that it is an equal, just, or reasonable rule, cannot be denied without asserting this absurdity, That what is true and just in one case, is not always and universally true and just in all similar cases. Again, that we are made to love mankind, and to live in the exercise of love and benevolence, is plain from our make and frame, and the intention of our Maker thereby discovered to us, according to all the received rules of reasoning about final causes. And therefore the principles upon which our Author builds, are in every view of them beyond all dispute. He now proceeds to enquiries of a more complex nature; but he still continues to argue from the same self-evident truths.

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CHAPTER IX: Concerning our hypothetical duties towards others, and the original acquisition of dominion or property.

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The connection.What hath hitherto been explained, belongs partly to the love of justice, and partly to that which we call the love of humanity and beneficence (§84). From the latter we have deduced our imperfect duties in the preceding chapter; from the former our perfect ones are clearly deducible, which we said, consist in not injuring any person (and Edition: 1741; Page: [169] this we call an absolute duty), and in rendering to every one his due (which we call an hypothetical duty). Now, having treated of absolute duty in the seventh chapter, we are now to consider our hypothetical duties with the same care and accuracy.

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What is meant by our own, by dominion, by possession, by property, by community.That is properly called one’s own which is in his dominion. By dominion we mean the right or faculty of excluding all others from the use of a thing.* The actual detension of a thing, by which we exclude others from the use of it, is called possession. Again, we claim a right to ourselves either of excluding all others from the use of a thing, or of excluding all others, Edition: current; Page: [176] a few only excepted. In the former case, the thing is said to be in property; in the other case, it is said to be in positive communion, which is either equal, when all have an equal right to the common thing; or unequal, when one has more, or a greater right than another to that thing. And it again is either perfect, when every one has a perfect right to the common thing, or imperfect, when none hath a perfect right to it, as in the case of the soldiers of an army, to whom a certain reward in money is appointed by the prince. But if neither one, nor many have right or design to exclude from a thing not yet taken possession of, that thing is said to be in negative communion; and this communion alone is opposite to dominion, because in that case the thing is yet under the dominion of no person. Edition: 1741; Page: [170]

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The right of man to created things.Now since reason plainly discovers that men were created by God (127), it is manifest that our Creator must will that we exist. But he who wills the end, must be judged to will the means likewise. And therefore God Edition: current; Page: [177] must have willed that men should enjoy all things necessary to the preservation of their being which this earth produces. Further, God having given evident signs of his particular love to man, by having made him a most excellent creature, it cannot be doubted that he desires and delights in our perfection and happiness (§80). And by consequence he must will that we should enjoy even all things which can conduce to render our life more perfect, more satisfactory, more happy, provided we do not abuse them (§90).* Edition: 1741; Page: [171]

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Originally all things were in a state of negative communion.Since God then hath given to man for his use and enjoyment all things conducive to render his life agreeable (§232), he undoubtedly wills that none should be excluded from any use of these things; and therefore, according to the intention of God in the beginning of things, all things were in a state of negative communion, and so were in the dominion of none (§231).* Edition: 1741; Page: [172]

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But it was lawful to depart from this state, necessity so urging.Whatever God willed, he willed for the most wise reasons, and therefore it ought not to be altered by men but in case of great necessity. But since all the divine affirmative laws, such as this is, “That all things should be in common for the common use of all mankind,” admit of exception in case of necessity (§159); and by necessity here is to be understood not only extreme necessity, but even such as makes it impossible to live conveniently and agreeably (§158 & 232); the consequence is, that men might, necessity so urging them, lawfully depart from that negative communion, and introduce dominion, which is opposite (§231) to negative communion.

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What necessity urged men to introduce dominion.Now it is very evident, that if mankind had been confined to a small number, there would have been no need of any change with regard to the primeval negative community of things, because the fertility of nature would have sufficed to render the lives of all, if not agreeable, at least commodious or tolerable. But so soon as mankind was spread over the whole earth, and dispersed into innumerable families, some things began not to be sufficient to the uses of all, whereas other things Edition: 1741; Page: [173] continuing to be, because of their vast plenty, sufficient for all; necessity itself obliged men to introduce dominion with regard to the things which were not sufficient for the uses of all (§234), leaving those things only in their original negative community which are of inexhaustible use, or which are not requisite to the preservation and agreeableness of life.*

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This institution is not unjust.Dominion therefore was introduced, and negative community was abolished by necessity itself. But that this institution of mankind is injurious to none is manifest, because in negative communion none has a right to exclude another from the use of things (§231); and therefore it must be Edition: current; Page: [180] lawful to any one so to appropriate to himself any thing belonging to none, that he could not afterwards be forced by any person to yield him the use of it, but might detain it to himself, and set it aside for his own use.* Edition: 1741; Page: [174]

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After that things are either positively common or in property.When men, obliged by necessity to it, have introduced dominion (§235), this must consist either in positive communion, or in property (§231). Wherefore, from the moment men depart from negative communion, all things are either positively common to many, or they begin to be proper to particulars; and community arises from the resolution of many to possess the same thing undivided in common, and to exclude all others from the use of it. But property takes its rise either from immediate occupancy and possession at first of a thing belonging to none, or from an after-deed, in consequence of a division or cession of things positively common. Edition: 1741; Page: [175]

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Why it was necessary to depart from positive community.Truly, if such were the happiness of mankind, that all were equally virtuous, we would neither stand in need of dominion, nor of any compacts, because even those who had nothing in possession, would want nothing necessary to their comfortable subsistence. For in that case every man would love another as himself, and would cheerfully render to every one whatever he could reasonably desire to be done by others to him. And what use would there be for dominion among such friends having all in common? But since, in the present state of mankind, it cannot be expected that any multitude of men should be all such lovers of virtue, as to study the happiness of others as much as their own; hence it is evident, that positive communion is not suitable to the condition of mankind, as they now are, and therefore that they had very good and justifiable reasons for departing from it likewise.* Edition: 1741; Page: [176]

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What are the original ways of acquiring dominion or property?And hence also it is conspicuous how property was introduced, and what are the ways of acquiring property in a thing. For a thing is either still without dominion, or it is in the dominion of some person or persons. Now, in the former case we call the original ways of acquiring property with Grotius, those by which we acquire either the very substance of a thing yet belonging to none, or the accretions which may any how be added or accede to it. The first of which is called occupancy; the latter accession.

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What are the derivative ways?But if a thing be already in any one’s dominion, then it is either in the property of many, or of a particular (§231). In the first case, things in common are appropriated by division or cession; in the latter by tradition. Nor is there any other derivative way of acquiring dominion, which may not be most conveniently reduced to one or other of these sorts.

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What occupancy is, and what a thing belonging to none?Occupancy is taking possession of a thing belonging to none. A thing is said to belong to none, which none ever had a right to exclude others from the use of, or when the right of none to exclude others from it, is evidently certain, or when the right of excluding others from the use of it is abdicated by the possessor himself freely; in which last case, a thing is held for derelinquished. But seeing none has a right to exclude others from the use of things which belong to none (§231), the consequence is, that things belonging to none, fall Edition: 1741; Page: [177] to the share and right of the first occupants. Nor can this be understood to extend to things that are lost, carried off by fraud or force, cast over board in imminent danger of shipwreck, or taken away by brute animals; for in no sense are such things belonging to none, since they had owners, and these owners never abdicated their right and dominion.*

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Occupancy is made by mind and body at once.Occupancy being taking possession of a thing belonging to none (§241), and possession being detention of a thing, from the use of which we have determined to exclude others (§231), it is plain that occupancy is made by mind and body at once, and that intention alone is not sufficient to occupancy, if another has a mind to use his right; nor mere taking possession of a thing, without intention to exclude others from the use of it; but by the tacite consent of mankind the declaration of Edition: 1741; Page: [178] intention to appropriate a thing to one’s self, joined with certain sensible signs, is held for occupancy.*

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And either in the lump, or by parts.Moreover, since every thing may be occupied which is none’s possession (§241), it will therefore be the same thing whether whole tracts of land unpossessed be occupied by many in lump, or whether particular parts be occupied by particular persons. The former, Grotius of the rights of war and peace, calls occupying per universitatem, by the whole; and the latter, occupying by parcels, (per fundos). But because he who takes possession of the whole, is judged to take possession of every part, hence it follows, that when any number of men, as a people in an united body, seize on some desolate tract of land by the whole, nothing becomes proper to any particular person, but all contained in that region, if particular parts be not Edition: 1741; Page: [179] taken possession of by particulars, belongs to the whole body, or to their sovereign.*

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Whether wild beasts, fishes, birds, be things belonging to none.None therefore can deny that hunting, fishing, fowling, are species of occupancy, not only in desart places unpossessed, but likewise in territories already occupied, since such is the abundance of wild beasts, fish, and winged creatures, that there is enough of them for all men (§235); yet, if there be any good or just reason* for it, a people may, without injury, claim to themselves all such animals as are not under dominion (§243) or assign them to their sovereign as his special right; and that being done, it becomes contrary to the law of justice for any one rashly to arrogate to himself the right of hunting already acquired by another.

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What animals may be hunted.But wherever the right of hunting is promiscuous, reason plainly teaches that this right does not extend to tame animals, because they are in domiEdition: 1741; Page: [180]nion, nor to creatures tamed by the care of men, while one possesses them, or pursues them with an intention to recover them, or hath not by clear signs manifested his design to relinquish them: nay, that it Edition: current; Page: [186] does not extend to wild beasts inclosed in a park, to a fish-pond, a warren, a bee-hive, &c. but to those which, as Caius elegantly expresses it, l. 1. §1. de adqu. dom. Terra, mari, caelo capiuntur, are caught in the sea, air, or land.

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When animals fall to the share of those who take them.Moreover, since besides the intention of excluding others from the use of a thing, corporal possession is required to occupancy (§242); the consequence is, that it is not enough to wound a wild beast, much less is it sufficient to have a mind to seize one that shall fall by its wound; but it is requisite either that it be taken alive or dead by the hunters dogs, nets, or other instruments; for if neither of these be done, any one has a right to seize and kill a creature, tho’ wounded by another, because it is not yet made property.* Edition: 1741; Page: [181]

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Whether occupancy by war be of this kind?Another species of occupancy is called occupancy by war, by which it is asserted, that persons, as well as things, taken in lawful war, become the taker’s by the law of nations, l. 1. §1. D. de adqu. vel amitt. poss. But because occupancy can only take place in things possessed by none (§241), and things belonging to an enemy can only be by fiction, and Edition: current; Page: [187] free persons cannot so much as by fiction be deemed to belong to none; it follows, that occupancy by war does not belong neither to the original ways of acquiring, nor to occupancy, but must be derived from another source, even from the right of war itself. Edition: 1741; Page: [182]

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Of finding.To occupancy finding is properly referred, since it consists in taking hold of a thing belonging to none; and there is no doubt that a thing not yet possessed, or left by its possessor, falls to the finder, who first seizes it with an intention of making it his own; wherefore the law of the Stagiritae, Biblienses and Athenians, is contrary to the law of nature: “ἃ μῂἔσθου, μὴ ἀνέλη.” “What you did not place, do not take up,” unless it be only understood of things lost; Aelian. Hist. Var. 3. 45. 4. 1. Diog. Laert. 1. 57. Nor do they less err, who adjudge a thing found in common to the finder, and him who saw it taken up.* But this right ought not to be extended to things which a people possess themselves of by the right Edition: current; Page: [188] of occupancy made by an united body in whole, or hath ceded to their sovereign as a special privilege, which may be lawfully done, as we have already observed (§243). Edition: 1741; Page: [183]

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And things abandoned, as treasures.Nor is it less manifest that things belong to the finder which are abandoned by one of a sound mind, and master of his actions, with intention to abdicate them; and therefore scattered gifts, nay, even treasures, whose former owners cannot be certainly known, which are found by accident, unless the people or their sovereign claim them to themselves (§243).

About which matter various laws of nations are quoted by Grotius of the rights of war and peace, 2. 8. 7. Pufendorff 6. 13.1 and Hertius in his notes upon these sections; Ev. Otto upon the institutes, §29. inst. de rer. divis.2 Yet regard ought to be had to the proprietor of the ground, as having a right to all the profits of it of every sort.* And therefore the emperor Hadrian, justly, and conformably to the laws of natural equity, adjudged one half of a thing found to the finder, and the other to the proprietor of the ground where it was found. Spartian in Hadriano,3 c. 18. §39. inst. de rerum divisione.

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What accession is.Another original way of acquiring dominion is accession, by which is understood the right of claiming to ourselves whatever additions are made to a Edition: 1741; Page: [184] substance belonging to us. Now, since substances belonging to us may be augmented either by natural growth, by our own industry, or by both conjointly; Accession is divided by the more accurate doctors of the law into natural, industrious, and mixed.*

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The foundation of natural accession.As to natural accession, what belongs to us either receives an addition we cannot certainly discover the origine and former owner of, or an addition by something known to belong to another. In the first case, since a thing, whose master cannot be certainly known, belongs to none (§241), there is no reason why such an increment may not go with the thing to which it hath acceded, and so be acquired to us. But in the other case, the thing hath an owner, who can by right exclude others from the use of it (§231); and therefore I have no more reason to think such a thing, however it be added to my goods, is acquired to me, than when a strong wind blows the linen of Titius, that were hung out in his garden, into my court. Edition: 1741; Page: [185]

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Of the breed of animals in particular.From the foregoing most evident principles, (§251), we may also conclude, that offspring, or a birth, the origine of which is not evident, (which often happens with regard to animals, and likewise to persons born out of lawful marriage) follows the dam or mother as an accessory increment, and that Ulpian, l. 24. D. de statu hominum, not without reason ascribes this effect to the law of nature. But this does not appear equal if both parents be certainly known,* unless the male be kept at common expence for procreation, as a bull often is in common to many, or when the owner lets his bull or stallion to his neighbours for a certain hire.

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Of new islands, whether cast up, or artificial.Nor is it less difficult to determine to whom a new island, that starts up in the sea, or in a river, belongs. For since it is impossible to discover with certainty to whom the different particles of earth belonged which have coalited into an island (§251), it follows, that an island must be adjudged an acces-Edition: 1741; Page: [186]sion to the sea or river; and therefore, if the Edition: current; Page: [191] sea or river belong to no person, the island likewise is without an owner, and must fall to the first occupant. But if, as often happens, either the sea or river belongs to a people or their sovereign (§243), that people or sovereign will have a just title to the island. In fine, since a thing which appertains to a known master, cannot be acquired by any person by accession (§251), an owner cannot lose his ground which is washed by a river or channel into a new island, as the Roman lawyers have acknowledged, l. 7. §4. 1. 30. §2. D. de adqu. rer. dom.

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So likewise by alluvion, and the force of a river.The same is to be determined of alluvion, and ground separated by the force of a river. For as to the former, as nothing certain can be known concerning the origine of particles gradually annexed to our ground (§251), there is no doubt but what is added to our ground in that manner is accession Edition: 1741; Page: [187] to us; and what is thus added to a public way, or any public ground, accedes to the public.* On the other hand, when the Edition: current; Page: [192] master of the ground carried off is known (§251), no change can be made in this case as to dominion, unless the master abdicates and leaves what is thus taken away from his possession; which in governments is commonly inferred from the not claiming it during a certain time fixed by law, §2. Inst. de rerum divis. l. 7. §2. D. de adqu. rerum dom.

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By a river’s changing its channel and inundation.In fine, as to a river’s changing its channel, if the channel it deserts, as far as can be known, was in the dominion of no person, it cannot accede to those who possess the adjoining lands in proportion to their grounds, as the Roman lawyers thought, l. 7. §5. D. de adqu. rer. dom. But because the property of the river of which the channel is a part, is certainly known (§251), it will, as a part of the river, be his to whom the river belonged; as, for the same reason, the new channel, if again deserted, without doubt belongs no less to the first masters, than an overflown ground, after the water retires from it.* Edition: 1741; Page: [188]

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Of accession by industry, first axiom.Let us now consider industrious and mixed accession, concerning which some lawyers have treated with so much subtlety. And we think, if the things be joined by mutual consent, it cannot be doubted but each is Edition: current; Page: [193] master according to his proportion, and in this case there is a positive community introduced (§231). But we are here speaking of an accession made without the other’s consent. Now, seeing a master has a right to exclude all from the use of what is his (§231), he has a right certainly to hinder any thing from being joined to what is his against his will. Wherefore, since what is added to any thing of ours, either renders it useless, or at least worse, or renders it more valuable and better, because he who renders our goods worse hurts us (§178); the consequence is, that he who has rendered our goods either useless or worse by any industrial accession, is obliged, taking the spoilt goods, to repair our damage; and if he did it by deceit, and with evil intention, he is likewise liable to punishment (§211). Edition: 1741; Page: [189]

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Second and third axiom.But if our goods are rendered better and more valuable by any artificial accession, then there is a great difference when the two things can be separated without any considerable loss, and when they cannot. In the former case, since the master of each part hath a right to exclude all others from the use of what belongs to him (§231); but that cannot now be done otherwise than by separating the two things; the consequence is, that in this case the things are to be immediately separated, and to each is to be restored his own part. But, in the other case, the joined things ought to be adjudged to one or other of the two, the other being condemned to pay the value of what is not his to the owner who is thus deprived of it;* and if there be any knavery in the matter, punishment is deserved (§211).

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SECTION CCLVIII

A fourth axiom, &c.But since in the last case, the joined things are to be adjudged to some one of the two, there (§257) ought to be some good reason why one should be preferred (§177): because therefore, there can be no other besides the superior excellence of one of the two things, which is oftner measured by rarity and affection than by utility; hence we infer, that the rule which adjudges the accessory to its principal, is not always equal. Justinian him-Edition: 1741; Page: [190]self, and before him Caius, acknowledged the absurdity of it in the case of a picture, §34. In. de rer. divis. l. 9. §2. D. de adqu. dom. And therefore the joined things ought to be assigned to him whose part is of the greatest price,* either on account of its rarity, or of his affection, labour, care and keeping; and he ought to be condemned to make an equivalent to the other for what was his, if he insists upon it, and does not rather choose to make a present of it to him.

SECTION CCLIX

What is just with respect to specification.Hence we may plainly see what ought to be determined in the case of specification, by which a new form is given to materials belonging to another. For since very frequently all the affection or value is put upon the form on account of the workmanship or art, and none at all is set upon the substance (§258), a new species will rightly be adjudged to him who formed it; but so as that he shall be obliged to make a just equivalent Edition: current; Page: [195] for the price or value of the materials, and shall be liable to punishment, if there be any fraud or knavery in the case (§256). So Thomasius, in the differtation above quoted, §43. & seq. Yet for the same reason above mentioned, the owner of the substance ought to be preferred, if it be rarer and of greater value than the form added to it by another’s labour and art: e.g. if one shall make a statue or vase of Co-Edition: 1741; Page: [191]rinthian brass, amber, or any precious matter belonging to another, the owner of the materials shall have it, but he shall be obliged to pay for the workmanship, provided the fashioner acted bona fide, i.e. without any fraudulent design.

SECTION CCLX

What with regard to adjunction, inclusion, &c.Again, adjunction is no inconsiderable species of industrious accession, when something belonging to another is added to our goods by inclusion, by soldering with lead, by nailing or iron-work, by writing, painting, &c. Now since inclosing is often of such a kind, that the things joined may be severed without any great loss, in such cases the things may be separated, and every one’s own restored to him, and this is equal (§257): There is certainly no reason why the gold may not be restored to whom it belongs, when another’s precious stone is set in it, and the gem to its owner. And the same holds with regard to soldering, fastening, inter-Edition: 1741; Page: [192]weaving, and other such like cases, when the things can be separated without any considerable loss: Otherwise the joiner ought to Edition: current; Page: [196] be preferred, because the substance rarely admits of any price of affection (§258).*

SECTION CCLXI

What as to building upon, &c.If any one builds upon his own ground with the materials of another person, when there was no knavery in the design, and the building is of timber, there is no reason why, if the mistake be very soon discovered, the building may not be taken down, and the timber be restored to its proprietor (§257). But if the building be of stone, or if the timber would afterwards be useless to its owner, it will then be most equal to say, that the builder should have the property of the building, but be obliged to make a just satisfaction, for the materials, and be moreover liable to punishment, if there is any knavery in the case (257 and 258). If one build with his own materials upon another’s ground, if the building can be taken down without any considerable loss, it ought to be done (§257); or what admits of a price of affection ought to be adjudged to the proprietor of the ground (§258), unless the building be plainly of no use to the lord of the ground, in which case Edition: 1741; Page: [193] the builder retaining the Edition: current; Page: [197] building to himself, is bound to pay the worth of the ground, and if there be any bad intention, he is moreover liable to punishment.

SECTION CCLXII

As to writing and painting.There is less difficulty as to writing and painting. For since those things upon which another sets no value, are to be left to him who puts a value upon them (§258), and the value for the most part falls upon the writing and painting, and never upon the cloth or paper, the paper ought to yield to the writing, and the board or cloth to the painting, if the writer and painter will make satisfaction for them.* And if the painting and writing have no value, as if one should scrible a little upon my paper, or dawb my board with fooleries, even in this case, the writer and painter ought to take the thing, and pay the value of the paper or board by the first axiom (§256). Edition: 1741; Page: [194]

SECTION CCLXIII

With respect to confusion and mixture.Further, as to the mingling of liquids, or the commixture of dry substances, tho’ the Roman lawyers have treated of a difference with much subtlety, l. 23. §5. D. de rei vind. yet there is none. For if things be mixed or confounded by the mutual consent of parties, the mixed substance is Edition: current; Page: [198] common, and ought to be divided between them proportionably to the quantity and quality of the ingredients (§256). If it be done against the will of one of them, then the substance, which is of no use, ought to be adjudged to the mixer, and he ought to make satisfaction, and to undergo a penalty if he had any bad or fraudulent intention (§256); but yet, if one would rather have a part of the substance than the price of his materials, there is no doubt that he now approves the mixture which he at first opposed, and therefore a proportionable part of the common matter cannot be refused to him.* Edition: 1741; Page: [195]

SECTION CCLXIV

About mixed accessions, sowing and planting.To conclude; by the same principles may we determine concerning sowing and planting, which were above referred to the class of mixed accessions, (§250). For trees and plants, before they have taken root, may be severed from the soil without any great loss, and so be restored to their owners (§257); but when they have taken root, as likewise seed sown, seeing they cannot easily be separated from the soil, and yet do not admit of a price of fancy or affection, they are acquired to the proprietor of the soil, he making satisfaction for the value of the trees or seed, and the expences of culture (§258), unless, in this last case, the proprietor of the soil is willing to leave the crop to the sower for a reasonable consideration.

Edition: current; Page: [199]

SECTION CCLXV

About the fruits of trees in one’s neighbourhood.As to a tree in our neighbourhood, he who plants it, consents that a part of its branches should hang over into the court of his neighbour; and the neighbour, who has a right to exclude others from his court, by not doing it, also consents to it; wherefore the accession being made with the mutual consent of both parties, the tree is common, (§256); and for this reason, while it stands in the confines, it is common in whole, and when it is pulled up, it is to be divided in common: so that in the former case the leaves and fruits are in com-Edition: 1741; Page: [196]mon; and in the latter case the timber is to be divided between the two neighbours in proportion.*

Remarks on This Chapter

The questions in this chapter, however intricate they may appear at first sight, or as they are commonly treated by the doctors of law, are in themselves very simple and easy. Nothing more is necessary than to state them clearly, or in the simplest terms, in order to discover on which side the least hurt lies. Our Author’s divisions and definitions are exceeding distinct: And all his determinations turn upon this simple principle he had in the preceeding chapters fully cleared, “That no injury ought to be done; and injuries that are done ought to be repaired.” He sets out in this chapter, as good order and method require, by inquiring into the nature and origine of dominion and property. And tho’ I think he hath handled this curious question, which hath been so sadly perplexed by many moralists, better than most others, yet something seems to me still wanting to compleat his way of reasoning about it. Our Locke, in his treatise on Government, book 2. c. 4.4 as Mr. Barbeyrac hath observed in his notes on Pufendorff of the law of nature and nations, b. 4. c. 4. hath treated this question with much more perspicuity and accuracy than either Grotius or Pufendorff. The book Edition: current; Page: [200] being in every one’s hands, I shall not so much as attempt to abridge what he says on the head. The substance of it is contained in this short sentence of Quintilian, Declam. 13. “Quod omnibus nascitur, industriae praemium est.” “What is common to all by nature, is the purchase, the reward of industry, and is justly appropriated by it.”5 Let us hear how our Harrington expresses himself upon this subject (the original of property) in his art of law-giving, chapter 1. at the beginning in his works, p. 387 “The heavens, says David, even the heaven of heavens are the Lords, but the earth has he given to the children of men: yet says God to the father of these children, in the sweat of thy face shalt thou eat thy bread, Dii laborantibus sua munera vendunt. This donation of the earth to man, comes to a kind of selling it for industry, a treasure which seems to purchase of God himself. From the different kinds and successes of this industry, whether in arms, or in other exercises of the mind or body, derives the natural equity of dominion or property; and from the legal Edition: 1741; Page: [197] establishment or distribution of this property (be it more or less approaching towards the natural equity of the same) proceeds all government.”6 Now, allow me to make some very important observations upon this principle, which, as simple as it appears, involves in it many truths of the last importance, in philosophy, morality and politics. 1. That man is made to purchase every thing by industry, and industry only, every good, internal or external, of the body or mind, is a fact too evident to be called into question. This hath been long ago observed. When Mr. Harrington says, “Nature or God sells all his gifts to industry,” he literally translates an ancient Greek proverb: Θεοὶ τα ᾀγαθὰ τοίς πονοίς πολοῦνται,7 (see Erasmi adagia) as did the Latins in their many proverbial sentences to the same purpose, “Labor omnia vincit”: “Omnia industriae cedunt,” &c. See Virg. Georg. 1. v. 121, &c. 2.8 But as ancient and evident as this observation is, yet none of the ancient philosophers ever had recourse to it in the Edition: current; Page: [201] celebrated question, “Unde bonis mala, &c.” i.e. about the promiscuous distribution of the goods of fortune (as they are commonly called) in this life; tho’ this fact contains a solid refutation of that objection against providence, and from it alone can a true answer be brought to it. Mr. Pope in his Essay on Man, ep. 4. v. 141, &c. (as I have taken notice in my Principles of Moral Philosophy, part 1. chap. 1. and chap. 9. and part 2. chap. 3.) is the first who hath given the true resolution of this seeming difficulty from this principle, that according to our constitution, and the frame of things, the distribution of goods internal or external, is not promiscuous; but every purchase is the reward of industry. If we own a blind fortuitous dispensation of goods, and much more, if we own a malignant dispensation of them, or a dispensation of them more in favour of vice than of virtue, we deny a providence, or assert bad administration. There is no possibility of reconciling bad government with wisdom and goodness; or irregularity and disorder with wisdom and good intelligent design, by any future reparation. But the alledgeance is false; for in fact, the universe is governed by excellent general laws, among which this is one, “That industry shall be the purchaser of goods, and shall be generally successful.” And that being the fact, the objection which supposes promiscuous, fortuitous, or bad government, is founded upon a falsity in fact. In fine, there is no way of proving providence, but by proving good government by good general laws; and where all is brought about according to good general laws, nothing is fortuitous, promiscuous or bad. And not to mention any of the other general laws in the government of the world, constituting the order according to which effects are brought about; and consequently the means for obtaining ends to intelligent active creatures; what better general law can we conceive with regard to intelligent active beings, than the general law of industry; or can we indeed conceive intelligent agency and dominion without such a law? Are not the two Edition: 1741; Page: [198] inseparable, or rather involved in one another? But where that law obtains, there is no dispensation or distribution properly speaking; for industry is the sole general purchaser, in consequence of means uniformly operative towards ends. But having elsewhere fully insisted upon this law of industry, in order to vindicate the ways of God to man; let me observe, 3. in the third place, Mr. Harrington is the first who hath taken notice, or at least fully Edition: current; Page: [202] cleared up the consequences of this general law of industry with respect to politics, that is, with respect to the natural procreation of government, and the natural source of changes in government. Every thing hangs beautifully and usefully together in nature. There must be manifold mutual dependencies among beings made for society, and for the exercise of benevolence, love and friendship; that is, there must be various superiorities and inferiorities; for all is giving and receiving. But dependence, which supposes in its notion superiority and inferiority, must either be dependence in respect of internal, or in respect of external goods; the former of which Mr. Harrington calls hanging on the lips, and the other hanging on the teeth. Now the law of industry obtaining amongst men placed in various circumstances (and all cannot be placed in the same) will naturally produce these dependencies. A greater share of wisdom and virtue will naturally procreate authority, and the dependence on the lips. [This perhaps is the meaning of that ancient saying of Democritus mentioned by Stobaeus, serm. 27.“φὺσει τὸ ἄρχειν ὀικήιον τω κρεισσονι,” “Authority falls naturally to the share of the better, more excellent or superior.”] And a greater share of external goods, or of property, naturally begets power, and the other dependence on the teeth. And hence it will and must always hold as a general law, That dominion will follow property, or that changes in property will beget certain proportional changes in government: and this consequently is the natural seed, principle or cause of procreation and vicissitude in government, as Mr. Harrington has demonstrated fully and accurately.9 I only mention these things here, because we shall Edition: current; Page: [203] have occasion to have recourse to them afterwards, when our Author comes to treat of government. The conclusion that more properly belongs to our present purpose is, 4. in the fourth place, It must necessarily have happened soon after the world was peopled that all was, must have been appropriated by possession and industry: and therefore, at present, our business is to determine how, things being divided and appropriated, the duties of mankind stand. But it is clear, 1. in the first place, that suppose the world just beginning to be peopled, or suppose a considerable number of men just cast ashore upon a desart country (setting aside all compacts and regulations previously agreed upon) every one will have a right to the purchase of his industry; to the fruits of his labour; to improve his mind, and to all the natural benefits and rewards of that culture; and to the fruits of his skill, ingenuity and labour, to get Edition: 1741; Page: [199] riches, with all the natural benefits and rewards of them; but yet every one will be obliged, in consequence of what hath been already said of the law of love and benevolence, to exercise his abilities, and to use his purchases in a benevolent way, or with tender regard to others. This must be the case with regard to our right and obligation, previous to all compacts, conventions or regulations. 2. And where lands are already appropriated, and civil government settled, this is a true principle still, that one has a right to all the purchases of his industry, with respect either to external or internal riches, (if I may so speak) consistent with the law of benevolence, or the law of not injuring any one, but of doing all the good to every one in our power; and hence it is, that every one in formed society hath a right to his purchases by the arts of manufacture and commerce, &c. Tho’ a state, to fix the balance of dominion or of government, may fix the balance of property in land, and likewise make regulations about money, (as in the Commonwealths of Israel, Lacedemon, Athens, Rome, Venice, &c. in different manners) in consequence of the natural connexion between the balance of property and the balance of dominion: Tho’ this may be done in forming or mending government by consent, yet even where an Agrarian law obtains, this principle must hold true and be untouched, that every one has a right to the purchases of his industry, in the sense above limited: For otherwise, there would be no encouragement to industry, nay, all must run into endless disorder and confusion. 3. And therefore universally, whether in a state of nature, or in constituted civil governments, this must be a just, a necessary principle, that industry Edition: current; Page: [204] gives a right to its purchases, and all the benefits and rewards attending them. 4. And therefore, fourthly, it can never be true, that a person may not, as far as is consistent with benevolence, endeavour to have both power and authority. If we consider what would be the consequences of denying this principle, that is, of setting any other bounds to the purchases of industry but what the law of benevolence sets, we will soon see that this must be universally true. And if we attend to our frame, and reason from it to final causes, as we do in other cases, it is plain, that there is in our constitution naturally, together with a principle of benevolence, and a sense of public good, a love of power (of principatus, as Cicero calls it in the beginning of his first book of offices) without which our benevolence could not produce magnanimity and greatness of mind, as that desire of power would, without benevolence and a sense of public good, produce a tyrannical, overbearing and arrogant temper. Some moralists do not seem to attend to this noble principle in our nature, the source of all the great virtues, while others ascribe too much to it (as Hobbes), and consider it as the only principle in our nature, without taking our benevolence and sense of public good, which are as natural to us, into the account. (See what I have said on this head in my Principles of Moral Edition: 1741; Page: [200] Philosophy.)10 But both principles belong to our constitution; and therefore our virtue consists in benevolent desire of, and endeavour to have authority and power in order to do good. 5. It is in consequence of this principle, that it is lawful to have dependents or servants, and that it is lawful to endeavour to raise ourselves, or to exert ourselves to encrease our power and authority. The great, sweet, the natural reward of superiority in parts and of riches, and consequently the great spur to industry, is the dependence upon us it procreates and spreads. And why should this noble ambition acknowledge any other bounds but what benevolence sets to it: Any other limits but what the Author of nature intended should be set to it, or rather actually sets to it, by making the exercises of benevolence so agreeable to us, as that no other enjoyments are equal to them in the pleasure they afford, whether in immediate exercise, or Edition: current; Page: [205] upon after reflection; and in making mankind so dependent every one upon another, that without the aid and assistance of others, and consequently without doing what he can to gain the love and friendship of mankind, none can be happy, however superior in parts or in property he may be to all about him. Every man stands in need of man; in that sense all men are equal; all men are dependent one upon another; or every man is subjected to every man. This observation is so much the more necessary, that while some moral writers assert, that man has a right to all things and persons to which his power of subjecting them to his use can extend or be extended; others speak of our natural equality in such a manner as if nature had not designed any superiorities among mankind, and as if all desire of, or endeavours after power or authority were unlawful; which last must result in asserting, that all culture of the mind, and all industry are unlawful, because the natural consequence of the one is superiority in parts, and the natural effect of the other is superiority in property; while the other terminates in affirming there is no distinction between power and right, or between power rightly and power unreasonably applied, i.e. no distinction between moral good and ill, i.e. no distinction between reasonable and unreasonable; which difference must remain, while there is such a thing as public good or benevolence, or such a thing as reason, as hath been already fully proved. 6. If the preceeding principles be true, due attention to them will lead us through most of our Author’s succeeding questions about derivative acquisitions and succession. Because the effect of property, which makes it the great reward of industry, is a right to dispose of our own in our life, or at our death, which admits no limitations but what benevolence sets to it; in consequence of which right and duty, succession to him who dies without making a disposition of his estate, ought to take place in the way a wise man, directed by benevolence, must be presumed to have intended to dispose of his own at his death, i.e. according to the natural course in which benevo-Edition: 1741; Page: [201]lence ought to operate and exert itself, already taken notice of. For when the will of a person is not declared, his will ought to be inferred from his duty. We shall therefore for some time have but little occasion to explain or add to our Author.

Edition: current; Page: [206]

CHAPTER X: Of derivative acquisitions of dominion or property made during the life of the first proprietor.

SECTION CCLXVI

Transition to derivative acquisitions.Dominion being acquired, a change sometimes happens, so that one acquires either property or dominion in a thing, neither of which he before had; and such acquisitions we called above, (§240), derivative. Now, seeing the thing in which we acquire property was before that common: the thing in which we for the first time acquire dominion, was before that the property of some person: as often as we receive our own proper share of a common thing, there is division; as often as we acquire the whole thing in property, there is cession; * and as often as another’s property passes by his will into our dominion, there is, as we called it above (§240), tradition, or transferring.

Edition: current; Page: [207]

SECTION CCLXVII

By them is made alienation necessary, voluntary, pure, or conditional.In all these cases, what was ours ceases to be ours any longer in whole or in part, and passes into the dominion or property of another person; and Edition: 1741; Page: [202] this we call alienation, which, when it proceeds from a prior right in the acquirer, is termed necessary; when from a new right, with the consent of both parties, it is called voluntary.* But the effect of either is, that one person comes into the place of another, and therefore succeeds both to his right in a certain thing, and to all the burdens with which it is incumbered. Alienation is called pure, when no circumstance suspends or delays the transferrence of the dominion; and when the transferrence is suspended, it is called conditional alienation.

SECTION CCLXVIII

And that either for the present time, or for a time to come.Voluntary alienation cannot be understood or take place otherwise than by the consent of both parties: but there may be consent either for a present alienation, so that the dominion may be transferred from us to another in our own life, or for a future alienation, so that another shall obtain the possession of what is ours after our demise: and this consent to a future alienation, is either actual, or it is inferred from the design and intention of the person. Now by the first of these is what is called Edition: current; Page: [208] testamentary succession; and by the latter is what is termed succession to one who dies intestate. We shall now treat of present alienation, and in the succeeding chapter we shall consider future alienation. Edition: 1741; Page: [203]

SECTION CCLXIX

What division is, and why one may demand it.The transition from community to property is made by division (§266), which is an assignation to any of the associates of his competent part of the whole in positive community. Now seeing any associate or sharer can exclude all but his fellow associates or sharers from the use of the thing common to them (§231); the consequence is, that any of the associates may demand the use of the thing according to the share belonging to him, and therefore Edition: 1741; Page: [204] may demand a division; and the others, if they should oppose a division, are so much the less to be heard, that positive community doth very ill suit the present state of mankind (§238).*

Edition: current; Page: [209]

SECTION CCLXX

How it may be done whether the subject be divisible or indivisible.A subject is either easily divisible into parts, or it is indivisible; either because in the nature of the thing, or by laws and customs, it cannot be divided into parts. If therefore an associate demand a division of a thing in its own nature divisible, nothing is more equal than to divide it into as many parts as there are associates, and to commit the matter to the decision of lot. But if the thing be indivisible, it is either to be left to one of the associates, who can pay, and bids most for it, or to whom age or chance gives a preference, who, a valuation being made, is to satisfy the rest; or it is to be sold to the best advantage, and the price is to be divided proportionably among the sharers; or they are to have the use of it alternately, each in his turn.* Edition: 1741; Page: [205]

Edition: current; Page: [210]

SECTION CCLXXI

When equality is to be observed in division of things perfectly common.Moreover, because with regard to a common thing all may have equal right, or some one may have more right than others (§231); it is evident that division is either equal or unequal. In the first case, all are called to equal shares, and in the second, to unequal shares. Now, since the natural equality of mankind obliges every one not to arrogate any prerogative to himself above any other without a just reason, in things belonging to many by perfect right (§177); it is manifest that division ought to be equal, and that none ought to claim any preference, unless his right to it can be clearly proved.* Edition: 1741; Page: [206]

SECTION CCLXXII

Whether it ought likewise to be observed in the division of things imperfectly common.These rules belong to perfect community. But there is likewise an imperfect community, as often as none of the partners hath a perfect right to the thing (§231). Now, when by the bounty of another any thing becomes thus common to many persons, it is at his option to give equal shares, or to give more or less according to merit. And in this case it would be most unjust for any one to complain that a person of less merit Edition: current; Page: [211] is put upon an equal footing with him (Mat. xx. 12, 15), or to take upon him to judge rashly of his own merit; or to think benefits conferred upon this or the other person, may be pled as precedents. Edition: 1741; Page: [207]

SECTION CCLXXIII

What is cession of a thing in common?When a thing in common to many is resigned by the rest to one of the sharers, this is called cession. Wherefore, since in this case one succeeds into the place of all the others, the consequence is, that he succeeds into all their rights to that thing, and also into all the inconveniencies and burdens attending it (§267). And hence the Roman lawyers justly inferred that the same exceptions have force against the person ceded to, which would have had force against the ceder, l. 5. c. de her. vel act. vend.

SECTION CCLXXIV

The obligation of the partners to make good.Since, whether the thing in common be divided, or whether it be ceded to one of the sharers, this seems to be the nature of the deed, that those who get the thing by division or by cession, acquire the right of excluding all others from the use of that thing; (§231) it is manifest that in both cases the associates oblige themselves, that he to whom the thing is transferred, shall not be hindered from taking possession of it; and therefore oblige themselves to warranty, and to repair all his loss, if it be evicted by another with right, and without the possessor’s fault; since they have Edition: current; Page: [212] their shares safe and entire, while the other hath got a thing with an encumbered or burdened title.* Edition: 1741; Page: [208]

SECTION CCLXXV

What tradition or delivery is, and if necessary to the transference of dominion?We proceed now to tradition, by which an owner who has the right and will to alienate, transfers dominion to another, accepting it for a just cause. I say dominion. For tho’ the Roman law orders the thing itself and its possession to be transferred, and does scarcely allow any right in a thing to arise previously to delivery: l. 20. C. de pact. yet such subtlety cannot be of the law of nature, as is justly observed by Grotius of the rights of war and peace, 2. 6. 1. 2. 2. 8. 25. and Pufendorff of the law of nature and nations, 4. 9. 6: and the Roman lawyers themselves acknowledge, “That nothing can be more agreeable to natural equity, than that the will of an owner willing to transfer his goods to another, should take place and be confirmed.” §40. Inst. de rer. divis. l. 9. D. de adqu. rer. dom. Whence we conclude, that the will of an owner concerning transferring his dominion to another, whether expressly declared, or deducible from certain signs, is sufficient to transfer his dominion to another without delivery. Edition: 1741; Page: [209]

Edition: current; Page: [213]

SECTION CCLXXVI

How it is done.Since therefore the will of the owner to transfer his dominion to another, is equivalent to delivery, and is a valid transferrence of his dominion to another (§275), it follows, that it must be equal, whether one absent, by intervening letters or words, or present, by giving the thing from hand to hand, or by inducting him into it, whether by long or short hand, or by certain symbols, according to the usage of the province (§242), or in whatever way he delivers it; so that nothing hinders but that a right may be conveyed or transferred to another without delivery, or by a quasi-delivery.*

SECTION CCLXXVII

Who has a right thus to transfer dominion.But since he only who hath dominion can transfer it or alienate (§275), it is plain that tradition can have no effect, if it be made by one, who either by law, convention, or any other cause, hath no right to alienate; much less, if it be made by one who is not himself master of the thing; for none can convey a right to another which he himself has not. But, Edition: current; Page: [214] on the other hand, it is the same in effect, whether the master himself transfers his right immediately by his own will, or by his order and approbation. Edition: 1741; Page: [210]

SECTION CCLXXVIII

By transference dominion is not transferred for every cause.Because alienation ought to be made for a just cause (§275); but it is evident, from the nature of the thing, that by a just cause must be understood one sufficient for transferring dominion; therefore dominion cannot pass to another if a thing be delivered to one in loan, in trust, or letting; much less, if it be delivered to him on request and conditionally, or upon any terms revocable at the pleasure of the deliverer; yea, that no cause is sufficient, if he, to whom a thing is delivered, does not fulfil his bargain.* Edition: 1741; Page: [211]

SECTION CCLXXIX

Nor does one always deliver with that design.Besides, we said, in order to transfer, one must deliver with the design and intention of transferring dominion (§275). From which it is plain, that tradition cannot be made by infants, by madmen, by persons disordered in their senses, and other such persons, who are presumed not Edition: current; Page: [215] to know what is transacted: nor is it valid, if the owner gives a thing to one with the intention of lending, depositing, pawning it; or with any such like design; as likewise, that any one may reserve or except whatever right he pleases in transferring a thing; and that in this case, so much only is transferred as the alienator intended to transfer.

SECTION CCLXXX

The origine of full, and of imperfect dominion.Whence it is easy to conceive the origine of imperfect or less full dominion. For since by that is understood nothing else but dominion, the effects of which are inequally shared between two persons; it is highly probable that its origine is owing to transferrence, with exception, or with reservation of a part of the dominion; which being done, there are two masters, one of whom acquires the right of excluding all others from reaping and using the fruits and profits of the thing, and of taking them to himself; the other has the right either of concurrence with respect to the disposal of it, or of exacting something, by which the acknowledgment of his dominion may be evidenced.* Edition: 1741; Page: [212]

SECTION CCLXXXI

The various species of it.Since the nature of the (dominium utile) or dominion with respect to the use, is such, that the superior owner reserves to himself the right of concurrence with regard to the disposal of the thing, or the right of exacting something in acknowledgment of his superior dominion (§280); the consequence is, that tho’ there may be various kinds of less full dominion, yet the whole matter in these cases depends on the agreement Edition: current; Page: [216] of the parties. However, if one stipulates with the possessor of the thing delivered to him for homage and services, and that the thing be not alienated without his consent; hence arise (feudum) the right of fief or fealty; if he stipulates that an annual tribute shall be paid in acknowledgment of his superiority; hence arises (jus emphyteuticum) the right of holding in fee. Finally, if he stipulates for a ground-rent, hence arises (jus superficiei) the right of ground-rent;* and these are the principal kinds of dominion with regard to use in any nations. Edition: 1741; Page: [213]

SECTION CCLXXXII

If not the thing itself, and the dominion of it, but a certain use only be conveyed, he who receives it, acquires a servitude upon a thing belonging to another; and if the use be restricted to the person and life of him who is to have the use, it is personal; and if it be annexed to the estate itself, the use of which is conveyed, it is real. Since therefore in all these cases just so much right is transfered as the transferrer willed to transfer (§279), it follows, that in these cases likewise the matter comes to be intirely an affair of an agreement between parties; and therefore, almost all the subtleties to be found in the doctors about services are of positive law.

Edition: current; Page: [217]

SECTION CCLXXXIII

What right of pawn and mortgage, &c.If a thing is delivered by the owner to his creditor, so that the deliverer continues to have the dominion, but the creditor has the possession for his security, then the thing is said to be in pawn. If it be delivered in these terms, that the creditor shall likewise have the fruits of it by way of interest, Edition: 1741; Page: [214] it is called jus antichreticum. Finally, if the right of pawn be conveyed to a creditor without delivering the pawn, we call it hypotheca, mortgage. As therefore in the former cases the creditor has a right, the debt not paid, not only to retain the thing pawned, but also to dispose of it, and deduct from the price what is due to him; so, in the latter case, the creditor may prosecute his right of possession of what is pledged to him for his security, i.e. attach it; and then detain it until his debt be paid, or even dispose of it for his payment.*

SECTION CCLXXXIV

How dominion passes to the accepter.To conclude; we said, that by transferring, dominion passes to him who accepts of the transferrence (§275). But we truly accept, when we testify by words or deeds our consent that a thing transferred should become ours, and we are presumed to accept, whenever, from the nature of the thing, it cannot but be judged that we would not refuse or despise the thing one would transfer to us. In like manner, a thing may be transferred by the will of the transferrer, either expresly declared, or presumable Edition: current; Page: [218] from certain signs (§275). The most certain sign is gathered from his end and intention who hath acquired a thing, and hath bestowed care in keeping and preserving it.* Edition: 1741; Page: [215]

SECTION CCLXXXV

Transition to succession by will, and to intestates.Since therefore every one has a right to transfer his goods to others, and that alienation may be made upon any conditions (§267); the consequence is, that it may be made upon this condition, that another may obtain, after the alienator’s death, the dominion and possession of a thing. Now, since this will may be truly declared, or can be certainly inferred from the intention of the acquirer; and since, in neither of these cases, the real and express acceptance of the other person to whom the transferrence is made, is necessary (§284); the former comes under the name of succession to a last-will or testament; and the latter is the genuine foundation of succession to a person who dies intestate.

Edition: current; Page: [219]

CHAPTER XI: Of derivative acquisitions by succession to last-will and to intestates.

SECTION CCLXXXVI

How a testament is defined by the Roman lawyers.A Testament, in the notion of Civilians, is a solemn declaration of one’s will concerning the transition of his inheritance and all his rights to Edition: 1741; Page: [216] another after his demise. And therefore, while the testator is alive, no right passes to his heirs; nay, not so much as any certain hopes of which they may not be frustrated; but the testator, while he lives, may alter his intention, and tearing or destroying his6 former will, make a new disposition, or die without a will.*

SECTION CCLXXXVII

Such a testament is not of the law of nature. First argument.But that such a testament is not known to the law of nature is evident. For tho’ right reason easily admits that solemnities should be added to so serious an action, which is obnoxious to so many frauds; yet it implies a contradiction, to suppose a person to will when he cannot will, and to Edition: current; Page: [220] desire his dominion to pass to another, then, when he himself has no longer any dominion. This is so absurd, that the Romans owned the contradiction could not be removed but by mere fictions.* Edition: 1741; Page: [217]

SECTION CCLXXXVIII

Another argument.Add to this, that no reason can be imagined why the survivers should hold the will of the defunct for a law, especially when it very little concerns one, whatever his condition be, after death, whether Dion or Thion enjoys his goods: yea, the last judgments of dying persons often proceed rather from hatred and envy than from true benevolence; and Edition: current; Page: [221] in such cases, it seems rather to be the interest of the deceased that his will should not take effect, than that his survivers should religiously fulfil it. See our dissertation de testam. jure Germ. arct. limit. circumscript. §5. Edition: 1741; Page: [218]

SECTION CCLXXXIX

What with regard to the testaments in other nations.Since therefore the law of nature scarcely approves of testament-making, as described by the Roman laws, i.e. as Ulpian elegantly defines it, tit. 20. “A declaration of our mind solemnly made to this end, that it may take place validly after our decease,” (§286); the consequence is, 1. That it no more approves like customs of other nations; and therefore, 2. That testaments of the same kind among Greeks or Barbarians, are no more of the law of nature and nations than those* of the Romans; and for the same reason, 3. No nation hath accommodated their manners in this respect more to the simplicity of the law of nature than the Germans where there was no testament; (heredes successoresque sui cuique liberi, & nullum testamentum; Tacitus de mor. Germ. c. 20).1 Edition: 1741; Page: [219]

Edition: current; Page: [222]

SECTION CCXC

What with regard to Grotius’s definition.This being the case, Grotius gave a new definition of a testament, (of the rights of war and peace, 2. 6. § ult.) he defines it thus; “Alienation to take place at the event of death, before that revocable, with retention of the right of use and possession.” But as this definition does not quadrate with what we commonly call testament, and is faulty in several respects; (Ziegler. ad Grotium, 2. 6. Pufend. de jure nat. & gent. 4. 10. 2. and the illustrious Jo. Gottfr. de Coccei. ibid. §4. & seq.) so it does not follow that testament-making is of the law of nature, because that law does not disallow of alienation at the event of death, revocable before that event, with retention of the right of possessing and using.

SECTION CCXCI

What disposition with regard to succession after death is lawful by the law of nature.But tho’ the arguments above-mentioned plainly shew, that testament-making, according to the Roman law, is not of the law of nature, yet they are by no means repugnant to all dispositions with respect to future succession (§268).* Let us therefore enquire what these are which are approved by the law of nature. And I answer, they are nothing else but pacts, by which dying persons transfer a possession itself, with the dominion to others; or men in good health give others the right of succeeding to them at the event of their death. For since we can dispose of our own, not only for the present, but for the future (§268), we may Edition: current; Page: [223] certainly make a pact for transferring to another what belongs to us, either to take place at present, or at our death.* Edition: 1741; Page: [220]

SECTION CCXCII

What successory pacts are valid.Since every one therefore hath a right to transfer his goods for the present or for the future, at the event of his death (§291); the consequence is, that there is no reason why pacts about succession may not be pronounced agreeable to the law of nature. But, on the contrary, they ought to be deemed valid by the best right, whether they be reciprocal, or obligatory on one side only; and whether they be acquisitive, preservative, or remunerative; for as to dispositive pacts, that they bind the contracters, but not him whose heritage is disposed of, is evident, because he hath made no pact about his own. Edition: 1741; Page: [221]

SECTION CCXCIII

How one may dispose of his inheritance.Besides, since such is the nature of all transfers of property, that any one may except or secure to himself any part of, or any right in his own he pleases, in which case, so much only is transmitted as the owner willed to transmit (§279); it is evident, that it is at the option of the owner to transfer the possession to his heir by pact at once; or the right only of succeeding to his estate after his death; to transfer either revocably or Edition: current; Page: [224] irrevocably;* with or without any condition; in whole or in part; so that there is no natural opposition between testate and intestate, as Pomponius seems to have imagined, l. 7. D. de reg. juris.

SECTION CCXCIV

Whether an heir be obliged to accept of the heritage destined for him.But because a thing may be accepted, not only actually but presumptively, when from the nature of the thing it cannot but be concluded, that one will not refuse what another designs to transfer to him (§284); it must therefore be the same in effect by the law of nature, whether one be present and declares his consent, or being absent, so that he cannot accept verbally, there is no ground to apprehend that the liberality of another will be disagreeable to him; especially, if the inheritance designed for him be very profitable. There is however this difference between these cases, that in the former the heir acquires a valid and irrevocable Edition: 1741; Page: [222] right, unless the owner hath expresly reserved to himself the faculty of revoking; whereas in the latter, there is liberty to revoke till acceptation be made: And whereas an heir having declared his consent, cannot renounce the heritage he hath accepted, he whose consent Edition: current; Page: [225] is presumed, may enter upon or refuse the heritage transferred to him, as he thinks proper.

SECTION CCXCV

The foundation of succession to one who dies intestate.But if an owner can really and truly will that his goods may be transferred to one after his death (§291), there is no reason why as much should not be attributed to one’s will, presumed from his end and intention, as to one’s will expressed by words or signs (§268). Now we have already shewn, that it is not the end and intention of those who acquire any thing, and take care of their acquisitions, that they should after their death be held for things relinquished to the first occupant; but that they should be advantageous to those whom they love and wish well to (§284). But hence we may justly conclude the succession to belong to them, preferably to all others, for whose sake chiefly the defunct acquired and took care of his acquisitions with so much concern and sollicitude.* Edition: 1741; Page: [223]

SECTION CCXCVI

Axioms relating to it.But because this is not a duty of perfect obligation, but rather a species of humanity, which pays regard to persons and ties or connexions, and therefore prefers relatives to strangers (§220); hence we have reason to Edition: current; Page: [226] infer, that relatives exclude all strangers from succession, and that among relatives those of the nearer degrees are preferable; and that many of the same line and degree have equal rights to succession.* Edition: 1741; Page: [224]

SECTION CCXCVII

The succession of children.Since of relatives the more remote are excluded by the nearer (§296), but none can be reckoned nearer to one than children are to their parents; therefore they are justly preferred in succession to their parents before all others, and that without distinction of sex or age: For as to the preference given in some countries to males, and to the first-born, that, because it is making an unequal division among equals, proceeds from civil Edition: current; Page: [227] law, pact, or some other disposition; and so it is not of the law of nature (§271).

SECTION CCXCVIII

Legitimate children only succeed to the father, but to the mother even illegitimate children succeed.But if in succession to parents children be justly preferable to all others (§297), and this may be concluded from the presumed will of parents, (§295); the consequence is, that it ought to be Edition: 1741; Page: [225] certainly known who is the child. But because that cannot be ascertained except in the case of lawful marriage; hence we infer, that legitimate children only, even posthumous ones, and not illegitimate ones, or bastards, succeed to a father; but that all children succeed promiscuously to a mother; tho’ none will deny that a father may take care of his illegitimate children in his disposition.

SECTION CCXCIX

How grandchildren succeed.Besides, it may be inferred from the same will of parents (§295), that the succession of descendents extends not only to children of the nearest, but of the more remote degrees; and therefore that grandsons and grandaughters are admitted to inherit, as well as sons and daughters; and that not only if there be no children of the first degree, but if they concur with them; so that the right of representation, by which children of the remoter degrees succeed into the room of their parents, and receive their portion, is most agreeable to the law of nature.* Edition: 1741; Page: [226]

Edition: current; Page: [228]

SECTION CCC

What if none other exist?From the same rule, that the nearest of many relatives are to be preferred (§296), it follows, that grandchildren are to be preferred both to the parents of the grandfather, tho’ nearer in degree, and to his brothers and sisters, tho’ equal in degree. For one is to be judged nearer, not only in respect of degree, but chiefly in regard to line (§296).* But whether natural equity in this case calls grandchildren to succession by heads, or by descent, may be easily understood from what hath been said in the preceding scholium.

SECTION CCCI

Succession in the ascendent line.Since, failing the line of descendents the nearest is the ascendent (§296), hence it is plain, that the mournful succession to their children is due to the progenitors, and in such a manner, that Edition: 1741; Page: [227] the nearer in degree Edition: current; Page: [229] excludes the more remote, and those of the same degree come in equally. Nor does the law of nature in this case suggest any reason why the inheritance of children should be divided among many of the same degree according to lines; so that these, and like cases, must rather be left to the determination of civil laws.

SECTION CCCII

Succession of collaterals.It follows from the same principle (§296), that failing both the ascending and descending line, the succession to intestates devolves on the collateral kindred, according to the degree of nearness in which they stand; nor is there any reason why the right of representation should take place among collaterals;* much less is there any reason why duplicity of ties, or the origine of the goods should Edition: 1741; Page: [228] make any difference. In this case, many of the same degree equally divide the inheritance: nor is there any difference how far they may be removed from the defunct, seeing it Edition: current; Page: [230] was in his power to appoint another heir, if he had no mind they should be made happy by his estate.

SECTION CCCIII

Much is here left to civil legislators.So far does right reason acknowledge the right of succession in kindred. But because it is obvious to every one, that all these things belong rather to the permissive than to the preceptive part of the law of nature, much must here be left to civil legislature, to fix and determine by their laws, as the end and interest of their states may require (§18). And hence it is easy to give a good reason why legislators have thought the surviving wife should be taken care of; and why there is no branch of law almost in which civil laws and statutes so much differ, as with regard to succession to intestates.

SECTION CCCIV

Whether any heirs be necessary?Seeing this whole right of succession proceeds from presumed will (§285); but he, whose consent is presumed, may enter upon an inheritance, Edition: 1741; Page: [229] or renounce it as he pleases (§294), it must be evident to every one, that necessary heirs are unknown to the law of nature.* And therefore that no person is heir to an intestate by unalterable right, but becomes such by his consent, declared by words or deeds.

Edition: current; Page: [231]

SECTION CCCV

How heirs succeed to the rights and obligations of the deceased.Now, when one determines to succeed to another, nothing is more equal, than that he should be adjudged to succeed to all his rights and burdens (§267); whence it follows, that an heir, whether by the real disposition of the deceased, or by his presumed will, acquires all his rights, which are not extinguished by his death; and that he has no reason to complain, if he be bound to satisfy all his obligations, as far as the inheritance is sufficient.* Edition: 1741; Page: [230]

Edition: current; Page: [232]

CHAPTER XII: Concerning the rights and duties which arise from property or dominion.

SECTION CCCVI

A three-fold effect of dominion.Dominion is the right of excluding all others from the use of something (§231). But when we exclude others from the use of a thing, we pretend to have the sole right of using it. Hence the first effect of dominion is the free disposal of a thing; i.e. the right or faculty of granting any one the use of it; nay, of abusing it, and of alienating it at his pleasure. Again, from what we can justly exclude others, that we retain to ourselves with that intention, and therefore possession is amongst the effects of dominion. Finally, we also exclude others from the use of a thing, when, being in another’s possession, we reclaim it. But to reclaim a thing in another’s possession, being to endeavour to recover it, it follows, that one of the noblest effects of dominion is the right of recovering our own from whomsoever possessing it.* Edition: 1741; Page: [231]

Edition: current; Page: [233]

SECTION CCCVII

Hence the owner has the right to use the profits.Since therefore the owner has a right to apply his own to any use whatsoever (§306), the consequence is, that he has a right to enjoy all the profits arising from the thing itself, and from its accessions and increments, as far as these can be acquired by the proprietor (§250); and therefore to reap all the fruits, and either to consume or share them with others, or to transfer them to others upon whatsoever account. Nay, because the yearly fruits and profits of things may be increased by art and careful management, nothing hinders a master from altering the thing, and so rendering it more profitable, provided he do not by so doing deprive another of his right.*

SECTION CCCVIII

As likewise of corrupting or spoiling it.Since he hath likewise the right of abusing (§256), i.e. of consuming, or of destroying the thing and its fruits, Donat. ad Terent. Andr. Edition: 1741; Page: [232] prolog. v. 5.1 the consequence is, that the master may destroy the thing which is his own, provided he do it not with that intention that another may thereby receive detriment. For tho’ such a spoiling of our own goods, which may be beneficial to others, be repugnant to the love of Edition: current; Page: [234] humanity (§217); yet he does not violate expletive justice, who, in consequence of his having dominion, abuses his own, and without any necessity urging him so to do, corrupts it.

SECTION CCCIX

As likewise of alienating them.Because the free power or right of a master to dispose of his own comprehends likewise the right of alienation (§306), it may easily be understood, that an owner can abdicate his dominion, and transfer it to another, either now, or for a time to come, and grant any other advantage by it, or right in it, to any person; and therefore give it in use, usufruct, mortgage, pledge, as he will, provided no law, no pact, no other more valid disposition stand in his way.

SECTION CCCX

Since possession also is one of the effects of dominion (§306), it is plain that the owner can take possession of what belongs to him, and defend his possession against every one, even by force; and that it makes no difference whether one possesses by himself or by another; yea, that possession once Edition: 1741; Page: [233] acquired, may be retained by an absent person, and by will merely, while another hath not seized it.*

SECTION CCCXI

The right also of recovering it.Finally, the right of recovering a thing being among the effects of dominion (§306), it cannot but be that we may use our right against any possessor of what is ours; nor does it make any difference as to the restitution, whether one detain what is ours from us honestly or fraudulently; Edition: current; Page: [235] nor whether he be known to us or a stranger; because we do not reclaim the thing on account of any deed of his; but because we have a right to it. Besides, since to reclaim and recover a thing is not the same as to redeem it; it is manifest, that when an owner recovers his own, he is not bound to restore the price; tho’ equity doth not permit that one should be inriched at another’s expence (§257), or that he should refuse the necessary and useful expences laid out upon a thing by the possessor.* Edition: 1741; Page: [234]

SECTION CCCXII

How far he may recover the accessions and fruits.Since the owner can claim to himself all the accessions and fruits of his own goods (§307), it may be enquired, whether an honest possessor be obliged to restore to the owner reclaiming his own, all the accessions, and all the fruits, nay, all the gain he hath received from another’s goods? We conceive thus of the matter in a few words. He who honestly, and with a just title, possesses a thing, as long as the true owner is not known, has the right of excluding all persons from the use of what he possesses. But he who has this right is in the room of the owner (§231), and therefore enjoys all the same rights as the owner; yet, because he is not the true master who possesses a thing honestly, there is no reason why he should desire to be inriched to the loss of the true owner; as there is none, on the other hand, why the master should claim to himself the fruits not existing, which were not owing to his care and industry. Edition: 1741; Page: [235]

Edition: current; Page: [236]

SECTION CCCXIII

The accessions and the fruits belong to the master.Because neither ought to be inriched at the other’s loss (§312), the consequence is, that even the accessions ought to be restored to the master reclaiming his own thing, and therefore he hath a right to demand the existing and hanging fruits,* the expences laid out upon them being deducted; because the master would be inriched to the detriment of the honest possessor, if he should take to himself the fruits upon which he had bestowed no care.

SECTION CCCXIV

The fruits gathered and consumed to the possessor.But since a natural accession to a thing, the owner of which is not known, goes to the first occupant as a thing belonging to no body, the same is to be said of the civil fruits (§212); consequently, the fruits gathered ought to be left to an honest possessor, who bestowed his labour and care about them, unless he be made richer by them (§212). Edition: 1741; Page: [236]

Edition: current; Page: [237]

SECTION CCCXV

Whether an honest possessor be obliged to pay the value of a thing consumed, perished, or alienated.From the same rules, that an honest possessor is in the room of the owner, but yet cannot inrich himself at the detriment of another (§312); we infer, that he is no more obliged to make restitution to the owner, if he infraudulently consumed the thing, than if it had perished in his possession by chance; but that he is obliged, if he sell the thing he acquired without paying any price, or a small price, for a greater price, because he would be richer at another’s cost, if he kept the profit to himself. On the other hand, this obligation ceases, if the owner hath already received the value of his thing from another; partly because in this case an honest possessor is indeed made richer, but not at the cost of the owner; and partly because the owner has a right not to sue for gain, but only for loss.

SECTION CCCXVI

What a fraudulent possessor is obliged to restore.Because all this belongs to honest possessors only; and, on the other hand, because fraudulent possessors are neither in the room of the owner, nor have they the right of use, on this score, that the owner is not known to them; and therefore none of these reasons, why one may enjoy any advantage by a thing, or its fruits, takes place; hence it is plain, that they are strictly bound not only to restore what is existing, but to refund the value of things consumed or alienated; and much more, Edition: 1741; Page: [237] of all the fruits they have, or might have reaped from them, and likewise to run all risks.*

Edition: current; Page: [238]

SECTION CCCXVII

The effects of dominion are sometimes restricted by civil laws.Now these are the rights which arise plainly from dominion; but since it belongs to civil law to adjust indifferent actions to the interest of each people or state (§18); and it is frequently the interest of a state, that no member should make a bad use of his goods (Instit. §2. de his qui sui vel alieni juris sunt,) it is no wonder that dominion is sometimes confined within narrower limits by governors of states, and that sometimes the liberty of disposal, sometimes the right of taking possession, and sometimes the right of recovering, is either wholly taken away from owners, or not allowed to them but under certain restrictions.* Edition: 1741; Page: [238]

SECTION CCCXVIII

Sometimes by the pacts and dispositions of the first owners.And because an owner has the liberty of disposing of his goods in his life, or in the prospect of death (§268), and then just as much is transferred to another, as he who alienates willed to transfer, (§279), it is plain the effects of dominion may be restricted by the pact and disposition of the former owner,† and in this case the possessor can arrogate no more Edition: current; Page: [239] to himself than he received from the former owner, unless he in whose favour the restriction was made, voluntarily quit his right, cease to exist, or lose his right by a just cause. Edition: 1741; Page: [239]

SECTION CCCXIX

A proprietor ought not to be hurt by any one in the use of his own.Hitherto we have only treated of rights arising from dominion or property. Now since right and obligation are correlates, and therefore a right being constituted an obligation is constituted (§7); the consequence is, that as many rights as dominion gives to an owner, just so many obligations does it lay others under with regard to the owner. Because therefore an owner hath the liberty of disposing (§306), they injure him who hinder him in disposing or enjoying the fruits of his own:* They also do him damage who corrupt or spoil the fruits and accessions of his property. And in general, since he who intercepts or corrupts any thing that tends to the perfection or happiness of another certainly wrongs him (§82), but none ought to be wronged (§178); hence we may justly conclude, that none ought to have his free disposition of his own disturbed or hindered; that none ought to have his goods damaged; and therefore, if any thing of that kind be done, the author of the injury is bound to make reparation, and is moreover liable to punishment.

Edition: current; Page: [240]

SECTION CCCXX

Nor directly nor indirectly intercept or hinder his possession.Seeing possession belongs to the rights of property (§306), the consequence is, that it is our duty to Edition: 1741; Page: [240] suffer every one to possess his own quietly and unmolested, and not to deprive any one of his possession against his will directly or indirectly. And that if any one can be proved to have done any such thing, he is bound as an injurious person, to repair all the damage he has done, and is moreover liable to condign punishment.

SECTION CCCXXI

It is done directly by theft, rapine and violent ejection.One carries off another’s possession directly, either by open force, or by taking it away clandestinely. The latter is called theft. The former, if the thing be moveable, is called rapine; and if it be immoveable it is called force, or violent ejection. Theft is therefore taking away another’s goods in a clandestine manner, without the knowledge and against the will of the owner, to make profit of them.* Rapine or robbery is bearing off a Edition: current; Page: [241] moveable thing by violence, against the owner’s will, to make profit of it: And force is ejecting one violently out of his possession of an immoveable thing. Edition: 1741; Page: [241]

SECTION CCCXXII

Indirectly by defrauding.One is said to take away another’s possession indirectly, who by fraudulent words or deeds is the cause of his losing it; and this we call defraudation. Now since one is likewise hurt in this manner, but none ought to do to another what he would not have done to himself (§177); it is self-evident, that they are no less guilty than thiefs and robbers, who, by insidious words, cheat one out of his goods;* or by moving boundaries, using false weights and measures, and other such knavish practices, adventure to take off any thing from one’s estate.

Edition: current; Page: [242]

SECTION CCCXXIII

What is another’s ought to be restored to him.The last right which belongs to the lord of a thing, viz. the right of recovering it, must found Edition: 1741; Page: [242] an obligation to restore what belongs to another to its owner. But hence we conclude, that every one, into whose hands any thing belonging to another comes without his fault, is obliged to take care that it be restored to its owner;* and therefore, that it ought not to be hid or concealed, but that public notice ought to be given of it, that the owner may have it again, upon making his right to it appear, Deut. xxii. 1. l. 43. §4. D. de furt. and that the possessor ought to be much more ready to restore it, if the author claim it, or publickly advertise his having lost it. But in both cases equity requires partly that the restitution should not be made at the expence of an honest possessor, and partly that he may not be made richer at another’s cost (§312). Edition: 1741; Page: [243]

Edition: current; Page: [243]

SECTION CCCXXIV

What if the true owner do not appear.But if the true owner do not appear to claim a thing, it is understood to be no body’s, and therefore it justly falls to the honest possessor* (§241). And tho’ those who have assumed to themselves the direction of consciences, commonly exhort to give things to the poor when the owner of them does not appear; yet he cannot be called unjust, who, making use of his right, takes to himself a thing morally free from dominion. See Nic. Burgund. ad consu. Flandr. l. 2. n. 1.2

Remarks on This Chapter

We have not had occasion for some time to add to our Author, or to make any remarks on his reasonings. And indeed the reason why I choose to translate this Author into our language, is because there is seldom any occasion to add to what he says, and almost never any ground of disputing against him, so orderly, clear, just and full, is his method of proceeding in this most useful of all sciences. But because usucapion and prescription are usually treated of at greater length by writers on the laws of nature and nations than our Author does; and because this is a proper occasion to explain a little upon the distinctions that are commonly made Edition: 1741; Page: [244] by moralists about the dictates of the law of nature and right reason, or conformity to them, let me subjoin the following observations.

1. First of all, it is proper to observe the difference which the Roman law makes between prescription in general, and that kind of it which they distinguished by the name of usucapio. By usucapio they meant Edition: current; Page: [244] the manner of acquiring the property of things by the effect of time. And prescription had also the same meaning; but it signified moreover the manner of acquiring and losing all sorts of rights and actions, by the same effect of the time regulated by law. See l. un. C. de usucap. transf. & Inst. de usucap. and Domat’s civil law, in their natural order, T. 1. p. 485. But writers on the law of nature have now very seldom occasion to make use of the word usucapio; that of prescription being now common by usage, both to the manner of acquiring the property of things, and to that of acquiring and losing all sorts of rights by the effect of time. 2. The chief reasons assigned by the Roman law for the first introducing of property by prescription, are, as Pufendorff of the law of nature and nations hath observed, book 4. cap. 12. §5. “That in order to the avoiding of confusion, and cutting off disputes and quarrels, it is of great consequence to the public welfare, that the proprieties of things should be fixed and certain amongst the subjects, which would be impossible, should perpetual indulgence be allowed to the negligence of former owners, and should the new possessors be left in continual fear of losing what they held. (Ne scilicet quarundam rerum diu & fere semper incerta dominia essent, l. 1. ff. de usurp. & usucap.) Again, trade and commerce could not otherwise subsist in the world. For who would ever contract with another? who would ever make a purchase, if he could never be secured in the quiet possession of any thing conveyed to him? Nor would it be a sufficient remedy in this case, that if the thing should be thus challenged by a third party, the person from whom we receive it should be obliged to make it good; for after so long a course of time, thousands of accidents might render him incapable of giving us this satisfaction. And what grievous commotions must shake the commonwealth, if at so vast a distance of years, so many contracts were to be disannulled, so many successions were to be declared void, and so many possessors to be ejected? It was therefore judged sufficient to allow such a time, as large as in reason could be desired, during which the lawful proprietors might recover their own. But if through sloth and neglect they suffered it to slip, the Praetor might fairly reject their too late importunity. And tho’ it might so happen, that now and then a particular person lost his advantage of recovering his goods, utterly against his will and without his fault, only because he was unable to find out the possessor, yet the damage and Edition: current; Page: [245] inconvenience arising from that general statute to some few private men, is compensated by the benefit it affords to the public.” It was a judicious reflexion of Aratus of Edition: 1741; Page: [245] Sicyon in Tully’s offices, l. 2. c. 23. “He did not think that possessions of fifty years should be disturbed, because in so long time many things in inheritances, purchases and portions, might be held without an injury to any.” 3. Now from the nature of property acquired by prescription, i.e. by the effect of time regulated by law, and the reasons upon which the utility, or rather necessity of it is founded, it is plain on the one hand, that whatever is not subject of commerce, cannot be the object of prescription, such as liberty; so prime, so essential a blessing; a blessing so much dearer than life, that none can ever be presumed so much as tacitely to have consented to be a slave! Liberty, a blessing, a right in the nature of things unalienable; or to renounce which is contrary to nature, and the will of the author of nature, who made all men free! Public places, goods belonging to the public, &c. So, on the other hand, whatever is the object of commerce may be the object of prescription, i.e. property in it may be acquired by the effect of time. As every man who is otherwise capable of acquiring dominion, is likewise capable of prescribing; so by this right of prescription we may acquire dominion over both sorts of things, moveable and immoveable, unless they are particularly excepted by the laws. But moveable things may pass into prescription sooner than immoveable, for this reason, that immoveables are judged a much greater loss than moveables; that they are not so frequently made the subject of commerce between man and man; that it is not so easy to acquire the possession of them, without knowing whether the party that conveys them be the true proprietor or the false; and consequently, that they are likely to occasion fewer controversies and suits. Plato’s rules for the prescription of moveables are these: “If a thing of this kind be used openly in the city, let it pass into prescription in one year; if in the country in five years: if it be used privately in the city, the prescription shall not be compleated in less than three years. If it be thus held with privacy in the country, the person that lost it shall have ten years allowed him to put in his claim, de leg. l. 12.”3 As for the prescription of immoveables, the constitution of Plato’s commonwealth Edition: current; Page: [246] was not acquainted with it. It is proper to observe here, that by the civil law prescription has not only respect to property; but it destroys other rights and actions when men are not careful to maintain them, and preserve the use of them during the time limited by the law. Thus a creditor loses his debt for having omitted to demand it within the time limited for prescription, and the debtor is discharged from it by the long silence of his creditor. Thus other rights are acquired by a long enjoyment, and are lost for want of exercising them. See Domat’s civil law, &c. T. 1. book. 3. t. 7. §4. 1. and the Roman laws there quoted. And all the long reasonings in Thomasius de perpetuitate debitorum pecuniariorum, and in Titius’s observations on Lauterbach, obs. 1033, and elsewhere, quoted by the very learned Barbeyrac on Pufendorff, of the law of nature Edition: 1741; Page: [246] and nations, book 4. cap. 12. 1.4 to shew how far prescription is of natural right, and what civil law adds to it, do not prove, that the law of nature does not permit, nay require, that a time should be limited, even for claiming rights, upon the elapsing of which, rights and actions, and what the lawyers call incorporeal things, are prescribed. No one ever pretended, that the law of nature fixed a time which gave a title by prescription with regard to things corporeal or incorporeal. But if security of property and commerce require, that such a time should be fixed, where there is property and commerce, then the law of nature or right reason requires that a time prescribing be fixed so far as security of property and commerce, and quiet possession by honest industry require it, whether with respect to corporeal or incorporeal things. Let me just add upon this head, that whereas it was said above, that things out of commerce cannot be prescribed, yet by the civil law one may acquire or lose by prescription, certain things which are not of commerce; but it is when they are connected with others, of which one may have the property. They are acquired by their connection with such other things. See Domat ibidem. Now, if here also it be said, that the law of nature knows no such distinction: the answer is, that the law of nature or right reason acknowledges every distinction which the public utility of a state requires, in order to prevent Edition: current; Page: [247] confusion and quarrels, and to render honest industry secure in the enjoyment of its just acquisitions. For, 4. whatever distinctions moral writers have made about belonging or being reducible into the law of nature, directly or indirectly, immediately, remotely, or abusively; this is plain, that in order to determine what the law of nature or right reason says about a case, the circumstances of the case must be put. For in the science of the law of nature, as well as other sciences, however general the rules or canons may be, yet in this sense they are particular, that they only extend to such or such cases, such or such circumstances. Now, if we apply this general position to the present question, it will appear that prescription is of the law of nature, in the same sense that testamentary succession, or succession to intestates is of the law of nature, viz. That right reason is able to determine with regard to prescription, in like manner as with regard to the others, some general rules which equity and public, common security require to be settled about them, where any number of men live in commerce, and property is established, that industry may have due liberty and security. Testamentary succession, and succession to intestates, as we have found them to be regulated by right reason, may be detrimental in some cases to the public, because in some cases, it may be more the interest of the public that any other should succeed to an estate than the heirs according to these general rules with regard to succession, by or without testament. But notwithstanding such detriment that may in some cases happen to the public, general rules about succession are necessary; and none are fitter to be such than those which most encourage in-Edition: 1741; Page: [247]dustry, by best securing the possessor in his right of disposing of his own, the great motive to industry; and those which determine succession in the way it is properest for the general good, that men’s affections should operate towards others. In like manner, whatever detriment may arise in certain cases from the general rule, that time should give a title by prescription; yet the general rule ought to obtain, because it is the best general rule that can be conceived, the least inconvenient, or rather the best for the security of commerce and property, being the best encouragement to honest industry, by giving the securest possession of its honest acquisitions. In fine, if we ask what the law of nature says about succession, or prescription, or any thing else, we must put a case or enumerate the circumstances; and therefore, we must either Edition: current; Page: [248] ask what it requires about them where men are in a state of nature, or where men are under civil government. If we confine the questions of the law of nature to the former case (tho’ there be distinctions to be made even in that case, as will appear afterwards) yet we limit the science too much, and render it almost useless: But if we extend it to what right reason requires under civil government, we must, in order to proceed distinctly, define the principal end of the civil constitution, and its nature, before we can answer the question; which will then be twofold. Either, 1. What that particular constitution requires, in consistency with its end and frame, with regard to prescription, for instance, or any other thing? Or, 2. Whether the end and frame of that constitution requiring such and such rules about prescription for instance, or succession, or any other thing, be a good end, and a good frame, i.e. whether all the parts of it, considered as making a particular constitution, do make one consonant to the great general end of all government, public happiness? Thus, if we attend to the necessity of thus stating the meaning of what is called determination by natural law, we will easily see that what is urged from the laws in the Jewish commonwealth against prescription, does not prove that right reason does not require that every state should make some regulation with regard to the effect of time, as to security in possession. For tho’ the divine law, which prohibited perpetual alienations for several reasons, abolished by that means prescription, yet the letter of this law being no longer in force, where alienations which transfer the property for ever are allowed, the use of prescription is wholly natural in such a state and condition, and so necessary, that without this remedy every purchaser and every possessor being liable to be troubled to all eternity, there would never be any perfect assurance of a sure and peaceable possession. And even those who should chance to have the oldest possession, would have most reason to be afraid, if together with their possession they had not preserved their titles. See Domat’s civil laws, &c. T. 1. p. 483. God, for reasons arising from the constitution of the Jewish republic, forbad the perpetual alienation of their immoveable estates (and not of their goods in general, as some objectors against prescription urge) but all their Edition: 1741; Page: [248] laws concerning usury, conveyances, and other things, were necessarily connected together, and with their Agrarian law, (as we shall see afterwards). And therefore there is nothing in the law of Moses that Edition: current; Page: [249] condemns prescription as an unjust establishment; and we can no more infer it from hence to be such (as Barbeyrac well observes, ibidem)5 than we may conclude that the perpetual alienation of lands is odious, and not conformable to natural right. But not to insist longer on this head, it is not only evident that the law of nature for the security of property and the encouragement of industry requires, that a time should be regulated for the effect of possession as to prescribing, in all states which admit of alienations and commerce; but that it requires that this time should be the most equal that can be fixed upon, all the circumstances of a particular state being considered, with regard to the non-disturbance of honest industry, i.e. the properest to prevent unjust dispossession on either side, i.e. either with respect to the first or the last possessor. And therefore, 5. There is no difficulty with regard to the following general maxims about it. 1. That prescription may affectually proceed, ’tis requisite that the party receiving the thing at the hands of a false proprietor, do obtain this possession by a just title; and consequently, that he act in this matter bona fide, with fair and honest intention. For this is necessary to just possession. “A man doth not become a just possessor of a thing barely by taking it to himself, but by holding it innocently.” Detaining is otherwise, as Tacitus expresses it, diutina licentia, a long continued injustice. Upon this head Pufendorff observes, that according to the civil law, ’tis enough if a man had this uprightness of intention at his first entring on the possession, though he happens afterwards to discover, that the person who conveyed it to him was not the just proprietor. But the canon law requires the same integrity throughout the whole term of years, on which the prescription is built. But Barbeyrac justly takes notice in his notes, “That the maxim in the civil law is better grounded than that of the canon law. And the artifice of the clergy consists not so much in this, that the determinations of the Popes require a perpetual good intention in him that prescribes, as in this, that they will have the goods of the church look’d upon as not capable of being alienated, either absolutely, or under such conditions as will make all prescriptions void.”6 2. Another Edition: current; Page: [250] necessary condition is, that it be founded on constant possession, such as hath not been interrupted, either naturally, as if the thing hath returned in the mean while to the former owner, or hath at any time lain abandoned or forsaken: or civilly, as if the owner had been actually engaged at law with the possessor for the recovery of what he lost; or at least by solemn protestations hath put in a salvo to his right. 3. That the space of time during which the prime possessor holds the thing, shall be reckoned to the benefit of him that succeeds in the possession, provided that both the former and the latter first entered upon it Edition: 1741; Page: [249] with honest minds, and upon a just title. For otherwise the prime possessor shall not be allowed to make over his time to the next holder, and consequently, if the former come to the possession by dishonest means, the time he passed in it shall not be computed towards the prescription of the latter, tho’ he, for his own part, obtained the possession fairly and justly. See Pufendorff, ibidem. 4. Prescription does not run against minors. And if one that is major happens to have a right undivided with a minor, the prescription which could not run against the minor, will have no effect against the major. And the same reason for which prescription does not run against minors, hinders it likewise from running against those whom a long absence disables from pursuing their rights; which is to be understood not only of absence on account of public business, but also of other absences occasioned by accidents, such as captivity. See Domat’s civil law, ibidem. And for the same reasons, it is highly agreeable to reason, that the time during which a country hath been the seat of war, shall not avail towards prescription. But with regard to minority, it is remarked by Pufendorff ibidem, that there may be a case in which the favour of possession shall overbalance the favour of majority. As for instance, suppose it should so happen, that when I want only a month or two of compleating my prescription, and it is morally certain that the ancient proprietor will not within that space give me any trouble about the title, and if he should then decease leaving an infant heir, it would be unreasonably hard, if after five and twenty years possession, I should be thrust out of my hold for want of those two months, especially if it be now impossible for me to recover damages of him from whom I received what is thus challenged, as I might have done, had the dispute happened before the goods devolved on the minor. See this subject more fully discussed than it can be done Edition: current; Page: [251] in a short note, by Pufendorff and Grotius. It is sufficient for our purpose to have taken notice of these few things relative to prescription; and to have observed once for all, that unless the determinations of the law of nature be confined to signify the determinations of right reason with regard to a state of nature, (a very limited sense of the law of nature, in which it is hardly ever taken by any writer) every decision of right reason concerning equity, justice, and necessity or conduciveness to the public good of society, or of men having property and carrying on commerce, is a decision of the law of nature. Whatever reason finds to be the best general rule in this case is a law of nature; and in this sense, prescription is of the law of nature, i.e. reason is able to settle several general rules about it in consequence of what commerce, the security of property, and the encouragement of industry make necessary. So that where reason is able to make any such decisions, it is an impropriety to say, that thing is not of the law of nature, because some forms and modes relative to it must be determined and settled by convention, or by civil constitution; as the parti-Edition: 1741; Page: [250]cular spaces of time, for instance, with regard to prescription of moveables and immoveables, &c. must be. For if right reason requires, that time should have a certain effect with regard to property, then is prescription of the law of nature, which by its definition is the acquisition or addition of a property, by means of long possession. But indeed we may safely say, that the law of nature is an absolute stranger to the debates among lawyers, whether prescription should be defined with Modestinus adjectio, or adeptio with Ulpianus; for all such disputes are mere verbal wranglings, grievossly cumbersome to right reason and true science.

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CHAPTER XIII: Concerning things belonging to commerce.

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How men began to want many things.After men had departed from the negative communion of things, and dominion was introduced, they began to appropriate useful things to themselves in such a manner, that they could not be forced to allow any one the use of them, but might set them aside wholly for themselves, and their own use (§236). But hence it followed of necessity, that all men had not the same stock, but that some abounded in things of one kind, which others wanted; and therefore one was obliged to supply what was wanting to himself either by the labour of another, or out of his provision. Yea, because every soil does not produce every thing,* necessity Edition: current; Page: [253] forced men to give to others a share of the things in which they abounded, and which they had procured by their own art and industry, and to acquire to themselves what they wanted in exchange; which when they began to do, they are said to have instituted commerce. Edition: 1741; Page: [251]

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The necessity of commerce.Indeed if all men were virtuous, none would have reason to fear any want. For every one would then liberally give to those who wanted of what he had in abundance (§221). But since the love of mankind hath waxed cold, and we live in times when virtue is praised, and starves, there was a necessity of devising that kind of commerce, by which another might be obliged, not merely by humanity and beneficence, but by perfect obligation, to transfer to us the dominion of things necessary or useful to us, and to assist us by their work and labour.

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That could not be done but by contracts.By commerce therefore we understand the exchange of useful things and labour, arising not from mere benevolence, but founded on perfect obligation. But since by commerce either work is performed, or dominion and possession is transferred, which obligation ought to be extorted from none Edition: 1741; Page: [252] without his knowledge, and against his will (§320); the consequence is, that commerce requires the consent of both parties. Now, that consent of two persons concerning the exchange of necessary work, or things which is not of mere humanity and beneficence, but of perfect obligation, is commonly called a contract; and therefore it is obvious, that commerce cannot be carried on without the intervention of contracts.*

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Most of them suppose the price of labour and things fixed.From the nature of commerce, as it hath been defined (§327), it is evident, that it will rarely happen that one will communicate his goods or labour with another gratuitously; but every one will desire something to be returned to him, which he thinks equivalent to the goods or labour he communicates. Wherefore, those who would commute things or labour one with another, must compare things together; which comparison cannot otherwise be made, than by affixing a value to things, by means of which an equality can be obtained and preserved. But a quantity, moment, or value affixed to goods and labour, by means of which they may be compared, is called price. And therefore most contracts cannot take place without affixing or settling price.* Edition: 1741; Page: [253]

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Price is either vulgar or eminent.This comparison is instituted either between goods and work by themselves, or a common measure is applied, by which all other things are valued. In the first case, vulgar or proper price takes place, or the value Edition: current; Page: [255] we put upon goods and labour compared amongst themselves. In the latter case, there is a common measure by which we estimate all things that enter into commerce, which is called eminent price;* such as is money amongst us. But in both cases equality is required. Edition: 1741; Page: [254]

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How vulgar or proper price is fixed.That in the earlier times of the world men knew nothing but the proper price of things, is plain, because eminent price could not have been instituted without the consent of many; but every one imposed vulgar price upon his own work and goods at his pleasure. But since that is done with intention, and in order to purchase by them what one wants from another (§325); it is plain, that regard ought to be had in fixing the price of goods and labour to others from whom we want certain things; and therefore they ought to be estimated at such a rate, as it is probable others will be willing to purchase them.* Edition: 1741; Page: [255]

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What circumstances ought to be attended to in fixing it.Now, since work or things ought to be valued at such a price as it is probable others from whom we want any thing will purchase them; it is obvious, that sometimes the necessity and indigence of others will raise the price of things; and sometimes the scarcity of the thing will raise Edition: current; Page: [257] it; and that regard ought likewise to be had to workmanship, the intrinsic excellence of the thing, the labour and expence bestowed upon it, the danger undergone for it; and, in fine, to the paucity or multitude of those who want the goods or labour, and various other such circumstances.

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What is called price of affection.It may be objected, that men are accustomed to put an immense value upon their own goods, a much greater certainly than any one will purchase them at, whether it be that the author renders them precious, or their rarity, or some remarkable event which they recal to our memory. But since we are now treating of the duties which ought to be observed in commerce, and that kind of price is not commonly considered in commerce, but on-Edition: 1741; Page: [256]ly in repairing damages (§212),* it is evident that this price does not destroy our rule.

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Why eminent price was invented.But since commerce was instituted among men that one might supply his wants out of another’s stock or labour (§326), and price was devised for no other reason but that equality might be obtained in the exchange of goods or labour (§328); it could not but happen very often, that one might not have a very great abundance of what another might want, that one might despise what another would desire to exchange, and that the value of things which persons might desire to commute, might be so uncertain and variable, that some of the parties must run a risk of loss; and that the things to be exchanged might be of such a bulk, that they could not be commodiously transported to distant places, or could not be taken proper care of in the journey.—All which inconveniencies not being otherwise avoidable, necessity itself at last devised some eminent Edition: 1741; Page: [257] price that all would receive, and the proportion of which to goods could easily be determined.*

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Its necessary qualities.The end of money, or eminent price, requires that the matter chosen for that purpose be neither too rare, nor too common, nor useless, and in itself of no price; that it be easily divisible into small parts, and yet not Edition: current; Page: [259] too brittle; that it may be easily kept and laid up, and easily transported to any distance; because, if it was too scarce, there would not be a sufficient quantity of it to serve the uses of mankind; and if it was too common, it would be of no price or value, in which case, it would not be received by all; if it could not be easily divided into any portions, equality in commerce could not be obtained by it; and yet, if it was too brittle, it would easily wear out by use, and thus its possessors would be impoverished. In fine, if it could neither be conveniently kept, nor easily transported, the same inconvenience which rendered commerce difficult before the invention of it, would still remain (§333). Edition: 1741; Page: [258]

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Why the nobler metals are used to this purpose.But because these properties belong to no other matter but the more precious kinds of metals, as gold, silver and brass; these metals are therefore applied to this use, and hence coined money of various weights and sizes hath seemed to most civilized nations the properest substance to answer the ends of commerce. If any people hath thought fit to give an eminent price to any other matter,* it hath been done out of necessity, and for want of money, and with this intention, that the scarcity or difficulty being over, every one might receive solid money for the symbolical; Edition: current; Page: [260] or such money hath only been used by a nation within itself, and was not proper for carrying on commerce with foreign nations. Edition: 1741; Page: [259]

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What price is to be put on money.Tho’ it belong to the supreme power in a state to fix the value of money (as we shall shew afterwards in the proper place); yet, as with respect to vulgar or proper price, regard ought to be had to others from whom we would have any thing in exchange (§330); so it is evident, that a value ought to be put upon money, at which it is probable other nations, with whom we are in commerce, will not refuse it; and therefore the value of it ought to be regulated according to that proportion of one metal to another, which is approved by neighbouring civilized nations, unless we would fright other nations from having any commerce with us, or be ourselves considerable losers.* Edition: 1741; Page: [260]

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The most antient of all contracts before the invention of money was bartering.That we may now come to the contracts, by means of which commerce is carried on (§327), it is obvious to every one, that one kind of contracts took place while the proper price of things only was known, and money or eminent price was not yet in use (§330), and that after money was invented another kind took place, and that some were known both after and before money was in use. Among those which took place before money was in use, the first and principal is bartering. For in the first ages of the world commerce was only carried on by exchanging or bartering commodities and labour; and therefore bartering is the most antient of contracts; and it continued still to be in use in many nations, after money was in use, as well as where no price was yet put upon gold, silver, and brass.*

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How many sorts there are of it.Bartering is giving something of our own for something belonging to another; which, because it may be done two ways, i.e. either with, or without estimating and putting a certain price upon the Edition: 1741; Page: [261] things exchanged, it therefore follows, that when no estimation is made, it is called simple bartering; and when an estimation is made, and price fixed, it is called estimatory bartering. The former is somewhat like mutual donation, and the latter somewhat like buying and selling, l. 1. C. de permut. Edition: current; Page: [262] l. 1. §1. D. de contr. emt. For tho’ Pufendorff of the duties of a man and a citizen, 1. 15. 8. asserts that mutual donation is quite a different business from bartering, because it is not necessary that equality should be observed in it, yet there is no difference in this respect; for neither is equality observed in simple bartering.*

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What is just with respect to simple barter.Because simple barter is somewhat like mutual donation, and it is not necessary that equality should be observed in it (§338), it is plain neither of the contracting parties can have any reason to complain of being wronged, unless the other use force or guile (§322. and 321.) nor is such a contract null on account of injury, except when he who exchanges a more precious thing for a thing of no value, has not Edition: 1741; Page: [262] the free disposal of his goods (§317); and more especially, if the thing thrown away in such a manner, be of such a kind that it cannot be alienated without doing something base, unless the accepter himself be perchance guilty of equal baseness.

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What is just with regard to estimatory permutation.In estimatory permutation or barter, since here a price is put upon the things to be exchanged, (§338), equality ought certainly to be observed, and neither ought to wrong the other; nor is the barter valid if either be circumvened, unless the injury be of so little moment that it be not worth minding.* Edition: 1741; Page: [263]

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Of the contracts, I give that you may do: I do that you may give; I do that you may do.But men not only barter commodities, but likewise work for work, or work for other considerations; whence these contracts, I give that you may do; I do that you may give, and I do that you may do; which being of the same kind and nature with barter, or reducible to barter, simple or estimatory (§338), the same rules already laid down concerning them (§338) must, it is evident, be observed in those contracts. For either one’s work is estimated with respect to another’s work or goods, (which kind of negotiation is called, not unelegantly, by Ammian. Marcell. hist. 16. 10.1 pactum reddendae vicissitudinis) or work for goods is done without Edition: current; Page: [264] any estimation.* And in the former case equality ought to be observed, and damage of any considerable moment ought to be repaired; but in the latter all complaints about wrong or hurt are to no purpose. Edition: 1741; Page: [264]

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Contract of loan.There are other contracts by which commerce was carried on before the invention of money, viz. all gratuitous ones, by which, what before was only owing to one by imperfect right, or by mere love and benevolence, became due to him by perfect right, such as a contract of loan. For since we are obliged to what was called (§228) officiousness, we are likewise bound to accord to one who may want it, the use of any commodity belonging to us not consumable, with his obligation to restore it; i.e. to lend, or give in loan. But the love of mankind becoming cold, it could Edition: current; Page: [265] hardly be hoped that one would do this service to another spontaneously (§326), and therefore necessity forced men to invent a kind of contract, by which men might be obliged by perfect right thus to grant the use one to another of their not consumable goods. Edition: 1741; Page: [265]

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The duties of the borrower.Now, because the use of a thing is granted by loan, on condition of the borrower’s restoring it in species (§342),* the former is obliged not only not to apply the thing borrowed to other uses than those for which it was given, but likewise to apply it to these uses with the greatest care and concern; and therefore, when the use is over, or when the proprietor re-demands it, to restore it to him in species, and if it hath suffered any damage by his fault, to repair it; but he is not bound to make up fortuitous damages, unless he had voluntarily so charged himself (§106);* nor can he demand for any expences he may have laid out upon it, unless they exceed the hire to be paid for the letting of such a thing.

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The contract of deposite.Again, the love of humanity obliges every one to promote the good of others to the utmost of his power (§216); but since we have only an imperfect right to demand such good offices, it is often our interest to Edition: current; Page: [266] stipulate with others, in order to their Edition: 1741; Page: [266] being obliged by a perfect right to take the custody of our things deposited with them; and this is the intention of the contract of deposite or charge, by which we understand a perfect obligation upon another to keep gratis our things intrusted to his faith, and to restore them to us upon demand in species.*

SECTION CCCXLV

The duties of the trustee.It is plain from the definition of a charge, (§344), that the trustee is obliged to the most watchful custody of his charge, not so much as to untie it, or take it out of its cover, much less apply it to his use, without the master’s consent; in which case, the contract becomes not a charge, but contract of loan or use. And that the trustee is obliged to restore the thing intrusted to his keeping to its owner whenever he calls for it, unless right reason dissuade from so doing (§323); and consequently he is not only bound to make satisfaction, but is likewise worthy of severe punishment, if knowingly and guilefully he refuses to restore it, more especially, if it was lodged in his trust in a case of distress. Edition: 1741; Page: [267]

Edition: current; Page: [267]

SECTION CCCXLVI

The contract of commission.Again, the love of humanity ought to excite every one to assist another as readily as himself (§216); but because one cannot be sure of that from another, there is need of a contract, by which we may oblige one to manage our business which we have committed to him diligently, without any reward.* Now this contract we call commission, as when one without his knowledge, undertakes another’s business, or orders and manages it for him voluntarily gratis, he is said negotia gerere, to take another’s business upon him of his own accord. Edition: 1741; Page: [268]

SECTION CCCXLVII

The duties of a proxy.Wherefore, since a proxy undertakes another’s business committed to his care (§346), but it depends upon the master’s pleasure what, and how Edition: current; Page: [268] far to commit; it is plain, that the person giving the commission, either gives him full power to do all as he shall judge proper, or circumscribes the person commissioned within certain limits; or at least, by way of counsel, suggests to him what he would have him do. In the second case therefore, the proxy cannot exceed the bounds of his commission. In the first, he is only obliged to answer for knavery. In the third, that he may expede his commission by doing something equivalent. But, in all these cases, the procurator or proxy is obliged to render account of his management, in consequence of the very nature of a commission.*

SECTION CCCXLVIII

As likewise of him who takes another’s business upon him uncalled.He also who takes another’s business upon him without commission, without being called to do it, Edition: 1741; Page: [269] of his own accord, and gratis (§346), by so doing binds himself to manage it to the best advantage, and to bestow all possible care about it, and therefore to render account, and to stand to all the losses that may happen by his fault.

Edition: current; Page: [269]

SECTION CCCXLIX

The duties of a lender, a deponent, a person giving a proxy, and of one whose business is managed by another without commission.These then are the contracts which took place, money or eminent price not being yet found out: and with regard to them all, we have one thing yet to observe, which is, that because in the three last, one obliges himself to give and do something gratuitously, but not to suffer any hurt on another’s account, in them therefore no one ought to suffer by his good offices, and consequently he who lends is obliged to restore to the borrower expences that are not immoderate (§343), and the deponent is obliged to restore to the trustee all necessary charges; and the person giving a commission, or the person whose affair is undertaken and managed without his commission, is obliged to restore necessary or useful charges; and they are all of them bound to repair all the damages that may have been incurred for their sake, or on account of managing their af-Edition: 1741; Page: [270]fairs by the borrower, the trustee, the proxy, or the voluntary undertaker, without their fault.*

SECTION CCCL

The contracts which took place after the invention of money, buying, selling, renting, hiring.We now go on to another kind of contracts which began to take place when money was invented, the chief of which are buying and selling, renting and hiring. The first is a contract for delivering a certain thing for a certain price. The second is a contract for granting the use of a certain thing or labour at a certain rate or hire. But as the price in buying Edition: current; Page: [270] is the value of the thing itself in money, so hire is the value of the use of a thing, or of labour in money; and therefore, from the very definitions, it is plain that buying and selling, renting and hiring, now-a-days, require payment in money, and in that are different from bartering, and the other contracts defined above; “I give that you may give; I give that you may do; I do that you may give, and I do that you may do.”* Yet they all agree in the chief points, and have almost all the same common properties or effects. Edition: 1741; Page: [271]

SECTION CCCLI

The seller is obliged to tell the qualities, of the thing he sells to the buyer.Since therefore this is the nature of the contract buying and selling (§351), that a thing is delivered at a certain price; the consequence is, that the buyer and seller ought equally to know the thing; and therefore the seller ought not only to point out to the buyer all its qualities, all its imperfections, faults or incumbrances, which do not strike the eyes and other senses; but he is likewise bound to suffer him to examine it with his Edition: current; Page: [271] eyes, and by all other means; so that of things belonging to the taste, the sale is not perfect till they are tasted; and of others which stand in need of other trials, the sale is not perfect till the trial hath been made: And therefore, if what Euripides says be true with respect to any contract, it certainly holds with regard to this chargeable one, “Light is necessary to contractors.” Cyclop. v. 137.2 Edition: 1741; Page: [272]

SECTION CCCLII

Neither of the parties ought to be wronged.Hence it is also plain, that equality between the thing sold and the price paid, ought to be observed (§329); and therefore every injury ought to be repaired, whether it be done by guile or force, or be occasioned by a justifiable mistake.* Yet here we ought to call to mind what was before observed, that the wrong ought to be of some considerable moment, because here price does not consist as it were in a point, but admits of some latitude, and it would justly be reckoned being too sharp, and opening a door to endless suits and contentions, to rescind a contract for every small loss (§340). Edition: 1741; Page: [273]

SECTION CCCLIII

To whom the loss and gain belong before delivery.It is disputed to whom the loss and gain belongs while the thing sold is not delivered; whether it immediately passes to the buyer so soon as the price is agreed upon, or whether it still belongs to the seller while the Edition: current; Page: [272] thing is undelivered? What the Roman law has determined in this case is well known; nor will any one expect that we should insist long upon the reasons of that decision. To us, who are now only enquiring into the determination of the law of nature, it seems incontrovertible, that the owner or master is to stand all chances (§211); nor does it appear less certain to us, that what proceeds from delay or fault, is not mere chance; and therefore he, who by any deed damages another, is obliged to repair that damage (§211). Whence it follows, that because the buyer may, by the law of nature, be master of the thing bought without delivery (§275), the risk, after the sale is compleated, immediately falls upon the buyer, unless the seller be guilty of any delay in delivering it, or some other fault.* Edition: 1741; Page: [274]

SECTION CCCLIV

Whether the decision of the Roman law is agreeable to the law of nature?Now, because the buyer immediately becomes master or proprietor even before delivery, and therefore ought to stand to all chances (§353); the consequence is, that the doctrine of the Roman lawyers concerning the risk of a thing sold is true, but is not so consistent with their own principle, which denies that the dominion passes to the buyer without delivery; that since the proprietor hath the right of all the fruits, accessions, and other advantages of what is his own (§307), he hath also a right to all the gains of a thing sold to him; but so, that this rule shall then only Edition: current; Page: [273] take place, if the buyer hath any way satisfied the seller for the price;* because otherwise he would, at the same time, have the thing and the price, and thus he would be made richer at another’s detriment (§257).

SECTION CCCLV

When the risk belongs to the seller.But since a thing justly perishes to the loss of the seller when he is guilty of delay in delivery, or of any other fault (353), it is manifest that the buyer is exempt from all risk, if the seller, when he offers him the price, refuses to give him full possession of the thing sold, or cannot do it; and likewise, if it can be proved to have been owing Edition: 1741; Page: [275] to the seller’s fault or negligence, that the thing sold perished either in whole or in part.

SECTION CCCLVI

The seller owes warranty to the buyer.Buying and selling is done on purpose that a thing may be delivered for a certain price (§278). But since he who transfers dominion to another for an onerous cause, as, for a certain price, is obliged to warranty (§274), the seller must be obliged to warrant the buyer, if the thing be evicted from him upon account of any cause antecedent to the contract; but not, if, after the sale, something shall then happen, on account of which one is deprived of his property, or if it be taken from him by accident, or by superior force.

Edition: current; Page: [274]

SECTION CCCLVII

Other pacts may be added to this contract.Moreover, because buying and selling is a contract, (§350); but a contract requires the consent of both parties (§327), it is manifest, that in buying and selling all turns upon agreement; and therefore any other pacts may be added to it by consent, provided they be not absurd, unjust, or fraudulent; as for instance, addictio in diem, —lex commissoria, —pactum de retrovendendo, —pactum protomiseos, —pactum de evictione non praestanda,—pactum Edition: 1741; Page: [276] de poena in casum poenitentiae praestanda, and such others.*

Edition: current; Page: [275]

SECTION CCCLVIII

As likewise exceptions and conditions.From the same principle we infer that a seller may except something for himself in the sale, and Edition: 1741; Page: [277] that either party may add to the bargain any condition not repugnant to honesty and good manners, as likewise appoint a day, before which the thing is to be delivered, and the price paid.* Nay, that they may also agree, that the price not being paid, the property shall remain for some time with the seller, or that the buyer, retaining some part of the price in his hands, for which he is to pay interest, may be thus secured against eviction; that accessions shall go with the principal, that some fixed things may be carried off, that the thing sold shall be let at a certain rate to the seller, &c.

SECTION CCCLIX

Buying by cant or auction.Besides, we conclude from the same principle, that tho’ buying and selling requires equality, (§352); yet, by the consent of both parties, a sale may be agreed upon which shall not be null on the account of any inequality whatsoever. Such are auction, when the price is not fixed by the seller, but by the highest of contending bidders: emptio sub hasta, which is nothing else but a more solemn auction, instituted by public authority: emptio per aversionem, when things of different value are not rated separately, but sold together: and emptio spei, when the purchase is no certain thing, but hope and expectation only, on which, by agreement of the parties, a price is laid. In all which contracts, since equality is not required, by consequence neither of the parties can complain of injury Edition: current; Page: [276] in these cases, unless there be some knavery on either side, or the thing produced by the event was not thought of by the contracters.* Edition: 1741; Page: [278]

SECTION CCCLX

Of letting and hiring.The other contract which took place after the invention of money, is letting and hiring (§350): For tho’, according to the Roman law, in letting farms a part of the fruits was paid for the rent, which was called quanta, 1. 21. 6. loc. conduct. and thus this contract could take place before money was in use; yet there is no reason why it may not be referred to the contract, “I give that you may give ”; because in this case the use of the thing is not compared with money or eminent price, but with the Edition: current; Page: [277] proper or vulgar price of the fruits; and therefore the value of fruits not being always the same, but higher or lower according to the plenty or scarcity of the season, one year the proprietor might be a loser, and another year the tenant. Edition: 1741; Page: [279]

SECTION CCCLXI

The duties of the landlord.Because renting and hiring is a contract for the use of a thing, or labour at a certain rate or hire; the consequence is, that he who lets ought to grant the use of a thing, or the labour contracted for, to the person who hires it; and therefore, if, by his fault, or by accident, it happens that he who hires cannot have the use of the thing hired, or cannot perform the labour promised, the stipulated hire justly diminishes in proportion.* Yea, sometimes the lessor may be sued to the value; and the same holds, if the landlord should expel, without a just cause, the tenant before his lease is out. Edition: 1741; Page: [280]

SECTION CCCLXII

And of the tenant.In like manner it is the tenant’s duty to pay in due time the stipulated rent, to use what he hath the use of as another’s, to be returned in specie, like an honest man, to make up damages owing to his fault; and not to desert the farm while his lease is yet unexpired, unless he be forced to it by just causes, as the incursion of an enemy, the fear of a plague, and other such dangers. For since the landlord is obliged to deliver him the thing safe and sound, to indemnify him, and not to turn him out before Edition: current; Page: [278] his time is expired (§361); it is most equal, that what he would not have another do to him, he should not do to another; and, vice versa, what he would have another do to him, that he should do to another (§88); especially since in this chargeable contract equality ought in justice to be observed (§329).

SECTION CCCLXIII

Of pacts which may be added to this contract.But this contract also depends wholly upon consent (§327); and therefore it is plain that several pacts may be annexed to it, provided they be consistent with good morals;* and therefore that it may be with, or without conditions, and for a certain time. And since tacite consent is held for real consent; hence we may infer, that tacite re-hiring is valid, if the first lease being elapsed, neither party renounces the contract; and that in this case it is just that the same terms should take place as in the former engagement. Edition: 1741; Page: [281]

SECTION CCCLXIV

Of the loan of consumable commodities.Now those are the contracts which began to take place after money was in use; we are therefore, in the next place, to consider those contracts which could have place either before or after money was found out. The chief of which is the contract of loan, mutuum; by which we understand granting the use of consumable things, on condition that as much shall Edition: current; Page: [279] be restored in kind.* For since not only money, but every consumable commodity may be credited in this manner, it is plain that this contract had place before men had acknowledged money for a common measure of things, and it is now most frequent.

SECTION CCCLXV

The dominion of the thing credited is transferred to the debtor.It is plain, from the definition of this contract, (§364), that the debitor has the power of abusing the thing credited to him; and therefore the credi-Edition: 1741; Page: [282]tor has abdicated his right of excluding the debtor from the use of it; and thus he hath, only upon condition of receiving as much from the debtor, transferred to him all his right; but to transfer the right of excluding others from the use of a thing, is to transfer dominion (§231); wherefore this contract is an alienation, by which the dominion of the things credited passes intirely to the debtor.

Edition: current; Page: [280]

SECTION CCCLXVI

The debtor’s obligation.From the same definition we infer, that the debtor is obliged to return as much, not only in quantity, but in quality; and therefore, if it be money that is lent to him, and its intrinsic value should afterwards be augmented or diminished, regard is to be had to the time when the contract was made; and accordingly so much ought to be diminished as the money has rose, or so much ought to be added as the money has fallen. Moreover, the debtor ought not to delay paying; nor is he delivered from his obligation by the perishing of the consumeable commodity he received from his creditor, nor by any accidental event.* Edition: 1741; Page: [283]

SECTION CCCLXVII

Whether usury be allowable by the law of nature?But tho’ this contract be in its nature gratuitous, (as well as commodatum, of which above, i.e. loan of not consumeable things); yet the love of mankind waxing cold, it hath become customary for creditors to stipulate a reward to themselves for what they lend to their debtors; which, if it consist in paying monthly or yearly a certain proportion of the sum lent, as 3, 4, or 5 per cent. it is called interest or usury, tho’ that last term is often taken in a bad sense for exorbitant interest, by which creditors reduce their debtors to the last dregs. Concerning usury, it is a celebrated question, that has been severely agitated by learned men, whether it be Edition: current; Page: [281] agreeable to the law of nature for creditors to stipulate with debtors for it.* Edition: 1741; Page: [284]

SECTION CCCLXVIII

What is to be affirmed here.But since, 1. It is not unjust to communicate our goods with others, not gratuitously, but for a hire (§328). 2. Since one often makes great gain by the use of another’s goods, while, in the mean time, the creditor suffers loss or inconvenience by the want of them; but none ought to inrich himself at the detriment of another (§257). 3. Besides, since he runs a great risk who lends his goods to another on these terms, that he may consume or abuse them, it is not unreasonable that the creditor should exact a hire from the debtor in proportion to the risk (§331).—From all these considerations, we think it may be justly concluded, that a pact about interest with one who may make gain of our money, is not contrary to the law of nature. And tho’ interest ought to be proportioned Edition: current; Page: [282] to the gain which the debtor may, in all probability, make of the sum; yet it is not iniquous that it should be augmented in proportion to the risk, the scarcity of money, and other circumstances (§331), as the custom of bottomry shews us, dig. 1. 22. tit. 2. de nautico foenore. Edition: 1741; Page: [285]

SECTION CCCLXIX

What is meant by pledge, mortgage, and antichretic pact.Another contract of this kind is pawn or pledge, by which we understand an obligation to deliver something to a creditor for the security of what he lends or credits. For if a thing, especially if it be in its nature immoveable, be not delivered, but yet the creditor hath a right constituted to him in it, of taking possession of it, in case the debt be not cancelled, that transaction between the creditor and debtor is called hypotheca, mortgage. Again, if it be agreed that a creditor should receive the fruits of a thing delivered to him for the security of what he hath credited, in lieu of interest, this invention is termed pactum antichreticum (§283).

SECTION CCCLXX

What is just about a pawn.From the definition of a pawn, it is plain that it ought to be the debtor’s own; and therefore he deserves punishment who pawns any thing belonging to another, whether lent to him, deposited with him, or hired by him. That the creditor ought not to use a pawn, if it may be rendered worse by use, but to preserve it with as much care as his own goods, and to return it to the debtor, when the debt is cleared. Finally, since the owner regularly runs risks (§211),* the consequence is, that the risk of Edition: current; Page: [283] the pawn belongs to the debtor, and that perishing by accident, he is notwithstanding obliged to pay his debt. Edition: 1741; Page: [286]

SECTION CCCLXXI

What is just about mortgage.From the definition of mortgage (§369), we infer, that it can scarcely consist in moveables, which a debtor may easily alienate and transfer to a stranger without his creditor’s knowledge; but it consists chiefly in immoveables, as houses, lands, cities and territories;* and likewise in larger stocks of moveable things, which are not easily transported from place to place, as large libraries; yea, in rights and actions likewise, if great advantage accrue from them to the possessor. But whatever is thus pledged to a creditor, his right in it continues, to whomever it may be transferred; for otherwise his hypotheca would be without effect. Edition: 1741; Page: [287]

SECTION CCCLXXII

What is just about the pactum antichreticum.From the definition of the pactum antichreticum, (§369), it is obvious that it can only take place in pawning things which yield increase; and since the fruits are in lieu of interest, they ought not greatly to exceed that measure of interest which we have found to be most agreeable to Edition: current; Page: [284] equity. The creditor, in this case, is not liable to accidents, unless it be so agreed; and therefore if the creditor, on account of barrenness, or any public calamity, does not receive the value of the interest due to him, the debtor is obliged to make it up.

SECTION CCCLXXIII

What is common to all these conventions.This is in common to all these contracts, that being designed for the security of the creditor, (§369), the creditor, if the debtor be tardy in his payment, has a right to alienate the pawn or mortgage, and deducting his principal and interests, is obliged only to refund the overplus to the debtor, unless there be an accessory pact, lex commissoria; by which it is stipulated, that the pawn, if not relieved within a certain time, shall be left to the creditor for his principal and interests. For tho’ the more recent Roman laws did not allow of such a pact,* l. un. C. Theodos. de commissor. rescind. l. ult. C. de pact. pign. and that might have been justly done on account of the exorbitant avarice of creditors; yet it does not follow from hence, that the law of nature, which permits every owner to alienate his own on whatsoever conditions, does not allow of such a pact (§309), which Hertius hath shewn, by many examples, to have been in use amongst princes and independent nations, in his notes upon Pufendorff, 5. 10. 14. p. 737. Edition: 1741; Page: [288]

Edition: current; Page: [285]

SECTION CCCLXXIV

Of suretyship.The third contract which may take place before and after money is invented, is suretyship; i.e. an obligation a person comes under to pay another’s debt, if he does not. For if one binds himself not merely to pay, the other failing, but conjointly with him in solidum for the whole debt, he is debtor, and the obligation of both is equal. Again, he who, with the consent of the creditor, delivers a debtor from his obligation, and takes it upon himself, is called expromissor, Bail. All these contracts, as well as that of pawn or mortgage, are contrived for the security of creditors, and afford an ample proof of the decay of benevolence among mankind.*

SECTION CCCLXXV

For what things it is lawful to be surety.Moreover, from the definition of suretiship, (§374), it is plain that there is no place for suretiship, which is a subsidiary security, unless the Edition: 1741; Page: [289] debt be such that it may be as conveniently paid by another as by the principal debtor; and therefore suretiship for condemned persons, tho’ some ancient nations admitted it, is contrary to right reason. But yet Edition: current; Page: [286] there is no reason, when the crime may be expiated by a mulct, why another person may not interpose in behalf of the criminal, and oblige himself to pay the mulct, if the criminal fail.

SECTION CCCLXXVI

The obligation of sureties.As to the obligation of sureties, it is plain, from the definition (§374), that they oblige themselves to the same which the creditor has a right to exact from his debtor, and therefore it is unjust for a creditor to stipulate more to himself from a surety than from the debtor; that the obligation of a surety is subsidiary, and therefore that by the law of nature a surety does not stand in need of the singulari beneficio ordinis vel excussionis,3 as it is called in the civil law; but may then be sued, when it clearly appears that the principal debtor has not Edition: 1741; Page: [290] wherewith to pay.* Many sureties engaged for the same persons and debts, are only bound proportionably, unless they have voluntarily and expresly bound themselves for the whole; and therefore the benefit of division is due to them by the law of nature, as being proportionably bound, unless one’s fellow sureties be insolvent, and one could not but know they were so.

Edition: current; Page: [287]

SECTION CCCLXXVII

Of the solidity among two or more debtors.When two or more become debtors of one and the same thing (§374), it is evident, that every one of them being obliged to the creditor for the whole debt, the creditor may exact the whole debt from either of the two he pleases;* and when any one of them pays the debt, the other is discharged from his obligation to the creditor, but not with respect to his fellow-surety; for he who paid for him (§346) did his business, and therefore ought to be indemnified by him (§349). Edition: 1741; Page: [291]

SECTION CCCLXXVIII

As to an expromissor or bail.Again, from the definition of an expromissor or bail (374), we infer, that his obligation is the same with that of the principal debtor, insomuch that the latter, bail being accepted by the creditor, is free; and therefore neither can this kind of surety plead the discussion of the principal debtor before him; nor can the creditor, if he cannot recover his debt from this surety, any more have recourse to the principal debtor whom he hath once freed, but he must depend upon this surety alone for it, upon whose faith he had relieved his debtor.

SECTION CCCLXXIX

The contract of partnership.The next contract which may take place either where money is, or is not in use, is partnership, as it may plainly do, since it is nothing else but sharing among many the profit or loss that may arise from joint stock Edition: current; Page: [288] or labour:* for commodities and labour may be communicated either before or after money is in use. Edition: 1741; Page: [292]

SECTION CCCLXXX

What is just with respect to partnership.Because in universal partnership all things, in general partnership some things only are common; so that these contracts somewhat depend upon chance (§379); the consequence is, that amongst such partners the loss and gain must be common, but the contribution may be very unequal; and therefore such a partner hath no reason to complain if his fellow-partner expends more than him, when his necessities require it; yea, a partner is obliged to pay his proportion of debt contracted by his fellow-partner; for which reason, it cannot be doubted that it is highly reasonable that every one of such partners should share of the gain made by any one of them; and that he who has a right to the gains, ought to bear his share of the loss, damages, or inconveniencies.

SECTION CCCLXXXI

What in singular partnership.But since in singular or particular partnership equality ought to be observed (§380), which however is not always observed in the contribution; it follows, that the equality in dividing loss and profit cannot be arithmetical, but must be geometrical. And therefore he who hath contributed Edition: current; Page: [289] more stock or labour, ought to have a proportionably greater share of profit and loss than he who contributes less. But seeing any one can grant to any other whatever advantages he pleases with regard to his own goods (§309), it is undeniable that partners may agree one with another in any manner; and may observe, in dividing loss and gain, either arithmetical equality, or any inequality, unless, by the knavery of one or other of them, the division degenerates into that of the lion in the fable, Phaed. Fab. 1. 6. Edition: 1741; Page: [293]

SECTION CCCLXXXII

Whether one partner may quit the partnership against the other’s will?In fine, since partnership is formed by consent, and by way of convention (§379), this rule of the Roman law can hardly be deduced from the principles of the law of nature, viz. “That any one may quit partnership, provided he do it not fraudulently, nor at an improper time.”* The whole matter rather turns upon the conditions of the agreement; and therefore, if the partnership was contracted for perpetuity, it ought to be perpetual; Edition: current; Page: [290] if for a time only, it is but for the time fixed; unless one of the partners be injurious to the others, and do not fulfil the articles of agreement; in which case, it is most just that the others should have the right of renouncing the partnership even before the time agreed upon in the contract. Edition: 1741; Page: [294]

SECTION CCCLXXXIII

Of donation.Let us add donation, by which we understand a promise to transfer something of ours to another gratuitously. From which definition, it is plain that it may be made with or without conditions; and therefore in view of death. So that donations are justly divided into donations among the living, and donations in prospect of death. And a donation among the living obliges to deliver the thing promised, and leaves no room to the donor to revoke his promise. But from what was said above, it is evident, that he who receives the donation cannot demand warranty from the donor, if the thing be evicted (§274), and that he is obliged to shew gratitude to his benefactor by words and deeds on all occasions (§222).

SECTION CCCLXXXIV

Some corolaries about contracts in general.To conclude; with regard to all contracts in general, it is to be observed, that because they consist in consent (§327), they can only be formed by those who are not incapable, by nature of by law, of consenting. Again, because they were devised for the sake of commerce (§327), they must be about things which may be in commerce honestly, and with the permission of the laws; and therefore contracts about impossible or base things, or things exeemed by the laws from commerce, are null: Edition: 1741; Page: [295] but as many things are exeemed by positive laws from commerce, which naturally are subjects of it, so positive laws may likewise permit contracts about several things which are not subjects of commerce, according to the laws and manners of other nations.*

Edition: current; Page: [291]

Remarks on This Chapter

It seems necessary to add a little to what our Author hath said in this chapter concerning usury, to shew at one and the same time, the true state of the case with regard to the forbidding of usury in the Israelitish commonwealth, and how civil laws may confine and alter natural rights, consistently with the law of nature. And here all we have to do is to copy a little from our excellent politician Mr. Harrington, in his prerogative of popular government (p. 245).

Mr. Harrington, who hath shewn at great length, that property must have a being before empire or government, or beginning with it must still be first in order, because the cause must necessarily precede the effect, reasons thus: “Property comes to have a being before empire two ways, either by a natural or violent revolution: natural revolution happens from within, or by commerce, as when a government erected upon one balance, that for example, of a nobility or a clergy, through the decay of their estates, comes to alter to another balance; which alteration in the root of property, leaves all to confusion, or produces a new branch or government, according to the kind or nature of the root. Violent revolution happens from without, or by arms, as when upon a conquest there follows confiscation. Confiscation again is of three kinds, when the captain taking all to himself, plants his army by way of military colonies, benefices or Timars, which was the policy of Mahomet; or when the captain has some sharers, or a nobility that divides with him, which was the policy introduced by the Goths and Vandals; or when Edition: 1741; Page: [296] the captain divides the inheritance, by lots or otherwise, to the whole people; which policy was instituted by God or Moses in the commonwealth of Israel. Now this triple distribution, whether from natural or violent revolution, returns, as to the generation of empire, to the same thing, that is, to the nature of the balance already Edition: current; Page: [292] stated.”4 Mr. Harrington having fully proved these points, or that property is the natural cause of government, and that changes in it must make proportional changes in government, it follows from hence, that unless the balance of property be fixed, empire or government cannot be fixed, but will be continually altering as the balance of property varies; but property in land can only be fixed by an Agrarian law. Now these principles being laid down, the following truths concerning money, and the methods of regulating it in governments will be manifest, namely, “That the balance in money,” as Mr. Harrington expresses it, “may be as good or better than that of land in three cases: First, where there is no property of land yet introduced, as in Greece during the time of her ancient imbecility; whence, as is noted by Thucydides, The meaner sort, through a desire of gain, underwent the servitude of the mighty. Secondly, in cities of small territory and great traffic, as Holland and Genoa, the land not being able to feed the people, who must live upon trade, is over-balanced by the means of that traffic, which is money. Thirdly, in a narrow country, where the lots are at a low scantling, as among the Israelites; if care be not had of money in the regulation of the same, it will eat out the balance of land. For which cause, tho’ an Israelite might both have money, and put it to usury, (Thou shalt lend [upon usury] to many nations, Deut. xv. 6. and xxiii. 19.) yet might he not lend upon usury to a citizen or brother. Whence two things are manifest. First, that usury in itself is not unlawful: And next, that usury in Israel was no otherwise forbidden, than as it might come to overthrow the balance or foundation of the government. For where a lot, as to the general, amounted not perhaps to four acres, a man that should have a thousand pounds in his purse, would not have regarded such a lot in comparison of his money; and he that should have been half so much in debt, would have been quite eaten out. Usury is of such a nature, as, not forbidden in the like cases, must devour the government. The Roman people, while their territory was no bigger, and their lots, which exceeded not two acres a man, were yet scantier, were flead alive with it; and if they had not helped themselves by their tumults, and the institution of their tribunes, it had totally ruined both Edition: current; Page: [293] them and their government. In a commonwealth whose territory is very small, the balance of the government being laid upon the land, as in Lacedemon, it will not be sufficient to forbid usury; but money itself must be forbidden. Whence Lycurgus allowed of none, or of such only as being of old or useless iron, was little better, or if you will, little worse than none. The prudence of Edition: 1741; Page: [297] which law appeared in the neglect of it, as when Lysander, General for the Lacedemonians in the Peloponnesian war, having taken Athens, and brought home the spoil of it, occasioned the ruin of that commonwealth in her victory. The land of Canaan, compared with Spain or England, was at most but a Yorkshire, and Laconia was less than Canaan. Now, if we imagine Yorkshire divided, as was Canaan, into six hundred thousand lots, or as was Laconia into thirty thousand, a Yorkshireman having one thousand pounds in his purse, would I believe, have a better estate in money than in land: Wherefore, in this case, to make the land hold the balance, there is no way but either that of Israel, by forbidding usury, or that of Lacedemon, by forbidding money. Where a small sum may come to over-balance a man’s estate in land; there, I say, usury or money, for the preservation of the balance in land, must of necessity be forbidden, or the government will rather rest upon the balance of money, than upon that of land, as in Holland and Genoa. But in a territory of such extent as Spain or England, the land being not to be overbalanced by money, there needs no forbidding of money or usury. In Lacedemon merchandize was forbidden; in Israel and Rome it was not exercised; wherefore, to these usury must have been the more destructive; but in countries where merchandize is exercised, it is so far from being destructive, that it is necessary; else that which might be of profit to the commonwealth, would rust unprofitably in private purses, there being no man that will venture his money but through hope of some gain; which, if it be so regulated, that the borrower may gain more by it than the lender, as at four in the hundred, or thereabouts, usury becomes a mighty profit to the public, and a charity to private men: In which sense, we may not be persuaded by them, that do not observe these different causes, that it is against scripture. Had usury to a brother been permitted in Israel, that government had been overthrown: But that such a territory as England or Spain cannot be over-balanced by money, whether it be a scarce or plentiful commodity, whether it be accumulated Edition: current; Page: [294] by parsimony, as in the purse of Henry VII. or presented by fortune, as in the revenue of the Indies. For in general this is certain, that if the people have clothes and money of their own, these must either rise (for the bulk) out of property in land, or at least, out of the cultivation of the land, or the revenue of industry; which, if it be dependent, they must give such a part of their clothes and money to preserve that dependence, out of which the rest arises, to him or them on whom they depend, as he or they shall think fit; or parting with nothing to this end, must lose all; that is, if they be tenants, they must pay their rent, or turn out. So if they have clothes or money dependently, the balance of land is in the landlord or landlords of the people. But if they have clothes and money independently, then the balance of land must be in the people themselves, in Edition: 1741; Page: [298] which case they neither would, if there were any such, nor can, because there be no such, give their money or clothes to such as are wiser, or richer or stronger than themselves. So it is not a man’s clothes and money or riches, that oblige him to acknowledge the title of his obedience to him that is wiser or richer, but a man’s no clothes, or money, or his poverty. Wherefore, seeing the people cannot be said to have clothes and money of their own, without the balance in land, and having the balance in land, will never give their clothes or money or obedience to a single person, or a nobility, tho’ these should be richer in money, in such a territory as England or Spain, money can never come to over-balance land. Henry VII. tho’ he missed of the Indies, in which, for my part, I think him happy, was the richest in money of English princes. Nevertheless, this accession of revenue did not at all preponderate on the king’s part, nor change the balance. But while making farms of a standard he increased the yeomanry, and cutting off retainers he abased the nobility, began that breach in the balance of land, which proceeding ruined the nobility, and in them that government. The monarchy of Spain, since the silver of Potosi sailed up the Guadalquiver, which in English is, since that king had the Indies, stands upon the same balance in the lands of the nobility on which it always stood.”5 See Mr. Harrington himself. What hath been now quoted from him is sufficient to shew in what manner we ought to reason about the regulation of money in a state. Edition: current; Page: [295] There will be occasion afterwards to consider the natural causes of government more fully. But it is plain from what was said in a former remark, 1. That superior wisdom and virtue will naturally create authority. And that, 2. Property alone can give or create power, and will naturally produce it. And therefore, 3. That empire will follow the balance of property: And by consequence, 4. There is no natural mean of fixing government, but by fixing the balance upon which it depends. Wherefore, 5. That is a proper regulation of money with respect to the preservation of a government, which is necessary or proper to fix the balance upon which the nature of that government depends or turns. But, 6. Men have a natural right to form themselves into any form of civil government proper to promote their greater happiness; and consequently, to make any regulations necessary or proper to that effect. Thus the Lacedemonians had a right, for the preservation of their government, to forbid money, and the Israelites to forbid usury. And thus our government has a right to regulate the interest of money as the nature and end of our government, i.e. as the greater good in our government requires. If it be asked what the law of nature says about money in a state of nature, the answer is obvious; it requires that commerce be carried on with or without money, in an honest candid way; so as none may be made richer at the detriment of others; and allows bartering, buying, letting and hiring, and other contracts, all imaginable latitude or liberty Edition: 1741; Page: [299] within the bounds of honesty, the general dictates of which, with regard to all contracts, are sufficiently explained by our Author.

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CHAPTER XIV: Concerning pacts.

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The difference between pacts and contracts.Tho’, by the law of nature, there be no difference between pacts and contracts, both deriving their subsistence and force from consent; yet it may be said, that contracts, according to the antient way of speaking, related to commerce about goods and labour (§327); and pacts to other things and deeds, which are not matters of ordinary commerce.* Thus, e.g. tho’ free persons of either sex are not in commerce, yet among them agreements are made about marriage, to be celebrated either immediately, or some time after; and both these agreements, the former of which is called betrothing, the other full marriage, come under the title of pacts. Edition: 1741; Page: [300]

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Why pacts are necessary.Now, since men cannot live comfortably and agreeably, except they render one to another those duties of humanity and beneficence which we have already defined (§214); and yet benevolence is become so cold and languid amongst men, that we can hardly depend upon one another’s humanity and beneficence for them (§326); and besides, these are duties not of perfect, but imperfect obligation, (§122),* and therefore duties which cannot be extorted from the unwilling: for these reasons, there is no other security for our obtaining them but another’s obligation to us by his consent; and therefore we ought thus to secure to ourselves the performance of those good offices by others to which we would have a perfect right. Now, this consent of two or more to give, or do any thing which could not be otherwise exacted from them by perfect right, but was due merely in consequence of the law of humanity and beneficence, is called a pact.

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Such pacts ought to be fulfilled. A first argument to prove it.Nor can it be questioned that such pacts ought to be faithfully fulfilled. For since he who promises any thing, declares his mind, whether by words or other signs; and words are so to be used, that the person we speak to may not be de-Edition: 1741; Page: [301]ceived (§196); the consequence is, that all fraud, all lying, all falshood ought to be far removed from those who deliberately make covenants or pacts; and therefore that nothing ought to be held more sacred than keeping faith, or more detestable than perfidy.

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A second argument.There is a second reason which every one will own to be of no less weight. And it is this, the love of justice is the source of all the duties we owe to one another (§173), and this love commands us not to do to others what we would not have done by them to ourselves (§177). But surely none would desire to be deluded by the promises and pacts of another. It is therefore our duty not to deceive any one by our pacts or promises; not to defraud one, by making him trust to our fidelity; but faithfully and conscientiously to perform what we engage to do.* Edition: 1741; Page: [302]

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Pacts of several sorts.Pacts are either unilateral or bilateral. By the former, one party only is bound to the other; by the latter, both parties mutually oblige or engage themselves one to another; and therefore this latter kind of pacts includes in them a tacite condition, that one is to perform his promise, if the other likewise fulfils the pact on his side. Both however are either obligatory or liberative. By the former, a new obligation is brought upon one Edition: current; Page: [299] or other, or upon both. By the latter, obligations formerly constituted are taken off. Again, pacts may be of a mixed kind; such are those by which former obligations are annulled, and new ones are constituted at the will of the parties covenanting. Of this kind principally, it is evident, are novations and transactions about doubtful or uncertain affairs. But there is one rule for them all, which is, that they ought to be faithfully and religiously kept, especially if one hath not promised with an intention to lay himself under a strict obligation.* Edition: 1741; Page: [303]

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By the law of nature, naked or bare pacts oblige perfectly.Hence we infer, that by the law of nature there is no difference between pact and stipulation; and therefore that Franc. Connanus, in his comment. 1. 6. is mistaken, when, to exalt the excellence of the Roman laws, he denies that by the law of nature obligation arises from promises, as Edition: current; Page: [300] long as they are simple agreements, and are not converted into contracts. His arguments have been sufficiently refuted by Grotius of the rights of war and peace, 2. 2. 1. and Pufendorff of the law of nature and nations, 3. 5. 9. We shall only add, that Connanus speaks not in so high a strain of the natural obligation of bare pacts as the Romans themselves did, who never denied their perfect obligation, tho’ they did not grant an action upon them for particular reasons.* Edition: 1741; Page: [304]

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Express and tacite pacts.A pact being the mutual consent of two or more in the same will or desire (§386); i.e. an agreement of two or more about the same thing, the same circumstances; the consequence is, that this internal consent must be indicated by some external sign. But such signs are words either spoken or written, and deeds; the former of which make express, the latter tacite consent (§284); and therefore it is the same, whether persons make a pact by express, or by tacite consent, provided the deed be such as is held to be significative of consent by the opinion of all mankind, or of the particular nation; nay, consent is sometimes justly inferred, Edition: current; Page: [301] from the very nature of the business, if it be of such a kind, that a person cannot be imagined to dissent (§284). Edition: 1741; Page: [305]

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Who can, and who cannot make pacts.It is plain from the definition of a pact as requiring consent (§391), that they cannot covenant who are destitute of reason, and therefore that the pacts of mad persons are null, unless they were made in an evidently lucid interval from their madness; as likewise the pacts of infants, and of all whose age cannot be supposed capable of understanding the nature of the thing; or of such persons, whose minds are disturbed by their indisposition; or of persons in liquor, even tho’ their drunkenness be voluntary;* or finally, of those who promised any thing to another, or stipulated any thing from another to themselves in jest. Edition: 1741; Page: [306]

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Of pacts made by mistake or ignorance.From the same principle it follows, that pacts made thro’ ignorance or mistake are unvalid, if this fault of the understanding was culpable, vincible and voluntary (§107); but not, if it be of such a nature, that the most prudent person is liable to it; (§108), as, if the covenanting persons Edition: current; Page: [302] had different persons and objects in their view; or if either of them was mistaken about the person, or object, or any circumstances of it which could not easily be known, and which, had he known, he would not have made the pact.*

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Of fraud or knavery.Much less still is a pact valid if one be led into it by the fraud or knavery of the other; or in which one is involved, and by which one is wronged by another’s cunning and deceitfulness; because he cannot be deemed to have consented, who was so blinded or deluded by another’s artful misrepresentations, that he had quite a different opinion of the person or object when he covenanted, than he afterwards Edition: 1741; Page: [307] found to be the case. On the other hand, there is no reason why a pact should be null when a third person induces one to make it without the other’s knowledge, tho’ in this case it be indisputable, that the person by whose fraudulence the pact was made, is obliged to repair the damages of the persons whom he hath thus injured.

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Of force and fear.And since nothing can be more repugnant to consent than force and fear; nor can an action be imputed to one, if he was forced to it by one who had no right to force him (§109); hence it is clear, that one is not bound by his promise to a robber, or to any one who unjustly uses violence against him. But a pact is not invalid, if it be made with one who had a right to use violence; and much less is a pact null, if not he to whom the promise is made, but a third person, without his knowledge, used violence, or was the cause of the pact.* Nor is a pact invalid, if the person forced to it, afterwards freely consents and confirms his promise, because he then becomes obliged, not by his first Edition: 1741; Page: [308] promise extorted from his by force and fear, but by his after voluntary consent (§109).

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The consent of the parties ought to be mutual.Moreover, since a pact consists in the consent of two or more to the same thing (§386), it is very plain that this rule must hold not only in bilateral, but likewise in unilateral pacts; and therefore a promiser is not bound, unless the other signify that the promise is agreeable to him. But this may be justly presumed, either from the condition of the person to whom the promise is made; or from the nature of the thing promised; or from antecedent request, provided, in this last case, the same thing that the other had demanded be promised.

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What with regard to impossible things.Again, because pacts are made about something to be performed (§386), but impossible things cannot be performed, and therefore the omission of them is imputable to none (§115); the consequence is, that pacts about things absolutely impracticable are null: no obligation arises from them, unless the thing, at the time the pact was made, was in the power of the promiser, and he shall afterwards destroy, by his own fault, his power to fulfil his promise; or unless one fraudulently promised a thing not absolutely impossible, but which he knew to be impracticable with regard to him (§115). Edition: 1741; Page: [309]

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What with regard to immoral things.And since those things are justly reckoned among impossibles, which, tho’ not impossible in the nature of things, yet cannot be done agreeably to the laws and to good manners (§115); hence it is evident, that pacts and promises contrary to the laws of justice and humanity, or even to decency, modesty and honour, (and which, for that reason, we ought to be judged not to be capable of doing, as Papinianus most justly and philosophically speaks, l. 15. D. de condit. instit.) are not valid. A person is not obliged to fulfil a promise by which he engaged to commit any crime; nor is he who promised to pay one a reward for perpetrating any crime bound by such a promise; and therefore all pacts about base and dishonest things, whether unilateral or bilateral, are of no effect.*

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What with regard to detrimental promise.Hence again we infer, that one is not obliged to perform promises, the fulfilment of which would manifestly be detrimental to the other, tho’ this other should urge the fulfilment of the promise to his own ruin. For since we are forbid to injure any person by the law of nature (§178), and none Edition: 1741; Page: [310] can make pacts contrary to the law of nature, (§398), no pact by which another is hurt can be valid; and he who keeps such a promise, even to one who insists upon the fulfilment of it, is no less deserving of punishment, than he who hurts one against his will, and by force.*

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What with respect to pacts about the deeds and things of others.Besides, because we make pacts about those things which we desire to have a perfect right to exact from others (§386); but those things can neither be done, nor given, which are not at our disposal, but subject to the dominion of another person; we have therefore reason to deny that one can make a valid pact about things belonging to others, without commission from the owner, or even about his own things, to which any other hath already acquired some right by a prior pact. He indeed who hath engaged to use all his diligence to make another give or do, is Edition: current; Page: [306] obliged to fulfil that promise.* Yea, he is obliged to answer for the value of it, if he hath engaged himself to get another to give, or do a thing to any one; but he to whom a third person hath made such a promise, hath no right to exact the thing or deed, thus promised to him, from the person to whom it belongs to dispose of it. See Hertius de oblig. alium datur. facturumve.1 Edition: 1741; Page: [311]

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What with regard to conditional pacts, &c.From the same principle, that promise to give or do consists in the consent of both parties (§386), it manifestly follows, that it depends upon the parties to make a pact with, or without conditions, and any agreement with regard to time they please; and that these circumstances ought to be observed by the persons engaging, provided what regards the condition truly makes the effect of the pact depend upon an uncertain event; i.e. provided it be truly a condition. Whence it is plain, that what is promised under what is called an impossible condition, is not obligatory, since such an additional clause hardly deserves to be termed a condition: and Edition: current; Page: [307] those who have promised or stipulated what they foresaw could not be done, must be deemed either to have been in jest, or to have been mad: in the first of which cases, they must be judged not to have consented; and in the other of which they must be judged not to have had it in their power to have consented (§392). Edition: 1741; Page: [312]

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What with regard to a base condition.But since base and dishonest things are justly reckoned amongst impossibles (§115), and what is promised upon an impossible condition is null and void, (§401); and since in general it is unlawful to make pacts about base or dishonest things (§398); hence we may justly infer, that base and dishonest conditions render a pact null;* and that he who promised upon such a condition is not bound to fulfil his promise; but Edition: current; Page: [308] that if it be fulfilled, he is justly liable to punishment for having done a crime; as is the other party likewise, being, by making such a condition, the moral cause of that crime (§112). Edition: 1741; Page: [313]

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Whether one may not promise and covenant by another?Moreover, since one may assist another, or promote his advantage by means of a mandate, or by undertaking his business without a commission (§346), we must conclude, that it is the same whether one promise and make a pact in person, or another do it for him by his order. But since he who undertakes another’s business without a commission from him, is obliged to manage it to his advantage (§348), which he does not do, who is liberal of another’s goods, and gives any thing of another’s away without the owner’s consent (§400); the consequence is, that he who undertakes another’s business without a commission, may stipulate to that person; (so that this rule in the Roman law is not agreeable to natural equity, “That none can stipulate to another, unless he be under subjection to him,” §4. Inst. de inut. stip.) but he cannot promise for him without his knowledge; and such a promise does not bind the owner.

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What hath been said of pacts extends likewise to contracts.Finally, because, as we observed in the beginning of this chapter, there is no distinction, by the law of nature, between pacts and contracts, both deriving all their subsistence and force from consent (385), it is evident, that all the rules which have been laid down in this chapter, do no less belong to contracts than to pacts; and that one does not proceed in a wrong method, who deduces the Edition: 1741; Page: [314] nature of contracts from the nature of pacts, and so begins by considering the latter.

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CHAPTER XV: By what means obligations arising from pacts and contracts are dissolved.

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General axioms.We have already proved that pacts ought to be religiously fulfilled, and that nothing is more sacred than one’s pledged faith (§387); but by faith is meant nothing else but the performance of promises and pacts; (and therefore Cicero de off. 1. 6. justly, tho’ not exactly according to etymological rules, says, “Fidem appellatam, quia fiat, quod dictum est”).1 Hence then we infer, that those who covenant have then attained to their end, when they have satisfied the terms of their covenant, and what was agreed upon is done. But the end (which according to the philosophers, is first in intention, and last in execution) being obtained, or being of such a nature that it cannot be obtained (§397), the obligation arising from a promise or pact must cease.* Edition: 1741; Page: [315]

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Of the first way by payment.Since an obligation arising from a pact or promise ceases when it is fulfilled, and that which was agreed upon is done (§405); the consequence is, that it ceases by payment, which is nothing else but the natural performance of the thing promised or agreed upon. But it is the same thing to him who is to be paid, by whom he be paid, provided the thing itself which was owing to him, or, (if it be a consumeable commodity) the equivalent be paid to him (§364); because thus the obligation to him is naturally discharged. So, for the same reason, it is evident, that he who is under an obligation by his pact, is not delivered from that obligation when another offers to fulfil it for him, if it be of such a nature as not to admit of being performed by another in his room.*

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What, and to whom payment ought to be made.From the same principle we infer, that the species is to be restored, if the use or custody only of an inconsumeable thing was granted; and the same in kind and quantity, if the use of a consumeable thing was granted; that one thing cannot be obtruded upon a creditor for another against his will; Edition: 1741; Page: [316] and much less can he be forced to accept of a part for the whole; or to take payment later, or in another place than was agreed upon in the contract; because, in all these cases, the thing in Edition: current; Page: [311] obligation is not naturally performed (§307). Further, it is plain, from the same principle, that we are to pay to no other but our creditor, provided the laws allow him to receive payment, or to him to whom he has ceded his right, or given commission to receive payment; for otherwise, tho’ the thing in obligation is performed, yet it is not fulfilled to him to whom one is debtor by the contract (§406).

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The second way, Compensation.Again, because obligation ceases when a contract is fulfilled, and with respect to consumeable things as much is held for the same (§364); the consequence is, that obligation is removed by compensation, which is nothing else but balancing debt and credit, both of which have a certain value, one with another.* Edition: 1741; Page: [317]

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What is just with regard to it.From the definition of compensation it is plain, that it can only take place among those who are mutually owing one to another, and therefore that another’s debt to me cannot be obtruded upon my creditor. Compensation has place with respect to consumeable things, which, since they do not regularly admit of price of fancy, have always a certain value; but species cannot be compensated by species, nor a thing of one kind by a thing of a different kind, nor personal performances by like performances, because all these things admit of a price of affection, and are of an uncertain value. In fine, compensation, even by unequal quantities, amounting to the sum, holds good, tho’ it does not appear reasonable Edition: current; Page: [312] to desire to compensate a clear debt by one not so clear or contended for.*

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A third way, Acquittance.Moreover, since every one can abdicate his own right (§13), an obligation may likewise be dissolved by acquittance or voluntary remission, by which we understand a creditor’s voluntary renounc-Edition: 1741; Page: [318]ing his right of exacting a debt. And since it is the same whether one manifests his will by words, or other signs (§195), it is also the same whether one renounces his right to a debt by words or by deeds, as by giving up, tearing or burning the bond, provided some other intention of the creditor be not evident, or the bond be not destroyed by the creditor, but by another without his order, or be not rather accidentally lost, destroyed or effaced, than by the will of the creditor.

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A fourth way. Mutual disagreements.Moreover, since any one may resign his right, and remit a debt due to him (§410), it follows, that both parties in a bilateral contract, may by mutual agreement dissolve their contract, especially, since nothing is more natural, than that a thing may be dissolved in the way it was formed, l. 35. D. de reg. Edition: 1741; Page: [319] jur. But so, that this manner of dissolving an obligation cannot have place, if the positive laws ordain a contract to be indissolveable: such as matrimony now is amongst Christians, which among the Romans, might, as is well known, be dissolved by consent.

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Whether obligation be dissolved by treachery?But because the obligation of a bilateral contract can only be dissolved by mutual consent (§411), the will of one of the parties does not dissolve it; and therefore the treachery of either party does not dissolve the contract, as Grotius of the rights of war and peace, 3. 19. 14. and Pufendorff of the law of nature and nations, 5. 11. 9. seem to think. For even he who does not fulfil his part, remains obliged to do it, because he cannot liberate himself by his own single will from an obligation, which can only, as hath been said, be dissolved by mutual consent, and the other has a right to compel him to fulfil his pact; tho’ if the latter will not use his right,* then the obligation ceases on both sides, because it is now removed by the consent of both (§411).

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The fifth and sixth way. The term elapsed, and the condition not fulfilled.But seeing any circumstance may be added to a pact, and these circumstances must be observed (§401), it is evident that an obligation being conceived ex die, i.e. so that what is promised cannot be demanded till a certain day, it cannot be demanded before that time fixed: But if it be conceived in diem, within the compass of a certain time, Edition: 1741; Page: [320] then when that day comes, the obligation is dissolved ipso jure.* And the condition upon which the effect of a pact depended not taking place, obligation is dissolved for the same reason, unless one being ready to fulfil his part of the pact, is hindered either by his party or a third person, without whom the pact could not be fulfilled.

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The seventh manner.Besides, there are obligations which are contracted with an eye to a certain person, and his qualities; but these are of such a nature, that they cannot be performed by other persons (§406): And therefore it is clear, that these obligations cannot pass to heirs and successors, and that they expire with the death of the promiser. Something like this we observed with respect to the obligation of a betrother, and of one who accepteth of a commission or trust. But this way of obligation’s being dissolved, does not belong to other obligations, which can be fulfilled out of the goods of the person obliged; because these, as admitting of performance in the room of the person obliged, are justly transmitted to heirs, as we have shewn in its proper place (§305).

SECTION CCCCXV

The eighth change of state.The case is the same, if we are bound to perform any thing as being in a certain state. For it is the same, as if the promise had been made upon Edition: current; Page: [315] condition this state should continue. And therefore the condition failing, the obligation likewise ceases (§413): Thus he who contracted as a manager, his administration being at an end, is no more Edition: 1741; Page: [321] bound, the obligation being solely founded upon his state as administrator, l. ult. D. de Instit. act. l. 26. C. de adm. tut. But this is only true of obligations arising from pacts or positive law, and not of those which arise from the law of nature.*

SECTION CCCCXVI

The ninth.Moreover, since the obligation ceases if the end be such as cannot be obtained (§406), he must be delivered from his obligation who promised the species itself, if it be quite lost by accident, unless he promised it for a certain value, or as it were in part of payment, and the first obligation be not removed by renovation. Besides, since impossibility is no excuse, if one be in fault or delay, it is evident that he ought to bear the loss who is in fault or delay; and therefore, all that was said above concerning the risks in buying and selling takes place and might be repeated here (§353).

SECTION CCCCXVII

The tenth, novation and delegation.In fine, since one may pay by another (§407), and remit an obligation to another (§411), and parties may depart from a pact by mutual consent, and introduce a new obligation, which last kind of agreement we called above a mixed pact (§389), it follows, that any one may remit to another his former obligation, and accept a new one from him in its place, which is called renewal or novation; or if it be about matters subject to contention and dispute, transaction, and that a creditor may remit Edition: 1741; Page: [322] a debtor, upon condition that another, whom he approves of, be substituted Edition: current; Page: [316] in his place, which is called delegation, and that novation ought to be made in express words, or by the most evident signs, and that delegation must be done with the united consent of all concerned in the affair; and, in fine, that there is a great difference between delegation and cession, by which a creditor transfers an action against his debtor to another, without his debtor’s knowledge, and against his will.

Remarks on This Book

Our Author may perhaps be thought by some to have mentioned several cases; as for instance, with regard to alluvion, casting up of islands, &c. which are rather curious than useful. But let me answer to such objections against our Author, (Grotius, Pufendorff, and other writers on the law of nature), 1. That of as little use as these questions may appear to us, they were not so in other countries, such as Egypt, where, as Strabo observes, Geograph. l. 17. p. 1139. edit. Amst. “They were obliged to be particularly exact and nice in the division of their lands, because of the frequent confusion of boundaries, which the Nile, by its overflowing occasioned, taking from one part, and adding to another, changing the very form and look of places, and entirely concealing those marks that should distinguish one man’s property from another’s. For which reason, there was a necessity for their often making new surveys, &c.”2 And it is so still in Holland and other countries, in some measure; nay some such cases may and do happen in every country, where there are large and impetuous rivers, &c. 2. But however rarely any such cases may happen, yet as one cannot be an expert, ready natural philosopher, without having run through many possible cases, and determined how gravity, elasticity, or any other physical powers, would operate in these circumstances according to their laws of working; and therefore, such exercise is by no means useless, but highly useful: So for the same reason, one cannot be ready and expert in the moral science, so as to be able readily to determine himself, or advise others how to act upon every emergency, without having practised himself in Edition: current; Page: [317] resolving all, or very many possible cases, i.e. in determining what is requisite in such and such cases, in order to do the least harm, and render every one his due. Thus, it is evident, must one prepare himself for being able to judge readily what ought to be the general rules of justice in states with regard to different cases. Thus alone can one prepare himself for judging of cases in enacting, abrogating or mending laws. And indeed the proper way of studying the laws of any particular country, is by comparing Edition: 1741; Page: [323] them all along with the dictates or the laws of nature concerning the same cases, in an orderly way, proceeding from simple to more and more complex cases gradually. Whence it is evident, that one well versed in the knowledge of natural law, can never be at a loss to find out what ought to be the general positive law in certain cases, and how positive law ought to be interpreted in cases, which, tho’ not expresly excepted in a law, which must be general, yet are in the nature of things excepted. 3. The same thing holds with respect to the duties of societies, one towards another, for the laws by which particular persons ought to regulate their conduct in all pacts, covenants, bargains or contracts, under whatsoever denominations they are brought by the doctors of laws, are the very rules by which societies ought likewise to regulate their conduct one towards another; societies being, as we shall find our author himself observing afterwards, moral persons. Whence it follows, that the former rules or laws being determined, it cannot be difficult to fix or determine the latter. And indeed our Author having fixed the former in such a manner, that there was almost no occasion to differ from him, and but very little occasion to add to him; in following him while he deduces and fixes the other in the succeeding book, there will be very little need of our adding any remarks, except in the affair of government, that not having been distinctly enough handled by any writer of a system of the law of nature and nations, for this reason that, as we have already had occasion to observe, none of them has ever considered government in its natural procreation, or its natural causes. Nor do I know any author by whom that hath been done but our Harrington, tho’, as he himself shews, the principles upon which he reasons were not unknown neither to ancient historians, nor to ancient writers on morals and politics. It will not therefore be a disadvantage to young readers, for whom this translation, with the remarks, is chiefly intended, in order to initiate Edition: current; Page: [318] them into this useful science, if we, upon proper occasions, in the following book concerning the laws of nations, add a few things to set the more important questions about government in a clear light. On this subject, we of this nation, and we only, dare write freely. For our happy constitution is the blessed effect of thinking freely on this matter: and it must last uncorrupted, unimpaired, while we continue to exercise the right to which we owe it: A right without the exercise of which men are not indeed men. For who will say that slaves, who know not the price of liberty, or who know not that they are slaves, deserve to be called men!

The end of the first book.
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BOOK II: OF THE LAW OF NATIONS

A METHODICAL SYSTEM

of

Universal Law:

or, the

Laws of Nature and Nations

Deduced

From Certain Principles, and applied

to Proper Cases.

Written in Latin by the celebrated

JO. GOT. HEINECCIUS,

Counsellor of State to the King of Prussia,

and Professor of Philosophy at Hall.

Translated, and illustrated with Notes and Supplements,

By GEORGE TURNBULL, LL. D.

To which is added,

A DISCOURSE upon the Nature and Origine of Moral and Civil Laws; in which they are deduced, by an Analysis of the human Mind in the experimental Way, from our internal Principles and Dispositions.

Natura enim juris ab hominis repetenda natura est.1 Cic.

vol. ii.

london:

Printed for J. Noon, at the White-Hart, near Mercer’s Chapel, Cheapside. MDCCXLI.

Edition: current; Page: [322] Edition: current; Page: [323]

CHAPTER I: Concerning the natural and social state of man.

SECTION I

The connection.Hitherto we have considered the law of nature, by which the actions of particulars ought to be regulated. Now, the next thing to be done in this undertaking, is to deduce the laws of nations from their principles, and to give a compendious view of them. This we promised (l. 1. §23). But since the law of nations is the law of nature, applied to social life, the affairs of societies, and of independent political bodies (l. 1. §21), we cannot treat of it distinctly, without first giving a clear notion of what we call states and societies.

Edition: current; Page: [324]

SECTION II

Of man’s physical and moral state.State in general means the quality which constitutes a particular thing, or makes it what it is; and thus the qualities constituting man are rightly said to make his state. Now, we may either consider man merely as consisting of certain faculties of body and mind with which he is endowed by his Creator, or we may consider him as subjected Edition: 1741; Page: [2] to laws for the regulation of his free actions. The first way of considering man is called considering him in his physical state.* The second is considering him as a moral being, or in his moral state. But in treating of the law of nations, the objects of which are mens free actions, it is evident, that it is not merely man’s physical, but more directly his moral state, which then falls under consideration.

SECTION III

What is meant by a natural, and what by an adventitious state.This moral state, by which men are so greatly distinguished, is either cogenial to them, or it depends upon some deed of ours. The first is called natural; the other adventitious. Wherefore the natural state of man is that quality or condition imposed upon man by nature, without any deed of his, by which our free actions are subjected to, and limited by a natural law, suitable to the nature of that state. The adventitious state of man, on the other hand, is a quality or condition which man brings Edition: current; Page: [325] him-Edition: 1741; Page: [3]self into by his own deed, in consequence of which his free actions are subjected to, and limited by a natural law, suitably to the nature and exigencies of that state.*

SECTION IV

Natural state is not opposed to the state of brutes, nor to a state contrary to nature.We do not then oppose a natural state to the state of brutes, for the difference between our nature and that of the brutes belongs rather to our physical than our moral state (§2); nor to what the Civilians call a contra-natural state, such as they have feigned the state of slaves to be, §2. Inst. de jure pers. but to a social and a civil state; both of which being imposed upon men by themselves, are equally adventitious. But what this state is, shall be more accurately considered, and thereby it will appear, why so great a number of men, forsaking their natural state, have put themselves into other states, attended with many and various uneasinesses. Edition: 1741; Page: [4]

Edition: current; Page: [326]

SECTION V

It is a state of equality.We have already observed (l. 1. §88), that all men, tho’ one may be more perfect than another, are however equal by nature. And who can call this into question, since all men consist of the same essential parts, body and mind? But hence it follows, that a state of nature is a state of equality; and consequently, among those who live in it, there is no superior or inferior; and therefore in it empire and subjection, and distinction of dignities, have no place; so that Ulpianus justly says, “That by the law of nature all men are equal,” l. 32. D. de reg. jur. l. 4. D. de just. & jure, l. 12. §3. D. de accusat. l. 64. D. de condict. indeb.*

SECTION VI

And likewise of liberty.But there being, in a state of nature, no place for empire and subjection (§5), it must be a state of liberty; nor can either political subjection, or Edition: current; Page: [327] Edition: 1741; Page: [5] that servitude which is introduced by the law of nations, have place in it; so that in it there can be no positive laws, no magistrates, no positive punishments, nor none of those things which suppose a certain prerogative in some above the rest.

SECTION VII

But the law of nature must have place, and be of full force in it.Yet because magistracy, and positive laws and punishments, have no place in this state merely on account of the natural equality of mankind (§6), which reason does not at all affect that eternal law which is constituted by God himself; it is plain that the actions of men, even in a state of nature, are subject to the law of nature; and those who live in that state, are no less bound than we who have put ourselves into adventitious states, to love and obey God, to love, preserve, and perfect ourselves, and to love other men as ourselves; to do no injury to any one, but to render to every one his own, and to all the duties of humanity and beneficence.* Edition: 1741; Page: [6]

Edition: current; Page: [328]

SECTION VIII

And therefore in this state all men had not a right over all, nor were men mere brutes.Whence it is evident, how absurdly Hobbes1derives all right from compact, and therefore attributes to every man, in a state of nature, a right to all, and over all; and thus prescribes the law of nature from this state (l. 1. §73) nor do those writers speak less unreasonably, who represent a state of nature, as a state in which men would differ very little from brutes, as being bound or cemented together by no ties, no obligations.*

SECTION IX

In a state of nature, all men have the right of making war.Now, since where magistracy, and positive laws, and punishments, do not take place, as we have Edition: 1741; Page: [7] said, they do not in a state of nature (§6); there the oppressed can have no recourse, have no defence but in themselves; Edition: current; Page: [329] the consequence is, that in a state of nature every one has a perfect right to repel violence and injury by force, and to extort from others by violence whatever they owe him by perfect obligation; but not to extort from any one the offices of humanity and beneficence (l. 1. §84.) unless he hath voluntarily bound himself by pact to do them (l. 1. §386), or extreme necessity forces one to seize something belonging to another, and to convert it to his own use (l. 1. §170); especially if the good offices be of such a kind, that one might perform them without any detriment to himself, were he not quite devoid of all humanity (l. 1. §216).*

SECTION X

Pacts are chiefly necessary in this state.But seeing, in a state of nature, none can be compelled to the good offices of humanity and beneficence, and therefore he who would be sure of them, must secure the performance of them to himself by pacts (§9), it follows, that all we have said about pacts, and the duties of those who make compacts or contracts, as likewise of the rights of commerce, hath place, or at least may have place in a state of nature; nay, that men Edition: 1741; Page: [8] ought, in this state, frequently to stipulate to themselves even the performance of what is due to them by perfect right, by intervening pacts; and therefore that there is no stronger tie to hold men together in this state than the religious regard to pacts, which failing, or being contemned, all friendship and correspondence must cease.

Edition: current; Page: [330]

SECTION XI

Whether the misery of this state be so great as it is commonly represented.Now, these things being premised, it is obvious, that tho’ this state be represented as most miserable by Hobbes, and even by Pufendorff, yet many things which seem to them to be wanting in it, and of which they seem so much afraid, ought not to be attributed to this state itself, so much as to the wickedness of mankind; and that some things for which they reproach this state, as solitude, poverty, weakness, barbarity, and perpetual strife, might be avoided in a state of nature, as well as in a civil state, if men would follow right reason,* and are equally unavoidable in a civil state as in a natural one, if men will not act conformably to right reason, Titius obs. ad Pufend. de offic. hom. & civ. 2. 1. 9.2 Edition: 1741; Page: [9]

SECTION XII

Why men have preferred the civil state.Therefore it was not the extreme misery of a state of nature (§11), but partly the hopes of greater convenience and security, and partly the malice of men that made them form themselves into societies, as shall be Edition: current; Page: [331] shewn afterwards. But since there is no stronger tie or bond for holding men together than pacts and conventions, the consequence is, that societies were constituted by pacts and conventions; and because a few more easily consent in the same end than many, it is probable that men first formed more simple, and then more complex societies.* Edition: 1741; Page: [10]

SECTION XIII

What society and a social state is.Here we understand by society the consent of two or more persons in the same end, and the same means requisite to obtain that end; wherefore, while such consent lasts, there is society. And so soon as they who had formerly consented in the same end and means, begin to propose and pursue each his own end, that society is broke and dissolved, and each begins to have his own to himself. Whence a state in which men live in society is called a social state.

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SECTION XIV

Societies in respect of their ends are of very different kinds.But since every society proposes or tends to a certain end (§13), but the ends may be very different; hence it follows, that if the end be just and lawful, (l. 1. §398). Wherefore societies of pyrates, robbers, and such like societies, are most base and flagitious. Societies must be judged of by their ends;* and hence means must be judged of by their ends, and the laws, rights and duties of Edition: 1741; Page: [11] persons united in a society, must be inferred from the end of that society.

SECTION XV

Societies in respect of consent are either voluntary or forced.But since society cannot be understood without consent (§13), which is either voluntary or extorted by force, which we call forced consent, and which may become valid by ratification (l. 1. §345); hence it follows, that some societies are voluntary and cordial, and others are forced; but that the latter ought not to be pronounced unjust, because they had a vitious or faulty origine, if those who were at first forced to enter into society do afterwards expresly or tacitly ratify their consent (l. 1. §381). Edition: 1741; Page: [12]

Edition: current; Page: [333]

SECTION XVI

They are formed either by express, tacite, or presumed consent.Besides, consent being either express or tacite, which is inferred from some deed, of which kind is even patience (l. 1. §391), it follows, that societies may be formed either by express or tacite consent: and it is the same as if persons had consented, when they afterwards live with others in society, and pursue the same end with them by the same means; nay, seeing sometimes we judge one to have consented from the very nature of the thing, (l. 1. §391), it is plain that society may arise from presumed consent.*

SECTION XVII

Some societies are simple, and some are more compounded.Sometimes it happens, that not only individuals, but also whole societies intend the same end, and agree upon the same means for obtaining it. But such consent or agreement being society (§13), the consequence is, that not only individuals, but that whole societies may coalite into society; and therefore societies are either simple, such as are those formed by individuals; or they are more complex, such as those entred into by Edition: current; Page: [334] simple socie-Edition: 1741; Page: [13]ties, which are then considered as associates. In the same manner, it is evident that complex societies may become larger and more compounded; so that some societies may consist not only of many thousands, but of myriads.*

SECTION XVIII

Some are equal, and some are unequal.In fine, those who consent in the same end and means, are either equal or not equal. The former, as equals, by common consent consult about, and find out the means necessary to a common end, and thus equal society is formed. In the latter, the business of finding out the end and means is intrusted Edition: 1741; Page: [14] or committed to one or more, and then society Edition: current; Page: [335] is unequal, and this society is likewise called Rectoreal. Now, it is plain, from the nature of the thing, and from human temper and disposition, that the larger a society is, the less practicable is it, that so great a multitude of associates should find out necessary or proper means by common consent and suffrage; and therefore the larger the society is, the more necessary it becomes that it be rectoreal and unequal.*

SECTION XIX

Every society is one moral person.But of whatever kind society be, it is plain, from the description of it, that it is designed in order to obtain an end by certain means (§13). But since to consent in this manner is to will the same thing, the consequence is, that the understanding and will of every society are to be considered as one will and one understanding (l. 1. §32), and therefore every society constitutes one person, which, in contradistinction to a physical person, is called a moral one. Edition: 1741; Page: [15]

Edition: current; Page: [336]

SECTION XX

Therefore the laws and duties of societies, and of individuals are the same.Now, if every society be, as it were, one person (§19), it must, by consequence, be subject to the same laws as individuals or physical persons;* and therefore all the duties which the law of nature prescribes to particular persons, ought likewise to be religiously observed by all societies greater or lesser. In like manner, the same rights which belong to particular persons, belong also to societies, and associated persons have the same common things and rights; yea, all the affections or properties of bodies and persons may justly be attributed to societies; and thus they, by very elegant metaphors, are said to flourish, or to be sick; nay, to die and perish. See Koehler. spec. jur. gent. 1. §20. & seq.3 Edition: 1741; Page: [16]

Edition: current; Page: [337]

SECTION XXI

The obligations of associates or members with regard to society, and of society with respect to them.From the same principle we may justly conclude, that every associate, or member of a society, is obliged to adjust his actions to the common end of that society; and therefore that he injures his fellow-associates, who seeks his own advantage at their detriment, or who does any thing contrary to the end of the society of which he is a member, or hurts any one of its members. For which reason, no injustice is done to him, if he be forced, by what is called punishment, to repair the injuries he has done, and to behave better with regard to his society for the future, (l. 1. §211). And it is no less evident, that an associate cannot be blamed if he separates such a bad associate from himself, or if he leave a society in which no regard is paid to its common end, nor to the means requisite to that end.

SECTION XXII

The obligations of one society with respect to the others.Hence likewise it is perspicuous, that society ought to hurt no person, but to render to every person his own; but is not obliged to prefer the interest of any private person, or of any other society to its own. For since every society constitutes a moral person, (§19), and hath the same rights with physical persons (§20), and no person is obliged to love another more than himself (l. 1. §94), or to perform to another the offices of humanity, which would be hurtful to himself, or to his friends, to whom he is under special obligations (l. 1. §218); hence it follows, that no society is bound to render such offices to another society, or to prefer the interest of another society to its own.* Edition: 1741; Page: [17]

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SECTION XXIII

With respect to larger societies.In like manner it is demonstrable, that in more compounded societies, the interest of the lesser is not repugnant to that of the larger, but ought to submit to it; because, in this case, the lesser societies are considered as individuals (§17); but individuals ought to consent to the same end and means, (§13), and not to prefer their private interest to the common end of the society (§21); and therefore lesser societies, which have coalited into a larger, or more compounded society, can do nothing which is manifestly contrary to the interest of that larger society, without injustice.* Edition: 1741; Page: [18]

SECTION XXIV

General axioms concerning the duties of associates.To conclude; since the duties of the members of societies must be inferred from the end of the society (§14), it is plain that this is, as it were, the sum and substance of all the laws of societies; “That all the members of a society are bound to do every thing, without which, the end proposed by that society cannot be obtained; and therefore the happiness of society is justly said to be the supreme law of all its members.”

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Remarks on This Chapter

I cannot see how the physical state of man, as it is defined by our Author, can be said not to belong directly to the moral science. For whence can a man’s duties or obligations, which constitute his moral state, be inferred but from his physical state, from his frame, condition, rank and circumstances; from his make, and the relations he stands in, in consequence of his make and situation? Properly speaking, man’s physical state lays him under moral obligations; or binds and obliges him to a certain behaviour; binds and obliges him to choose to act, in a certain manner, or according to certain rules: or, in other words, man’s physical state constitutes the law of his nature, by which he is bound, whether he consents or not, being bound to consent and choose to act agreeably to that law. Man cannot be said to be under the law of nature, or subject to it by his consent in any other sense, but this, that were he not capable of discerning the law of his nature, of perceiving its reasonableness, its excellence, and of consenting to it, he would not be a moral creature; but being such by his make, he is by his nature under natural and immutable obligations to know the law of his nature, and to regulate his conduct in all instances by it. And all men are equally under or subject to the law of nature: no man is less or more subject to it: but all men as men, are equally, universally obliged to observe it as the law of their nature, the law of reason, the law of God their Creator. And in this sense all men are equal, or there is an equality of obligation, and of right belonging to all men. Whence it follows, that all men are by nature equally subject and equally free; equally subject to the same universal law, and equally free or exempt from all obligations but those which arise from the law of nature. All are equally bound by the law of nature; and for that reason, all are equally free from all obligations but those which the law of nature lays equally upon all. All are equally obliged to direct their conduct according to the law of nature; and therefore every one Edition: 1741; Page: [19] hath a right, an unalienable right, to make the law of nature his rule of conduct; and none hath a right so much as to advise, far less to force or compel any one to act contrary to the law of nature, or to hinder any one from making the law of nature his rule, and exercing his right to judge of it, and to act according to it: nay, none hath a right to dispose of, quit or resign this natural Edition: current; Page: [340] right and obligation. For that would be a right to throw off his natural obligations, and to choose or take another rule to himself. Man is free, or master of his actions, free and master of his consent; but how far? within the bounds that the law of nature or of reason sets to him. That is, he is free to consent and to dispose of himself and his actions, in any way not contrary to the law of nature; but not in any way that is repugnant to it, or which the law of nature forbids. Now, if this be carefully attended to, it will not be difficult to determine any of the questions that are commonly put by moralists about what are called by our Author adventitious obligations, or obligations imposed upon man by himself, or some deed of his own. For, from what hath been said, it is evident that man can bring himself under no obligation contrary to the law of his nature. Such adventitious impositions upon himself are ipso jure null, being morally not in his power, as being contrary to the law of nature, which he cannot abrogate, rescind or dispense with. This general principle shall afterwards be applied to civil society, and the impositions or obligations men lay themselves under by a civil contract. Here, we shall only observe, that the natural inequalities which take place amongst mankind, are not inconsistent with the moral equality and freedom of mankind that hath been defined. The first distinction which subjects some persons to others, is that which is made by birth between parents and children, which distinction makes a first kind of government in families, where the children owe obedience to their parents, who are the heads of families. But of this we shall say nothing here, because our Author treats expresly of it at great length in a succeeding chapter. It will be better for us to supply here a few things not touched upon by our Author, which however it is of importance to clear up. 1. Then, there is an evident inequality amongst mankind, intended by nature in respect of the goods of the mind. And it might easily be shewn, were this the proper place for it, that, as our excellent poet most beautifully expresses it,

  • Order is heav’n’s first law; and this confest,
  • Some are, and must be greater than the rest,
  • More rich, more wise; but who infers from hence
  • That such are happier shocks all common sense.
  • Heav’n to mankind impartial we confess,
  • If all are equal in their happiness:
  • Edition: current; Page: [341]
  • But mutual wants our happiness increase,
  • All nature’s difference keeps all nature’s peace.
Essay on Man, Ep. 4.4 Edition: 1741; Page: [20]

But what we would observe, is in the first place the fact. “God, who does nothing in vain, (says an excellent author often quoted in our remarks) hath so differenced or divided men, that twenty men (if they be not all idiots, perhaps if they be) can never come together, but there will be such a difference in them, that about a third will be wiser, or at least less foolish than the rest, these, upon acquaintance, tho’ it be but small, will be discovered, and (as stags that have the largest heads) will lead the herd: For while the six discoursing and arguing one with another, shew the eminence of their parts, the fourteen discover things that they never thought of, or are cleared in divers truths which had formerly perplexed them. Wherefore, in matter of common concernment, difficulty or danger, they hang upon their lips as children upon their fathers: And the influence thus acquired by the six, the eminence of whose parts are found to be a stay and comfort to the fourteen, is the authority of the fathers. Wherefore, this can be no other than a natural aristocracy diffus’d by God throughout the whole body of mankind, to this end and purpose. And therefore, such as the people have not only a natural but a positive obligation to make use of as their guide; as where the people of Israel are commanded to take wise men and understanding, and known among their tribes, to make them rulers over them. The six will acquire an authority with, and imprint a reverence upon the fourteen; which action and passion in the Roman Commonwealth were called authoritas patrum, and verecundia plebis. Nevertheless, if the few endeavour to extend the authority which they find thus acquired, to power, that is, to bring the fourteen to terms or conditions of subjection, or such as would be advantageous to the few, but prejudicial to the many; the fourteen will soon find, that consenting, they hurt not only themselves, by endamaging their own interests, but hurt the six also, who by this means come to lose their virtue, and so spoil their debate, which, while such advantages are procurable to themselves, will go no farther upon the common good, but their private Edition: current; Page: [342] benefit. Wherefore, in this case they will not consent, and not consenting, they preserve not only their own liberty, but the integrity of the six also, who perceiving that they cannot impair the common interest, have no other interest left but to improve it. And neither any conversation, nor any people, how dull soever, and subject by fits to be deluded, but will soon see thus much, which is enough, because what is thus proposed by the fourteen, or by the people, is enacted by the whole, and becomes that law, than which, tho’ mankind be not infallible, there can be nothing less fallible in mankind.” Art, says our Author, “is the imitation of nature; and by the observation of such lines as these in the face of nature, a politician limns his commonwealth.”5 This is the fact, God having divided mankind into the natural aristocracy and the natural democracy, hath laid in nature the foundation of social union and civil government, and thereby delineated the whole mystery of a commonwealth, which lies only in Edition: 1741; Page: [21] dividing and choosing. “Nor has God (if his works in nature be understood) as the same Author speaks, left so much to mankind to dispute upon, as who shall divide, and who choose, but distributed them for ever into two orders, whereof the one hath the natural right of dividing, and the other of choosing.”6 2. But this natural division of mankind gives no more than authority to the aristocracy, or the right of counselling, and not the power of commanding; it gives them ability and right to advise or counsel right, and lays an obligation upon the many to seek and follow advice and counsel: But, as it cannot give a right to the few so much as to counsel, far less to command what is contrary to reason and the law of nature; so it can lay no obligation upon the many to be led by the few to what is wrong or contrary to the law of nature. The few are under obligation to conform to the law of nature in their advices or counsels; and the many are under obligation not to be influenced by the few to act contrary to the law of nature, tho’ by the nature of the thing, and by the law of nature, they be under obligation to ask and take counsel from the few. Put therefore the case, that a few being Edition: current; Page: [343] discovered to be capable of leading or counselling in matters of common concernment, the many, by voluntary consent and agreement, should put themselves under the guidance, under the command, if you will, of the few; then, it is true, they would be under an obligation by consent to obey; and the natural authority of the few, would be then changed into a right to lead or command the many; but not to lead or command contrary to the law of nature, because neither have the many power to contract with the few for such submission and obedience, nor have the few power (I mean moral power or right) to stipulate to themselves such submission and obedience. 3. There is an inequality amongst mankind intended by nature, or at least not contrary to nature, in respect of external goods or the goods of fortune, all which may be comprehended in one word wealth. But as superiority in respect of the goods of the mind begets authority; so superiority in respect of external goods, begets power or dominion, “in regard that men (as the same Author expresses it) are hung upon these not of choice, as upon the other, but of necessity, and by the teeth, for as much as he who wants bread is his servant that will feed him; and if a man thus feeds a whole people, they are under his empire. There is a real distinction between authority and power. Wherefore, the leviathan, tho’ he be right, where he says riches are power, is mistaken where he says, that prudence, or the reputation of prudence, is power. For the learning or prudence of a man is no more power, than the learning or prudence of a book or Author, which is properly authority. A learned writer may have authority, tho’ he has no power; and a foolish magistrate may have power, tho’ he has otherwise no esteem or authority. The difference of these two is observed by Livy in Evander, of whom he says that he governed rather by the authority of others than Edition: 1741; Page: [22] by his own power. It is property that in proportion to it begets or gives power, or makes necessary dependence.”7 But now what we said just now of authority, will likewise hold here. Whatever superiority one may have over others in dominion or empire, by the necessary dependence on him his superior property creates, yet he can never have a right to exercise that dominion, empire, or power, contrary to the law of nature: nor can his Edition: current; Page: [344] dependents come under any obligation, even by consent added to necessary dependence, to be governed by his will, contrary to the law of nature, and the essential and immutable obligations they are under to obey it. And therefore dominion exerced contrary to the law of nature, is exerced without right, nay, contrary to right and obligation: For which reason, every dependent on any superior in power, has a right to refuse submission to, and to shake off dominion exerced over him contrary to the law of nature. That must be true; or of necessity it must be said, that superiority in dominion releases from the obligations of the law of nature; and that inferiority or dependence knows no other law but the arbitrary lawless will of a superior in property, and by consequence in power: which is to say, that there is no law of nature but the law of strength or force. It is indeed absurd to say, that it is contrary to the law of nature to seek, or to have superiority in property, i.e. to have dominion and dependents. Whatever property is purchased by honest industry, it, with all the superiority it gives, is a lawful purchase. But it is no less absurd to say, that the law of nature does not extend to those who have power, or does not limit its exercises, and lay it under certain obligations. And yet unless there be no obligations with regard to the exercise of dominion or power by the law of nature, there must be an exercise of power that is unlawful, and to which consequently, it is unlawful to submit or obey. Now, if it is asked, what is this law of nature with regard to superiors and inferiors, we answer, with our Author, it is the law of love or benevolence. And he goes on in the succeeding chapters to shew, what that law of love and benevolence requires in all different coalitions or societies of mankind, whether natural, as that between parents and their children, or adventitious, as that between masters and servants, and subjects and magistrates, &c. Nor, as he observes, can we ever be difficulted in any case, to find out the duties of the members of any society towards its head and towards one another, or of any one society towards any other distinct independent society, if we remember that societies are moral persons, invested with the same rights, and lying under the same moral obligations as physical persons. For that being remembered, it must, for instance, be true, that societies are bound to justice and charity, as well as individuals; and that societies have the rights of self-defence and preservation, as well as individuals. If which two principles be granted, it will be an Edition: current; Page: [345] easy matter to resolve any question about the rights and duties of superiors and inferiors in any society; or about the rights and Edition: 1741; Page: [23] duties of any distinct independent societies. Mean time it is evident, that the natural inequalities amongst mankind, or the inequalities made necessary by the state and circumstances of mankind, and which must for that reason be said to have been intended by the Author of nature, do not destroy the moral equality and freedom of all mankind, essential to man as such, i.e. the equal subjection of all mankind to the law of nature, and their equal liberty and right to act agreeably to it, and to demand from one another behaviour conformable to it. In this respect, all men are equally bound and equally free; or all men have the same common rights and duties.

Edition: current; Page: [346]

CHAPTER II: Of the duties belonging to the matrimonial state, or society.

SECTION XXV

Matrimony is a lawful, and the most simple society.That God wills mankind should be propagated, and that the number of those who daily pay their debt to nature should be supplied by a new race, is plain from hence, that otherwise his end in creating mankind could not be obtained (l. 1. §77.) they therefore who have this end in view, propose a good end to themselves, and are obliged to have recourse to the means for compassing that end. Since then this end cannot be accomplished, unless a man and a woman consent to copulation, the consequence is, that matrimony is a society (§13), and that it is honest and lawful, being proper to a good end, which is very agreeable to God; and because it consists of the fewest persons of different sexes that may be, it is the simplest of all societies (§17).* Edition: 1741; Page: [24]

Edition: current; Page: [347]

SECTION XXVI

Its end is not only procreation, but education.But the end of God, as the author of mankind, being not merely that men should exist, but that they should be truly happy (l. 1. §77), it follows, that mankind ought not only to be propagated, but that the offspring should be carefully educated, that they may not be useless burdens on earth, but may grow up into useful members of the human state. Now, since this duty of educating offspring can be incumbent upon none but parents, in whose minds God hath, for that effect, implanted a most tender regard to their offspring;* hence we justly infer, that parents ought not only to have in their view, as the end of matrimony, the Edition: current; Page: [348] preservation of children, but likewise their education; and therefore preservation and convenient education are the genuine end of marriage. Edition: 1741; Page: [25]

SECTION XXVII

Matrimony defined, and some axioms relating to it.Matrimony therefore is a simple society between persons of different sexes formed for procreation and education. And, from this definition, it is plain, that marriage cannot be contracted without the consent of the persons of both sexes (§13); and that the united parties are bound to all, without which, procreation and convenient education cannot be obtained,* and that every thing ought to be omitted which is repugnant to this end, (§24).

SECTION XXVIII

Marriage is made by consent.Since marriage cannot be formed without consent (§27), it is obvious, that marriage between a ravisher and a ravished person is not valid, (l. 1. §109) unless the latter shall afterwards ratify it by consent (§15); nor Edition: current; Page: [349] is marriage more valid, if any violence was done to either party (ibid.) or if either of the parties was seduced by any knavish art into a marriage, to which, had the party not been deceived, consent would not have been Edition: 1741; Page: [26] given (l. 1. §57). But tho’ this nuptial consent of the parties be absolutely necessary, yet because there can be no society without consent to the means as well as to the end, we think mere consent to the end does not, by the law of nature, constitute marriage, but that immediate consent to conjunction of bodies is requisite.

SECTION XXIX

The difference between betrothing and marriage.Hence it is evident, at the same time, that consent to marriage is more properly called, contract to marriage, or betrothing, than marriage; so that the distinction of the canonists between sponsalia de praesenti & de futuro, is too subtle for the law of nature; yet, because betrothing is a pact, and all pacts, by the law of nature, are perfectly obligatory (l. 1. §387), none can question but a contract of marriage ought to be fulfilled,* unless any of these circumstances take place, by which, we have already observed, that all other pacts are rendered null (l. 1. §382); or unless difference of tempers, or some other just reason, render it more adviseable Edition: current; Page: [350] that it should be departed from, than that it should be compleated to the great misfortune of the parties. Edition: 1741; Page: [27]

SECTION XXX

The hability of persons in respect to age.Since the end of matrimony is procreation and convenient education (§26), and nothing ought to be done that is repugnant to this end (§27); it follows, that those who think of matrimony, ought to be of an age in which it may be expected they can be fit for both these ends; and therefore matrimony is not allowed, by the law of nature, to infants, or such young persons, as either have not vigour enough for raising up a new vigorous seed, or not the virtue and prudence requisite to provide for a wife and children, and to take care of their children’s education and conduct.* Edition: 1741; Page: [28]

SECTION XXXI

Whether aged persons may marry?Hence likewise it is evident what ought to be said of the matrimony between aged persons. For tho’, on account of the indissolubility of this society (of which afterwards) married persons, who have become old in the conjugal state, ought not to be separated; and tho’ marriage between a man in the decline of life, who is yet vigorous, and a young woman, is tolerable, because the end of marriage may yet be accomplished by such matrimony; yet no person of sound judgment can approve of marriage between two aged persons, or between a young man and a decrepit Edition: current; Page: [351] old woman, by which there can neither be consent to the end nor to the means of matrimony, without the most shameless immodesty.* Edition: 1741; Page: [29]

SECTION XXXII

Of eunuchs, &c.Much less is marriage to be permitted to those who have been deprived of their virility, either by accident or maliciously, or who are naturally incapable of procreation; and therefore, tho’ examples of such marriages be not wanting, they are contrary to the law of nature, unless the impotence of the man, or the sterility of the woman, be unknown and uncertain, or be not beyond all hopes of cure, and the parties be satisfied to wait in hopes of a change to the better.

Edition: current; Page: [352]

SECTION XXXIII

Whether all habile persons be obliged, by the law of nature, to marry?Tho’ we may rightly conclude, from the same principle, that those contract marriage allowably, who find themselves in proper circumstances for answering its ends and uses; yet the obligation to marriage is not of such a nature, as that he can be judged to have acted contrary to the law of nature, who prefers chast celibacy to inauspicious marriage.* For since omission of an action cannot be imputed to one who had no opportunity of doing it, (l. 1. §114); and it often happens, that many accidents disappoint one’s design of marrying, and so deprive him of an occasion; surely, in such cases, celibacy cannot be blamable, since provi-Edition: 1741; Page: [30]dence hath not offered an allowable opportunity of engaging in marriage.

SECTION XXXIV

All copulation out of a married state is unlawful.But because procreation and convenient education are the ends and uses of copulation, and every thing ought to be omitted which is repugnant to these ends, nothing can be more certain, than that they are exceedingly guilty who abuse that mean which is destined by divine appointment to these ends for the gratification of their lust; and therefore all these wicked Edition: current; Page: [353] kinds of venery, which it is better to have no idea of than to know, all adultery, all whoredom, all stolen love, (which is, over and above its being contrary to the end of copulation, likewise attended with injuriousness to others); all uncleanness and unchastity, and all the infamous trade of bawding and pimping are diametrically repugnant to right reason, and the law of nature; and, in fine, that there is no other lawful way of propagating and supplying human race, but by the conjugal society we have described.* Edition: 1741; Page: [31]

SECTION XXXV

Whether plurality of husbands be lawful?For the same reason, πολυανδρία,1 that is, plurality of husbands is contrary to right reason; as likewise, that community of wives which was permitted by Plato in his republic. (See Aristotle, polit. 2. 2.) For since, in both cases, the offspring must be uncertain on the father’s side, and this uncertainty will be a hindrance to the care of education, (§34); so far is reason from approving such conjunctions, that even those nations which permitted polygamy, or a plurality of wives to one husband, have given no woman right to have more than one husband at a time.

Edition: current; Page: [354]

SECTION XXXVI

Arguments for polygamy.The question about the lawfulness of polygamy, or a plurality of wives, is more difficult. For, 1. Such a conjunction does not hinder propagation. Nor, 2. Does it render offspring uncertain. Besides, 3. Many nations, even the people of God, have approved of this, and seemed to think themselves happy in having the privilege of taking home many wives. Not to mention, 4. The Turks, and Edition: 1741; Page: [32] other eastern nations, where it is not worse in respect of procreation and education, when one has many wives, than when one has but one wife. And, 5. Sometimes the husband’s vigour, sometimes the wife’s intolerable humour, or her barrenness, sometimes the interest of the republic, and sometimes other reasons plead in favour of Polygamy.*

Edition: current; Page: [355]

SECTION XXXVII

It is not agreeable to right reason.But since it is the duty of married persons to avoid every thing repugnant to the end of a married state (§27), and all discord about the end or means is contrary to society (ibid.) and so much the more unavoidable as the society is more numerous (§18); hence we justly conclude, that polygamy is less agreeable to right reason than marriage with one woman; wherefore, since the law of nature obliges us Edition: 1741; Page: [33] to choose the best of two goods* (l. 1. §92), we are rather obliged to monogamy than to polygamy.

SECTION XXXVIII

An answer to the first and second argument.Nor are the arguments brought in defence of it of such force as to oblige us to desert our cause. For grant, 1. That the procreation of children is not hindered by polygamy, yet the other end, convenient education, which ought not to be separated from the former, is hindered by it (§26 and 37). 2. Tho’ progeny be certain in polygamy, yet this certainty does Edition: current; Page: [356] not hinder but each mother may only love her own children, and prosecute the rest with terrible hatred, or at least endeavour, by novercal arts, to render them less agreeable to the father than her own. 3. To oriental nations, of a hotter temper, and more prone to venery, which approved of polygamy, we may oppose examples of more civilized nations which disapproved it. Nor is the practice of the Jews a rule, since our Saviour teaches us, that all things in which the Jews dissented from the primitive rule, were rather tolerated than approved by God in them; “For the hardness of their hearts,” Mat. xix. 8.* Edition: 1741; Page: [34]

SECTION XXXIX

An answer to the fourth and fifth arguments.Of the same nature are all the other arguments by which polygamy is defended. For, 4. What is said of domestic quiet and peace among the Turks and other eastern nations, is partly false, according to the annals of these countries, and is partly obtained by means repugnant to the matrimonial society. And what, pray, 5. is more incredible, than that one is not sufficient for one? Or what is more uncertain, than that when one has an immodest or indiscreet wife, that the other he brings home shall be more modest and discreet? or that if one be barren, the other shall be more prolific? what if he should get two furies instead of one? Edition: current; Page: [357] But all their arguments depend upon a principle we have already shewn to be false.

Sola est utilitas justi prope mater & aequi. (l. 1. §78)2

SECTION XL

Whether certain degrees are prohibited by the law of nature.It is a no less difficult question, whether by the law of nature reverence is to be paid to blood, and whether, for that reason, it prohibits marriage Edition: 1741; Page: [35] within certain degrees of kindred and affinity? For since such marriages are not repugnant to the end of matrimony, they cannot be forbidden on that account. Yet, since marriages between ascendants and descendants are attended with the greatest and most hurtful confusion of different natural relations amongst persons, reason itself perceives and acknowledges their turpitude; and therefore the Civilians justly asserted these marriages to be incest by the law of nations, l. 38. §2. D. ad leg. jul. de adult. And they likewise with reason pronounced marriages between persons of the nearer degrees of kindred, to be contrary to modesty and virtue, l. 68. D. de ritu nupt.* Edition: 1741; Page: [36]

Edition: current; Page: [358]

SECTION XLI

Of solemnities.Since all copulation without marriage is unlawful, and there is no other lawful way of propagating mankind but by marriage (§34); the consequence is, that it is the interest of the married parties, and of the children, that the design of contracting the matrimonial society should be testified by some external sign, that thus a legal wife may be distinguished from a concubine, and legitimate children from illegitimate ones; which, since it cannot be done conveniently, unless marriage be publicly celebrated, we may easily see a good reason why almost all nations have judged some solemnities requisite to indicate nuptial consent, and have appointed some such.*

Edition: current; Page: [359]

SECTION XLII

Of the conjugal duties arising from the nature of the pact.The conjugal duties are obvious. For, since the nature of this society requires consent (§32), which cannot be hoped for without love and con-Edition: 1741; Page: [37]cord, the consequence is, that husband and wife are obliged to love one another; and not only to manage their common family interest* with common care and prudence, but mutually to assist one the other, especially in the education of their children, and to have one common fortune.

SECTION XLIII

Of those arising from the end of matrimony.These are the duties which arise from the very nature of consent and society. But from the end of matrimony we infer, that husband and wife are obliged to cohabit, and to allow to one another only the use of their bodies, and therefore to abstain from all adultery, whoredom, and stolen love; to love all their children with equal affection; and that the one Edition: current; Page: [360] ought not, by any means, to disappoint or render ineffectual the other’s care about their education. Edition: 1741; Page: [38]

SECTION XLIV

Whether the husband has any superior command?Moreover, it is manifest that this society would be very imperfect, if it were equal in such a manner that neither had the faculty of deciding in any common dispute, because it may happen, in many cases, that the two may differ in their opinions about the choice of means, and between two, in such cases, the dispute would be endless; wherefore, tho’ the prudentest counsel ought to be preferred (l. 1. §92),* yet, because it would often be controvertible which of the two parties in this society was in the right, there is reason to approve the common practice in this matter, Edition: current; Page: [361] and so to give a certain prerogative to the husband about affairs belonging to the common safety or advantage of the society. Edition: 1741; Page: [39]

SECTION XLV

The nature of it.But since this prerogative of the husband extends only to affairs belonging to the welfare and interest of the society (§44); the consequence is, that this marital authority ought not to degenerate into such an empire of a master, as we have already observed to have taken place in some barbarous nations;* nor does it reach to a power of death and life, as it did in some nations. Gellius 10. 23. Tacit. annal. 13. 32. Caesar, de bello Gallico, 6. 19. Tacit. de moribus German. c. 19. much less does it extend to a power of selling or lending one’s wife to another, a custom among some nations, and not disapproved of by the Romans, Plut. in Catone, p. 770. Tacit. annal. 5. 1. Dio Cass. hist. l. 48. p. 384. But it consists in the right of directing a wife’s actions by prudent counsel, and of defending her; and in the right of chastising an immodest one suitably to the condition and rank of both* (§21); and in divorcing her for such just causes as shall be afterwards treated of (§21). Edition: 1741; Page: [40]

Edition: current; Page: [362]

SECTION XLVI

Whether this right of the husband may be changed by pact?But because this prerogative is only due to the husband on account of his presumed greater prudence, and of the matrimonial burdens incumbent on him (§44); since it not seldom happens that a woman of superior judgment and spirit is married to one of an inferior one, a richer to a poorer, a queen to a private man; therefore, in all these cases, the woman may stipulate the prerogative to herself.* None can deny, for we have many examples of it, that a queen may marry a prince, without giving him any power in her dominions, and likewise retain the superior power in the conjugal society; except when the consort, being heir to a kingdom, chuses to transfer the empire itself to her husband, contenting herself solely with the dignity.

SECTION XLVII

The duty of the husband in bearing the burdens of the matrimonial society.But since ordinarily the prerogative belongs to the husband (§44), he cannot refuse the care of maintaining his wife and children, and of bearing Edition: 1741; Page: [41] the burdens of matrimony; tho’, because the children are common, and both are obliged to common care (§42), the wife ought certainly, as far as her estate goes, to bear a part of these burdens. And hence Edition: current; Page: [363] the origine of dowry among the Greeks and Romans, brought to husbands by wives, who were not excluded from succession to their parents.*

SECTION XLVIII

In what respect marriage is indissolvable.In fine, since every thing ought to be avoided that is contrary to the ends of matrimony, because education, which is no less the end of matrimony than procreation, requires a perpetual society between man and wife; hence it is plain, that the liberty of divorce, authorised by some nations, is quite repugnant to the end of matrimony. And yet because an intolerable temper and behaviour of either party no less hinder this end than divorce; and a partner cannot be blamed if he severs from him an injurious associate (§21); we think divorce is not unlawful, when either of the parties behaves themselves so that the end of matrimony cannot be obtained. Now, that, this society being dissolved in any lawful way, Edition: current; Page: [364] either may make another marriage cannot be doubted, since a partner, his Edition: 1741; Page: [42] partnership with one being dissolved, has a right to associate another partner, and thus enter into a new partnership.*

SECTION XLIX

What is to be said of imperfect marriages.Tho’ all this be required by right reason in the conjugal society, yet it is manifest that one duty hath a nearer relation to the end of matrimony, and another a more remote relation; and therefore society between a man and a woman does not cease to be marriage, if some changes are made in it by pacts; wherefore marriage is valid tho’ imperfect; i.e. though contracted for the sake of procreation and education privately, and without any solemnity; nor is that invalid which is called morgenatic marriage;* Edition: current; Page: [365] Edition: 1741; Page: [43]nor putative, or reputed marriage, of which Jo. Nic. Hertius hath published a curious dissertation.3 Edition: 1741; Page: [44]

Edition: current; Page: [366]

CHAPTER III: Of the duties that ought to be observed in a society of parents and children.

SECTION L

Connection.By the conjunction of which we have been treating in the preceding chapter, children are procreated, who abide in society with their parents till they themselves form new families, and go from under their parents authority. For tho’ children, when they come into the world, can neither expresly nor tacitely consent to this society; yet, because society may arise from presumed consent, if, by the nature of the thing, we may judge one to have consented (§16), and the condition of infants requires that they should live in society with others, (§16); there is no reason why we may not assert, that parents and children consent in the same end and means, and consequently that there is a society between parents and children (§13).

SECTION LI

The end of this society is the convenient education of children.Because infants, nay, young boys and girls, are not capable of judging how they ought to direct their actions and conduct, God, who willed their existence, is justly understood to have committed the care of such to others. And since he hath implanted not only in men, but in brutes, an ardent affection to stimulate them to this duty (§26), and men contract marriage for the sake of procreation and education, or ought to have those ends solely in their view in forming this society (§ eod.); the consequence is, that this duty is principally incumbent on the parents; Edition: current; Page: [367] and therefore that there is no Edition: 1741; Page: [45] other end of the society between parents and children, but convenient and proper education of children.*

SECTION LII

This end cannot be gained, unless the parents have a certain power.Education being the end of this society (§51); since it cannot be carried on without directing the actions of children, the consequence is, that parents have a right and power to direct their children’s actions; they have therefore power over their children, and thus this society is unequal and rectoreal. But as the duties of every society must be deduced from its end (§14); so this parental power must be estimated by its end; and therefore it is a right or power competent to parents, to do every thing, without which the actions of children cannot be so directed, as that the end of this society may be obtained. Edition: 1741; Page: [46]

SECTION LIII

It belongs to both parents.Since the duty of education is incumbent upon both parents (§51), the consequence is, that this power must be common to both parents; and Edition: current; Page: [368] therefore, by the law of nations, this power cannot belong to the father only, as the Roman law affirms; yet, since regularly the father, as husband, has the prerogative in the conjugal society (§44), it is plain, that when parents disagree, greater regard ought to be had to the father’s than to the mother’s will, unless the father command something manifestly base and hurtful to his children: For to such things, as being morally impossible, neither mother nor children can be obliged.

SECTION LIV

It passes to grandfathers, grandmothers, tutors, nurses, preceptors, adepters.Besides, because the duty of education, whence the parental power takes its rise, is sometimes undertaken, upon the death of the parents, by grandfathers and grandmothers, or other relatives, through affection; sometimes it is committed by the parents themselves to others, whom they judge more fit for the charge; sometimes a stranger desires a parent would devolve that care upon him; it therefore follows, that this power, as far as it consists in the right of directing the actions of children, is, in these cases, devolved upon grandfathers, relations, pedagogues, and those who adopt* children, or take them under their care; and therefore all such Edition: current; Page: [369] persons may exercise the parental power as far as the education undertaken by them requires. Edition: 1741; Page: [47]

SECTION LV

Parents have the power of commanding, forbiding, chastising.Since this power consists in the right of doing every thing necessary to obtain the end of the society above defined (§52); it is obvious, that parents have a right to prescribe to their children what they ought to do, and to prohibit what they ought not to do; and not only to chide and reprove the stubborn and disobedient, but to chastise them, as the circumstances of the case may require; and to use other severer methods to reduce them into good order and due obedience; provided it be done prudently, and with proper regard to age, the dignity of the family, and other circumstances.* Edition: 1741; Page: [48]

Edition: current; Page: [370]

SECTION LVI

Whether it extends to the power of life and death?Hence it is plain, that the end of this society does not require the power of life and death over children; unless, perhaps, in a state of nature, where parents preside over a large and diffused family as its heads; and in this case they exercise such power rather as princes and magistrates than as parents.* Whence again we infer, that the law of nature does not approve of the antient rigid power of the Romans, which was afterwards disapproved of even by them; and therefore Justinian justly affirms, §2. Inst. de patri. potest. “That no other people ever exercised such a power over children as the Romans did.” Edition: 1741; Page: [49]

SECTION LVII

Whether parents have the power of selling, of hurting delinquents, and of acquiring by their children?Much less then have parents, by the law of nature, a right to expose their children to sale, of inflicting hurtful punishments upon them for faults, and of acquiring to themselves all that comes to their children, tho’ all these things were approved of by the antient Roman laws. For none of these things is of such a nature, that the end of society cannot be obtained without it (§52). But since this power consists in directing the actions of children (§52), parents cannot be refused the right of commanding certain work from their children, suitable to their condition, and of making gain by their labor; nor of administrating Edition: current; Page: [371] what comes to their children by the favour of men, or of providence.* Edition: 1741; Page: [50]

SECTION LVIII

The foundation of the duties of parents to their children.We have said enough of the power of parents. As to their duties, they are very obvious. For they are easily deducible from the end of this society. Education is the end of this society, and therefore it is self-evident, that parents are obliged to every thing without which this end cannot be obtained, and to avoid every thing contrary to it (§24). But it is worth while to give a full view or idea of education, that thereby the duties, both of parents and children, may the more clearly and certainly appear.

SECTION LIX

Of education, wherein it consists.The natural affection implanted in parents, inculcates, as we have already observed (§26) the obligation of parents to educate their children. Now, the love which parents owe to their children, is a love of benevolence (l. 1. §85), which consists in delighting to preserve and encrease, to the utmost of our power, the happiness of an inferior and more imperfect Edition: current; Page: [372] being (ibid.); the consequence from which is, that parents are not only bound to take care of the conservation of their children, but likewise to lay themselves out to promote their happiness to the utmost of their power. And in this does education consist, by which nothing else is understood but the care of parents to preserve their children, and to make them as perfect and happy as they can.* Edition: 1741; Page: [51]

SECTION LX

It is the duty of parents to preserve the health, soundness, &c.If parents be obliged to the preservation of their children (§59), the consequence is, that they are not only bound to provide for them all the necessaries of life; i.e. cloaths and food, according to their condition of life, but likewise to take care of their health, and to preserve their bodies sound and intire in all their members, as much as that lies in their power; and therefore to keep them from gluttony, luxury, lasciviousness, and all the other vices which tend to enervate, weaken, or hurt their Edition: current; Page: [373] bodies; and, on this account, not rashly to leave them to themselves, or without some guardian.

SECTION LXI

What is contrary to this duty.To this duty are directly contrary, endeavours to bring about abortion, exposing infants, abdicating and disinheriting them without a just cause;* de-Edition: 1741; Page: [52]nying them necessary sustenance, and other such crimes, repugnant to the end of this society. They chiefly are very blameable, nay, unworthy of the name of parents, who abandoning their children, or, by their carelesness about them, are the cause of their receiving any hurt in any of their senses, organs or members; this impiety of the parents is so much the more detestable, that the soundness of their senses, and the integrity of their members, belong not only to the preservation, but to the happiness of children.

SECTION LXII

The understanding of children ought to be improved.Since parents are obliged to promote the perfection and happiness of their children to the utmost of their power (§59), to which belongs the cultivation of their understandings, in order to render them capable of distinguishing true good from evil (l. 1. §146), it is certainly the duty of Edition: current; Page: [374] pa-Edition: 1741; Page: [53]rents to instil early into the minds of their children the principles of wisdom, and the knowledge of divine and human things, or to commit them to the care of proper masters to be polished and informed by them, and to save no expence in instructing and improving them, within their power, and agreeable to their rank. Whence we also conclude, that parents are obliged to give due pains to find out the genius of their children, that they may choose for them a kind of life suitable to their genius, rank, and other circumstances; and that being chosen, to exert themselves to the utmost for qualifying them to act their part on the stage of life with applause.*

SECTION LXIII

Their will or temper ought to be rightly framed.Since the will or temper is the seat of that love by which we perceive true good or happiness, parents do nothing, whatever care they may take about perfecting the understanding of their children, if they neglect the formation of their will or temper. Parents, who take not proper pains and methods to inspire early into their minds the love of piety and virtue, but train them up to vice, Edition: 1741; Page: [54] if not to gross and manifest vices, yet to cunning, avarice, ambition, luxury, and other such vices, by representing these vices to their minds under the false shew of prudence, frugality, spirit, taste, and elegance. Parents, in fine, who set a pattern of Edition: current; Page: [375] wickedness before their children, and sadly corrupt their minds by a continued course of vitious example.* Edition: 1741; Page: [55]

SECTION LXIV

Above all the mind is to be recalled from the pursuit of pleasure.Nothing is so flattering to youth as pleasure and ease; and therefore parents ought to take care not to educate their children too softly and delicately; not to suffer them to become languid and indolent, to dissolve in ease and laziness; not to breed them up to luxury and high living; but Edition: current; Page: [376] to inure them to hardship, to bear heat and cold, and to content themselves with homely fair, with whatever is at hand. For while the children of peasants are thus bred up to work, and to homely diet, do we not see how they surpass the youth of higher birth in health and vigour?*

SECTION LXV

And from bad companions.Nothing so much depraves youth as bad company; and therefore parents ought to be watchful that their children do not associate themselves with corrupt companions, but with their equals, and such as are well educated. For tender minds are prone to imitation, and easily moulded into any shape by example, but averse to admonition; and the danger of their being corrupted is so much the greater, that they are so little capable of Edition: current; Page: [377] distinguishing flatterers and parasites from true friends, corrupt from good masters, or inducements to vice from wholesome precepts. Edition: 1741; Page: [56]

SECTION LXVI

Children owe their parents a love of reverence and obedience.The duties of children to their parents are easily deducible from the state and right of parents, and from the end of the society we are now considering. For since parents have the right of directing the actions of their children, hence it is plain, that they ought to be regarded by their children as superior and more perfect than them; and consequently that they ought to be loved by them with a love of reverence and obedience* (l. 1. §85); whence it follows, that children ought to pay all reverence and obedience to their parents (l. 1. §86), such reverence and obedience as is due to their perfection and superiority (l. 1. §87). Edition: 1741; Page: [57]

Edition: current; Page: [378]

SECTION LXVII

Veneration is due to parents.Because parents ought to be revered with a respect suitable to their perfection (§66), none can doubt but children are bound to prefer their parents before all others, to speak honourably to them, and of them; yea, to take care not so much as to shew disrespect by any look. And tho’ it may happen, that one of the parents, or both, may not have the perfections requisite to beget veneration (l. 1. §87),* yet it is the duty of a good child to overlook these imperfections, and rather to bear injuries from them with patience, than to omit any thing which nature itself requires of children.

SECTION LXVIII

As likewise filial fear.Since parents have power or right to direct their childrens actions, and to curb and correct them, (§55), the consequence is, that parents ought not only to be loved and revered, but feared. From this mixture of love and fear arises filial fear (l. 1. §131); and therefore we cannot choose but Edition: current; Page: [379] con-Edition: 1741; Page: [58]clude from hence, that good children will only have this filial fear of their parents; and thus they will not be so much afraid of the pain, the castigation and reprehension of their parents will give themselves, as of provoking their parents indignation against them by their vices.

SECTION LXIX

As also obedience.But because obedience is likewise due to parents, (§66), children cannot escape reproof and chastisement, if they do not readily and cheerfully obey their parents commands; and the morosity and severity of parents does not authorize children to withdraw their obedience. Yet, because right reason teaches us, that the greater the perfection and excellence of a being is, the greater veneration and obedience is due to that being (l. 1. §87),* the consequence is, that if parents command any thing that is base and immoral, or contrary to the divine will, and to the laws of the country, more regard is to be had to the divine will and the laws, than to the commands of parents.* Edition: 1741; Page: [59]

SECTION LXX

How parental power is dissolved.Moreover, since the necessity of the parents right to direct childrens actions is the sole genuine foundation of parental power (§52), none can question but that end being gained, the means must cease; and therefore the parental power does not continue till death, but expires then, when male-children are come to such maturity of years and judgment, that they are capable of directing themselves, and can make a new family, or when daughters and grand-daughters marry, and go out of their father’s or grandfather’s house into other families; so that the law of nature does Edition: current; Page: [380] not approve that rigour of the old Roman law, which placed children, with their wives and children, under the father’s power, till fathers or grandfathers, of their own free accord, emancipated and dismissed them.*

SECTION LXXI

Parental power being dissolved, love ought not to cease.But when the parental power is dissolved (§70), that love which nature hath implanted in the breasts Edition: 1741; Page: [60] of parents towards their children ought not to cease. And therefore it is the duty of parents to delight in the welfare and happiness of their children, even after they are separated from them, and out of their family; to assist them with their counsel and their wealth to the utmost of their power, and to be no less beneficent to them than to those which are still in their family; and, in fine, to do all they can to promote their happiness: Whence it is also evident, why emancipated children ought to succeed to intestate parents as well as those who are not.

Edition: current; Page: [381]

SECTION LXXII

Whether it be in the power of the parents and children to dissolve the parental power at their pleasure.Hence we also conclude, that it is not in the power of parents, at their will and pleasure, to dismiss children, of whatever age, from their family, nor to retain adult children under their power so long as they please; but yet, that children are not excusable in deserting parents against their Edition: 1741; Page: [61] will, and in refusing to submit to their authority. For as it is unjust in parents to omit any thing without which the end of this society cannot be attained (§24); so children cannot, without injustice, shake off their parents authority; because what one would not have done to himself, he ought not to do to others (l. 1. §88).

SECTION LXXIII

The obligations of children to parents after parental power is dissolved.As the love of parents ought not to be extinguished when parental power is dissolved (§71), so that love of veneration which children owe to their parents ought much less to cease with parental power; yea, since every one is bound to love his benefactor (which love is called gratitude) (§226); the consequence is, that children, after the parental power no longer takes place, are obliged to testify gratitude towards their parents every way; not merely by words, but to repay benefits by benefits; and therefore to undertake nothing of any moment, or that regards the honour of the family, (such as marriage) without their consent; nay, to supply them with the necessaries and conveniencies of life, if they want them. This kind of gratitude, tho’ it belongs to the duties of imperfect obligation, yet it is of such a peculiar nature, that civil laws may reduce children, unmindful of their filial duties, into good order* (l. 1. §227). Edition: 1741; Page: [62]

Edition: current; Page: [382]

SECTION LXXIV

The mutual obligation of tutors and pupils.If parents die before children have arrived at a proper age to conduct themselves, the nature of the thing requires that their education should be committed to others, who are called tutors or guardians; and therefore guardianship is nothing else, but the power of directing the actions of children, and of managing their affairs and interests in room of their parents, till the children are come to such maturity of years and judgment, as to be fit to govern themselves* (§54). From which definition we may infer, that tutors have the same power with parents, if it be not circumscribed by the civil laws within narrower bounds; and are obliged to the same fidelity, and all the same duties as parents; and, in fine, that pupils or wards are no less obliged to veneration, gratitude and obedience, than children; and that this obligation is so much the more strict, that the benefit done them is greater, when performed not in consequence of any natural tie, but from pure benevolence. Edition: 1741; Page: [63]

Edition: current; Page: [383]

CHAPTER IV: Concerning the duties belonging to masters and servants, and that despotical society.

SECTION LXXV

Wherein the despotical society consists, and its origine.We now proceed to consider the society of master and servants, which is not, by nature, so necessary as the more simple societies of which we have already treated, but yet has been most frequent among mankind from the most antient times. And by it we understand a society between a master or mistress, and men or women-servants, in which the latter bind themselves to promote their master’s interest by their work and labour, and the former bind themselves to maintain them; nay, sometimes to pay them a certain hire or wages. For since such is the condition of mankind, that one stands in need of another’s work; and there is no reason why one may not procure to himself what he wants by another’s help (l. 1. §325); the consequence of which is, that we may stipulate to ourselves the help or work of others by an intervening contract, and thus form between us and servants a despotic society, which is evidently, in its nature, unequal and rectoreal (§18).

SECTION LXXVI

What is a master or a mistress, and what a man or woman-servant?By master or mistress we therefore understand a person who employs others to promote his interest, and obliges himself to maintain them, or over and above to pay them certain wages. Servants are persons who bind themselves to promote their masters interest by their labour, either for Edition: current; Page: [384] their maintenance only, or for wages, together with maintenance. Now, from these definitions it is manifest, that servitude of the latter kind is mercenary, and Edition: 1741; Page: [64] its foundation is none other than a contract of letting and hiring; the former is perfect servitude, and may be called obnoxia, property;* and its foundation is dominion over the persons of servants acquired by a just title.

SECTION LXXVII

Some give themselves up to perfect servitude on account of their dullness and incapacity.That mercenary servitude is not contrary to the law of nature none can doubt; but neither is the other servitude, since experience teaches us, that some men are naturally of so servile minds, that they are not capable to govern themselves or a family, nor to provide for themselves the necessaries of life. But since every one ought to choose the kind of life he Edition: current; Page: [385] is fitted for, (l. 1. §147), and such persons are fit for no other kind of life, but to serve others for their maintenance, they certainly do nothing contrary to their duty, if they give themselves up perpetually to others on that condition. Edition: 1741; Page: [65]

SECTION LXXVIII

Some thro’ extreme poverty.Besides, extreme poverty, and other private or public calamities, may induce some, who are not stupid, to become servants rather than perish. For since man is obliged to preserve his life, and to avoid death and destruction (l. 1. §143), and of two imminent evils, the least ought to be chosen; it follows, that he whom providence hath placed in this situation, is not to be blamed, if, there being no other honest way of avoiding death, he give himself up in servitude.*

Edition: current; Page: [386]

SECTION LXXIX

Some conquered in war accept of this condition.Again, the fury of war much augmented the number of servants. For because all things are lawful to an enemy against an enemy, it is law-Edition: 1741; Page: [66]ful to kill a subdued enemy (l. 1. §183). But because he who can deliver himself from danger without hurting his aggressor, or by a lesser evil, ought not rashly to proceed to killing (ibid. §181), it is certainly not unjust for a conqueror to save the vanquished, and lead them captives, that they may no longer have it in their power to hurt him; and to make servants of them, that he may not have the burden of maintaining them gratis; nor can they be blamed who choose to save their lives on these terms, rather than perish.*

SECTION LXXX

Some are born servants.But these kinds of perfect servitude cannot but produce the effect which one is detruded into by the very fortune of birth. For since the foundation of perfect servitude is dominion acquired by a just title (§76), and all those we have already mentioned are just titles (§76 & seq.) the consequence is, that all these servants are under the just dominion of their masters. But since out of lawful matrimony (which can hardly take place among some of those sorts of servants) the offspring goes along Edition: current; Page: [387] with the mother (l. 1. §252) it is no wonder that the offspring of such women-servants undergo the same condition with the mother, as an accession to her; and therefore those kinds of servants are known to all nations, which were called by the Romans vernae. Edition: 1741; Page: [67]

SECTION LXXXI

The power of a master over a mercenary servant.These principles being fixed, it is easy to find out the duties of masters and servants in this society, and what power masters have over their servants. For as to mercenary servants, since they are only bound by a contract of letting and hiring, (§76) the master has no other power over them, than to appoint the work to them for which they bind themselves, and to make profit by their work, and to force them to serve during the time for which they engaged: He has no right to exact any other work or service from them, but that for which they bind themselves; and much less to chastise them with great severity; tho’, if the servant do not fulfil his contract, the master may not only mulct him of a part of his wages, but turn him away from him as incorrigible (§21). Edition: 1741; Page: [68]

SECTION LXXXII

The mutual duties of this master and servant.As therefore it is the master’s duty to fulfil his contract, and not to exact other service than was contracted for from his servant, and to maintain him as persons of that condition ought to be, and to pay him his promised wages;* so the servant is bound to reverence and obedience to his Edition: current; Page: [388] master as his superior; to perform his contracted service to him as his hirer, and to promote his interest with all fidelity as his partner.

SECTION LXXXIII

The power of a master over a perfect servant with respect to the disposal of him.Perfect servants, we have said, are in dominion, (§76). But since he who hath the dominion of any thing, hath the free disposal of it (l. 1. §306); the consequence is, that a master may impose upon such a servant any work he is capable of; make all profit by him; claim him and his children as his property, and sell or alienate him and them upon any terms, unless the servant, who voluntarily delivered himself into servitude, made this condition, that he should not go out of the family, or be alienated to any other master. As to the power of life and death, none will deny that it belongs to such masters (l. 1. §308) unless either convention or law forbid it. Much less then can it be denied, Edition: 1741; Page: [69] that such masters have a power to coerce and chastise such servants according to the exigence of the case, provided the master still bear in mind that his servant is a man, and by nature his equal* (l. 1. §177).

Edition: current; Page: [389]

SECTION LXXXIV

With respect to possession and vindication.Since to a master belongs the possession of his own, and the right of reclaiming it from every person (l. 1. §306) hence it follows, that a master may defend himself in the possession of his maid or woman-servant by any means, and reclaim his servants, whether they desert, or whether they are unjustly carried off, from any one whomsoever, with the fruits or profits, and accessions of the possession; and, in the first case, to punish the renegade according to his desert, and to take proper and effectual measures to prevent his taking the same course for the future;* unless this effect of the master’s dominion be restricted by the civil laws (l. 1. §317). Edition: 1741; Page: [70]

Edition: current; Page: [390]

SECTION LXXXV

The duties of masters to such servants.It will not now be difficult to ascertain the mutual duties of masters and such servants. For because an obnoxious or perfect servant is in dominion, (§76) and therefore a master may make all the gain he can of such (§83), so that such a servant hath nothing in property; the consequence is, that the master is obliged to maintain such a servant, and this obligation does not cease, then especially, when he is not able to perform his service.* And since a servant is, with regard to nature, equal to his master (§83) it is obvious, that the master is culpable if he injuriously hurts his servant; and he is worthy of commendation, if he endeavours to reform a disobedient servant by benefits rather than by cruel methods. Edition: 1741; Page: [71]

SECTION LXXXVI

The duties of servants to their masters.Because as many different kinds as there are of servitude, so many duties of servants there are, as correlates to the several rights of masters (l. 1. §7) hence it follows, that perfect servitude obliges a slave to every sort of work or service, to promote his master’s interest to the utmost of his power, and to bear chastisement and correction, and the disposal of him and his at his master’s will, with patience. That he acts contrary to his duty, if he deserts his master, or defrauds his master, by stealing, as it were, himself away from him; and that he ought rather to endeavour to Edition: current; Page: [391] merit his liberty and manumission by faithful and cordial service, thus rendering himself worthy of so great a benefit.

SECTION LXXXVII

How servitude is dissolved.From what hath been said, we may easily understand how this society is dissolved. Mercenary servitude, depending upon a contract of letting and hiring, is dissolved in the same manner such contracts are dissolved, and more especially by the expiration of the time contracted for. Perfect servitude is principally dissolved by manumission. For since any one may derelinquish or abdicate his own (l. 1. §309), there is no doubt but a master may renounce his right to a servant, which renunciation was called by the antients manumission. Besides, renunciation being a kind of alienation, and seeing Edition: 1741; Page: [72] in alienation one may except or reserve what he pleases (l. 1. §278) it is plain that manumission may likewise be granted upon any honest conditions whatsoever.*

SECTION LXXXVIII

What a freed man is, and what are his duties.Those slaves who are manumitted by their masters are called libertini, and the liberti of the manumittor. Now, since masters, who give liberty to their slaves, confer upon them the greatest benefit they can bestow; and every one is obliged to love him who bestows favours upon him (l. 1. §226); slaves set at liberty (liberti) are the most ungrateful of mortals, unless they love the patrons who conferred so great a blessing upon them, and they are obliged to pay the highest veneration to them, and not only Edition: current; Page: [392] to perform to them cheerfully all that their masters stipulated to themselves upon giving them their liberty (§87) but likewise to be ready to render to them all other good offices in their power; or, if the power of serving them be wanting, at least to shew gratitude towards them in every manner they can* (l. 1. §228). Edition: 1741; Page: [73]

Edition: current; Page: [393]

CHAPTER V: Of the complex society called a family, and the duties to be observed in it.

SECTION LXXXIX

What a family is.We observed that lesser or more simple societies may coalesce or unite into larger and more compounded ones (§17): and of this the societies we have described afford us an example. For when these join and consent into a larger society, hence arises a family, which is a society compounded of the conjugal, the paternal and despotic society.* Whence the husband and wife, parents, masters and mistresses, with respect to this society, are called fathers and mothers, or heads of a family; the children are called sons and daughters of the family, and the men or women-servants are called domestics. Edition: 1741; Page: [74]

Edition: current; Page: [394]

SECTION XC

To whom the direction or government belongs in this society.But because the larger a society is, the less practicable is it that so many members should find out necessary means for attaining the end of the society by common consent and suffrage (§18) it is evident that this society must be unequal and rectoreal; and therefore that the power of directing the rest to the end of the society, must be transferred to one of the members. Now, since the husband and father of the family has a certain authority or prerogative over the wife (§44) and his command, as father, ought to prevail over the mother’s when they disagree (§53); and since he hath, as master, undoubted power over his servants of whatever sort; (§81 and 83) the power of directing the actions of the whole family must belong to the father;* but in such a manner however, that the mother is obliged, as sharer of his good or bad fortune, to give him all the assistance she can of every kind (§42). Edition: 1741; Page: [75]

SECTION XCI

The end of this society in a state of nature, and in a civil state.Now, such a family is either in a state of nature, subject to none, or it is united with other families into one state. In the first case, the end of this society is not only to acquire the things necessary to its happy subsistence, but likewise to defend itself against all invaders or enemies; and therefore they judge right, who consider such a family as a species of the lesser states or republics. In the latter case, because every family is protected Edition: current; Page: [395] against the injuries of their fellow citizens or subjects by judges, and against common enemies, by the common strength of the republic, its end can be no other but the acquisition of things necessary to its more comfortable and happy subsistence.

SECTION XCII

The power of the head or father in a state of nature.But since the end of this domestic society, in a state of nature, is not only to acquire the necessaries to convenient and comfortable living, but likewise to defend itself against injuries (§91) the consequence is, that the father of the family has all Edition: 1741; Page: [76] the rights necessary to attain to these ends; and therefore he may not only manage the family estate and interest as seems best to him, and allot to every one in the family his care and task, and call every one to an account for his management; but he has likewise all the rights of a prince or supreme magistrate in his family, and consequently can make laws, punish delinquents, make war and peace, and enter into treaties.*

SECTION XCIII

In a civil state.On the other hand, since the end of a family, coalited with other families into the same state, can be no other but the acquisition of necessaries and conveniencies (§91), it is very plain that such eminent rights do not Edition: current; Page: [396] belong to the heads of such families, but those only which we described (§92), without which the family cannot have a comfortable subsistence; and in this case the mother has some share; whereas the modesty and character of her sex does not permit her to partake of Edition: 1741; Page: [77] those rights which belong to the father of a family, as the supreme magistrate of the family.

SECTION XCIV

Simple societies ought not to be an impediment to this more complex society.Moreover, since in more complex societies the interest of the more simple or lesser ought not to be opposed to that of the larger (§23), it is plain, that the conjugal, the paternal, the domestic societies ought not to be an obstacle to the end and interest of the whole united family;* and hence arise certain duties peculiar to this complex society, some of which belong to the father and mother with regard to one another; others to both, with respect to the other members of the family; others to the members of this family, with respect to the father and mother of the family; and others, in fine, to the members with relation one to another. See Wolfius de vita sociali hominum, §194.1

SECTION XCV

The mutual duties of the father and mother of the family towards one another, and their duties to the family.Since the father hath the principal part or character in this society (§90); but so, that the mother is obliged to give him all possible assistance in every way (ibid.); it follows, that it belongs to the father of the family to command what he would have done, to maintain the whole family, and each member, as every one’s condition requires, to coerce and punish those who do any injury or dishonour to the family, suitably to what the rights of a more simple society permit, and to support the dignity and Edition: current; Page: [397] authority of the mother; and it is her duty to use her utmost care that the children and servants obey their orders;* to act in the husband’s room in Edition: 1741; Page: [78] his absence; and, in fine, to shew an example to the whole family of veneration and obedience, being sure to have so much the more authority in the family, in proportion as she studies to maintain and augment that of her husband.

SECTION XCVI

The duties of both with regard to the simpler societies.Now, if the simpler societies ought to be so managed, that they may not be a hindrance to the good of the whole family (§94), it is manifest that the father acts contrary to his duty, if he is an impediment to the mother in her care about the education of their children; and she is much less excusable, if she makes the rebellious children worse by her indulgence; and both are in the wrong, if they by their discords and jarrs, are a bad example to the children, or if they are negligent of their education and behaviour. In like manner it is evident, that a domestic society must be in a very bad state, if the children are left to the care of the servants, and are allowed to converse with them at their pleasure; or if, on the one hand, the servants give ill advice to children, and induce them to, or assist them in any crime; or if, on the other hand, the children are suffered to treat the servants rudely. Edition: 1741; Page: [79]

Edition: current; Page: [398]

SECTION XCVII

In a well regulated family all is in good order.Hence it is plain, that the whole matter lies in preserving good order in a family. But then are things said to be done in order, when all things are managed and done as the circumstances of each affair requires. And therefore in a family every one ought to have some business or task appointed to him, and to give a strict account of it; and each person ought to be inured to do his business, not only with due care and diligence, but also at a convenient time, and in a proper place; and, in fine, all the furniture, and every utensil ought to be kept neat, clean, and intire, and every thing ought to be found in the place appointed for it, or where it is proper and convenient it should be placed.* Edition: 1741; Page: [80]

SECTION XCVIII

The duties of the inferior members of a family.From what hath been said of the duties of the whole family, it is obvious, that since all the members expect aliment from the head, each suitably to his rank (§95) every one of them is obliged to take care of the common interest of the whole body, and of that part committed to his trust in particular, to render reverence and obedience to the father and mother of the family; and, above all, to do nothing that may tend to interrupt the conjugal harmony, or to hinder the education of the children; or to Edition: current; Page: [399] bereave the head of the profits he might justly expect from the labour, honesty, and diligence of his servants.

Remarks on This Chapter

Our Author hath treated very distinctly and fully of the duties of the simpler societies, as he very properly calls them. But because it is common in arguing about government, or the civil state, to which our author is now to proceed, especially among the defenders of absolute monarchy, to reason from the right of paternity, it will not be improper to consider domestic or family dominion in its natural causes. This will prepare the way for the consideration of civil government, or dominion in its natural causes; And it is the more necessary, because the defenders of absolute monarchy, in their reasonings to prove its jus divinum, from the right of paternity, or the government of families, conceal, as Mr. Harrington observes, one part of it. “For family government, says that excellent author (for it is from him, of his works p. 385. upon the foundations and superstructures of all kinds of government, I am now to transcribe) may be as necessarily popular in some cases, as monarchical in others. To shew now the nature of the monarchical family: Put the case a man has one thousand pounds a year, or thereabouts, he marries a wife, has children and servants depending upon him (at his good will) in the distribution of his estate for their livelihood. Suppose then that this estate comes to be spent or lost, where is the monarchy of this family? But if the master was no otherwise monarchical than by virtue of his estate, the foundation or balance of his empire consisted in the thousand pounds a year. That from these principles there may be also a popular family, Edition: 1741; Page: [81] is apparent: For suppose six or ten, having each three hundred pounds a year, or so, shall agree to dwell together as one family, can any one of them pretend to be lord and master of the same, or to dispose of the estates of all the rest? or do they not agree together upon such orders, to which they consent equally to submit? But if so, then certainly must the government of this family be a government of laws or orders, and not the government of one, or of some three or four of these men. Yet the one man in the monarchical family giving laws, and the many in the popular family doing no more, it may in this sense be indifferently said, That all laws are made by men; but it is plain, Edition: current; Page: [400] where the law is made by one man, then it may be unmade by one man; so that the man is not governed by the law, but the law by the man; which amounts to the government of the men, and not of the law: whereas the law being not to be made but by the many, no man is governed by another man, but by that only which is the common interest; by which means this amounts to a government of laws, and not of men. That the politicks may not be thought an unnecessary or difficult art, if these principles be less than obvious and undeniable, even to any woman that knows house-keeping, I confess I have no more to say. But in case what has been said be to all sorts and capacities evident, it may be referred to any one, whether without violence, or removing of property, a popular family can be made of the monarchical, or a monarchical family of the popular. Or whether that be practicable or possible, in a nation upon the like balance or foundation in property, which is not in a family. A family being but a smaller society or nation, and a nation but a greater society or family. That which is usually answered to this point is, That the six or ten thus agreeing to make one family, must have some steward, and to make such a steward in a nation, is to make a king. But this is to imagine, that the steward of a family is not answerable to the masters of it, or to them upon whose estates (and not upon his own) he defrays the whole charge: For otherwise, this stewardship cannot amount to dominion, but must come only to the true nature of magistracy, and indeed of annual magistracy, in a commonwealth; seeing that such accounts, in the year’s end at farthest, use to be calculated, and that the steward, body and estate, is answerable for the same to the proprietors or masters; who also have the undoubted right of constituting such another steward or stewards, as to them shall seem good, or of prolonging the office of the same.

“Now, where a nation is cast, by the unseen ways of providence, into a disorder of government, the duty of such particularly as are elected by the people, is not so much to regard what has been, as to provide for the supreme law, or for the safety of the people, which consists in the true art of law-giving. And the art of law-giving is of two kinds; the one (as I may say) false, and the other true. The first consists in the reduction of Edition: 1741; Page: [82] the balance to arbitrary superstructures, which requires violence, as being contrary to nature; the other in erecting necessary superstructures, that is, such as are conformable to Edition: current; Page: [401] the balance or foundation; which being purely natural, requires that all interposition of force be removed.”2

It is impossible to treat distinctly of family or of civil dominion, without considering it in its natural causes, or its natural generation. “The matter of all government is an estate or property. Hence, all government is founded upon an over-balance in propriety. And therefore, if one man hold the over-balance unto the whole people in propriety, his property causeth absolute monarchy: if the few hold the over-balance unto the whole people in propriety, their propriety causeth aristocracy, or mixed monarchy. If the whole people be neither over-balanced by the propriety of one, nor of a few, the propriety of the people, or of the many, causeth democracy, or popular government: The government of one against the balance is tyranny; the government of a few against the balance is oligarchy: the government of the many (or attempt of the people to govern) against the balance, is rebellion or anarchy; where the balance of propriety is equal, it causeth a state of war: To hold that government may be founded upon community, is to hold that there may be a castle in the air, or that what thing soever is as imaginable as what hath been in practice, must be as practicable as what hath been in practice. Hence it is true in general, that all government is in the direction of the balance.”3 All these truths, however much neglected by writers upon government, are of the greatest moment: They have the same relation to or connexion with theories about government, whether domestic or civil and national, whether consisting of one or many families, as the real laws of matter and motion have with theories in natural philosophy: For they are moral facts or principles upon which alone true theories in moral philosophy or politics can be built, as the other are the natural facts, laws or principles upon which alone true axioms in natural philosophy can be erected. They are all fully explained by the author already cited. And hence we may see, “That the division of a people into freemen and servants, is not constitutive, but naturally inherent in the balance. Freemen are such Edition: current; Page: [402] as have wherewithal to live of themselves, and servants such as have not: Nor, seeing all government is in the direction of the balance, is it possible for the superstructures of any to make more freemen than are such by the nature of the balance, or by their being able to live of themselves. All that could in this matter be done, even by Moses himself, is contained in this proviso, Lev. xxv. 29. If thy brother that dwells by thee be grown poor, and be sold to thee, thou shalt not compel him to serve as a bond-servant, but as a hired servant, and a sojourner shall he be with thee, and shall serve thee to the year of jubilee: And then shall he depart from thee, both he and his children with him, and shall return to his own family, and to the possession of his Edition: 1741; Page: [83] fathers shall he return. Yet the nature of riches being considered, this division into freemen and servants, is not properly constitutive but natural.” See Mr. Harrington’s works, the art of lawgiving, p. 436, 437. Compare p. 248.4 I shall only add upon this head, that the defenders of absolute monarchy can never draw any conclusions to serve their purpose, either from paternal government, or from the power of masters over their servants. For with regard to the former, what relation can be stricter than that between parents and children: There cannot be stronger obligations to subjection upon any than there are upon children: This relation and obligation is not the effect of consent, children being incapable of giving their consent, but is the effect of the necessity of nature, and in a peculiar sense, an authority or power of the author of nature’s appointment: Yet let it be remembered, that our Author, and all writers on the laws of nature and nations allow, that the obligations of children do not contradict the powerful law of self-preservation and self-defence, in cases in which life, or any thing dearer than life, is concerned. But if this be true, how can one imagine, that when the ruin of the public happiness, which is as it were the life of the community, is attempted, the same law of self-defence is of no force, and ought not to be regarded? Suppose the right of dominion over men secured by an over-balance in property, and withal of divine appointment, in any conceivable Edition: current; Page: [403] sense of these words, yet, if it be as sacred as the right of a father, it cannot extend beyond the right of a father, which does not extend to the destruction of the right of self-defence, or to command immoral actions without contradiction or resistance: Or if it be more sacred than the right of a father (could that greater sacredness be conceived) it cannot be more sacred than the law of nature, and the right of God to exact obedience to that law, and to forbid the transgression of it in obedience to whatever other authority, and so extend to the demolishing of all the natural rights and duties of mankind: Power, whatever be its title, or whatever be its foundation and security, if it be exerced contrary to the laws of nature, contrary to the law of justice and love, it is not right; it is power indeed, but guilty criminal power, which it is, it must be a crime not to resist to the utmost of one’s power, if the law of nature, i.e. the law of God be immutable, universally and indispensably obligatory upon all men.

With respect to the power of masters over servants, or slaves conquered by just war, it is likewise true that such a master is a lawful superior, and hath no equal in his family, yet hath his family, his servants, his slaves a right to defend themselves against him, should he endeavour to ruin or murder them; and such a master has no right to command any thing in the smallest degree contrary to the law of nature; but every one in his family hath a right, or more properly speaking, is obliged to reject and resist such orders to the utmost of his power. None can have a right to injure any one in making acquisitions of Edition: 1741; Page: [84] property or dominion, and none can have a right to exercise his acquired power, property or dominion, in an injurious way to others, tho’ part of their property or dominion; because tho’ dominion and property be not contrary but agreeable to the law of nature, yet the more considerable part of the law of nature consists in limitations upon the exercise of dominion and property, or in prescribing duties to those who have dominion and property, with regard to the use and exercise of it. And (as our Author hath often observed) where there is duty incumbent upon any one, there is, ipso facto, a right vested in some other, who is the object of that duty, to claim the fulfilment of it towards him. But we shall have occasion to return to this subject afterwards. And it is sufficient at present to have observed, 1. The natural cause or source of dominion. And, 2. That there are boundaries set by the law of nature Edition: current; Page: [404] to the acquisition and exercise of dominion, which boundaries are, with respect to subjects of dominion, rights belonging to, and vested unalienably in them, by the same law which sets these limitations to power and dominion, and by setting them to it, imposes certain indispensable duties upon the possessors of power and dominion. This must be, if the law of nature is not an empty sound, the supreme law, with regard to those who have dominion, whether as fathers, masters or kings (according to this definition of a King by Grotius, de jure belli & pacis, l. 1. c. 3. “Paterfamilias latifundia possidens, & neminem alia lege in suas terras recipiens quam ut ditioni suae, qui recipiantur, se subjiciant.” “A master of a family, who having large possessions, will not suffer any one to dwell in them on other terms than being subject to him.”) viz. the greater good of their children, servants, family, or subjects. This being fixed as the fundamental law, particular duties are easily deducible from it. And this must be the supreme law, or man is subject to no law, but may exerce his power as he pleases, i.e. in other words, either the greater good of the whole society is the law, or strength is free from all law, and may do what it can, and there is no such thing as unlawful exercise of power. Edition: 1741; Page: [85]

Edition: current; Page: [405]

CHAPTER VI: Of the origine of civil society, its constitution and qualities, or properties.

SECTION XCIX

The civil state has been agreeable to almost every nation.Tho’, in the societies we have described, men might have lived very comfortably; yet some reason hath prevailed upon men to form themselves into those larger societies, which we call states or republics, and to prefer, almost by universal consent, the civil to the natural state; there is almost no nation so barbarous, in which we do not find some semblance of a civil state or republic.* Edition: 1741; Page: [86]

Edition: current; Page: [406]

SECTION C

Whether it was by indigence of necessaries they were engaged to choose a civil state.Tho’ many, in their enquiries concerning the origine of civil society, have thought that men were compelled to it by the want of several necessaries (Plato de repub. l. 2.); yet this is the less probable; first, Because we have an account of something like civil society in Genesis iv. 17. when the world was not so populous as that there could be any want of necessaries. And next, because nothing hinders commerce from taking place where there is no civil government (§10); and, in fine, because there has been a much greater indigence of all things, since, civil government being established, luxury and wantonness began to spread and reign among mankind.* Edition: 1741; Page: [87]

Edition: current; Page: [407]

SECTION CI

If on the account of elegance and politeness.Again, it can hardly be imagined that elegance and politeness were the motives which induced men, in the primitive times of frugality, to prefer a civil to a natural state. For besides that, what is called elegance, is really vanity, and what is called politeness of manners, is truly but an affected complaisance and flattery (§11);* there is nothing to hinder men, in a state of nature, from improving their reason, and refining or polishing their manners. Nay, the examples of Abraham, Isaac, and Jacob, who lived by themselves with their segregate families, and had not entred into civil society, sufficiently shew us, that men, living in a state of nature, may be quite free from all barbarity, and very decent and polite.

SECTION CII

If for the security of justice.Equally groundless are other reasons for which men are imagined to have coalited into republics or civil states. For as to what some say of justice, Edition: 1741; Page: [88] that civil society was formed for the sake of it, (as Hesiod. Theog. v. 87),1 and others of interest, as if it had been done on that account, (as Aristotle, Ethic. 8. 11.)2 and what others say, of the instigation of nature, (as the same Aristotle, l. 1. & 2.)––All these reasons, we think, Edition: current; Page: [408] are of such a nature, that they might have contributed somewhat towards it, but could not have been the sole motives which determined men to commute a state of liberty and equality for a state of civil government and subjection.*Edition: 1741; Page: [89]

SECTION CIII

The real cause which moved men to form large civil societies was the fear of wicked profligate men.Wherefore, when the matter is fully and accurately considered, they appear to have hit upon the true cause, who maintain that the strength and violence of wicked men gave rise to the formation of civil states. For all men being equal and free in a state of nature (§5 and 6); but such being the temper and disposition of profligate men, that they have an insatiable lust of power and wealth; of robbing others of their possessions and rights, and bringing them under their yoke, it could not but happen that several heads of families, of this temper and genius, would unite their strength in order to subject others to them. And since a large society cannot but be unequal and rectoreal (§17), the consequence is, that such a band of robbers would choose a leader to themselves, and prescribe a certain form of government to him, according to which he was to rule Edition: current; Page: [409] and command them; and hence the origine of civil society or political states,* which are nothing else but a multitude of people united under a common head, upon certain conditions for their mutual security, and dependent on, or subjected to no other mortal. Edition: 1741; Page: [90]

SECTION CIV

This obliged the innocent to unite together in order to repel force by force.The justest heads of families could not find any other remedy against such consociations, but to repel force by force (§9). And a few not being sufficient to accomplish that end, necessity, and the malice of wicked men, forced other men to coalesce into large bodies; the consequence from which is, that just and good heads of families were obliged, through fear of violent and wicked men, to unite their forces, and joining together under a common head on certain conditions, to form a civil society or political state (§103); whence we infer, that there would have been no republics in a state of integrity. See Becman. meditat. pol. 11. Edition: current; Page: [410] 5;3 and that it is trifling to obtrude upon us a state of innocence as the first principle of the law of nature and nations (l. 1. §74). Edition: 1741; Page: [91]

SECTION CV

The double origine of civil society.Civil society is therefore of a two-fold origine; some were formed to oppress the innocent, and for violence; others were formed to repel force by force, and for common self-defence. The end of the former is most unjust; that of the latter just. Wherefore the former is rather a gang of robbers than a society; the latter is a lawful republic. But because things which have an unlawful beginning may be afterwards amended when the error is found out; and, on the contrary, things which had a very laudable commencement are often perverted; a band of thieves and robbers, having laid aside their oppression and violence, may become an excellent commonwealth; and a lawful republic, forsaking their humanity, may degenerate into a tribe of ruffians; yet in both the same end, viz. the security of the members is the end of consociation.*

Edition: current; Page: [411]

SECTION CVI

The end of civil society is the security of its members.Since the common security of the members is the end of all civil societies (§105); but it is from Edition: 1741; Page: [92] the end of a society that we must judge of the means, and of the rights and duties of its members (§14); the consequence is, that they who unite into society, ought to do all, without which the common end, viz. security, cannot be obtained. Now, since the violence which is obstructive of public security, consists in the united force of wicked men (§103), it is necessary that others, who would secure themselves against such violence, should unite their strength; and therefore it is proper, that as many men should form themselves into a more large and compounded society, as may, with probability, be sufficient to repel, by just force, the unjust violence of injurious neighbours.*

SECTION CVII

A republic consists in a multitude of men.A state or republic does not consist, as Nicias says in Thucydides, 7. 14.* and Themistocles in Justin. hist. 2. 12. in a territory, in towns, in walls, in houses, but in men; nor is it requisite to Edition: 1741; Page: [93] constitute a civil state, that whole families, composed of persons of both sexes, be united; but it is sufficient, if many conjoin their forces and minds, so as to be able Edition: current; Page: [412] to conquer or outwit their enemies; though it cannot be denied, that a civil state would be but of one age, if not composed of such families, but of single persons, however great its numbers might be, Florus 1. 1.*

SECTION CVIII

They must consent in the end and the means.Since a republic consists in the union of such a number, whose united force is not unequal to that of their neighbours (§105); but there can be no Edition: 1741; Page: [94] society without consent (§13); the consequence is, that civil states or republics are constituted by an intervening contract, whether some men voluntarily coalite into society, or whether their consent was at first extorted by violence, or whether some men acceded in either of these ways to a republic already formed; or whether, in fine, the descendants of such citizens are presumed, from their having been bred up in a society, as some time to succeed to their progenitors (§16) in it, to have consented to continue members of it.

Edition: current; Page: [413]

SECTION CIX

The first pact of those who voluntarily constitute a republic.Hence it is plain, that civil states, like other societies, are constituted or augmented either by voluntary consent, or by forced consent (§15). In the former case, the first and principal pact must be that by which all consent to constitute the same state or republic. And since every pact ought to be free, and may be made upon conditions, it is self-evident that he who does not consent, or whose terms are not agreed to, remains without that society, and is his own master.* Edition: 1741; Page: [95]

SECTION CX

Their subsequent resolution.But since members of the same society must consent to the same end and means (§13), which consent cannot be expected in a great multitude, unless the society be rectoreal; therefore some governing power must be instituted, by the will of which the whole people is to be ruled (§18); and the consequence is, that this multitude ought to determine what the Edition: current; Page: [414] model of government ought to be;* and tho’ they be not obliged to stand to the resolutions of the rest, who consented to the future republic, only upon condition that a certain form of government in it should be agreed to, if another form please the people (§109); yet those who entred into the first pact without any conditions, ought to submit to the plurality of suffrages. Edition: 1741; Page: [96]

SECTION CXI

Another pact.A form of government being agreed upon, nothing remains to constitute a perfect civil society, but to nominate the person or persons a people would have to rule over them, and to prescribe the form of government Edition: current; Page: [415] agreed upon in the former pact, to him or them; which prescription will then become, properly speaking, the fundamental law of the republic, (since things settled by pacts are called laws); and therefore it binds the governors, whether one or many, no less than the subjects; so that nothing is right that is done contrary to this primary law, or essential constitution of the society. Edition: 1741; Page: [97]

SECTION CXII

Whether the same pacts take place when society is constituted by persons under force.Thus does society arise as often as a people voluntarily forms it. But so often as a people, brought under dominion by a more powerful one, coalesces into the same republic with their conquerors, the first pact is undoubtedly a consent to form one common republic with them; because, if they did not consent, they would not accept the terms offered by their conquerors, but rather perish than put themselves under such a yoke. But such a people will hardly be consulted or hearkened to with regard to the form of government, nor in the choice of rulers, but to them will be left little more than the glory of obeying.* Edition: 1741; Page: [98]

Edition: current; Page: [416]

SECTION CXIII

So if the conqueror forces a new form of government upon the conquered.It sometimes happens, that a new form of government is obtruded upon a conquered people;* and the victorious people stipulates to themselves, that this new republic shall pay homage to them, as joined to their republic by an unequal covenant. In which case, the nature of the thing shews us, that the pacts we have described above (§109, 111), and the decree about a form of government, (§110), cannot take place; but the conquered people consents to all, not voluntarily, but by force.

SECTION CXIV

All the members of a civil state ought to submit their wills to the supreme powers in it.But as all societies are understood to have one understanding and one will (§19); so the same must be said of a state or republic thus constituted. Now, as many associates cannot agree upon the same end and means (§17), unless that business be committed to some one, or some certain number; so in a state the same must be done. But to do this, is the same Edition: current; Page: [417] as to submit one’s will to that of another; Edition: 1741; Page: [99] whence it is plain, that all the members of a republic ought to submit their wills to one or more; and therefore that he or they govern to whom the rest have submitted their will.

SECTION CXV

Hence arise either monarchical, aristocratical or democratical states.Hence it follows, that there can be no more but three regular forms of republics or civil states. For subjects must either submit their wills to one, many, or to the whole multitude. Now, when they submit their wills to the will of one physical person, hence arises monarchy, a kingdom or principality.*[fn517] But if to the will or decrees of many, thence arises aristocracy. And if to the whole people, that is, to what is decreed by the common suffrage of the whole people, then the form of government is popular, and called a democracy. Edition: 1741; Page: [100]

SECTION CXVI

To which are opposites, tyranny, oligarchy, and anarchy.But since whether one, many, or all govern, none presides over the republic by any other right but this, that the rest of the citizens have submitted their wills to such a governor or governors (§114); the consequence is, that those command unjustly; i.e. without right, to whom the members of a state have not submitted their will. Wherefore, if one such Edition: current; Page: [418] person command, monarchy becomes tyranny; if, instead of the senate of the nobles, a few usurp the supreme command, aristocracy degenerates into oligarchy; and if, instead of the whole people, a certain rabble, consisting of the very dregs of the people, manage all things at their pleasure, democracy degenerates into ochlocracy.* These vitious forms of government being very like to the regular ones, the latter easily degenerate into the former, as Polybius justly observes, and experience has abundantly confirmed. Polyb. hist. 6. 1. Edition: 1741; Page: [101]

SECTION CXVII

What are mixed republics.Now, since these regular forms of government may be perverted into as many opposite vitious forms (§116), it is not to be wondered at, that there are very few states to be found which have chosen any one of these three, but that many have compounded all these forms into one, or have so Edition: current; Page: [419] mingled two of them together, as that the one form might be a balance or check on the other. And since names are generally derived from the better or more eminent part; hence various kinds of kingdoms, aristocracies and democracies could not but arise, which it very little concerns us, whether they be called mixt or irregular republics. See Hert. element. prud. civ. 1. 2. 8. p. 2320 & seq.

SECTION CXVIII

What are systems of republics.Again, since whole societies may coalesce into a larger body (§17); hence it follows, that many republics may, each preserving its form of govern-Edition: 1741; Page: [102]ment and its independency intire, make a confederacy for acting with common consent for their common preservation and safety.* Such confederated republics were the Achaian ones; and such are called systems of republics.

Edition: current; Page: [420]

SECTION CXIX

A monarch has a right to any title of honour.Since monarchy is formed as often as all the subjects submit their will to one person (§115); the consequence is, that it is the same what title of honour he assume to himself, monarch, emperor, king, duke, or prince; and that having no superior, he may change his title, and take any other at Edition: 1741; Page: [103] his pleasure,* tho’ he cannot so easily force other kings or republics to acknowledge any new title he may take; and therefore it is more prudent for a prince, before he assumes to himself any new title or dignity, to know the sentiments of other kings and states about it, and expresly to stipulate to himself such new titles of honour.

SECTION CXX

[iw-1]He solely exerces all the rights of majesty.Hence it is evident that a monarch governs all by his will; and tho’ he may take counsel from persons of prudence and experience, yet their opinions are not suffrages but counsels; and that he acts at all times, and Edition: current; Page: [421] every where; so that it was justly said in the times of Hadrian the Roman em-Edition: 1741; Page: [104]peror, “Roma est, ubi imperator est,” where the Emperor is, there is Rome, Herod. hist. 1. 6. There is therefore no right of majesty which a prince may not exerce (§111); yea, a kingdom hardly deserves to be called a monarchy in which any other exerces any of the rights of majesty independently of the king.*

SECTION CXXI

The difference between a monarch and a tyrant.But tho’ a monarch governs all by his will, (§120), yet he ought not to act otherwise than the end of the state, the security of its members requires (§105); whence it follows, that the security and happiness of the people ought to be the supreme law in a monarchy; and in this does it differ from tyranny, which refers all to its own security and advantage; and which being acquired by villainous practices, cannot be retained by good methods, and therefore is very little concerned about the public welfare, provided it can sustain and preserve itself. Edition: 1741; Page: [105]

Edition: current; Page: [422]

SECTION CXXII

How the rights of majesty are exerced in aristocracy.Again, from the definition of aristocracy, we infer, that all the rights of majesty or sovereignty belong to the whole senate or college of nobles, and cannot be exerced but by the concurring consent of the whole senate. There must therefore be a certain place where they assemble to consult about the common affairs of the state; and likewise a certain appointed time, on which the ordinary senate is held, unless some unexpected emergencies demand the calling of a senate out of the ordinary course. Besides, because the consent of many can hardly be expected but by submission (§17); the consequence is, that even in aristocracy the smaller number ought to submit to the greater number; and therefore that the voice of the plurality should determine; but in an equality of voices, nothing can be done, unless he who presides give the deciding voice, or the case be such as that there is place for the Calculus Minervae.* Moreover, since the vitious form of government, that is the opposite of Aristocracy is called oligarchy (§116), and into it does aristocracy easily degenerate (ibidem); the very nature of the thing demands that no decree be valid, unless it be made when the greater part of the senate is present, e.g. two thirds. Edition: 1741; Page: [106]

Edition: current; Page: [423]

SECTION CXXIII

How in democracy.It is the same in a democracy: For since in it whatever is decreed by the common voice of the whole people is the will of the whole republic or state (§115), it follows, that the sovereignty belongs to the people, and that they have the right to exerce all the rights of majesty. But since that cannot be done unless the people hold assemblies to consult about their affairs, it is evident, that here also a certain place and stated days must be fixed for the public assemblies; and that whatever is resolved by the plurality of peoples suffrages in tribes, in curiae, or singly, is valid. In fine, that a democracy may degenerate into an ochlocracy,* if the right of voting be allowed to the minority of the people, the rest being excluded or absent, is evident from the very definition of ochlocracy (§116). Edition: 1741; Page: [107]

SECTION CXXIV

How in mixed republics.But since mixed republics, as they are called, are sometimes the best, and were formed on purpose that one form might balance another, and keep it within due bounds (§107), it is plain, that all, or some of the rights of majesty, ought to be so shared in such states, either among the senators, Edition: current; Page: [424] or among the people, that one order cannot determine any thing without consulting the other, and not to be so divided, that one may act either without the knowledge, or against the will of the other. For, in this case, nothing can hinder a republic from springing up within a republic.*

SECTION CXXV

How in systems of republics.As to systems of republics, since they are either constituted by the coalition of two kingdoms into one under a common head (§118), or by a confederacy between several independent states (ibid.) it is plain, in the former case, that unless they Edition: 1741; Page: [108] be distinct, perfect kingdoms, besides a common king, they ought to have a common senate, to which all the orders of both kingdoms are called proportionably to their strength. But, in the latter case, each state exercises by itself, at its own pleasure, all the immanent rights of sovereignty; and the transeunt rights, relative to their common security, ought to be exercised in a common council, composed of delegates from each, which is either perpetual or temporary; and in which all affairs concerning their common security are determined, the delegates having first consulted each his own state.

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SECTION CXXVI

There may be a great diversity of systems of republics.But because such confederacies chiefly depend upon the articles or terms of the agreement, there cannot but be a great diversity in this matter; and some will be more closely united, and others more laxly; some will have more, and some less in common. Thus some may have, by confederacy or treaty, a common treasury, a common mint, and a common armory, and others not. In fine; some may have a certain president, who is guardian of the confederacy, and takes the chair in the council and others may be confederated in a very different manner; and, in a word, neither the right of suffrage, nor the manner of contributing towards the common security, nor any of the other constitutions can be every where, or in all confederacies the same. Edition: 1741; Page: [109]

Remarks on This Chapter

First of all, it is worth while to observe here, That tho’ it be very certain that mankind may be very happy, and arrive at a considerable degree of perfection in sciences and arts, to great politeness as well as opulence, in segregate families living independently one of another, or with regard to one another, in a state of natural equality and liberty; yet, as it is beyond all doubt on the one hand, that an ill-constituted civil state is the source of the greatest misery mankind can fall into; so on the other hand, it is equally plain from the nature of things, and from experience, that there is a perfection and happiness attainable by a rightly constituted civil state, to which mankind can no otherwise attain. Now mankind may be justly said to be fitted and designed for the state of the greatest perfection attainable by them in consequence of their frame; and therefore to be designed for the civil state, by which the greatest perfection and happiness of mankind is attainable. There must be means to an attainable end; and all means cannot possibly be equally fit for attaining the same end: But any end attainable by man in consequence of his having the means for attaining to it in his power, is, properly speaking, an end within human reach, according to the laws of human nature. And it is but doing justice to the Author of nature, and but speaking of the end for which mankind is designed by the Edition: current; Page: [426] Author of all things, in the same manner we speak of the ends for which any mechanical structure of nature’s production (as the human body, or any other animal body) or any mechanical structure produced by human art, (as a ship, a watch, &c.) is designed, to say that mankind are principally designed by the Author of nature for the best end, or the highest perfection and happiness within human reach, in consequence of man’s frame and constitution, the laws of his nature, and the means within his power. If therefore the highest perfection and happiness within human reach be attainable, and only attainable in a rightly constituted civil state, and if men be sufficiently impelled to, and furnished for rightly constituting a civil state, man may be said to be intended for a rightly constituted civil state, and all the perfection and happiness attainable in it, or by it, in the same sense that any animal structure, or any machine, is said to be intended for its end. Our conclusion must hold, if the premises from which it is drawn be true.

Now, that there is a very high degree of perfection and happiness attainable by man in a rightly constituted civil state, not otherwise attainable by man, will appear from comparing civilized states one with another, and with nations living without any order deserving the name of civil government. But the manifold advantages of rightly constituted civil government having been fully proved by many authors, Harrington, Sydney, Locke, among the moderns, and by Plato, Aristotle, Polybius, Edition: 1741; Page: [110] Cicero, and others among the ancients; I shall only add upon this head, a very remarkable saying of one ancient, with regard to the greatest happiness attainable by man. Hippodamus Thurius Pythagor. de felicitate,5 having described the principal ingredients of human happiness, says,—Quae quidem omnia contingent si quis rempublicam bene constitutam nanciscatur. Id quod quidem Amaltheae quod dicitur cornu voco. Etenim in recta legum constitutione sunt omnia; neque maximum naturae humanae bonum vel existere absque ea, vel comparatum & auctum permanere possit. Nam et virtutem, & ad virtutem viam in se continet, quandoquidem in ea partim naturae bona procreantur, partim & mores & studia; leges optime se habent & recta ratio, pietas sanctimonia magnopere vigent. Quamobrem qui beatus futurus & seliciter victurus est, Edition: current; Page: [427] eam in bene constituta republica & vivere, necesse est & mori, &c. “All these blessings and advantages will accrue to one from a well constituted republic. This we may justly call the horn of Amalthea, the horn of plenty and felicity. For all depends upon the good orders, constitutions and laws of a state: Nor can the greatest good of mankind be attained, or being attained, be preserved, without right government. A well framed government includes virtue, and the way to virtue in it: Good orders make good men: There the goods of nature grow up as in their proper soil; and there good manners and useful studies and employments will flourish: There the laws direct and impel into the right paths; and there reason, virtue, piety, authority, must have their greatest splendor and vigour. Wherefore, he who would be as happy as man can be, and would continue while he lives to be such, must live and die in a well framed, a well constituted or balanced civil government, &c.”

2. But let me just observe, in the second place, that ends and means to ends, can only be learned from nature itself by experience, and reasoning from experience. This must be equally true with regard to natural and moral ends and means. The consequence of which is, that the political art required time, observation and experience, to bring it to perfection, as well as natural or mechanical arts. And for this reason, in very early times of the world, men could not be so much masters of the science upon which the framing of government aright must depend, as to have had all the advantages and disadvantages of different governments, all the various effects of different moral or political constitutions in their view, in framing a government: They could only learn these natural connexions of moral things from experience. And therefore, in treating of government, two separate enquiries ought never to be confounded; the one of which is, “what ends right reason dictates to mankind as the ends to be proposed in constituting civil government; and what means, i.e. what orders and constitutions it points out as the proper means in order to attain these good ends.” And the other is, “how in fact various governments were formed, and how, Edition: 1741; Page: [111] being formed, they changed gradually their frame to the better or worse.” The one is a question of fact or history; and the principal advantage reaped by history, is instruction in the natural effects of various constitutions in different situations; or the knowledge of what moral connexions and causes produce in different circumstances, and the knowledge Edition: current; Page: [428] of the rise of different circumstances, from internal or external causes; which knowledge has the same relation to moral theory in moral philosophy, that the history of facts in nature, with regard to the operation of natural causes in different circumstances, has to natural theory or physics: that is, it is the only solid basis in both to build upon. For as in physics it is now agreed that we can only come to solid or real knowledge by induction from experiments; so in morals and politics it is equally true, to use the words of a great man often quoted in these remarks, “To make principles or fundamentals belongs not to men, to nations, nor to human laws. To build upon such principles or fundamentals as are apparently laid by God in the inevitable necessity or law of nature, is that which truly appertains to men, to nations, and to human laws. To make any other fundamentals, and then build upon them, is to build castles in the air.”6 The other question supposes knowledge of human affairs, and the natural operations of moral causes, learned in this way from fact, and reasoning from fact or experience; and it is properly a philosophical enquiry into what ought to be done in consequence of the natural operation of moral causes, or of the laws of human nature, known by experience, in order to frame such a civil government as would make its members as happy as men can be. And it is, when it proceeds upon facts or experiments, the most pleasant and useful of all philosophical enquiries; and that certainly, which, of all other studies, best becomes those, who, by their natural happy lot, are delivered from drudgery to their backs and bellies. Nay, may I not say, that it is the study, to which, if such do not betake themselves chiefly, they are absolutely inexcusable. For sure, if virtue and benevolence be not empty names, they must lie under the strongest, the most indispensable obligations to qualify themselves for promoting human happiness: they are bound and obliged to be tutors and guardians to mankind. And whatever other employment they may carve out to themselves, or however thoughtlesly they may waste their time, if they neglect this, they neglect the noble work providence hath put into their hands to do. A work, (a happiness should I not rather say) than which nothing can be higher, nobler, or more glorious. It is a work or employment, and a happiness of the same kind with the work, employment, Edition: current; Page: [429] and happiness of the great Author of nature, the all-perfect God.

But let me observe, in the third place, that tho’ our author, in speaking of the origine of civil governments, (which is a question of fact or history) hath frequently come very near the matter, especially in the scholium, where he speaks of the king-Edition: 1741; Page: [112]dom founded by Nimrod, yet he hath not fully spoke it out: and therefore it will not be improper here to lay before the reader a series of propositions relative to that subject; i.e. which shew government in its natural causes, or in its natural procreation and natural variations. And these truths having a necessary connexion with what hath been already taken notice of in our remarks with regard to property, or the acquisition of dominion over things, they will be easily understood; so that there will be but little occasion to do more than just mention them. And that I shall, for the greater part, do in the very words of an excellent author, unknown to foreign writers, from whom we have already borrowed so many useful observations.7

1. The distribution of property, so far as it regards the nature or procreation of government, lies in the over-balance of the same. Just as a man, who has two thousand pounds a year, may have a retinue, and consequently a strength that is three times greater than he who enjoys but five hundred pounds a year. Not to speak of money at this time, (of that we have already treated in another remark, viz. the remarks on chapter 13. l. 1. which the reader may turn to) which, in small territories, may be of like effect; but to insist upon the main, which is property in land, (because to property producing empire, it is required that it should have some certain root, or root-land, which, except in land, it cannot have, being otherwise, as it were, upon the wing); to insist upon this, which is the main, the over-balance of this, as it was at first constituted, or comes insensibly to be changed into a nation, may be especially of three kinds; that is, in one, in the few, or in many. The over-balance three to one, or thereabouts, in one man against the whole people, creates absolute monarchy; as when Joseph had purchased all the lands of the Egyptians for Pharaoh. The constitution of a people Edition: current; Page: [430] in this, and such cases, is capable of intire servitude. Buy us and our land for bread, and we and our land will be servants to Pharaoh, Gen. xlvii. 19. If one man be sole landlord of a territory, or overbalance the people, for example, three parts in four, he is Grand Signior; for so the Turk is called from his property; and his empire is absolute monarchy. The overbalance of the land to the same proportion in the few against the whole people, creates aristocracy, or regulated monarchy. The constitution of a people in this, and the like cases, is (nec totam libertatem, nec totam servitatem pati possunt, Tacit.)8 neither capable of intire liberty, nor of intire servitude. And hereupon Samuel says to the people of Israel, when they would have a king, “He will take your fields, even the best of them, and give them to his servants, 1 Sam. viii.” If a few, or a nobility with the clergy be landlords, or over-balance the people to the proportion above-mentioned, it makes what is called the Gothic balance. (See this treated of at large by Mr. Harrington.) The over-balance of land to the same proportion in the people, or Edition: 1741; Page: [113] where neither one nor the few over-balance the whole people, creates popular government; as in the division of the land of Canaan to the whole people of Israel by lot. The constitution of a people in this, and the like cases, is capable of intire freedom; nay, not capable of any other settlement; it being certain, that if a monarch, or single person, in such a state, thro’ the corruption or improvidence of their councils, might carry it; yet, by the irresistible force of nature, or the reason alledged by Moses, (I am not able to bear all this people alone, because it is too heavy for me; Numb. xi. 14.) he could not keep it, but out of the deep waters would cry to them, whose feet he had stuck in the mire. If the whole people be landlords, or hold the lands so divided among them, that no one man, or number of men, within the compass of the few, or aristocracy over-balance them, the empire, (without the interposition of force) is a commonwealth.

2. If force be interposed in any of these three cases, it must either frame the government to the foundation, or the foundation to the government; or holding the government not according to the balance, it is not natural, but violent; and therefore, if it be at the devotion of a prince, it is tyranny; if at the devotion of a few, oligarchy; or if in the Edition: current; Page: [431] power of the people, anarchy. Each of which confusions, the balance standing otherwise, is but of short continuance, because against the nature of the balance, which not destroyed, destroys that which opposes it. But there be certain other confusions, which being rooted in the balance, are of a longer continuance, and of worse consequence. As first, where a nobility holds half the property, or about that proportion, and the people the other half; in which case, without altering the balance, there is no remedy but the one must eat out the other; as the people did the nobility in Athens, and the nobility the people in Rome. Secondly, when a prince holds about half the dominion, and the people the other half, (which was the case of the Roman Emperors, planted partly upon their military colonies, and partly upon the senate and the people) the government becomes a very shambles both of the princes and the people. Somewhat of this nature are certain governments at this day, which are said to subsist by confusion. In this case, to fix the balance is to entail misery; but in the three former, not to fix it, is to lose the government; wherefore, it being unlawful in Turkey, that any should possess land but the Grand Signior, the balance is fixed by the law, and that empire firm. While Lacedemon held to the division of land made by Lycurgus it was immoveable, but breaking that, could therefore stand no longer.

3. Fixation of government cannot be provided for without fixing the balance of property. But fixation of the balance of property is not to be provided for but by laws. Now, the laws whereby such provision is made, are commonly called Agrarian laws. This kind of law fixing the balance in lands, was settled by God himself, who divided the land of Canaan to his people Edition: 1741; Page: [114] by lots; and it is of such virtue, that wherever it has held, that government has not altered, except by consent; as in that unparallelled example of the people of Israel, when being in liberty they would needs choose a king. But without an Agrarian, no government, whether monarchical, aristocratical or popular, has a long lease. And as governments are of divers or contrary natures, so are such laws. Monarchy requires of the standard of property, that it be vast or great; and of Agrarian laws, that they hinder recess or diminution, at least in so much as is thereby entailed upon honour. But popular government requires that the standard be moderate, and that its Agrarian prevent accumulation. In a territory not exceeding England Edition: current; Page: [432] in revenue, if the balance be in more hands than three hundred, it is declining from monarchy; and if it be in fewer than five thousand hands, it is swerving from a commonwealth. In consequence of the same principles, wherever the balance of a government lies, there naturally is the militia of the same; and against him or them, wherein the militia is naturally lodged, there can be no negative voice. If a prince holds the over-balance, as in Turkey, in him is the militia, as the Janizaries and Timariots. If a nobility has the over-balance, the militia is in them, as among us was seen in the Barons wars, and those of York and Lancaster; and in France is seen, when any considerable part of that nobility rebelling, they are not to be reduced, but by the major part of their order adhering to the king. If the people has the over-balance, which they had in Israel, the militia is in them, as in the four hundred thousand first decreeing, and then waging war against Benjamin; where it may be enquired, what power there was on earth having a negative voice to this assembly! This always holds where there is settlement, or where a government is natural. Where there is no settlement, or where the government is unnatural, it proceeds from one of these two causes, either an imperfection in the balance, or else such a corruption in the lawgivers, whereby a government is instituted contrary to the balance. Imperfections of the balance, that is, where it is not good or downright weight, cause imperfect governments; as those of the Roman and Florentine people, and those of the Hebrew Kings and Roman Emperors, being each exceeding bloody, or at least turbulent. Government against the balance in one is tyranny, as that of the Athenian Pisistratus; in the few it is oligarchy, as that of the Roman Decemvirs; in the many, anarchy, as that under the Neapolitan Mazinello.

4. From these principles will the reader find the more remarkable changes in the Athenian, Spartan, Roman, and other states, accounted for naturally by Mr. Harrington. And from them he justly infers, that wherever, thro’ causes unforeseen by human prudence, the balance comes to be intirely changed, it is the more immediately to be attributed to divine providence: And since God cannot will the cause, Edition: 1741; Page: [115] but he must also will the necessary effect or consequence, what government soever is in the necessary direction of the balance, the same is of divine right. Wherefore, tho’ of the Israelites God says, They have set up kings, but not by me; they have made princes, and I knew it not. Yet to the small Edition: current; Page: [433] countries adjoining to the Assyrian empire, he says, “Now have I given all these lands into the hands of the king of Babylon my servant.—Serve the king of Babylon and live.” The general truth here insisted upon, which history abundantly confirms, is, that the over-balance of property begets dominion, and that the balance of dominion will always follow the balance of property, be under its direction, or vary as it varies. And therefore this author says very justly (of his works, p.70.)9 To erect a monarchy, be it ever so new, unless like Leviathan, you can hang it, as the country fellow speaks, by geometry; (for what else is it to say that any other man must give up his will to the will of this one man without any other foundation?) it must stand upon old principles, that is, upon a nobility, or an army planted in a due balance of dominion. “Aut viam inveniam aut faciam,”10 was an adage of Caesar; and there is no standing for a monarchy, unless it finds this balance, or makes it. If it finds it, the work is done to its hand; for where there is inequality of estates, there must be inequality of power; and where there is inequality of power, there can be no commonwealth. To make it, the sword, must extirpate out of dominion all other roots of power, and plant an army upon that ground. An army may be planted nationally or provincially. To plant it nationally, it must be either monarchically in part, as the Roman Beneficiarii; or monarchically in the whole, as the Turkish tenants; or aristocratically, that is, by earls and barons, as the Neustrians were planted by Turbo; or democratically, that is, by equal lots, as the Israelitish army in the land of Canaan by Joshua. In every one of these ways, there must not only be confiscations, but confiscations to such a proportion as may answer to the work intended.

5. As nothing else can fix government but an Agrarian suitable to its nature; so different superstructures are natural to different foundations of government. Thus, such superstructures as are natural to an absolute prince, or the sole landlord of a large territory, require for the first story of the building, that what demesnes he shall think fit to reserve being Edition: current; Page: [434] set apart, the rest be divided into horse quarters or military farms for life, or at will, and not otherwise; and that every tenant for every hundred pounds a year so held, be, by condition of his tenure, obliged to attend his sovereign lord in person, in arms, and at his proper cost and charges, with one horse, so often, and so long as he shall be commanded upon service. These, among the Turks, are called Timariots. The second story requires, that these horse-quarters, or military farms, be divided by con-Edition: 1741; Page: [116]venient precincts or proportions into distinct provinces, and that each province have one commander in chief of the same, at the will and pleasure of the Grand Signior, or for three years, and no longer. Such, among the Turks, (unless by additional honours, they be called Bashaws or Viziers) are the Beglerbegs. For the third story, there must of necessity be a mercenary army, consisting both of horse and foot, for the guard of the prince’s person, and for the guard of his empire, by keeping the governors of provinces so divided, that they be not suffered to lay their arms or heads together, or to hold intelligence with one another; which mercenary army ought not to be constituted of such as have already contracted some other interest, but to consist of men so educated from their very childhood, as not to know that they have any other parent or native country, than the prince and his empire. Such, among the Turks, are the foot, called Janizaries, and the horse, called Spahys. The prince, accommodated with a privy council, consisting of such as have been governors of provinces, is the top-stone. This council, among the Turks, is called the Divan, and this prince, the Grand Signior.

The superstructures proper to a regulated monarchy, or to the government of a prince, (three or four hundred of whose nobility, or of whose nobility and clergy hold three parts in four of the territory) must either be by personal influence, upon the balance, or by virtue of orders. The safer way of this government is by orders; and the orders proper to it, especially consist of an hereditary senate of the nobility, admitting also of the clergy, and of a representative of the people, made up of the Lord’s menial servants, or such as by tenure, and for livelihood, have immediate dependance upon them.

An aristocracy, or state of nobility, to exclude the people, must govern by a king; or to exclude a king, must govern by the people. Nor is there, without a senate, or mixture of aristocracy, any popular government; Edition: current; Page: [435] wherefore, tho’, for discourse sake, politicians speak of pure aristocracy and pure democracy, there is no such thing as either of these in nature, art, or example: where the people are not over-balanced by one man, or by the few, they are not capable of any other superstructures of government, or of any other just and quiet settlement whatsoever, than of such only as consists of a senate as their counsellors, of themselves, or their representative, as sovereign lords, and of a magistracy answerable to the people as the distributers and executioners of the laws made by the people. And thus much is of absolute necessity to any, or every government, that is or can be properly called a commonwealth, whether it be well or ill ordered. But the necessary definition of a commonwealth any thing well ordered, is, that it is a government consisting of the senate proposing, the people resolving, and the magistracy executing. To speak of different or-Edition: 1741; Page: [117]ders in commonwealths, would be almost endless. Some commonwealths consist of distinct sovereignties, as Switzerland and Holland; others are collected into one and the same sovereignty, as most of the rest. Again, some commonwealths have been upon rotation or courses in the representative only, as Israel; others in the magistracy only, as Rome; some in the senate and magistracy, as Athens and Venice; others in some part of the magistracy, and in others not; as Lacedemon in the Ephori, and not in the kings; and Venice not in the Doge, nor in the procuratori, but in all the rest. Holland, except in the election of states provincial (which is emergent) admits not of any rotations or courses. But there may be a commonwealth admitting of rotation throughout, as in the senate, in the representative, and in the magistracy, as that proposed by Mr. Harrington in his Oceana. Rotation, if it be perfect, is equal election by, and succession of the whole people to the magistracy by terms and vacations. Equal election may be by lot, as that of the senate of Lacedemon; or by ballot, as that of Venice, which of all others is the most equal. The ballot, as it is used in Venice, consists of a lot, whence proceeds the right of proposing, and of an unseen way of suffrage, or of resolving. From the wonderful variety of parts, and the difference of mixture (before Mr. Harrington scarce touched by any) result those admirable differences that are in the constitution and genius of popular governments; some being for defence, some for increase; some more equal, others more unequal; some turbulent and seditious, others like Edition: current; Page: [436] streams in a perpetual tranquillity. That which causes much sedition in a commonwealth is inequality, as in Rome, where the senate oppressed the people. But if a commonwealth be perfectly equal, it is void of sedition, and has attained to perfection, as being void of all internal causes of dissolution. And hence many antient moral writers, Cicero in particular, have said, that a well constituted commonwealth is immortal, aeterna est. An equal commonwealth is a government founded upon a balance, which is perfectly popular, being well fixed by a suitable Agrarian, and which, from the balance, through the free suffrage of the people given by the ballot, amounts, in the superstructures, to a senate debating and proposing, a representative of the people resolving, and a magistracy executing; each of these three orders being upon courses or rotation; that is, elected for certain terms injoining like intervals. And to undertake the binding of a prince from invading liberty, and yet not to introduce the whole orders necessary to popular government, is to undertake a flat contradiction, or a plain impossibility.

6. All I have further to add in this remark, designed to shew the natural generation and variation of empire is, that these principles (as Mr. Harrington has observed) were not unknown to ancient politicians, and are sufficiently confirmed by history. That they were not unknown to Moses, is plain from Edition: 1741; Page: [118] the history given us of the orders of the commonwealth instituted by him; nor to Lycurgus, is as plain. I shall only just set down the passages Mr. Harrington quotes from Aristotle and Plutarch. The first is Aristotle, in these words: “Inequality is the source of all sedition, as when the riches of one or a few come to cause such an overbalance in dominion, as draws the commonwealth into monarchy or oligarchy; for prevention whereof the ostracism has been of use in divers places, as at Argos and Athens. But it were better to provide in the beginning, that there be no such disease in the commonwealth, than to come afterwards to her cure, Polit. 5. 3.” The second is Plutarch, in these words: “Lycurgus judging that there ought to be no other inequality among citizens of the same commonwealth than what derives from their virtues, divided the land so equally among the Lacedemonians, that, on a day beholding the harvest of their lots lying by cocks or ricks in the field, he laughing said, that it seemed to him they were all brothers, Plutarch in Lycurg.”11 This account Edition: current; Page: [437] of the rise, variation or fixation of empire, is abundantly confirmed by experience or history. To prove this I shall only here insert a small part of what Mr. Harrington says of several ancient republics, in order to excite the reader’s curiosity to have recourse to himself, (of his works, p.57).12 “Israel and Lacedemon, which commonwealths have great resemblance, were each of them equal in their Agrarian, and inequal in their Rotation: especially Israel, where the Sanhedrim or senate first elected by the people, took upon them ever after to substitute their successors by ordination. And the election of the judge, suffes,13 or dictator, was irregular, both for the occasion, the term, and the vacation of that magistracy, as you find in the book of Judges where it is often repeated, That in those days there was no King in Israel, that is, no Judge: and in the first of Samuel where Eli judged Israel forty years, and Samuel all his life. In Lacedemon, the election of the senate being by suffrage of the people, tho’ for life, was not altogether so unequal, yet the hereditary right of kings, were it not for the Agrarian, had ruined her. Athens and Rome were inequal as to their Agrarian, that of Athens being infirm, and this of Rome none at all; for if it were more anciently carried, it was never observed. Whence, by the time of Tiberius Gracchus, the nobility had almost eaten the people quite out of their lands, which they held in the occupation of tenants and servants: whereupon, the remedy being too late, and too vehemently applied, that commonwealth was ruined. These also were unequal in their rotation, but in a contrary manner. Athens, in regard that the senate (chosen at once by lot, not by suffrage, and changed every year, not in part, but in the whole) consisted not of the natural aristocracy; nor sitting long enough to understand or be perfect in their office, had no sufficient autho-Edition: 1741; Page: [119]rity to restrain the people from that perpetual turbulence in the end, which was their ruin, notwithstanding the efforts of Nicias, who did all a man could do to help it. But as Athens fell by the headiness of the people, so Rome fell by the ambition of the nobility, through the want of an equal rotation; which, if the people had got into the senate, and timely into the magistracy (whereof the former was always usurped by the patricians, and the latter for the most part) they had Edition: current; Page: [438] both carried and held their Agrarian, and that had rendered that commonwealth immoveable.”

This short specimen of our Author’s way of reasoning about the rise and fall, or variations of civil government, is sufficient to shew, that he reasons from natural causes in these matters, as natural philosophers do about phenomena commonly called natural ones. And indeed every thing in nature, moral or corporeal nature, must have its natural course, its natural rise, progress and variations. And as to know the one is to be a natural philosopher, so to know the other is to be a moral philosopher or politician.

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CHAPTER VII: Of sovereignty, and the ways of acquiring it.

SECTION CXXVII

All sovereignty is supreme and absolute.Since those who unite into a civil state lived before that in a state of nature (§3), which is a state of equality and liberty (§5 and 6); the consequence is, that a civil state is subjected to no person or persons without it; may not be hindered or disturbed in doing any thing it judges necessary for its conservation, but may freely exerce all its rights, and cannot be forced to give an account to any of its transactions. But all those things together constitute what is called supreme or absolute sovereignty or empire; and therefore, in every civil state, there is supreme and absolute empire or sovereignty.* Edition: 1741; Page: [120]

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SECTION CXXVIII

The error of monarch-killers.Because there is supreme empire or absolute sovereignty in every civil state or republic (§127), and citizens or subjects may have submitted their will either to one, or many, or to the whole people, (§114); the consequence is, that to whomsoever they have submitted their will, he, or they are vested with supreme power or sovereignty, and therefore they can be judged by none but God alone; and much less therefore can they be punished in any manner by the people; so that the doctrine of monarch-killers, which makes the people superior to the king or prince, and places in the former the real, and in the latter only personal majesty, is a most petulant one.* Edition: 1741; Page: [121]

Edition: current; Page: [441]

SECTION CXXIX

As likewise of the machiavelians.But since subjects have only so far subjected themselves to the will of a sovereign as their common security, the end for which they entred into the civil state, requires (§14 & 106), we must infer from hence, that they are abominable and flagitious flatterers of sovereigns, who persuade them that they may do what they please, and can do no injury to their subjects; but that their persons, lives, reputations and estates, are so absolutely dependent upon them, that subjects have no more left to them but the glory of absolute submission and obedience. From this corrupt spring flow all those pestiferous tenets, which Machiavel and Hobbes have attempted to impose upon mankind with the greatest assurance; and, together with them, all the asserters and defenders of passive-obedience in Great Britain. But who will deny that such doctrines are no less pestilential than that of king-killing?* Edition: 1741; Page: [122]

Edition: current; Page: [442]

SECTION CXXX

Sovereigns are sacred.Since sovereigns cannot be judged by any but God, much less be punished by their people (§128); hence we conclude that sovereignty is sacred, and that Sovereigns are sacred; and therefore that sedition and rebellion are very heinous crimes. Tho’ we should grant in theory, that Sovereigns who manifest a hostile disposition against their subjects, may be resisted as tyrants; yet this rule would be in fact of no utility, because Sovereigns can only be judged by God, and therefore God alone can decide whether a Sovereign truly bears a hostile mind against his subjects or not.* Edition: 1741; Page: [123]

Edition: current; Page: [443]

SECTION CXXXI

But yet it is not lawful to sovereigns to do whatever they please.But since every thing is not lawful to a prince (§129) the consequence is, that he cannot impose any violence or restraint upon the consciences of his subjects, nor command them to do any thing contrary to the will of God the supreme lawgiver (l. 1. §87); neither can he, without a pregnant and just reason, deprive any subject of his right, seeing subjects united into a civil state chiefly for the security of their rights (§105). Subjects therefore, in great distress, may try all methods in order to obtain their rights, and, in extreme danger, leave their native country (§21); but they may not take up arms against their prince or the republic (l. 1. §232). Edition: 1741; Page: [131]

Edition: current; Page: [444] Edition: current; Page: [445] Edition: current; Page: [446] Edition: current; Page: [447] Edition: current; Page: [448] Edition: current; Page: [449]

SECTION CXXXII

What if empire be given with a commissory clause?Tho’ these things be true of Sovereigns in general, yet it may happen, that empire is given to one with certain restrictions by pacts, and with a commissory article to this effect, that the deed shall be null, if the conditions be not fulfilled. Now, in this case, no injury is done to Sovereigns, if after they have been frequently admonished, they do not cease to invade the liberty of their subjects, and to oppress them, the Empire be taken from them. And it is evident, from the nature of pacts, if free-men hinder those from exercising rule over them, who assume it to themselves without any just title to it, or with whom they have made no pact, no transference of power, no covenant, they cannot be blamed.* Edition: 1741; Page: [133]

Edition: current; Page: [450]

SECTION CXXXIII

Empire exerts itself in rights of majesty. What these are?But since all empire is supreme and absolute, (§127), the consequence is, that all the rights are joined with it, without which the end of civil society, viz. security, cannot be obtained; all which united together constitute majesty, or the rights of majesty. Now, this security being two-fold, internal, by which the subjects are inwardly secured one against the other, and external, by which the society is defended against the arms Edition: current; Page: [451] and force of outward enemies; hence it is plain, that the rights of majesty are of two sorts; some relative to the citizens or subjects themselves, called immanent; and others relating to foreigners, called transeunt.* Edition: 1741; Page: [134]

SECTION CXXXIV

Of the immanent rights of majesty.If the internal security of a state consist in defending the subjects against violence from one another (§133), of necessity there must be joined with sovereignty the right of making laws, and of applying these to facts or cases, which we may call supreme jurisdiction; as likewise the right of punishing transgressions of the laws, and of exacting tributes and duties proportionable to the exigencies of the state; the right of constituting administrators and magistrates; of regulating all that relates to sacred things, as well as to commerce, and the ornament of the state; and, in fine, of watching that the republic suffer no wrong or hurt.

Edition: current; Page: [452]

SECTION CXXXV

What the transeunt rights of majesty.And since those who coalited into the same republic, likewise intended their common security against external violence (§133); the consequence is, that from sovereignty cannot be severed the right of making alliances and treaties, sending ambassadors, and making war and peace; since without these rights the state could not be preserved safe and secure. For without the right of making alliances and treaties, a weaker state would often be a very inequal match for a more potent one; without the right of sending ambassadors, treaties could not be Edition: 1741; Page: [135] made; and without the right of making war and peace, it would be impossible to repel force by force; and therefore the end of society, which is security, could not be obtained.

SECTION CXXXVI

Whether they are communicable and divisible.Those rights of majesty flowing directly from the nature and end of sovereignty, cannot be separated from it without destroying that unity of will which is the essence of society, and rearing up a republic within a republic (§120); yet, because all, or several forms of government, are sometimes so blended together, that one may check or balance another, (§117), it may happen, that all, or the greater part of the rights of majesty may be exerced, not by one person, or by one college, but by many, or by the whole people; and in this case, there must be an assembly, in which the Sovereign exercises them according to the judgment of the different orders composing it.* Edition: 1741; Page: [136]

Edition: current; Page: [453]

SECTION CXXXVII

Empire is acquired either by election or by succession.Moreover, because both the form of the government, and the governors themselves, are elected by the same people, who also prescribe fundamental laws to them (§110); hence it is evident, that none can acquire empire to himself in a civil state without the consent of the people, or contrary to its fundamental laws. But, according to these, empire may either be elective or successive; and this division extends not only to monarchies, but to aristocracies and popular governments.*

SECTION CXXXVIII

What is just with regard to the election of a sovereign.Empire is elective, when the people in an interregnum creates a Sovereign, and transfers the empire to him with his consent. But, because the people may either exerce this right themselves in a regular assembly, or give this right in perpetuity to certain persons; the consequence is, that he who is chosen by the one or the other of those who hath the right of choosing, ought to be held as Sovereign, provided he accepts of the sovereignty offered to him, and be qualified according to the fundamental laws of the state to rule and govern; and provided the election be made in the order, and with Edition: 1741; Page: [137] the solemnities required by the public laws, or the customs of the state.

Edition: current; Page: [454]

SECTION CXXXIX

What is an interregnum in an elective state?Moreover, it is evident, from the definition of an elective government (§138), that in it an interregnum happens, that is, a state in which the republic hath no Head or Sovereign, as often as the Sovereign dies or abdicates, or is deposed by the people; unless the people, during the Sovereign’s life, and with his consent, choose one who is to succeed to him; and that the designed successor hath no more power or right, during the Sovereign’s life, but what is given to him by the people with his consent, or what the Sovereign himself delegates to him, either during his absence, or when he is hindered by any just cause from presiding over the state himself.* Edition: 1741; Page: [138]

Edition: current; Page: [455]

SECTION CXL

Whether the republic subsists in an interregnum?But since an interregnum is a state in which the republic hath not its regular or ordinary Head or Sovereign (§139); and yet the people would not have the republic to cease, while it is consulting about the choice of a new head; the consequence is, that certain extraordinary magistrates ought to preside in the republic during that interval, by whatever name they may be called, who ought either to be elected by the suffrages of the orders in the republic at that time, or which is safer and better, be appointed by a public law before hand, making provision for the security and good order of the state on such occasions; but that their authority ceases when a Sovereign is elected, is obvious. However, since they supply the Sovereign’s place for a time, it is strange to find learned men disputing whether the republic truly subsists in an interregnum, and what frame it falls into in that situation.* Edition: 1741; Page: [139]

Edition: current; Page: [456]

SECTION CXLI

Of succession in kingdoms where the people hath made no settlement with regard to it.Empire is successive when by the decree of the people a royal family is elected, one of which is always to have the supreme power, while any one of its posterity is capable of holding it by the public constitutions. When such a form of government is agreed upon, either the people determine the Edition: 1741; Page: [140] manner of succession, or leave it undefined. In the latter case, the people is presumed to have approved of the common right of succession to intestates. But, because females are not presumed to have so much prudence as men (§44), and because a kingdom might happen to pass by a woman to a foreigner as dowry, therefore women are not admitted to succession but as subsidiaries, and failing male-heirs. In fine, since unity of will is, as were, the life and soul of a republic (§114); and this cannot be expected, if two or more have the joint administration of a monarchical kingdom, or share it between them; the consequence is, that among many equally near to the last king, the first-born is justly honoured with the prerogative (l. 1. §297).*

Edition: current; Page: [457]

SECTION CXLII

What when the people hath settled it.When the people hath settled and fixed the order of succession, it is plain that this rule ought to be adhered to (§111), and whether the French constitution take place, by which females are excluded; or the Castilian, which doth not exclude the women, but postpones them to the men, and runs back to the female again, in case the males, who were superior or equal to them in other respects, Edition: 1741; Page: [141] shall happen to fail, together with their issue; (i.e. in the same degree of the same line, the younger males are preferred to the elder females; yet so as that no transition is made from one line to another on the bare obstacle of the sex); or whether greater regard be had to the line, or to the nearest degree of kindred; or whether there be any new or unusual method of succession fixed by the public law, that rule, whatever it be, ought to be observed as a sacred, as a fundamental constitution; whence, moreover, we conclude, that a people may give their Sovereign the power of appointing his successor, and may interpose when disputes arise about the right of succession; tho’ experience teaches us, that (to use the words of Ennius) in such a difficult situation, “Non in jure manum conseri, sed mage rem ferro agi”; it is not right, but the sword that decides.*1

Edition: current; Page: [458]

SECTION CXLIII

Ordinary and extraordinary interregnum.Since in elective government a single person only is chosen (§138), but in successive governments a royal family is elected (§141); because, in the first case, the right expires with the person elected; whereas, in the latter, it subsists while the royal family subsists; the consequence is, that in the first Edition: 1741; Page: [142] case there is an ordinary interregnum upon the decease of the elected person; in the latter, there is an extraordinary interregnum, when the royal family is extinct; and then it falls into the power of the people to confer the regal honour upon any family they please, and to continue the same kind of government and order of succession, or to confine both within more narrow limits, as they shall think fit.*

SECTION CXLIV

How empire is acquired by force.Those are the ways of acquiring empire when a people constitutes its own Sovereign; but it is often acquired by arms and force; in which case also, a conquered people, tho’ forced, does yet, without all doubt, consent to that sovereignty under which they are brought; and whether the conqueror promises to govern them according to their former laws, or stipulates to himself and his successors new terms and larger power, or remits to the conquered people some things which their former princes arrogated to themselves, that rule must be the rule to their posterity. Edition: 1741; Page: [143]

Edition: current; Page: [459]

SECTION CXLV

The division of kingdoms into patrimonial and usufructuary.Wherefore all the ways of acquiring empire depend upon the consent of a people either voluntary, or forced and extorted either by a just or unjust cause. And therefore we think there is very little foundation for the distinction between patrimonial and usufructuary empire. For tho’ Grotius first invented that distinction (of the rights of war and peace, 2. 6. 3. & 1. 3. 12.) and hath been followed in it by a numerous tribe of learned writers; yet this whole doctrine is loaded with so many difficulties, that we cannot tell what kingdoms may be called patri-Edition: 1741; Page: [144]monial, and what usufructuary. See Thomas. ad Huber. de jur. civ. 1. 3. 2. 15. p. 69. & seq.

SECTION CXLVI

Whether this division be just?Grotius thinks some kingdoms are so much under the dominion of their Sovereigns, that they may be alienated by them either in their life, or in the prospect of death; and these he calls patrimonial. And that others Edition: current; Page: [460] are such, that their Sovereigns cannot alienate them, which he calls usufructuary ones; tho’ Thomasius jurisprud. divin. 3. 6. 135. thinks they may be more properly called fideicommissory or trusts. But, 1. Since patrimonial things are no longer common (l. 1. §235) and therefore not public, because that supposes at least private communion (l. 1. §237), it is plain that a kingdom ceases to be a republic, and degerates into a family (§89), if it be in the dominion or patrimony of one. Besides, 2. Since all civil states are constituted, not for the sake of the Sovereign, but for common security (§105); for that reason, a kingdom cannot be patrimonial, without ceasing to be a civil state. See a dissertation of the illustrious president of this province, Jo. Gothofredi de Cocceiis, de testamentis principum, part 2. §16. & seq.*2 Edition: 1741; Page: [145]

SECTION CXLVII

The alienation of kingdoms without the consent of the people is unlawful.Hence we think it may be justly concluded, that no Sovereign can sell, give, barter, divide, leave by last-will to any one his kingdom, or transfer it in any of those ways, one can dispose of his patrimony in his life, or in view of death to others, unless the people consent, or have given him expresly the power of alienating his sovereignty or disposing of it.

Edition: current; Page: [461]

Remarks on This Chapter

It will be easy to determine what the law of nature prescribes in other cases, if we can determine what it prescribes with respect to the exercise of the absolute empire, which is the effect of, and rooted by an over-balance in property. We have already taken notice of the natural causes of Empire, to which, if moral writers had attended, they would not have debated so much about the origine of civil government or Empire. If one man, it hath been said, be sole land-lord, or over-balance the many in property to a certain proportion, he will be sole monarch. But now, how ought such a land-lord, and absolute master, to exercise his dominion or empire? What rules does the law of nature prescribe to him? Doth it not prescribe to him these very immutable, universal laws of justice and benevolence, which have been already explained? In general, therefore, may we not answer, that such a master is under perfect obligation to exercise justice towards his subjects or servants, let them be called which you will, and under imperfect obligation to exercise beneficence towards them? But not to rest in so general an answer, the following propositions may be laid down with re-Edition: 1741; Page: [146]gard to such empire, in consequence of what hath been said by our Author, and in the preceding remarks subjoined to him, to his two last chapters in particular. 1. It is lawful to acquire and to possess dominion; for if it be lawful to acquire property, it must be lawful to acquire all that is necessarily attendant upon property, i.e. the dominion which an over-balance in property will necessarily produce. 2. As an attempt to change government, without changing the over-balance of property, or to fix government without a fixation of the balance of property, is an attempt contrary to nature; so to endeavour to violate property in order to change government, is unjust force. All violation of property is unjust. 3. But he or they who hold the over-balance of property, and consequently the reins of government, are certainly obliged by the law of nature to make their dependents as happy as they can, as much men as they can. This must be true, or the law of love is a mere empty sound. Edition: current; Page: [462] And therefore, 4. Tho’ it cannot be pronounced unlawful for one or many, who have the over-balance in property, to hold it, no more than it is for one or many, to make use of the authority their superiority in wisdom may give them; yet it is certainly unlawful to exercise power in consequence of property in an injurious, oppressive manner over dependents, as if they were not men; as it is unlawful to make use of superior prudence, or rather cunning, in order to deceive and mislead those who pay submission and reverence to it, to their ruin or hurt. 5. It is certainly the natural right, nay, the natural duty of a people, when providence puts it in their power, by any revolution bringing property to such a balance, that an equal happy government can be constituted, to constitute such a government, and to fix and secure its duration by the only natural way of fixing and securing it. This must be their duty, if it be a people’s duty to consult their best interest, or to provide for their own greatest good, and the secure continuance of happiness to their posterity. And then does providence give this opportunity, and consequently call to this duty, when by the course of things, without forcible removal, or violation of property, the people come to have the balance. And, 6. Whoever hold the over-balance of property, and by consequence the reins of empire, one or the few, he or they are under the same obligation, to constitute such orders of government as may best promote and secure the general happiness of the dependent people, that they are under to benevolence, because this is what benevolence manifestly requires at their hands. I have said the same obligation that they ly under to benevolence, because of the distinction already explained, which is admitted by all moral writers between perfect and imperfect obligation. And that it is a glorious and noble part to act, who can doubt, who hath a just idea of true glory, I had almost said, any feeling of humanity? Let it not be said that this cannot be expected of mankind. This is an unjust reproach. Our Author has, in the scholium to §144. Edition: 1741; Page: [147] named some instances of generous princes, who made no other use of the rights, even of just conquest, but to make the conquered happy and free. And let me add some other examples from ancient history yet more heroic, as they are narrated, by an author often referred to and quoted in our remarks, with great satisfaction, with all the joy every beneficent mind must needs be touched with, by such god-like instances of generosity and public spirit. “In those ancient Edition: current; Page: [463] and heroic times (when men thought that to be necessary which was virtuous) the nobility of Athens having the people so much engaged in their debt, that there remained no other question among these, than which of those should be King, no sooner heard Solon speak, than they quitted their debts, and restored the commonwealth, which ever after held a solemn and annual feast, called the Sisacthia or Recision, in memory of that action. Nor is this example the Phoenix; for at the institution by Lycurgus, the nobility having estates (as ours here) in the lands of Laconia, upon no other consideration than the commonwealth proposed by him, threw them up to be parcelled by his Agrarian.

The Macedonians were thrice conquered by the Romans, first under the conduct of Titus Quintus Flaminius, secondly, under that of Lucius Aemilius Paulus, and thirdly, under that of Quintus Caecilius Metellus, thence called Macedonicus. For the first time Philip of Macedon, who (possest of Acrocorinthus) boasted no less than was true, that he had Greece in fetters, being overcome by Flaminius, had his kingdom restored to him, upon condition that he should immediately set all the cities which he held in Greece and in Asia at liberty; and that he should not make war out of Macedon but by leave of the senate of Rome, which Philip (having no other way to save any thing) agreed should be done accordingly. The Grecians being at this time assembled at the Isthmian games, where the concourse was mighty great, a crier, appointed to the office by Flaminius, was heard among them proclaiming all Greece to be free; to which the people, being amazed at so hopeless a thing, gave little credit, till they received such testimony of the truth as put it past all doubts; whereupon they immediately fell on running to the proconsul with flowers and garlands, and such violent expressions of their admiration and joy, as, if Flaminius, a young man about thirty three, had not also been very strong, he must have died of no other death than their kindness, while every one striving to touch his hand, they bore him up and down the field with an unruly throng, full of such ejaculations as these: How! is there a people in the world, that at their own charge, at their own peril, will fight for the liberty of another? Did they live at the next door to this fire? Or what kind of men are these, whose business it is to pass the seas, that the world may be governed with righteousness? The cities of Greece and Asia shake Edition: current; Page: [464] off their Iron-fetters at the voice of a crier! Was it madness to Edition: 1741; Page: [148] imagine such a thing, and is it done? O virtue! O felicity! O fame!

In this example we have a donation of liberty to a people, by restitution to what they had formerly enjoyed, and some particular men, families or cities, according to their merit of the Romans, if not upon this, yet upon the like occasions, were gratified with Latinity: But Philip’s share by this means did not please him; wherefore the league was broken by his son Perseus; and the Macedonians thereupon, for the second time, conquered by Aemilius Paulus, their King taken, and they some time after the victory summoned to the tribunal of the General, where remembering how little hope they ought to have of pardon, they expected some dreadful sentence: When Aemilius in the first place declared the Macedonians to be free, in the full possession of their lands, goods and laws, with right to elect annual magistrates, yielding and paying to the people of Rome one half of the tribute which they were accustomed to pay to their own Kings. This done he went on, making so skilful a division of the country, in order to the methodizing of the people, and casting them into the form of popular government, that the Macedonians, being first surprized with the virtue of the Romans, began now to alter the scene of their admiration, that a stranger should do such things for them in their own country, and with such facility, as they had never so much as once imagined to be possible. Nor was this all; for Aemilius, as if not dictating to conquered enemies, but to some well-deserving friends, gave them, in the last place, laws so suitable, and contrived with such care and prudence, that long use and experience (the only correctress of works of this nature) could never find fault in them.3

In this example, we have a donation of liberty to a people, that had not tasted of it before, but were now taught to use it.

But the Macedonians rebelling, at the name of a false Philip, the third time against the Romans, were by them judged incapable of Liberty, and reduced by Metellus to a province.”

Now, with respect to incapacity of liberty, I beg leave to add a remark Edition: current; Page: [465] from the same author. “A man may as well say, that it is unlawful for him, who has made a fair and honest purchase, to have tenants, as for a government, that has made a just progress, and enlargement of itself, to have provinces. But how a province may be justly acquired appertains to another place.4 (Our author treats of just war afterwards; and this Author treats of propagation and holding at great length)—The course Rome took is best; wherefore, if you have subdued a nation that is capable of liberty, you shall make them a present of it, as did Flaminius to Greece, and Aemilius to Macedon, reserving to yourselves some part of that revenue which was legally paid to the former government, together with the right of being head of the league, which includes such levies of Edition: 1741; Page: [149] men and money as shall be necessary for the carrying on of the public work. For if a people have, by your means, attained to freedom, they owe both to the cause and you such aid as may propagate the like fruit to the rest of the world. But whereas every nation is not capable of her liberty to this degree, lest you be put to doing and undoing of things, as the Romans were in Macedon, you shall diligently observe what nation is fit for her liberty to this degree, and what not; which is to be done by two marks: the first, if she loves the liberty of mankind; for if she has no care of the liberty of mankind, she deserves not her own. But, because in this you may be deceived by pretences, which continuing for a while specious, may afterwards vanish; the other is more certain, and that is, if she be capable of an equal Agrarian; which, that it was not observed by excellent Aemilius in his donation of liberty, and introduction of a popular state among the Macedonians, I am more than moved to believe for two reasons. The first, Because at the same time the Agrarian was odious to the Roman patricians. The second, That the Pseudo-Philip could afterwards so easily recover Macedon, which could not have happened but by the nobility, and their impatience, having great estates, to be equalled with the people: For that the people should otherwise have thrown away their liberty, is incredible.”5

But because it will be very easy to draw a solution from the principles which have been laid down to all the questions about government; and Edition: current; Page: [466] because the enquiry, what constitution of government is best, belongs not to the present subject, we shall take leave of our author here, and add no more to what he says; but in the first place, That no maxim is more false than that whatever government is best administred is best.6 That only is good, which is, by its frame, well secured against bad men, and bad administration. 2. Nor is another maxim in politics less dangerous, which asserts that good men make good laws. It is the maxim of Demagogues. The truth is, that good laws or orders make good men. And a government ought to trust to its constitution and orders, and not to men. 3. The chief matter, the whole mystery of government is revealed to us every day (to use the words of an excellent author) by the mouths of babes, as often as they have a cake to divide; for this is their natural language, “I will divide, and you shall choose.”7 To which we may apply what Horace says of other natural instincts or directions. Unde nisi intus monstratum?8 The whole secret of a well poised equal government, lies in dividing and choosing, as the same author we have so often quoted hath shewn at great length. Dividing and choosing, in the language of a commonwealth, is debating and resolving. And in order to a right division and choice, as the council dividing, should consist of the wisdom of the commonwealth, so the assembly or council choosing, should consist of the interest of the commonwealth. The wisdom of the few may be the light of mankind, Edition: 1741; Page: [150] but the interest of the few is not the profit of mankind, nor of a commonwealth. Therefore, as the wisdom of the commonwealth is in the aristocracy, so the interest of the commonwealth is in the whole body of the people. Edition: current; Page: [467] And whereas this, in case the commonwealth consist of a whole nation, is too unwieldy a body to be assembled, this council is to consist of such a representative as may be equal, and so constituted as can never contract any other interest than that of the whole people. Whence it follows, 4. That government, de facto, may be an art, whereby some men, or some few men subject a city or nation, and rule it according to his or their private interest: which, because the laws, in such cases, are made according to the interest of a man, or of some few families, may be said to be the empire of men, and not of laws. Yet government, de jure, is an art, whereby a civil society of men is instituted and preserved upon the foundation of common right or interest, which is properly called by Aristotle, an empire of laws, and not of men.9 The necessary definition of a government, any thing well ordered, is, that it is a government, consisting of the senate proposing, the people resolving, and the magistracy exercising. Our excellent constitution hath been judged by the most renowned politicians the very best. See our author, §116 in the scholium. But the discussion of this equally curious and important subject, belongs not to the present question.

Edition: current; Page: [468]

CHAPTER VIII: Concerning the immanent rights of majesty, and the just exercise of them.

SECTION CXLVIII

The internal security of a civil state consists in external justice.The immanent or internal rights of majesty, are rights so inseparably connected with it, that the security of the subjects cannot be attained without them (§134). Since therefore this security consists in this, that no subject may be injured by any other, and every one may have his own, or whatever he has a perfect right to demand; the consequence is, that it lies chiefly in external justice, by which we understand conformity of external actions to law; and therefore they are not in the wrong who contend, “That civil states were constituted for the sake of justice; or that (Velleius Pater. hist. 2. 80),1 by giving force to laws,* and authority to Edition: 1741; Page: [151] courts of justice, industry and religion might be encouraged, and property might be sure, and every one might enjoy with security his Edition: current; Page: [469] own lawful acquisitions”: And therefore they justly assert that a civil state cannot subsist, unless that justice prevail in it, by which subjects are kept to their duty, Aristot. polit. 1. 2.

SECTION CXLIX

To sovereignty therefore belongs a legislative power.Because external justice, necessary to the security of a civil state, consists in the conformity of external actions to law (§148), the consequence is, that it is the office of the supreme powers to arm a state with laws; and therefore they must have the right and power of law-making, and of executing the laws, and consequently of adjusting the laws to the end, form, and interest of the republic.* They have therefore power and right to add to them, take from them, abrogate or change them, as the good of the state may require; which power is expressed by the Roman lawyers in a stile Edition: 1741; Page: [152] accommodated to the nature of the Roman government, by rogare, obrogare, derogare, abrogare, surrogare, Ulpian fragm. 1. 3.2

Edition: current; Page: [470]

SECTION CL

What civil law is, and what is its object?Since there ought to be one understanding and one will in a state (§114), which thus happens, when all the members have the same end in view, and choosing the same means, regulate all their actions by the same rule; an agreement that cannot be expected, considering the diversity of human dispositions, otherwise than by the submission of all the members of a state to the will of its rulers (§114); hence it follows, that the supreme power ought to make the rule known to which he would have them to conform their external actions, which are in themselves indifferent. Now, this can only be done by prescribing laws to them; and therefore civil laws are commands of the supreme power in a state concerning the regulation of external, indifferent actions for the good and honour of the state; whence it is evident, that this legislative Edition: 1741; Page: [153] power cannot extend to the subversion of divine laws (l. 1. §17).

SECTION CLI

What power or authority the supreme magistracy hath with regard to divine laws.We say, that civil laws consist in the adjustment of the external indifferent actions of subjects to the honour and interest of the state (§150). For tho’ it be often necessary that magistrates repeat some divine positive as well as natural laws, and extend and interpret them;* give actions and civil remedies against transgressors of them; and threaten punishments Edition: current; Page: [471] to those who shall dare to violate laws established by God himself; yet it is plain, from the nature of the thing, that then these laws do not owe their original obligation to the will of the civil magistrate, but that he then only exerts himself, as guardian of the divine laws, to make their authority sacred in the state.

SECTION CLII

The constituent parts of a law.Because civil laws are commands of the chief magistrate concerning the regulation of external indifferent actions for the good and honour of the state (§150); but such is the nature of mankind, that internal obligation alone is not sufficient to influence them (l. 1. §8); nay, civil laws cannot Edition: 1741; Page: [154] produce internal obligation (l. 1. §7); the consequence is, that all civil laws must be enforced by some penal sanction; and therefore a perfect law consists of two parts, the preceptive part, and the penal sanction: But rewards are not due by a republic to those who obey its laws; unless something be not promiscuously enjoined to all the subjects, but it be proper that some should be excited by a particular condition to do something extraordinary for the public good.*

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SECTION CLIII

Penal sanction is either definite or indefinite.Seeing by punishment is understood an evil effect of the transgression of a law (l. 1. §99), which evil effect may consist not only in a certain evil of suffering, but likewise in the nullity of the act done in disobedience to a law; yea, in both: For this reason, a law which both pronounces an act contrary to it null, and renders a transgressor liable Edition: 1741; Page: [155] to some evil of suffering, is called by the Civilians a perfect law; and other laws are called imperfect, or less than perfect, Ulpianus fragment. 1. 1.3 Moreover, because an illicite action may be either determinate or indeterminate, and may be varied by a great diversity of circumstances (l. 1. §100), the consequence is, that punishment may be definite or indefinite and arbitrary.

SECTION CLIV

Judiciary power likewise belongs to the supreme magistrate.Because laws would be ineffectual, were they not applied to facts; i.e. unless enquiry were made into the agreement or disagreement of actions with laws (l. 1. §95); it follows, that there must be some person, in a civil state, who hath the power of judging of the imputation of actions; which power, is nothing else but a power of judging of the actions of others (l. 1. §97); whence it is plain, that judiciary power is necessary in a republic. Now, because between equals neither magistracy nor punishment can take place (§6), this judiciary power in a republic must belong to the superior; i.e. to the supreme power in it;* and therefore it is one of the internal rights of majesty (§134).

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SECTION CLV

What it is, and how it ought to be exerced.But it being the office of a judge to apply laws to facts or actions, and actions contrary to law being either detrimental to the republic itself, or to Edition: 1741; Page: [156] private persons; it follows from hence, that all judgments are either private or civil, public or criminal; the former of which consist in determining suits or controversies; the latter in punishing bad actions, Cic. pro Caecin. c. 2. And tho’ a prince cannot be blamed, if he delegates the judiciary power to prudent and good men, skilled in the laws (l. 1. §101), and so constitute magistrates and judges every where; yet there ought always to be access to the supreme power for those who think themselves oppressed by an unjust decree of the judges; and therefore, the ultimate determination of doubtful causes belongs to the Sovereign of a state.*

SECTION CLVI

As also the power of punishing.Because it belongs to a judge to apply laws to facts, and to determine whether an action be imputable to a person or not (l. 1. §95); but to impute an action, is to declare whether the effect assigned by a law to a certain action takes place or not (l. 1. §99); hence it follows, that the Sovereign, who has the supreme judiciary power, has also the power of inflicting punishments. And be-Edition: 1741; Page: [157]cause it cannot be denied, that he who hath the power of making laws, must also have the power not only of taking away a part of a law, or of making some exception to it, Edition: current; Page: [474] but even of abrogating a law (§149); much less can it be refused, that he hath the power of exeeming a delinquent for just reasons from a law, so as to give him a remission from the punishment due by it.*

SECTION CLVII

Whether this power can take place among equals?Hence again we conclude, that there is no right of punishing among equals, and that neither one’s integrity of life, nor another’s confirmed inveterate habit of sinning, gives an equal any right of punishing; and therefore, that the nature of punishment is not fully pointed out by Grotius’s definition of it, who says, “It is an evil of suffering inflicted for an Edition: current; Page: [475] evil of doing.” Nor by Becmann’s, “who defines it to be pain inflicted for a crime.” The evil of suffering inflicted by the sufferer, is not punishment, but revenge; and if it be inflicted by a third person, who is not a superior, it Edition: 1741; Page: [158] is injury. But that neither of these ought to be permitted in a civil state, is plain from hence, that the judiciary power in it belongs only to the supreme magistrate, and those to whom he hath delegated and intrusted it (§154, 155). Edition: 1741; Page: [159]

SECTION CLVIII

What are the ends of punishments.Nor will it be difficult to determine what is the end of punishment from the very reason which makes it requisite. For since punishment, properly so called, took its rise upon the introduction of civil government (§6), and the right of inflicting it, is one of the immanent rights of civil majesty (§134); the end of which is nothing else but the security of subjects; the consequence is, that the same must be the end of punishments. But because subjects are rendered secure, by reducing them in such manner, that they shall no more be disposed to transgress, or that they shall no longer have it in their power; i.e. either by amending them, or by taking the power from them of offending for the future; hence it is evident, that the former is the end of punishments, which are inflicted without taking away the criminal’s life; and that the latter is the end of capital punishment, “punishment joined with the loss of life,” as Justinian Edition: current; Page: [476] speaks, §2. Instit. de pub. jud.* And because sufficient provision would not be made for the security of the state, if those only who had offended should cease to transgress, and the like transgressions may still be apprehended from others; it is obvious, that by the same punishments, as by examples, others ought to be admonished of the danger of transgressing; and therefore the guilty ought to be punished publickly, unless some weightier reason forbid it. Edition: 1741; Page: [160]

SECTION CLIX

Whether a delinquent be obliged to suffer punishment?These principles being fixed, it is very perspicuous, whether there be any obligation upon a delinquent to suffer punishment. For since he who lives in a civil state, is obliged to all, without which its end, i.e. the public security, cannot be obtained or expected (§106), undoubtedly a delinquent is obliged to suffer the punishment defined by the law, tho’ not to punish himself, and therefore not voluntarily to offer himself to cruel sufferings: no injury is done to one who suffers condign punishment, Edition: current; Page: [477] being convicted of a crime; nor is it lawful to any one to resist the supreme power, when it inflicts the punishment appointed by law. Edition: 1741; Page: [161]

SECTION CLX

If all crimes ought to be punished, and what crimes ought to be punished.Now, from the end of punishments (§158), we infer, that they ought to be adjusted to the end of the republic, and therefore to be of such a nature as is most proper for its internal security. Whence it follows, that the supreme power is obliged to punish such crimes as disturb the security of the state, or hinder the subjects from living conveniently and tranquilly. But it is not necessary to punish vitious acts which rest in the mind, nor yet such minute faults as every man is liable to; nor the omission of the offices of humanity, unless these crimes become, by their prevalence, dangerous, or disgraceful to the state, and therefore necessity oblige to restrain even them.*

SECTION CLXI

Who are to be punished.It is abundantly plain, from the very definition of punishments (l. 1. §99), that they only ought to be punished who have committed any evil action; not their heirs or their families, or sureties, who bound themselves Edition: current; Page: [478] to punishment for others, contrary to right and justice (l. 1. §146). But since whole societies constitute one moral person (§19), and therefore are bound by the same laws prescribed to the rest (§23), it is obvious, Edition: 1741; Page: [162] that communities and societies may be punished, tho’ humanity itself pleads for the mitigation of the punishment, that the innocent may not suffer equally with the guilty; and that those who transgressed by mistake, or thro’ weakness of judgment, may not feel the same severity with those who were the stirrers up and ringleaders in such tumults. And in punishing large bodies, corporations or communities, that the remedy may not be worse than the disease, care ought to be taken that fear may affect all, and punishment may reach but to few.

SECTION CLXII

The principles upon which the quantity of punishment is determined.What kind of, and how great punishments ought to be inflicted, is plain from the nature and end of punishment. For since the end of punishment consists in the security of the subjects (§158), the consequence is, that punishment ought to be sufficient to impress fear, and to restrain and coerce evil dispositions. But such being the nature of mankind, that any evil concupiscence, which hath once got possession of the heart, cannot be restrained, but by setting before men a greater evil or good, (l. 1. §52); hence we have reason to conclude, Edition: 1741; Page: [163] that a penal sanction will not impress sufficient fear, unless men judge it a gre